People ex rel. Lenahan v. Grifenhagen

Per Curiam: The relator swears positively that he talked to respondent over the telephone; giving an excuse for his absences which, if truthful, would seem to have been sufficient. He also swears positively that on the day set for the hearing he again talked with respondent over the telephone, explaining why he could not appear at the hour fixed, and that he received a reply which justified him in believing that strict attendance on the hour fixed would not be required. The attempted denial of these allegations by the defendant is not effective. (Dahlstrom v. Gemunder, 198 N. Y. 453.) The allegations must, therefore, be taken as admitted. If the relator’s explanation of the cause of his absence is true it is, at least, questionable whether or not he could lawfully have been removed therefor. (People ex rel. Mitchell v. Martin, 143 N. Y. 407.) Furthermore, the return shows that no evidence was taken by the respondent tending to sustain the charge. On the whole ease, it does not appear that relator was afforded that .opportunity to defend himself which the law requires, and for that reason his removal must be set aside. If there was in fact sufficient reason for his removal, he can be again put on trial and properly removed. It follows that the writ 'must be sustained and the relator reinstated, with ten dollars costs and disbursements. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Writ sustained and relator reinstated, with ten dollars costs and disbursements. Order to be settled on notice.