I cannot concur in the opinion of the court in this case. The relator was a veteran, and as such, by the express provisions of chapter 184 of the Laws of 1898, he could not be removed except for cause after hearing had. That phrase has received a construction in this State to the effect that such a hearing is substantially a trial. The power to remove for cause and after an opportunity to be heard can he exercised only after notice to the person charged, upon specified charges, with an opportunity to the accused to cross-examine witnesses and to call others in his defense, and to be represented by counsel in every stage of the proceeding. (People ex rel. Mayor v. Nichols, 79 N. Y. 582.) This hearing must not be had before an officer who has already announced his intention to remove him unless his explanations are satisfactory, thus practically prejudging the case before he takes any action. The requirement of a hearing involves necessarily the idea that the judgment of the trial officer as to the truth of the charges and as to the result that may follow a conviction by him, is to he held in reserve until the whole case has been examined and the person charged has had an opportunity for a hearing with counsel to assist him. The distinction between the rights of one who is entitled to a hearing upon charges and of another whom his superior officer may resolve to remove and may remove after giving him an opportunity to make an explanation, is considered and clearly shown in People ex rel. Keech v. Thompson (94 N. Y. 451).
It is not sufficient to affirm that the relator had a trial because he did, in fact, when called before his superior officer, admit the charges and seek to explain them. The question is, did he understand when he was called there that he was entitled to have those charges proved against him ; that he was entitled to be represented by counsel, and *376that the charges could only be proved by sworn testimony ? . It is-quite clear that the commissioner did not understand that he was-giving the relator a trial, because he says in his return that the-relator was notified by the commissioner of his purpose to remove-him from his position, and a time and place were appointed at which the relator would be given an opportunity to make an explanation and it is said further that on the twenty-fourth of February, the time to which the hearing was adjourned, the relator was given ample opportunity to make such explanation as to the charges.. There is no claim that he was tried. Clearly the commissioner did not know that he was giving him a hearing such as the law required,, because he was merely called upon to make an explanation of the charges, as to which he had already made up his mind to remove^ him. When the relator was called before the commissioner he did not know that he was entitled to more than an opportunity 'to make-an explanation. He was called for that purpose. If when he got there he was told that he was entitled to have a hearing -and the-charges proved by sworn witnesses, it might very well be that by his actions his right to such a hearing rvould have been waived. But nothing of that kind occurred. He was immediately put upon his defense and nothing done to indicate to him that he was to have-anything more than an opportunity of making an explanation. Such a hearing as that can in no possible way be said to be a trial. It is quite true as is said that he did not deny the charges made-against him. But the very mariner in which he was brought before-the commissioner showed that the truth of the charges was not to-be inquired into. It was assumed by the-commissioner that he was-guilty; and starting with that presumption -he was already sentenced unless he succeeded in disabusing the mind of the person who-should have tried him fairly of the conclusion he had already reached. In my judgment there was nothing in this case that resembled a trial, and nothing to indicate that the relator knew that he was entitled to one, and, therefore, .the proceeding should be-reversed.
Writ dismissed and proceedings affirmed, with costs.