Opinion
June Term, 1896.
Francis M. Scott and James M. Ward, for the appellant.
Charles Blandy and Lewis C. Freeman, for the respondent.
The order appealed from must be reversed. The People ex rel. Lee v. Waring ( 1 App. Div. 594, decided by this court; affd. by Court of Appeals, 149 N.Y. 621) is conclusive upon all the questions involved in the present case. We held in that case that the relator was not entitled to the protection of the Veteran Act, in reliance upon which the court made the order here appealed from, but that the power to dismiss for a violation of duty, when in his discretion it should seem advisable, was given to the commissioner of street cleaning by the Street Cleaning Act (Laws of 1892, chap. 269). We also held in that case that no particular species of evidence was required under the Street Cleaning Act to enable the commissioner to dismiss the relator; that it was only required to be satisfactory to the head of the department. In that case the deputy commissioner recommended in writing that the relator be dismissed on charges and specifications, and the commissioner believed the charges to be true upon information which he had received, and this we held was sufficient. Here the superintendent reported that the relator had been absent from duty for five days without leave, and it was true. There was a dispute as to whether he was absent by reason of some arrangement between the commissioner and the relator's attorney, but we do not think the court could determine whether the evidence on which the commissioner acted in dismissing the relator was satisfactory to him. And, moreover, the decision of the court was not put on such ground, but on the ground that the relator was protected under the Veteran Act, which was untenable.
The order appealed from should be reversed and the writ dismissed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Order reversed and writ dismissed, with costs.