The relator on and for some time prior to the 25th of February, 1899, held a position as inspector of buildings in the department of buildings in the city of New York. He was on that day removed by the commissioner of buildings, and this is an application to review by a writ of certiorari the action of the commissioner in making such removal.
The relator is a veteran and was originally appointed to the position from which he was removed, after a civil service examination ; and, therefore, he came within the provisions of the statute which provides that honorably-discharged Union soldiers, sailors and marines holding official positions by appointment or employment in the State of New York shall not be removed from such positions or employment except for incompetency or misconduct shown after a hearing upon due notice and upon charges made.
From the petition and return thereto it appears that on the 11th of February, 1899, the relator was suspended from duty pending charges made against him. On the 14th of February, 1899, the commissioner of buildings notified the relator in writing that he proposed to remove him from his position. This notice contained a statement of the charges made against the relator, and also a statement that he would be “ allowed an opportunity of making an explanation ” before the commissioner on the 17th of February, 1899, and, according to the return, on that day the relator was given an opportunity for “ a hearing,” but owing to his illness and at his request “ the said heading ” was postponed to the twenty-fourth of February, when the relator “was given a hearing * * * and * * * was given ample opportunity of making an explanation of the said charges and specifications and producing before said commissioner any witnesses he desired to produce to testify in his behalf.” According to the return, the relator was called and each
The relator substantially admitted the truth of each of the-charges, and the excuse which he offered was not satisfactory to the-commissioner, and we do not see how it could have been. He admitted, in substance, that he had reported late for duty on the days specified; that he had absented himself from duty without leave; that he had neglected to discharge his duties by failing to report violations of law, and that during his hours of duty he had played cards in a liquor saloon, or in a room leading into it. But it is suggested — not by the relator’s counsel — that the act of the commissioner should be reversed and the relator reinstated, because the proceedings had before the commissioner did not constitute a trial within the meaning of the statute. There are two answers to this suggestion : (1) The relator nowhere claims, either in his petition or in the brief filed by his counsel, that he did not have a trial. What he does claim is'that the evidence offered was insufficient to justify his removal, and that he did not have a fair trial; that he was not informed that the proof offered by him was not satisfactory ; that he did not have the benefit of counsel. But the commissioner was not obliged to tell him whether the proof offered was satisfactory or not, and if he had desired counsel he could have had it. (2) The return states that the relator was given “ a hearing ” and ample' opportunity of making an explanation of the charges and producing before the commissioner any witnesses he desired to testify in his behalf. The law seems well settled that, in proceedings of this character material statements contained in the return must be accepted as conclusive and acted upon as true. (People ex rel. Sims v. Fire Comrs., 73 N. Y. 437 ; People ex rel. Press Pub-Co. v. Martin, 142 id. 228.) If the return is insufficient in substance or form, then it is the duty of the relator to take proceedings to have the same corrected or to compel a further or more specific return.
The duties of an inspector of buildings in the department of buildings in the city of New York are important and responsible ones, and the commissioner is entitled to inspectors who will not only honestly and conscientiously discharge the duties assigned to
The writ should, therefore, be dismissed and the proceedings affirmed, with costs.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Rumsey, J., dissented.