Apart from the question as to the error assigned that the relator was dismissed after a trial upon which the witnesses were not sworn, in violation of rule 197 of the department, it has heen repeatedly held, that the court is bound to inquire whether there was any competent proof of all the facts essential to justify the dismissal. The relator was dismissed, not because by dereliction of duty he had failed to prevent the burglary, but because he had failed to discover it after it was committed. One of the essential facts to be proved was the time when the burglary was committed, this being necessary to determine which of the patrolmen among the five summoned to answer to the charge was guilty. The only testimony oil this point was that of the acting captain, who stated that he had received his information from the burglar, blot only was this hearsay, but the captain was in doubt as to the exact information which he had received, because, as his testimony shows, he stated in one place that the burglary was committed at twelve o’clock Monday night, and, subsequently, when asked by the commissioner if it was committed about twelve o’clock on the night of Saturday, he answered “ Yes,” so that we are left in doubt as to whether the burglar told him that it was Saturday or Monday night when the burglary was committed, and as Sunday intervened, there is just as reliable testimony for inferring that it might have been committed on that night.
Apart, therefore, from the error assigned as to the failure to comply with the rule of the department as to- swearing the witnesses, which we do not now pass upon, we think there was no competent evidence of one of the essential facts necessary to be established, and where, as here, the judgment' would deprive the relator of his position on the force, it should be supported by competent and satisfactory evidence. As that was absent in this case, the proceedings must be annulled and the relator reinstated, with fifty dollars costs and disbursements.
Van Brunt, P. J.,. Williams, Patterson and Ingraham, JJ., concurred.
. Proceedings annulled and relator reinstated, with fifty dollars costs and disbursements.