94 N.Y.S. 477 | N.Y. App. Div. | 1905
This is a writ of certiorari bringing before us for review the determination of the defendant finding the relator guilty of a violation of the rules of the police department of the city of New York, and dismissing him from the force.
There is no question that the defendant had jurisdiction of- the subject-matter and that he pursued the authority conferred upon him in the mode required by law to authorize his determination, and there is no force in the contention of relator that the deputy .commissioner, before whom the evidence was taken and who recommended the dismissal, directed Captain Bedell to make the charges and for that reason was the actual complainant in the case. The defendant made a return September twenty-fourth in which he states that there was no order issued by the deputy, and that by the rules of the department it was the duty of captains to prefer charges against any patrolman who, while on duty, used his club on a citizen except in self-defense. Such an order would not have disqualified the deputy commissioner or furnished an adequate cause for his not proceeding with the hearing. (People ex rel. Campbell v. Partridge, 99 App. Div. 410; affd., without opinion, 180 N. Y. 542.) It appears that when the proceedings came on to be heard, the deputy commissioner refused the relator an adjournment asked on the ground that his counsel could not be present and that his witnesses were not in attendance, and proceeded with the hearing, but after the examination of three witnesses he granted an adjournment, and on the adjourned day all the witnesses previously examined were produced for cross-examination by the relator’s counsel, at which time the relator produced his own witnesses, who. were examined in his behalf, and this cured the error complained of. No prejudicial error was committed by the deputy commissioner in
There is no question but that between the hours of four and five o’clock on the morning of September 4, 1903, the relator arrested James L. Halliday at Myrtle avenue and Adams street in the borough of Brooklyn, and at that time and place used his club upon Halliday to such an extent as to render his removal to the Brooklyn ■ Hospital necessary, and that the injury sustained by him was .very serious admits of no doubt. The only contention on the hearing was as to the circumstances: .'attending the arrest and whether the relator was justified in the use he made of his club. Three witnesses were sworn on each side; their testimony was conflicting and at variance, and their conduct and character open to criticism. The Credibility to be given them and the weight to be attached to their evidence was peculiarly within the province of the deputy commissioner. The holding of the appellate courts of this State has uniformly been that, the good of the service, requires that a wide discretion should be vested in police commissioners, and that their judgment and determination in a given case will not be disturbed unless there is an absence of evidence to sustain it. They being/the statutory judges of offenses against the discipline and efficiency of the police force under their jurisdiction, their findings and determinations on the facts, when the evidence is- conflicting and contradictory, should, be regarded as conclusive, when there is, as in this ease, sufficient evidence, if believed, to sustain their determinations.
The determination of the defendant should be confirmed, with costs.
HirSchbeeg, P. J., Babtlett, Woodwabd and Jenks, JJ., concurred.
Determination confirmed, with costs.
