The People of the State of New York ex rel. Charles J. McCarthy, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent

The People of the State of New York ex rel. Charles J. McCarthy, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent. First Department, December 30, 1909. Hew York city — certiorari — dismissal of policeman — notice. A failure to give a policeman in the city of New York notice of charges against him at least forty-eight hours before the time of the hearing is fatal to the proceeding. Although tlie. testimony of non-resident witnesses may he taken on shorter notice, it is a fatal violation of the rights of the accused to continue thehearing by receiving testimony of resident witnesses without showing the necessity thereof, and the error is not cured by granting the accused an adjournment and an opportunity to present his evidence. Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1907, directed to Theodore A. Bingham, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to his imposing a fine upon the relator. Grant efe Rouss, for the relator. Theodore Connoly, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Relator was a policeman of the city of New York, and charges were preferred against him which were served only thirty-eight hours before the time of hearing. Rule 36g of the police department requires that notice of trial shall be served not less than forty-eight hours before the hour of trial, exclusive of Sundays, legal holidays and half-holidays. The defendant, when arraigned for trial, asked for an adjournment, which was denied. Failure to give the prescribed notice is fatal to the proceeding. (People ex rel. Jordan v. Martin, 152 N. Y. 311; People ex rel. Clancy v. Bingham, 123 App. Div. 226.) There is an exception prescribed by this same rule, and shorter notice may be given where witnesses reside out of the State, or are remote.from the place of trial, or, by reason of sickness or other pressing cause, cannot attend at a later day without great personal detriment or inconvenience. But only the testimony of such witnesses may be taken on such shorter notice, j In the present case not only was the' testimony of the two nonresident witnesses taken, but the trial was continued by taking the-testimony of resident witnesses' without showing that it was. necessary to take their evidence within such shorter time. In effect, therefore, the trial was had on insufficient notice, and it does not help the defendant that thereafter the relator was granted an adjournment and an opportunity to present such evidence as he might desire. His rights had been fatally violated, and what thereafter transpired did not cure the violation. The determination of the defendant must be annulled, and the relator’s fine remitted, with ten dollars costs and disbursements. ■ Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ. Determination annulled, and relator’s fine remitted,- with ten dollars costs and disbursements. Settle order on notice.'