People ex rel. Hughes v. Sanford — 35 N.Y.S. 29

Majority

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PEOPLE ex rel. HUGHES v. SANFORD et al.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Fireman—Discharge—Neglect op Duty—Evidence.

A charge of neglect of duty by a fireman in failing to feed and water horses left in his care between 9 o’clock of one evening and 3:30 o’clock of the next day is not proved where the only person testifying against the fireman said that he knew nothing of the matter, but believed the charge true, and swore to a conversation with the fireman, which it was claimed amounted to an admission of the charge, and the fireman denied making' an admission, and it appeared by uncontradicted evidence that the horses-were fed at 9 o’clock in the morning and watered at 11 o’clock.

Certiorari by Patrick J. Hughes to review the determination of Horatio S. Sanford and others, composing the board of fire commissioners of Long Island City, in adjudging relator guilty of neglect of duty, and dismissing him from the fire department.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Thomas P. Burke, for relator.

William E. Stewart, for respondents.

This proceeding is a certiorari to review the determination of the respondents dismissing the relator from the position of fireman in the fire department. The respondents were empowered to remove employés for “incapacity, neglect of duty, or misconduct.” The relator was charged with neglecting to feed or water horses left in his charge from 9 o’clock p. m. on July 20, to 3:30 p. m. on July 21, 1893. It appears that at 12:30 a. m., July 21st, an alarm summoned the relator and his company to a large fire, and he was on duty there the balance of that night and part of the next day. The only witness called to substantiate the charge was Alexander Grady, the company’s foreman. He knew nothing of the matter himself, but testified that he believed the charge was true. He swore to a conversation with Hughes, which, it was claimed, amounted to an admission of the charge of neglect. Hughes denied on the witness stand that he admitted to Grady that the horses were not fed or watered until the afternoon of the 21st, and it appeared by uncontradicted evidence that they were fed about 9 o’clock in the morning and were watered about 11 o'clock. The charge of neglect was

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not proved, and the commissioners were not authorized to dismiss the relator. The order must be reversed, and the relator restored to his position, with $50 costs. All concur.