The appeal in this case is from an order allowing an amendment to the return to a writ of. certiorari by setting up the fact, if such he the fact, that the relator absented himself from the force without leave for a period of five days. No question is raised but- that the court is possessed of the power to allow the amendment; its exercise is sanctioned hy authority. (People ex rel. R. R. Co. v. Assessors, 10 App. Div. 393 ; People ex rel. N. Y. C. & H. R. R. P. Co. v. Cook, 62 Hun, 303.)
It appears from the moving papers that the relator has been tried upon charges, and after such trial was dismissed from the force. It .also appears that upon such trial the witnesses were not sworn, in consequence of which the determination based thereon is invalid. (People ex rel. Streubel v. York, 45 App. Div. 503.)
A proceeding having been instituted to review such trial, it is evident that the failure to swear the witnesses is fatal to the conclusion reached by the commissioners. This result is sought to be prevented by the amendment that has been allowed. It is clear that if the relator had been absent from the force for five days prior to his trial, he ceased to be a member of such force by operation of law. (People ex rel. Fahy v. York, 49 App. Div. 173.)
A trial upon charges for the purpose of determining whether or not the relator ought to be permitted to remain upon the force when in fact he was not then a member of it, would be an idle ceremony and, therefore, absurd. If error was committed upon the trial and the proceeding should, for that reason, be annulled, it would not operate to restore him to the force, if, in fact, by reason of absence, he was already removed from the force by the self-enforcing provisions of the statute. It is said, however, that the affidavit of the defendant shows that the five days had not elapsed on the day when the trial was had and that it needed that day to complete it. If it be the fact that five days had not elapsed when the trial was had, and it needed that day to complete it, then it would appear that the five statutory days had not run and the relator would not be removed by operation of law, as the day of tzial is not deemed to *504form part of such time within the contemplation of the statute. (People ex rel. Nugent v. Police Comrs., 114 N. Y. 245.)
The affidavits submitted, upon which the order was obtained, do not clearly disclose the exact facts in this respect. But this condition does not affect the validity or the propriety of the order. The leave granted is to amend the return by setting up the facts as they exist. If five full days, excluding the day of the trial, have not elapsed, then the relator cannot be injured or prejudiced by any return in this respect which may be made. If the five days have ■ elapsed then the defendants have the clear right, and it is their duty to make it appear. The relator cannot be prejudiced by this fact for, if it appears, any error which occurred upon the trial would become immaterial and he would not he prejudiced in any right possessed by him at the time of the trial. It follows that the order should be affirmed, with ten dollars costs and disbursements®
Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ.„ concurred.
Order affirmed, with ten dollars costs and disbursements. .