#### The People *ex rel.*Hugh McCormack *v.*John McClave *et al.,*Commissioners.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

Municipal corporations—Police—Removal—Re-trial.

Where the removal of a police officer was reversed on *certiorari*on the ground of the erroneous refusal to admit pertinent testimony, the relator cannot object to a rehearing before the commissioners on the ground that he is thereby tried a second time for the same offense.

Writ of *certiorari*to review the action of the police commissioners dismissing the relator from the police force.

The relator was regularly tried by the police commissioners, the charge against him adjudged to be true, and he was sentenced to dismissal from the police force. He had previously been placed on trial on the same charge and was sentenced to dismissal from the police force; but on a writ of *certiorari*the judgment of the commissioners was reversed, on the ground that the commissioner presiding at that trial had erred in refusing to admit the testimony of a witness for the relator. •

Eelator claims that this matter having been once before the commissioners and fully heard and decided, the said board has no-power to re-heár the matter, Code Civ. Pro., § 2122, subd. 3; that, even if it should be held that the commissioners had power to rehear this case after it had once been decided by them, and such rehearing would necessarily depend upon the order reversing the-determination and proceedings on the previous trial, and that order contains no provision for the granting of a new trial, and in the-absence of such a provision no new trial can be had; that the relator having been prevented by the commissioners presiding on the former trial from calling his witness, Conroy, then, and so long a time having elapsed between the two trials, and Conroy having-disappeared in that lapse of time, he having been conversant with all the facts relating to this charge, relator being thereby deprived of the benefit of his testimony, there was such an invasion of the *369relator’s rights as to call for an annulment of the determination as provided by subd. 3 of § 2140 of the Code.

Respondent claims that the first trial of the relator was not such a determination as would preclude the institution of another trial against him before the commissioners; that the relator was not prejudiced by the second trial, even though he could not then produce the witness whose testimony was refused on the first trial; that, assuming, for the sake of argument, that the relator was entitled to the postponement of the second trial until the absent witness could be procured, he, nevertheless, by proceeding to trial without objection on this ground, waived his right.

*■J. M.*Tierney, for relator *; J. J.*Delany, for resp’t.

Per Curiam.

The grievance of which the relator complains is that he has been placed upon trial again for a violation of duty for which he was convicted on a former trial, the judgment in which was reversed upon the ground that evidence which the court thought he was entitled to produce and use, he had not been allowed to present for their consideration.

There is no merit in the point presented upon this circumstance. On the first appeal the merits were not considered, for the reason just stated, viz.: that the judgment was reversed upon the ground that the commissioners refused to admit testimony which was thought to be pertinent.

The proceedings of the commissioners should be affirmed, and the writ dismissed.

Tan Brunt, P. J., Brady and Daniels, JJ., concur.