99 N.Y.S. 600 | N.Y. App. Div. | 1906
The relator was a member of the police department of the city of New York. On the 4th of November, 1903, he disappeared. On November twelfth written charges were made of neglect of
It does not appear from the return that this petition was acted upon by the defendant; the relator, however, alleges in his petition that the respondent refused to grant a new trial or give him an opportunity to present a defense. There is no provision of the charter cited by counsel, or that I am aware of, that gives a police commissioner power to' reverse an action of his predecessor and restore an officer to the force after he has been dismissed. If it had appeared that the respondent denied the application that denial cannot be reviewed in this proceeding. By section 303 of the charter the relator’s absence from duty for five consecutive days is deemed a resignation, and the commissioner was directed to dismiss him from the force without notice. This section of the charter the police commissioner obeyed and upon the evidence before him his action was entirely regular. It was proved that the relator had been absent from duty for more than five consecutive days and the statute required the police commissioner to remove him without notice. So that upon the record the police commissioner’s action in removing the relator was required by the mandatory provisions of the statute and cannot he reversed.
The relator now claims that his absence from duty was not voluntary or intentional but caused by temporary insanity. In People ex rel. Mitchell v. Martin (143 N. Y. 407) it appeared that the relator in that case had been absent from duty for more than five consecutive
The -determination which is sought to be reviewed is entirely regular and required by the charter and this proceeding cannot be maintained.
It follows that the writ must be dismissed, with costs.
O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.
Writ dismissed, with costs. Order filed.