127 N.Y.S. 654 | N.Y. App. Div. | 1911
This appeal is from an adjudication of the commissioner of public safety of the city of Yonkers adjudging the appellant, a police officer of said city, guilty of an unprovoked assaultupon one William Donnelly, and ordering him punished therefor by the withholding of twenty-five days’ pay. The appeal is taken under the provisions of section 138 of the Second' Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55), as amended by chapter 266 of the Laws of 1910, and brings before us for review questions of law only. There was sufficient evidence to require the determination by the commissioner of the question of fact, and his conclusion resting upon conflicting evidence will not be reviewed in this court.
Charges were preferred against the appellant by Donnelly of conduct unbecoming an officer, with a statement that specifications were contained in an annexed affidavit, in which Donnelly swore that at about ten o’clock p. m., on June 20,1910, he was on Saw Mill river road, near the circus ground, in an express wagon waiting for passengers coming from the circus, when the appellant took hold of his horse by the head and swung him off to one side; that he said to the appellant, “ Let go of my horse,” whereupon the latter came over to the deponent, struck him over the head with a club, then arrested him and took him to the police station, from which he was sent to St. John’s Hospital to have his head dressed; that the following morning he was arraigned in court on the charge of having been at the time of his. arrest drunk and disorderly, and was discharged. On the same day that the charge was filed with the commissioner a notice was served upon the appellant requiring him to appear and answer the same on June twenty-seventh. On the day fixed the appellant appeared before the commissioner in person and by counsel, a hearing was had and the appellant convicted. A motion was made to dismiss the complaint at the commencement of the proceeding, upon the ground that it did not allege any offense of which the commissioner had jurisdiction, and renewed at the close of the testimony. The motions were denied and exceptions taken. It is contended upon this appeal that these exceptions present reversible error, for the reason that the commissioner had no authority under the provisions of sections 133 and 137 of the Second Class Cities Law or jurisdiction to try the appellant for the
As no complaint is made in the case at bar of any departure from the proceedings thus marked out, it is unnecessary to devote any time to their consideration. It is entirely immaterial by what name the charge designates the offense complained of. If the specification (or in this case the affidavit taking its place) sets forth the commission of acts which come within the fair meaning and intendment of the offenses which the statute authorizes the commissioner of public safety to hear, determine and punish, he is not deprived of jurisdiction by the fact that in the formal charge the offense which the
Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.
Determination confirmed.