Opinion
January 10, 1908.
Daniel F. Cohalan, for the relator.
Theodore Connoly, for the respondent.
Present — PATTERSON, P.J., INGRAHAM, LAUGHLIN, CLARKE and SCOTT, JJ.
The relator, a member of the police force detailed as a member of the tenement house squad, was charged with having assaulted and insulted a young colored woman, and after a trial was convicted and dismissed from the force. It is alleged in the petition and not denied by the return that the relator was given less than forty-eight hours' notice of trial, the notice having been served on him at one-thirty-five P.M. on February twenty-sixth to appear for trial at ten A.M. on February twenty-eighth, thus giving him only forty-four and one-half hours' notice. The rule of the department (36g) requires that notice of trial shall be served not less than forty-eight hours before the hour of trial, exclusive of Sundays, legal holidays and half-holidays. The defendant when arraigned for trial asked for an adjournment, which was denied. The failure to give sufficient notice was fatal to the validity of the proceedings, and the writ must be sustained, the determination of the respondent annulled and the relator reinstated, with fifty dollars costs.
Proceedings annulled and relator reinstated, with fifty dollars costs and disbursements. Settle order on notice.