91 N.Y.S. 258 | N.Y. App. Div. | 1904
The relator was charged with neglect of duty in (1) being absent from post and sitting at a table in a liquor saloon in company with other patrolmen, throwing dice for money at four a. m., August 20, 1902; and (2) in being in this saloon at or about four a. m. on August 20, 1902, and failing to arrest the person in charge for a violation of the Liquor Tax Law. This charge was made by Captain O’Reilly of the fifth precinct and came on for trial before the police commissioner on the 27th day of August, 1902. On application of the relator the trial was adjourned until the next day. Upon the trial Captain O’Reilly testified that on the morning of August twentieth, while on duty, he went into this saloon, following a citizen who entered the saloon by a side door; that he saw in this saloon in a box at the end of the bar the relator, with three other officers throwing dice; that there was money on the table in front of the officers, and the captain seized the money, put it in his pocket and the officers jumped up and three of them made their escape through the front door of the box; that the captain seized one of the officers, not the relator, and held him ; that this officer told the captain that the other men were Officers Heartt, Campbell and Quigley; that the amount that was on the table was twenty-three dollars in bills and five dollars and eighty cents in silver, and the captain produced the money and the box and dice; that the captain then, with the officer, placed the bartender under arrest and brought them to the station house. The captain positively identified the relator as one of the officers who were throwing dice in this saloon. The relator testified that he was not in the saloon on the night in question, and other witnesses were produced to corroborate his testimony. Upon this evidence the commissioner found this relator and the other officers found by the captain in this saloon guilty and dismissed them from the force.
There is no question but that the evidence justified the decision
The relator appeared before the commissioner by counsel, who conducted the trial on his behalf. The petition for the writ alleges that upon the day the relator was required to appear for trial his counsel had a consultation with the police commissioner, in which the police commissioner stated substantially that the patrolmen, referring to the relator and the three other officers against whom charges had been made, were guilty of the charges, and that their counsel knew that they were guilty, and that he as counsel could not help them, and that it would be useless for counsel to request an adjournment as the police commissioner would not grant it. To this the relator’s counsel answered that he did not believe that these officers were guilty, and was very much surprised that the commissioner should have come to the conclusion that they were guilty before he had heard the evidence. To this the commissioner replied that he would believe Captain O’Reilly in preference to these officers against whom charges had been made and fifty others. The petition further alleges that the police commissioner was biased and prejudiced, and practically adjudged the petitioner guilty of the said charges before any testimony was taken, and was, because of his bias, partiality and prejudice, incompetent to pass upon the petitioner’s guilt or innocence. This allegation in the petition was not answered by the return, but there is annexed to the record an order of the Special Term which recites that .a motion had been made to require the police commissioner to make a further return as to whether or not the conversation between the relator’s counsel and the police commissioner, as set out in the return, was true, and also whether, prior to the trial of the relator and the three other officers, the commissioner discussed with Captain O’Reilly, the complainant, the case of the defendant, or whether or not the said O’Reilly told the respondent of the facts surrounding the charges against the defendant before they were tried, and this motion coming on to be heard, an order was entered appointing a referee to
Under the charter of the city of Hew York the police commissioner is the only official who can dismiss a policeman from the force. (Laws of 1901, chap. 466, § 302.) As police commissioner it is his duty to have knowledge of the condition of the force, the qualifications of the police officers, the way in which they discharge their duties, and certainly the fact that in the discharge of his duty he has acquired knowledge of derelictions on the part of police
But in my opinion the proceedings taken in this case to bring these facts before the court were entirely irregular and not justified by the provisions of the Code of Civil Procedure. Section 2127 of
The provisions of section 2139 of the Code of Civil Procedure, to which attention has been called, justify the court in permitting either party to produce affidavits or other written proofs relating to any alleged error of fact, or any other question of fact which is essential to the jurisdiction of the body or officer to make the determination to be reviewed. This right to present affidavits or other proof is limited to a fact which affects the jurisdiction of the body or officer whose action is sought to be reviewed. How, nothing that was proved before the referee affected the jurisdiction of the commissioner. His right to try these cases is provided for by the charter, and his jurisdiction is unquestionable. What the relator apparently wishes to show is that the commissioner was so prejudiced against the relator that the relator did not have a fair trial. But that was not a question of jurisdiction. H or was there any difficulty in requiring by the writ, if the relator was entitled to it, a return by the police commissioner as to whether or not he had made the statements alleged in the petition. It is only where the court is satisfied that the facts cannot be made to appear by means of an order for a further return that it is authorized to permit affidavits or other proof to be supplied. This provision was plainly intended to apply where the jurisdiction of the body or officer whose proceedings were sought to be reviewed was affected by some extrinsic fact which was not a part of the proceedings before him, and about which he could not make a return. But even then it is only the affidavits or other proofs that are to be annexed to the return, and not the report or opinion of the referee as to these facts.
It follows that the writ must be dismissed and the proceedings affirmed, with costs.
Laughlin, J., concurred; Yan Brunt, P. J., and Hatch, J., concurred in result; Patterson, J., dissented.
Writ dismissed and proceedings affirmed, with costs.