People ex rel. Brady v. Brookfield

39 N.Y.S. 677 | N.Y. App. Div. | 1896

Patterson, J. ■:

■ The relator, claiming to be an honorably-discharged Union soldier and also an honorably discharged volunteer fireman, had been in ■the employment of the department of public works as acting inspector of paving from March, 1888, until the 15th of July, 1895, when he was removed by the respondent, then commissioner of public works. He now claims that he was unlawfully removed, and did not have that notice and hearing to which he was entitled by the statutes, of this State as a discharged .veteran soldier.

Under the provisions of such statutes, the relator was entitled to both notice and a hearing, that is to say, an opportunity to defend himself, upon a charge made against him. The facts as they appear are, that on the18th day of July, 1895, the relator received a communi•cation from the deputy commissioner of public works, requesting him. to call at the office of the respondent on the 11th of July, 1895, at twelve o’clock, to answer certain charges preferred against him for neglect of duty. That was a distinct notification that there was a charge made against him of “ neglect of duty,” and it was in fact a notification, that' an investigation or hearing of the charge would be made on the day and at the hour appointed. It was not a specific ■charge, and if the relator had objected to being called upon to answer without a distinct specification, the insufficiency of this notice might have been a serious defect. On the' llth of July, 1895, the relator appeared in obedience to the notice previously given,, and without objection of any kind and without requesting any delay, proceeded with the inquiry upon the charge made against him. Statements of witnesses as to the specific facts of the neglect of duty of which the relator was accused were taken,, and he, conducting his own defense, cross-examined the parties making such statements, gave his own explanation, and the proceeding was conducted with formality, as the stenographer’s minutes show; and the determination of the commissioner dismissing the relator was the result of an orderly procedure taking the form of a trial, in all which the relator acquiesced.

The particular point made on the appeal to us from the decision of the court below, is that .the witnesses against the relator at the investigation were not sworn. The record does not show that an oath was. administered to anybody, but the law does not seem to require that' the witnesses be sworn in such a proceeding. The relator’s own denial and statements were not attested by oath, but were recorded and considered without it. Having acquiesced in all that was done, and having deliberately- made himself a party to the whole proceeding in the form and manner in which it was conducted, and there being nothing to show that there was any unfairness in the conduct of the commissioner, or that the appellant had suffered from any prejudice or any wrong, we think the action of the court below in dismissing the motion for the writ was right, and that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J\, Williams, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.