108 N.Y.S. 848 | N.Y. App. Div. | 1908
The relator was an employee of the tenement house department of the city of Hew York. Charges having been made against him, he was served with a copy thereof, and notified that he. would be accorded a hearing on the said charges at a time and place named. The relator was also notified that lie would be required to show by legal proof that he was entitled to a hearing which the Civil Service Law accords veteran firemen. When these charges were brought on for hearing, the relator appeared by counsel.and offered in evidence as proof of the fact that he was a volunteer fireman and entitled to a hearing as such, a paper'which purported to be a certified copy of an instrument on file in the office of the clerk of Bichmontjl county. This instrument was signed by various persons calling themselves president, foreman, treasurer and secretary, which certified that the relator was elected an active member of a hook and ladder company at Hew Brighton, Staten Island; that he had faithfully performed his duties as an active volunteer .fireman in said company and was a member in good standing in said company on October 1, 1905, the date of the extension of the paid fire department to the fire district protected by this company. When this instrument was offered to the commissioner he stated that he did not accept the certificate as final or conclusive evidence, and the relator’s counsel then.stated that that was all the evidence the relator had to offer. The relator was then sworn as a witness by the commissioner and asked questions as to his service in this Bichmond Hook and Ladder Company, Ho. 4, which questions the relator refused to answer; whereupon the commissioner decided that this certificate was not satisfactory evidence as to the relator being a veteran fireman and that, therefore, he would not be accorded the trial to which he would have been entitled had he proved that he was a
The only question presented upon, this appeal is whether the commissioner was bound upon the production of this' certified copy of the certificate on file with the clerk of Richmond county to accord the relator the trial provided for hy section 21 of chapter 3.70 of the Laws of 1899, as amended by chapter 697 of the Laws of 1904. The provisions authorizing a certificate to be filed in the county of Kings in relation' to' voluhteer fire companies in certain towns in that county-did not' apply to. Richmond county. There. is, however, a provision in chapter 449 of the Laws of 1900 which would entitle ' a- member of a volunteer fire company or association who had been deprived of the right to serVe his full term as a volunteer fireman tó a- full and honorable discharge and all the rights and privileges now granted by law to a volunteer fireman who has - served as such the time required by law;- and authorizing the trustees or the officers of such -volunteer fire department or volunteer fire engine and - hook and ladder company to file in the office of the -clerk of the county in which .such department or company is located, a list containing the names of every person who was a mémber of the volunteer fire department or company who is entitled to an exemption certificate in accordance with the. provisions of the act, and the county "clerk was authorized to sign and deliver exemption certificates provided for in the act to the persons entitled thereto, whose names ■ appeared upon the list filed with him as aforesaid. There is no provision cited which makes this- certificate of the county clerk either competent or conclusive evidence of the truth of the facts' therein- stated, and' there is certainly nothing' in the statute which prevented 'the defendant from disproving the truth of the facts stated in- this certificate filed with the county clerk, or the Statement in' the certificate of the county clerk that the -relator was entitled to all the exemptions and privileges-granted to Volunteer firemen upon the disbandment of- their companies on the extension Of the 'paid system to the territory protected by them. Assuming that the production of this certificate by the relator was some evidence as to his right to claim the privileges secured to an exempt fireman, I think the commissioner clearly had--the right to disprove
In connection with this application attention should be called to the nature of the answer of the relator to the charges made against him. By the first charge the relator was accused of violating a section of the charter of the city of Hew York by reporting that order Ho: 82 had been complied with in the premises Ho. 406 East Twenty-fourth street, whereas a subsequent" report by'an inspector states that such order Ho. 82 had not been complied with. The only answer of the relator to that charge was that the specification does not set forth facts sufficient to constitute an offense and that the commissioner of the tenement house department is without jurisdiction to' try or determine the question whether the section had been violated" by the relator. The second charge was that the relator had violated rule 11 of the rules and regulations of the tenement house department and had violated rule 9 of such rules and regulations of the tenement house department by entering a barroom or drinking saloon on the morning of December 22; 1906. In his answer to the second charge the relator alleged that as no date is set forth in the specifications he has not sufficient information to enable him" to properly reply thereto, and denies the allegation about entering the barroom. Thus the only denial of the relator to" any of these charges was that charging him with entering a
The writ should, therefore, be dismissed and the proceedings affirmed, with fifty dollars costs and disbursements.
Patterson, P. J., Clarke, Houghton.ánd Scott, JJ., concurred.
Writ dismissed and proceedings - affirmed, with fifty dollars costs and disbursements.