This appeal presents for- review a single question of law. By the provision of chapter 326, of the Laws of 1875, section 9, the mayor of the city of Newburgh is empowered, with the consent of the common council of that city, to appoint a marshal, and not more than twenty proper persons to be police constables for the ■city, who shall hold their office until their removal by the mayor for incapacity- or misbehavior, or neglect of duty. Under this law the relator, Bancroft, was appointed marshal by the then mayor in April, 1875, and the appointment was approved by the common ■council. In March, 1878, the relator was removed from this office of marshal, upon charges sustained by proof that Bancroft, the relator, had, before his appointment, held an office of collector of taxes of the city of Newburgh, and had failed to account for and pay over the money collected by him to the city treasurer. The sole question, therefore, presented is whether proof of this default as collector of taxes establishes ‘ ‘ incapacity, misbehavior, or neglect of duty,” as marshal of police. It seems quite clear that it does not. The 1 ‘ incapacity, misbehavior or neglect of *548duty,” must be established against the relator in respect to' the office of marshal. There is an entire absence of proof affecting the qualification of relator for the performance of such duties, and no misbehavior or neglect of duty is proved, or made the basis of the removal from office, beyond this default as tax collector.
It is now well settled that the return to a common-law certiorari may be examined to see if there is any competent proof to justify the adjudication made. There being no evidence establishing any of the causes for which the mayor had power to remove relator, the order at Special Term reversing his determination must be affirmed with costs. '
Gilbert, J., concurred; DykhaSt, J., not sitting.Order affirmed, with ten dollars costs and disbursements.