Hirschberg, P. J., Jenks, Hooker, Q-aynqr and Rich, JJ., concurred.
*26The following is the opinion of Mr. Justice Garretson:
Garretson, J.:The denials and averments of the answering affidavit submitted by the defendant upon information and belief, do not put in issue the allegations of the relator’s petition. (People ex rel. Kelly v. Common Council, 77. N. Y. 503; People ex rel. Frost v. N. Y. C. c& H. R. R. R. Co., 61 App. Div. 494; 168 N. Y. 187.) Hence the positive averment in defendant’s affidavit that after he became police commissioner on January 1, 1906, upon the report of the police surgeons of February 6, 1906, and on March 19, 1906, he ordered that the petitioner “having been absent without leave for more than five consecutive days has ceased to be a member of the police force and has been dismissed therefrom in accordance with section 503, charter FTew York city* from March 9, 1906,” taken with the allegations of the relator’s petition and particularly the allegation therein that the relator’s absence was the result of personal illness and that he did not deem himself absent without leave because he believed that he had been reported ill, are the only facts essential for consideration upon the merits of this application.
It may be said, however, in passing, that the defendant’s action . so far as it is alleged to have been based upon the proceedings had before his predecessor was of no validity. He could not acquire jurisdiction over charges pending at the time he entered upon his office and which although tried, had not then passed to final judgment. (People ex rel. Cassidy v. Roosevelt, 7 App. Div. 144.) The facts appear, therefore, that the defendant assumed to declare relator’s office' vacant and dismissed him from the force solely for the reason . that he was absent without leave for five consecutive days and the relator shows that during that time he was ill. Absence, under the section (503) of the charter * (which is substantially the same as section 273 of the Consolidation Act)† which is caused by the act of God does not bring the penalty of dismissal upon the absentee. The absence that will deprive the officer of his place'must be volun-
*27tary and intentional. (People ex rel. Mitchell v. Martin, 143 N. Y. 407.) Certiorari is not the relator’s remedy. Eo trial was had before the defendant. As the facts are undisputed the present proceeding is available to the relator and a peremptory writ should issue in accordance with the prayer of the petition. Motion granted, with fifty dollars costs.
Sic. See Laws of 1897, chap. 878, § 303, as amd. by Laws of 1901, chap. 466.— [Rep.
See Laws, of 1882, chap. 410, § 273, as "amd. by Laws' of 1884, chap. 180,— [Rep.