
    The People of the State of New York ex rel. James McDermott, Relator, v. Theodore Roosevelt and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.
    
      Dismissal of a member of the police force of the city of New York—duty of the court upon a certiorari to review it.
    
    Upon a certiorari to review the action of the police commissioners of the" city of New York in dismissing a patrolman from the force, it is the duty of the court, to inquire whether there was any competent proof of all the facts. essential to-justify the dismissal.
    "Where, therefore, the charge is that a patrolman failed to discover the commission of a burglary, the time of the commission of such burglary being important, and the only testimony upon that point is founded upon hearsay, and also leaves it in doubt whether the witness was informed that the burglary was committed upon Saturday night or upon Monday night, the dismissal of the patrolman is not justified.
    Certiorari issued out of the Supreme Court and attested on the 5th day of March, 1896, directed to Theodore Roosevelt and others, composing the hoard of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.
    The specification was that the relator “ failed to prevent or discover a burglary at 131 Wooster street, occupied by George Verhaeren as a restaurant and liquor store, the side glass in basement being broken and 6,000 cigars taken therefrom, valued at $600, during his tour of patrol duty, from 12 midnight to 6 a. m., December 23d, 1895.” Having been served with the charges, the relator appeared and was tried, and at the same time four other patrolmen were tried on the same charges. No witnesses were sworn. In addition to the statement of the owner of the premises and his bartender, that a light was burning in the saloon on the night of the burglary, and that in order to see a break in the glass a person would be obliged to go down the stairs leading to the store in question, the' only other testimony was that of the acting captain, who said : “ Since I preferred those charges against the officers, I have arrested the persons who committed the burglary, and found out the exact time the burglary was committed. It was committed at 12 o’clock at night, and that would leave only Officers McDermott and Burns responsible. * * * The burglary was committed at 12 o’clock Monday night. * * * Q. (By the Commissioner.) How are the others let out? A. Nobody on post but McDermott from 12 to 6, and Burns from 6 to 8, because the burglar told me the exact time that he committed the burglary —■ at 12 o’clock — and Officer McDermott went on at 12 o’clock and stayed to 6, and Burns went on at 6 and stayed to 8. Q. The burglary was committed at about 12 o’clock on the night of Saturday? A. Yes.” Rule 197 of the police department provides: “ Such pertinént testimony as shall be offered for and against the accused shall be, except in trivial cases, taken on oath.”
    
      
      David leveniritt, for the relator.
    
      Theodore Oonnoly and Terence Farley, for the respondents.
   O’Brien, J.:

Apart from the question as to the error assigned that the relator was dismissed after a trial upon which the witnesses were not sworn, in violation of rule 197 of the department, it has heen repeatedly held, that the court is bound to inquire whether there was any competent proof of all the facts essential to justify the dismissal. The relator was dismissed, not because by dereliction of duty he had failed to prevent the burglary, but because he had failed to discover it after it was committed. One of the essential facts to be proved was the time when the burglary was committed, this being necessary to determine which of the patrolmen among the five summoned to answer to the charge was guilty. The only testimony oil this point was that of the acting captain, who stated that he had received his information from the burglar, blot only was this hearsay, but the captain was in doubt as to the exact information which he had received, because, as his testimony shows, he stated in one place that the burglary was committed at twelve o’clock Monday night, and, subsequently, when asked by the commissioner if it was committed about twelve o’clock on the night of Saturday, he answered Yes,” so that we are left in doubt as to whether the burglar told him that it was Saturday or Monday night when the burglary was committed, and as Sunday intervened, there is just as reliable testimony for inferring that it might have been committed on that night.

Apart, therefore, from the error assigned as to the failure to comply with the rule of the department as to- swearing the witnesses, which we do not now pass upon, we think there was no competent evidence of one of the essential facts necessary to be established, and where, as here, the judgment' would deprive the relator of his position on the force, it should be supported by competent and satisfactory evidence. As that was absent in this case, the proceedings must be annulled and the relator reinstated, with fifty dollars costs and disbursements.

Van Brunt, P. J.,. Williams, Patterson and Ingraham, JJ., concurred.

. Proceedings annulled and relator reinstated, with fifty dollars costs and disbursements.  