Were there no questions presented but those relating to the merits, we could easily dispose of this appeal. We have frequently held that the good of the service requires that a. wide discretion should be vested in the commissioners, and that their j ndgment, unless there ' is an absence of evidence to sustain'it, will not be disturbed. This is but a corollary of the rule that the board of police being the ■ statutory judges of offenses against discipline and efficiency of the force, their finding on the facts,: though the evidence is conflicting ' or contradictory, is conclusive. We have not, therefore, referred to the merits,, nor do we think a. discussion thereof proper, because the ; principal question is, Was- the relator dismissed after a fair trial ?
Justice requires upon a trial that the hearing shall be full and fair ; and where, it appears that through- design or inadvertence this has not been accorded; or ■ where by the action of the judge, or in reliance upon .his assurance, the accused lias been induced to withhold testimony in his favor, and is thereby prejudiced, it is but right that a judgment against him, upon such facts appearing, should not stand: In reaching a conclusion here as to. whether the relator was - misled or prejudiced, we should carefully .note the distinction . between the dispute which has arisen as to the facts themselves appearing on the trial, arid those which-relate to the subsequent pro-' ■-ceedirigs before the board of. police-,, when 'the trial commissioner made llis report and when the relator, not being present, was dismissed. There is an. undoubted conflict between the record of what' took place at the meeting of the police board, and the recollection •of the trial- corinnissioner, which we think it-unnecessary to decide; because if it is shown that the trial commissioner'assured the relator that he would move to strike, out the testimony of the two principal witnesses against him,- and recommend a dismissal of the charges, and that, therefore, he'had no desire to hear any more witnesses, and that afterwards when with his associates at the board meeting lie overlooked his promise,, and forgot or neglected to fulfill ■it, it was as prejudicial to the relator as though he had informed his .associates'fully of the facts, and had recommended and voted for. a *559dismissal of the charges, and been voted down. For if the trial commissioner, by assurances that it was unnecessary, had induced the relator to withhold evidence of witnesses then in court who might have proved his innocence, then clearly he was not fairly tried ; and upon a statement of such facts to the board, they should, if they differed with the trial commissioner, have afforded the relator the opportunity to produce such witnesses before deciding that he was.guilty. If, on the other hand, the trial commissioner ■did not fully apprise them of what lie had done on the trial, or of the assurances given by him to the relator, that it was unnecessary to. call any more witnesses, and the board without .being so informed proceeded to judgment, then we must reach the same result, because their determination to dismiss was reached in ignorance of the facts.
Except as affecting the credibility of the trial commissioner, what occurred before the full board, or what appears by its records, is to a great extent immaterial. The question is, What took place upon the trial ? not, What occurred at the subsequent meetings of the board ? The relator was not present at such meetings and was not in a position there to protect his rights; and if the trial commissioner neglected to present the facts fully, or having fully presented them, if he was voted down, we think that justice in either case requires that the judgment of dismissal should not stand. This brings us, therefore, to what we regard as the crucial question in the case, and that is as to whether the trial commissioner upon the trial gave such assurances that, relying thereon, the relator was induced to withhold witnesses who were in court, and whom for that reason he did not call to prove his innocence.
Upon this question, as to what occurred upon the trial, while the stenographer’s minutes do not show that any assurances were given, it was because of that fact that the many proceedings were taken which have resulted in presenting the affidavits of the stenographer and the return of the trial commissioner. This course was deemed necessary, because the commissioners in office at the time the first return was made were no more cognizant of what took place upon the trial than were the associates of the trial commissioner who made the final return; and the only doubt created or question raised as to what took place upon the trial is that presented by the presumption of the correctness of the stenographer’s minutes, supple-*560men ted by the affidavits of the stenographer,, as 'contrasted with the return and affidavit made by the trial commissioner. There was no other way of disposing of the .question as to the fullness of' the stenographer’s minutes and their'accuracy than to-require a return' by the trial commissioner. Such-return, supplemented as it is by corroborating affidavits, ive think, should betaken as true.. The commissioner states- under oath what the rélatór insists, then occurred, viz., that the commissioner at the last 'hearing, being- informed that additional1. witnesses were present, stated that, inasmuch ás he intended to recommend the dismissal of the complaint, he did not desire to hear any more testimony. It will be noticed that, while the-stenographer in his first affidavit endeavored to uphold the accuracy of his notes, 'and .was inclined to think that the commissioner’s recollection was in fault, he receded from this position in his-subsequent affidavit by' saying that he was unable to deny the. truth of the commissioner’s statement, and admitted, that frequently he did not take down statements made by commissioners on trials of policemen,, because- he did not regard them as part of the minutes-of the trial, and that he may not have done so in this .particular .case.'' The commissioner, is corroborated,, moreover, by. the record of the board of police, from which it appears that at a meeting of the full boaqdhe did recommend both striking out and that the charges be dismissed. It thus appears that the minutes of the trial, in consequence of CominissionerSheehan’s refusal to hear testimony, do.not contain all- the evidence of -the relator;. and also that the only commissioner who took the evidence, ■ and was acquainted with all the facts and circumstances,., recommended that all-the'mate rial-parts, of the evidence be stricken'out. We' concede that- if all the evidence was in the record the other commissioners' would -not be bound by the views of the trial commissioner " as to the disposition to be made of. the motioiq nor bound to sustain his vieWS'.that. the charges should-be dismissed. , But where, as here, ■ it appears that the relator was led to close his case without calling three or-four .witnesses then present in court, because the commissioner stated that "he would récoimmend the-board" to strike out the testimony, and for -that re'ason would not -hear any more testimony, it would, be unjust for the commissioners, with or without knowledge' of what. took, place at the trial, and in the absence of' the relator, to refuse to .grant the motion to strike out and pro-. *561ceed to pass judgment of dismissal. The course for the commissioners to have taken, would have been, with the knowledge of the facts before them,' to send the case back and afford the relator the opportunity to put in- any further testimony -he might have to-offer. It may be that these hearings are not to be technically regarded as common-law trials; but on any trial, common law 01-otherwise, if, as in this case, the accused is not accorded a full and fair trial, then the course taken resulting in his conviction is against, all rules and the very spirit of justice. -
Our conclusion is that the action of the respondents should be-reversed, with costs, and the relator restored to his office.
Williams and Parker, JJ., concurred.