(91 Hun, 233.)

#### PEOPLE ex rel. MILLER v. WURSTER.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Municipal Corporations—Removal or Fireman.

Absence without leave, when caused by sickness, does not constitute neglect of duty on the part of a fireman.

2. Certiorari—Practice.

The statement in the return to a writ of certiorari of facts not responsive to the allegations of the petition, and of which no proof was given on the hearing, avIU not be considered.

*161Certiorari by Philip E. Miller to review the proceeding of Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, in removing relator from membership in the fire department of said city.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Edward F. O’Dwyer, for relator.

Albert Gr. McDonald, for respondent.

DYKMAN, J.

Under section 2138 of the Code of Civil Procedure, the hearing and decision of this case are to be upon the return, and the writ and the papers upon which it was granted, because the return fails to meet all the facts contained in the writ and the papers upon which it was granted. The facts which appear from ' such papers are these: On the 9th day of December, 1890, the relator was appointed a fireman in the fire department in the city of Brooklyn, and was employed on the force for the extinguishment of fires. He continued to hold that office until the 8th day of January, 1895. On the 3d day of January, 1895, he was charged with intoxication on the evening of January 2, 1895. He was also charged with absence without leave on December 30 and 31, 1894, and January 2 and 3,1895. On the hearing, before the respondent, the relator admitted his absence from his company’s quarters at the times alleged, but he says in his petition, and the statement is recited in the writ, that he stated to the respondent that his absences were caused by reason of his sickness and inability to perform duty during the time specified in the charges. The facts constituting the cause of such involuntary absences are fully set forth in the petition of the relator upon which the writ was obtained, and they are sudden and severe sicknesses.

The respondent has added to his return the record of the relator as a member of the fire department from the time of his appointment, in December, 1890, but it was not given in evidence upon the trial, and the relator has been offered no opportunity to explain it. It will not therefore be considered on this hearing, except as it has a tendency to show that matters other than the charges against the relator and the proceedings on his trial were permitted to influence the respondent in forming his judgment. It is alleged in the petition upon which the writ was granted that the relator was not intoxicated on the night of January 2, 1895, as charged, and that the several absences without leave were involuntary, and caused solely by the sickness of the relator. The return is silent as to these allegations, and, on this hearing, they must be considered and taken as a correct and truthful statement of the facts. The nature of the complaint with which the relator was afflicted, and his several attempts to procure the necessary medical aid from the surgeon in the department, to which he was entitled as a member, are fully set forth in the petition, and, if not true, it was within the power of the respondent to prove their falsity. An examination of the testimony shows that the relator was not guilty of the charge *162of intoxication, and that question will require no further consideration.

The return of the record of the relator suggests its possible use against him, and that was erroneous. No opportunity was afforded him to explain or answer the record, which was made up without his knowledge, and its use against him was palpably unjust. Under the statute, as it was amended by section 2 of chapter 371 of the Laws of 1889, absence without leave is not an offense for which a member of the department employed on the force for extinguishing fires can be removed. They can only be removed after having been found guilty of misconduct or neglect of duty or having been adjudged incapable of performing their duties. Moreover, the plea of guilty of being absent without leave, accompanied with an explanation of the cause which necessitated the same, was insuffi-. cient to justify the removal of the relator. While a voluntary, intentional absence might be deemed a neglect of duty, and sufficient as a specification under such a general charge, an involuntary absence, necessitated by an injury or a sudden attack of sickness, is excusable, and merits no punishment.

These proceedings are criminal in their nature. The penalties are severe, and it would contravene the humanity of our laws to inflict punishment for the involuntary act mentioned. If the conviction of this relator is legal and valid, then a fireman who receives a severe injury in the performance of his duty, which incapacitates him physically, and confines him to his house, may be removed for such absence; but the law will not tolerate such a result. The offenses must be voluntary and intentional. The conviction of the relator was illegal and unjust, and the proceedings should be reversed, and he should be reinstated in his position and pay, with $50 costs. All concur.