The prosecutor seeks to have his position as janitor of the borough hall of Milltown from which he claims to have been illegally removed, restored to him.

It seems that a janitor for the hall had been appointed and confirmed by the borough council on each succeeding' Mew Year’s day for the preceding twenty-two years. In September, 1931, Junker, the then incumbent, died and the prosecutor was on the 14th of that month appointed to succeed him. *671On January 1st, 1932, one Brindle was appointed to the position.

It is contended by the prosecutor that he held for an indefinite term, and being an exempt fireman, under the Tenure of Office acts, could not be removed.

Wo find it unnecessary to consider the legal phase of prosecutor’s term. Prom the depositions taken under stipulation of the parties we think it fairly appears that the prosecutor voluntarily surrendered the position and returned the keys to the building on the 31st of December, 1931. This presented a question of fact which was rightly determined adversely to the prosecutor and the writ is dismissed.