Opinion
June 21, 1943.
Proceeding under article 78, Civil Practice Act, for reinstatement to the position of patrolman in the Nassau County police force from which it is alleged the respondent resigned. Final order directing reinstatement of respondent and granting other relief reversed on the law and a new trial granted, costs to abide the event. The errors committed during the trial require a new trial. The two jurors who had been sworn should not have been set aside without sufficient cause. It appears that at the conclusion of the respondent's case the trial court, within the hearing of the jury, held that the action was brought in time, whereas that was a specific issue submitted to the jury for determination. The proof of the fact of the subsequent dismissal of the respondent's son-in-law was incompetent; and prejudicial matter was heard by the jury in connection with a proposed amendment as to an alleged conspiracy. Order granting the motion for a jury trial of the issues affirmed, without costs. Order denying the motion to dismiss the petition or, in the alternative, to add a party, affirmed, without costs. Close, P.J., Hagarty, Adel, Taylor and Lewis, JJ., concur.