| N.Y. App. Div. | Jul 15, 1914
The evidence adduced against the relator did not establish any willful or conscious dereliction on his part in the discharge of his official duties. He consulted his then superior officer in regard to the circumstances in question, and followed the advice and direction of his superior. Doubtless a mistake of judgment was made in the matter, but we do not deem this error on the part of the relator and his superior officer as sufficient to justify the dismissal of the relator from the public service. As he was a veteran volunteer fireman he was entitled to a trial, at which the burden of proof rested upon the prosecution to make out its charges by a fair preponderance of the evidence. The determination of the borough president is, therefore, annulled, and the relator reinstated, with fifty dollars costs and disbursements. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.