The relator was charged with “ neglect of. duty,” the specification being that “said patrolman; George Weidelce, was absent from his post, and was in company with patrolman Michael Howard, on the dock at the foot of East One Hundred and Thirtieth street at 9:24 p. m., April 15th, 1896, during his tour of patrol duty.” While the complaint and specifications of not charge that the relator did anything more than absent himself from duty, the complaining inspector was permitted to testify that the relator was eating oysters, but he disclaimed any intention to accuse him of drinking, and the eating of oysters was denied by the relator. A§ the eating of oysters was not made a part of the charge and was only incidentally brought out in the testimony, and was not relied upon as a reason for dismissal, there is no need of considering it further; but we are to determine upon the evidence whether there was sufficient to sustain the conclusion reached by the commissioners, that the relator was guilty of being absent from post without reasonable excuse.
It appears that there was no toilet closet on the relator’s post, which was the bridge at Third avenue and One Hundred and Thirtieth street; that finding it necessary to use such a closet, he summoned the bridgetender and said he was going to a toilet closet on the dock, and if any roundsman or other person came inquiring for him to tell him where he had gone; that on coming out of the closet the relator saw Ofiicer Howard sitting on the box, and upon approaching him to inquire what was the trouble with him, received from IioAvard the answer that he Avas ill; at that moment the inspector came, and, seeing the relator off his post, afteiwards reported him for neglect of duty; and out of these circumstances grew the trial and dismissal.
*154As there is no contradiction of the fact that the relator was absent from post for the purpose mentioned, we think that, though his position on the dock was a technical violation of his duty, such an excuse should have been accepted unless there was reason to regard it ás a pretense or subterfuge. Upon this question wé have the testimony of the bridgetender, who corroborates the , relator in all respects as . to his . going away and leaving word to tell the roundsman, if he should come in his absence, where he had gone. We have also the period of his absence, which, according to the bridgetender, was not more than ten or fifteen minutes, some few minutes of which were necessarily consumed in his conversation with Officer Howard, whom he found sitting on a box complaining of being ill, and it was a • natural thing for him, under the circumstances, to approach Howard and inquire as to his condition.
The relator and Howard were tried together and both were dismissed ; but the conviction of Howard was reversed for the reasons stated in the opinion of the court. (People ex rel. Howard v. Roosevelt, 15 App. Div. 401.) As against this relator, we think the same result should follow, because it appears that, while he was some feet off his post, that of itself was not a “ neglect of duty.” If he was called from his post by circumstances over which he had no control,, or in the discharge of his duty, he did not “ neglect ” it. The 'cause of his temporary absence was established by indisputable evidence, to the benefit of which the relator was entitled, and, upon the whole evidence, we do not think the charge was sustained.
The proceedings should, therefore, be annulled and the relator reinstated-, with costs.
Patterson, Rumset, Ingraham and .Parker, JJ., concurred. ■
Proceedings annulled and relator reinstated, with costs.