86 N.Y.S. 459 | N.Y. App. Div. | 1904
Considering the great responsibility placed upon the head of the police department, the importance of the interests confided to the protection of the department and the necessity for requiring the highest degree of discipline' and efficiency in the force, we recognize that within the limits of the power conferred upon him by law of examining into the conduct of police officers, the widest latitude and discretion should be accorded to the commissioner. Ordinarily, therefore, we are not disposed in this class of cases to interfere with the judgment of the commissioner either in his determination of disputed questions of fact or his conclusion as to the extent of the punishment that should be administered upon finding that a police offi
We cannot, however, entirely divest ourselves of the jurisdiction which has been conferred to review these trials, nor refrain from exercising such jurisdiction when satisfied that an injustice has been done. Where, therefore, the "facts are not in dispute and the charge itself is trivial, th^re would be no reason for' the provision of law giving an officer dismissed the right to have the proceedings reviewed, if, upon being convinced that there was error in the conclusion reached upon the facts, we did not exercise our jurisdiction in reversing the dismissal. ■
There is no evidence as to how long thé relator was sitting on the ' barrel, and the roundsman says that when the relator saw him he jumped off. . It was night time and the opportunity for mistake, under such circumstances, was great. The relator denied that he was actually sitting, but said he was leaning in the doorway, and the explanation upon the trial of his doing so was the same that he gave to the roundsman at the time, namely, that he was watching some people. The roundsman admits that relator was on his post in plain view and that there were people on their way home from a ball who were singing although making no disturbance, and thus the relator’s explanation of his not patrolling his post was to some extent corroborated. The object of patrolling is to detect and suppress disturbances, and merely stopping for observation was not shown to be an infraction of any rule of the department. This case in. some features and in principle is like People ex rel. Howard v. Roosevelt (15 App. Div. 401), where the police officer was sitting on a box and there was no evidence that he had been there any length of time and he explained his being there by saying he felt the effects of a wound. It differs from People ex rel. Butts v. MacLean (37 N. Y. St. Repr. 944), where an officer was discharged for lying down while on duty. There the relator’s own testimony in part corroborated that of the roundsman that he was lying down when he should have been patrolling, and, besides, the record of the relator was considered showing previous violations of the rules of the department.
Our conclusion is that the evidence to support the charge is unsatisfactory and did not warrant the relator’s dismissal. The writ
Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred; Patterson,. J., dissented.
Writ sustained, proceedings annulled and relator reinstated, with costs.
