#### The People of the State of New York ex rel. Henry G. Millington, Relator, *v.*Harry M. Kaiser, as Agent and Warden of Clinton Prison, Respondent.

Third Department,

May 7, 1913.

Civil service — certiorari — removal of veteran without proper hearing.

Where, on certiorari to review the proceedings of the warden of a State prison, in removing an honorably discharged soldier of the United States employed under the civil service, it appears that no charges were served upon him prior to the day of the hearing, that no witnesses were examined under oath in his presence, and that no formalities incident to a judicial determination were observed, the writ should be sustained, the determination of the warden annulled and the relator reinstated.

Certiorari issued out of the Supreme Court and attested on the 6th day of December, 1912, directed to Harry M. Kaiser, agent and warden of Clinton Prison, commanding him to certify and return to the office of the clerk of the county of Clinton all and singular his proceedings had in the matter of the removal and dismissal of the relator from the position of guard at Clinton Prison.

*Corbitt & Stern [Ernest J. Ellenwood*of counsel], for the relator.

*Thomas Carmody, Attorney-General [James A. Parsons, Deputy Attorney-General,*of counsel], for the respondent.

Woodward, J.:

The relator, an honorably discharged soldier of the United States, was, after a civil service examination, appointed to a *79position as guard at Clinton Prison on the 1st of September, 1908. On the 15th day of August, 1912, while in the discharge of his duties, and in charge of a gang of convicts, some of these convicts committed an assault upon one of their number. The essence of the charge against the relator is that he did not properly discharge his duties in reference to this assault, in that he did not exert himself promptly to prevent it, and that he did not make a detailed report of the same to his superior officer. The petition of the relator and the return thereto show conclusively that the relator has not had a judicial determination of the charges against him. No charges were served upon him prior to the day of the alleged hearing; no witnesses were examined under oath in the presence of the relator, with an opportunity to cross-examine them, nor were any of the formalities incident to a judicial determination observed. The. relator had no opportunity to prepare his defense, was not represented by counsel, and to urge that he waived his rights by taking part in an informal hearing of the character set forth in the record is absurd. Waiver always contemplates that the party has, in the knowledge of his rights, voluntarily surrendered them, and no such inference is to be drawn from the facts now before us. The relator has been arbitrarily removed from his position, and, under the authority of *People ex rel. Hodkinson*v. *Johnson*(153 App. Div. 890), the determination of the respondent should be annulled and the relator restored to his position, without prejudice, however, to a hearing of any charges which may properly be brought against him in relation to this alleged dereliction of duty.

The writ should be sustained, determination of the agent and warden of Clinton Prison annulled and relator reinstated, with fifty dollars costs and disbursements.

All concurred.

Determination of the agent and warden of Clinton Prison, annulled and relator reinstated, with fifty dollars costs and disbursements, without prejudice to a hearing of any charges which may properly be brought against him in relation to the dereliction of duty alleged.