People ex rel. Harvey v. McClave — 36 N.Y. St. Rep. 987

Majority

p. 987

The People ex rel. John L. Harvey v. John McClave et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Municipal corporations—Police-Removal.

Relator was removed for being absent without leave for four hours. He claimed to have been ill, and that he attempted to send notice thereof to the station house, but no such notice was received, and relator presented no certificate of the police surgeon or other evidence confirmatory of his story. Held, that the removal was proper.

Certiorari to review the judgment of the hoard of police dismissing the relator from the police force.

L. J. Grant, for relator; J. J. Delany, for resp’t.

The relator, a patrolman of the police department, was dismissed after trial by the commissioners finding him guilty of a charge of neglect of duty in that he was absent without leave for a period of four hours. The evidence of the

p. 988

relator is to the effect that on his night off, being free from duty; he went to see some of his relatives and was taken ill, that he attempted to send notice to the station house of this fact, but no such notice was received, and upon learning this fact the relator claims he went directly to the station house and notified the sergeant. Ho evidence whatever confirmatory of this remarkable story was offered; although if true it undoubtedly was possible for the relator to have furnished such evidence.

Among the rules of the board of police is one that any patrolman absent from duty without leave shall forfeit all pay for the time of such absence and be fined, reprimanded or dismissed from the force at the discretion of the board of police, except in case of sickness when properly certified by the police surgeon. The relator made no effort to get the certificate- of the surgeon, and in no manner attempted to fortify by other evidence the fact that he had been ill at all. If he had been ill it is clear" that he could have established it by other evidence.

We think the charge was established beyond question and that the relator was properly dismissed.

The writ should be dismissed, with costs.

Brady and Daniels, JJ., concur.