Smith, J.
While the relator charges that in making the determination rules •of law have been violated affecting liis rights and to his prejudice, the real .question here for determination is whether there was .upon' the evidence such a preponderance of proof against the existence •of the .facts found that a'verdict of a jury affirming the éxistence thereof, rendered in an action in the Supreme Court,.. triable by a jury, would be set aside by the court as against the weight of evidence. (Code Civ. Próe. § Ü140.) The relator was a 'veteran of the Civil war',- and his right to the position to which he was appointed is assured to him by,the laws of the State unless' he be found, guilty of misconduct in-a judicial proceeding which is required to be instituted upon charges preferred and answered before the mayor of the •city". This protection is intended to be substantial. This trial is given for something more than a mere pretext, for dismissing'one from office who is protected by the statute. We have carefully examined the evidence that was produced both for and against the relator, and in our judgment the proof falls far short of the required legal condition which would authorize his removal. •
■ As to,'the first finding, John Ray stood upon the record which was in the hands of the relator as the sole owner of' the lot in which he demanded that his child should be buried. There were two •children already buried upon that lot claimed by Ray to have'been his children. Not a doubt was suggested to the relator of the right •of Ray to have the burial upon that lot. He had no- information, whatever that any transfer was claimed to have been made-.to.Mary Ann Scudder. No rule governing the conduct of the cemetery is shown which requires any specific evidence of) the right to burial in any .location, and the relator could have done nothing else than to have granted .the right-claimed by Ray, who was the record- holder •of the lot,. - .
The second, third, and fourth charges relate to the care by the ■relator of what is called the potter’s field. That is a certain part ■of the cemetery which was' set off'for the burial of the pooh This part of the cemetery consisted in all of only about a quarter of ■ [219] an acre. The pity’s poor had been buried there since 1854. One of the witnesses swore that the field was buried over three or four times. The matter was called to the attention of the city by the .report of the superintendent in 1900, and no relief was given him by the city authorities, and no more ground was furnished him in which to make burials. It was impossible. to distinguish where the graves were, as no markers were put up, and prior to the relator’s time, and since his appointment, it has been the custom to take a long iron probe and drive it into the ground to see if a box was struck, and if it appeared to be free there to dig a grave. Of course in this arrangement necessarily they would cross some parts of some graves that had already been placed there, and prior to the relator’s time and thereafter it was customary to find bones of bodies in the attempt to dig a grave. The evidence is to the effect that the relator would . «dig up these bones and lay them aside qntil the grave was dug, and then at the end or the side of the grave would dig a further space into which these bones were carefully placed. These findings have been made the basis in part of his discharge. It is difficult for me to see what else could well have been done. It is apparent that sufficient ground was not furnished so that graves could be dug without interfering with bodies that had theretofore been buried. Tt was not the fresh mounds put over graves-which the relator had -dug that were disturbed, but the graves of long standing where the ground gave little or no indication df their existence. In meeting the conditions which he found he exhibited no heartlessness and no •conduct that would tend to shock those whose friends were there o buried. He was required to find graves upon ground that was ■already covered with graves. He apparently did the best he could, and we are unable to find any fault' upon his part which could be made the basis of his discharge. I am referred upon the brief to no evidence, and I have not been able to find any where bones were taken up by the relator which were not buried by him. Disinterested witnesses have sworn that there was no other way in which these bodies could be there buried.
Under the fifth specification, the witnesses Knight and Kelin swear that the relator asked them to let horses loose into the part •of the cemetery known as the Jewish part that they might trample upon the graves and cause dissatisfaction with the work of one Scud[220] der, who was employed by certain Jewish lot owners to take care of their graves. The purpose of this .request is charged to. have been to cause the dismissal‘of Scudder so that the relator/might have Scudder’s work in caring'for the graves in that'part of the cemetery. .This is denied'explicitly by the relator. ,There is ho claim.-that any horses were let in, and one of the witnesses swears that there were no horses round about there .loose that could be let in. The story is'an improbable one at best, but nevertheless if sworn to by credible- witnesses would raise the issue, the determination of which would probably not be disturbed. It may be instructive then to examine for a. moment the witnesses who are called upon to prove these- charges. In the first .place the witness Knight signs the charges, as he "swears, at the request of a second'ward politician, whose, father-in-law was thereafter ajnpointed to the place .made vacant by the removal of the relator. lie had a difference with the. relator at a time when lie was-discharged by-the relator, and afterwards brought a suit against the relator, -which, however, he did not prosecute, but allowed to be dropped. He went to the former mayor and preferred like charges to those that have.been here preferred by him, which were dismissed by. tlie mayor after an informal investigation without the formality of written' charges and trial. He swears frankly to hard feelings against the relator. The second witness is one Kehn, who was.also once in the employ of the. relator, but left by reason of difference between himself and the relator, who also swears to hard feelings against the relator. By two witnesses Kehn' is sworn to have stated that if the relator could. be removed he and Knight were both to have places. under the new superintendent. These are the two, witnesses who swear to this most improbable story, denied by the relator. The charge is, in, my judgment, clea’rly-not-proven. ' • ' ■ . ■
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Smith, J.
While the relator charges that in making the determination rules •of law have been violated affecting liis rights and to his prejudice, the real .question here for determination is whether there was .upon' the evidence such a preponderance of proof against the existence •of the .facts found that a'verdict of a jury affirming the éxistence thereof, rendered in an action in the Supreme Court,.. triable by a jury, would be set aside by the court as against the weight of evidence. (Code Civ. Próe. § Ü140.) The relator was a 'veteran of the Civil war',- and his right to the position to which he was appointed is assured to him by,the laws of the State unless' he be found, guilty of misconduct in-a judicial proceeding which is required to be instituted upon charges preferred and answered before the mayor of the •city". This protection is intended to be substantial. This trial is given for something more than a mere pretext, for dismissing'one from office who is protected by the statute. We have carefully examined the evidence that was produced both for and against the relator, and in our judgment the proof falls far short of the required legal condition which would authorize his removal. •
■ As to,'the first finding, John Ray stood upon the record which was in the hands of the relator as the sole owner of' the lot in which he demanded that his child should be buried. There were two •children already buried upon that lot claimed by Ray to have'been his children. Not a doubt was suggested to the relator of the right •of Ray to have the burial upon that lot. He had no- information, whatever that any transfer was claimed to have been made-.to.Mary Ann Scudder. No rule governing the conduct of the cemetery is shown which requires any specific evidence of) the right to burial in any .location, and the relator could have done nothing else than to have granted .the right-claimed by Ray, who was the record- holder •of the lot,. - .
The second, third, and fourth charges relate to the care by the ■relator of what is called the potter’s field. That is a certain part ■of the cemetery which was' set off'for the burial of the pooh This part of the cemetery consisted in all of only about a quarter of ■ [219] an acre. The pity’s poor had been buried there since 1854. One of the witnesses swore that the field was buried over three or four times. The matter was called to the attention of the city by the .report of the superintendent in 1900, and no relief was given him by the city authorities, and no more ground was furnished him in which to make burials. It was impossible. to distinguish where the graves were, as no markers were put up, and prior to the relator’s time, and since his appointment, it has been the custom to take a long iron probe and drive it into the ground to see if a box was struck, and if it appeared to be free there to dig a grave. Of course in this arrangement necessarily they would cross some parts of some graves that had already been placed there, and prior to the relator’s time and thereafter it was customary to find bones of bodies in the attempt to dig a grave. The evidence is to the effect that the relator would . «dig up these bones and lay them aside qntil the grave was dug, and then at the end or the side of the grave would dig a further space into which these bones were carefully placed. These findings have been made the basis in part of his discharge. It is difficult for me to see what else could well have been done. It is apparent that sufficient ground was not furnished so that graves could be dug without interfering with bodies that had theretofore been buried. Tt was not the fresh mounds put over graves-which the relator had -dug that were disturbed, but the graves of long standing where the ground gave little or no indication df their existence. In meeting the conditions which he found he exhibited no heartlessness and no •conduct that would tend to shock those whose friends were there o buried. He was required to find graves upon ground that was ■already covered with graves. He apparently did the best he could, and we are unable to find any fault' upon his part which could be made the basis of his discharge. I am referred upon the brief to no evidence, and I have not been able to find any where bones were taken up by the relator which were not buried by him. Disinterested witnesses have sworn that there was no other way in which these bodies could be there buried.
Under the fifth specification, the witnesses Knight and Kelin swear that the relator asked them to let horses loose into the part •of the cemetery known as the Jewish part that they might trample upon the graves and cause dissatisfaction with the work of one Scud[220] der, who was employed by certain Jewish lot owners to take care of their graves. The purpose of this .request is charged to. have been to cause the dismissal‘of Scudder so that the relator/might have Scudder’s work in caring'for the graves in that'part of the cemetery. .This is denied'explicitly by the relator. ,There is ho claim.-that any horses were let in, and one of the witnesses swears that there were no horses round about there .loose that could be let in. The story is'an improbable one at best, but nevertheless if sworn to by credible- witnesses would raise the issue, the determination of which would probably not be disturbed. It may be instructive then to examine for a. moment the witnesses who are called upon to prove these- charges. In the first .place the witness Knight signs the charges, as he "swears, at the request of a second'ward politician, whose, father-in-law was thereafter ajnpointed to the place .made vacant by the removal of the relator. lie had a difference with the. relator at a time when lie was-discharged by-the relator, and afterwards brought a suit against the relator, -which, however, he did not prosecute, but allowed to be dropped. He went to the former mayor and preferred like charges to those that have.been here preferred by him, which were dismissed by. tlie mayor after an informal investigation without the formality of written' charges and trial. He swears frankly to hard feelings against the relator. The second witness is one Kehn, who was.also once in the employ of the. relator, but left by reason of difference between himself and the relator, who also swears to hard feelings against the relator. By two witnesses Kehn' is sworn to have stated that if the relator could. be removed he and Knight were both to have places. under the new superintendent. These are the two, witnesses who swear to this most improbable story, denied by the relator. The charge is, in, my judgment, clea’rly-not-proven. ' • ' ■ . ■
Under the sixth specification the respondent is found guilty of improper conduct in taking up a certain water pipe through- which water was conducted from a hydrant in the center of the cemetery to another part thereof, which pipe emptied into a !barrel sunken into the ground, from which 'the witness Scudder took water to sprinkle upon the graves in the Jewish .part .of the cerne,tery. It does not appear in. the evidence just how. far this water was carried from this hydrant. It is admitted by the relator that he took up [221] this pipe, which was stretched- across the top of the ground covered with a board, and was, he says, an unsightly object. He admits that it would necessitate the drawing of water from the hydrant a further distance than from a barrel into which this pipe led, which was nearer to the Jewish part of the cemetery. Thereafter and within a short time, at the request of the superintendent of public works, he restored it and it has remained there from that time, sometime in 1900, until the present time. The relator justifies his act not only upon the ground that the pipe was an unsightly object, but upon the ground that the water ivas often permitted to run so that the barrel overflowed and the ground, which was in the potter’s field, so called, was frequently allowed to become marshy and wet. Even if it be admitted that there was, in connection with- other motives, an intent to embarrass Scudder in his care of the graves in the Jewish part of the-cemetery, in my judgment no substantial ground is offered in this act for a dismissal of the relator. This also was one of the charges preferred by Knight before the former mayoi'j which was informally investigated and dismissed as being too trifling for action.
As to the tenth finding, that the relator failed to furnish jumper assistance and ropes for the purpose of lowering bodies into the grave, it is claimed that one Knight, who was' at that time an employee of the relator, was directed, to make the burial of one of the city’s poor — of a body which was at the time in a vault, and that'lie was not furnished with ropes with which to lower the body into the grave, and was told to get it in the best way he could. In the first place this is fully denied by the relator. But upon the story of Knight no reasonable cause is shown for the relator’s removal. They had some old straps there when the relator first assumed the position. As soon as he found out what there was there he procured some new straps. This was the second body that Knight had buried and he was unable alone to get it properly into the grave, so that one end stood up a little further than the other. That was the only incident in all his experience in which he was ever asked to bury a body alone. Upon the evidence of the relator i-,t-aj>pears that no such body was in the receiving vault, as the city’s poor were never placed therein. This charge was also informally made before the former mayor and, upon examination, was dismissed. [222] It occurred, if at all, in 1900, four years before. the trial. The charge is unworthy of consideration.
It is thus seen that most of these charges had been informally-preferred against relator before a. former mayor who had. made informal investigation thereof and had dismissed them. While this-action of the former mayor may hot be conclusive so as to preclude their investigation ,by respondent here, the fact that the charges are ■ stale and have been once officially passed upon, though .informally,, is not without weight in our determination that no sufficient ground of discharge has'been shown.' The allegation in respondent’s return that those charges were dismissed by the former mayor for poli tic a reasons and by reason of personal friendship is wholly without foundation in the evidence.
As against these charges the relator made proof, which was uncontradicted, to the effect tliát during his superintendency the cemeteries had been kept in excellent condition, fully' as well, if not better, than they had ever been kept before. No charge has been proven against the relator pvhicli can fairly be^ made a warrant- for his dismissal. To uphold this determination would be to nullify'tlie protection vouchsafed by the statute to the veterans of the Civil war. While the mayor of the city has given to this relator a full and fail-hearing, .his determination is not supported by the evidence and must,'therefore, be reversed.
All concurred.
Determination of the mayor reversed on law and facts, and the relator ordered reinstated in position from which he was removed, with fifty dollars costs and disbursements.