
    In the Matter of Charges Preferred against Police Officer Grace S. Warren of Misconduct in Office.
    Supreme Court, Oneida County,
    February
    (Received September, 1923).
    Mandamus — removal of police officer — return of commissioner to an appeal from order denying motion to reopen case will be ordered.
    Where on appeal from an order of removal after a trial upon charges preferred against a police officer the police commissioner files a return of the proceedings had and taken upon the trial, an order of mandamus may be granted to compel a return by him to a further appeal from an order denying relator’s application to reopen the case on the ground of newly-discovered evidence.
    Application for a peremptory order of mandamus.
    
      Lee, Dowling & Brennan, for petitioner.
    
      Henry D. Williams, corporation counsel, opposed.
   Martin, Louis M., J.

After a hearing on charges preferred Police Officer Grace S. Warren was removed, and from the order of removal an appeal was taken July 6, 1922. A due and proper return was made by the commissioner July 12, 1922, of all proceedings had and taken on such trial to that time.

Subsequently and on August 25, 1922, an application to reopen the hearing was made, practically on the grounds of newly-discovered evidence. This application was denied on September 12, 1922, and a further appeal taken from this order of denial. No return was filed by the commissioner of the subsequent proceedings. His position was that it was not required, and should not be made a part of the original case on appeal. A mandamus order is sought compelling such return.

Return thereto should have been made within ten days, the same as made in the former proceeding. It was a component part of the trial, and a “ complete return of the proceedings on such trial includes this return, the same as the affidavits and proceedings on a trial in the Supreme Court when a motion is made for a new trial on the ground of newly-discovered evidence. The order of mandamus is granted; but inasmuch as it runs against the public official acting in entire good faith, no costs are allowed.

Ordered accordingly.  