86 N.Y.S. 687 | N.Y. App. Div. | 1904
Lead Opinion
At the opening of the trial- many preliminary objections were interposed by the relator bearing upon the informality and insufficiency of the charges, and.one of which challenged the right of the commissioner to sit as a judge. The conclusion at which we have arrived renders it unnecessary to discuss seriatim all of these objections or the evidence bearing upon the guilt or innocence of the
The initial difference between the commissioner and the relato! seems to have arisen from an effort on the part on the commissioner to' compel the relator to take a vacation. In this connection it appeared that on the 2d of August, T902, the relator was granted a leave of" absence for sixty days, before the expiration of which, however, he returned and resumed his duties as chief of the fire department, fo! which act he was suspended by the commissioner. He protested against his suspension and applied to the courts for rein
These observations naturally lead us to a consideration of the exddence presented at the trial with respect to the charges upon which the relator was found guilty. Taking them in the order as above set forth, the respondent showed that on October 2, 1899, some three years before the trial, the relator issued an order to chiefs of battalions to direct, company commanders “ to discontinue all inspections as called for in section 110, Rules and Regulations , * * * until otherwise ordered, except such as may be ordered from this xxffice.” The section of the rules and regulations referred to required inspections “in compliance, with the provisions of Chapter 378, Laws 1897, in their respective districts in the months of January and July in each year; ” and reports showing whether the law had been complied with; andyprovided that “in cases where reports have once been forwarded that the law has been complied' with, additional reports need not be forwarded.” Testimony was given that the Park Avenue Hotel had ■ been reported as having complied with the law and that it was a fireproof structure, and in this connection the relator testified that he sent out this order in obedience to oral instructions from the then commissioner of the, fire department. It also appeared that section 216 of the rules and regulations provided that the chief should “ not be guilty of deception or evasion of any law, ordinance, rule, regulation or order, general, special or verbal,” and that section 739 of the charter (Laws of
With respect to the charge of incompetence in the management of great fires, the commissioner found him not guilty upon two-, specifications, but guilty upon the • third, viz., the Park Avenue Hotel fire, the incompetence alleged being his failure to protect the hotel from the armory fire and to have the guests removed. The testimony bearing upon -this subject shows that the fire at the armory broke out in the early morning hours of a stormy night and the streets were almost impassable by reason of the snow,, ice and water. The relator, while returning from a fire in another part of the city, was informed of the -fire at, the armory, and he at once Went there and found the armory in a mass of flames, with the high winds carrying sparks over the car sheds immediately to the south, wliich contained inflammable material. He ordered his metí to protect that structure and sent a man to the Park Avenue Hotel, which was located on the opposite, side of Fourth avenue, between Thirty-second and Thirty-third streets, to see that the windows were closed. He knew the hotel had an iron and stone front and a hrick roof, which at the time was covered with two feet of snow. His men watched the hotel and saw that the windows were closed'. His work at the armory was- obstructed owing to the subway excavations and he caused dynamite stored near the armory to be conveyed into the tunnel and protected the woodwork at the entrance from the fire. The buildings contiguous to the armory he also protected, and so efficient was his work that no serious damage resulted to the car sheds, although the wind carried sparks-as far south-as Thirty-first
The third charge found against the relator was the conversion of public property to private use. Although the commissioner held that this charge" was not substantiated with respect to the private use and appropriation of materials and work by the relator, he found him guilty of conversion in permitting hose to be delivered
Another charge was that of conduct prejudicial to good order and discipline; and with respect to the several specifications, the evidence presented shows a sharp conflict of testimony. In the first of these specifications ■—■ that the relator persecuted Chief Terpeny — the conflict is between the two men, the former denying and the latter asserting that orders were given over the telephone that Foreman Clifford.was to be prevented from attending the meeting of the benevolent association, which, it was claimed, the relator did not favor. The relator admitted that he had daily, from May to September, 1900, transferred Chief Terpeny, but stated that the chief had been assigned a difficult post and desired a change, even if it were to relieve absent chiefs temporarily, and this work was given to him, as it was at times given to others, until finally a very desirable post was vacant, to which lie was assigned.
Upon the specifications relative to Chiefs Gooderson and Burns, there was also a conflict of testimony, these, two men asserting they had spoken to the relator about the examination and been advised not to take it as it was for one man only, and the. relator denying such conversation. It was not disputed that an invitation was sent to all chiefs to take the examination, and a number of them did so, and two men as the result were promoted. It also appeared that Chief Gooderson had been threatened by the relátor with charges if he did not pay several debts incurred, and he admitted there was an unfriendly feeling between himself and the relator.
■ The fourth of the specifications related to the forcing óf a veteran from the-eligible list in 1900. " It appears that he was removed by an order of the commissioner and subsequently reinstated ; but though it was shown that the relator was active in seeking1 his removal, the explanation given was that the veteran was defective in eyesight and had been so reported by the medical board.
Upon the charge of prejudicial conduct we have contradictory evidence calling for the determination of a question of fact; but, at this point, the manner in which the trial was conducted by the commissioner shows that the relator was not accorded a fair presentation of his side of the case. He attempted to show, for the purpose of discrediting the principal witnesses who testified to conversations with him, which he denied, that they had formed a conspiracy against him for the reason that they had failed in promotion or otherwise, but this evidence the commissioner persistently refused to receive or consider. On the other hand, however, the commissioner, over the relator’s objection and exception, admitted a large amount of inaproper.-and incompetent testimony as to the rumors in the department respecting the views and intentions of the relator as to men who did not join the benevolent association mentioned, and also admitted evidence as to the statements of third persons claiming to represent the relator, but who were not produced upon the trial, which statements were made in the absence of the relator. We think that the inferences to be drawn from the testimony upon
Before passing to the consideration of the manner in which the ■ commissioner conducted the trial, it remains to say with respect to the final charge upon which the relator was adjudged guilty, viz., conduct unbecoming an officer in refusing to obey the commissioner by not taking his entire vacation, we have 'the conclusion of the Court of Appeals in the proceeding brought by the relator upon his suspension (Matter of Croker v. Sturgis, supra), that the chief had a right to return and take up his work, and the commissioner on that point was in error.
We'thus come to the fourth subject, as to whether, from the conclusions reached by the commissioner and the manner in which the trial was conducted, it appears that the commissioner’s judgment was affected by bias and prejudice. We have already shown, as to the first charge of failure to enforce requirements of law for safeguarding the Park Avenue Hotel, that the evidence did not warrant the commissioner’s finding; that with respect to the conclusion that the relator was guilty of incompetence in the management of great fires, as shown by the Park Avenue Hotel fire, there was insufficient basis for such a determination; that upon the subject of conversion of personal property the relator fully met the charge; and that upon' the final charge on which the relator was found guilty, the Court of Appeals has expressed an opinion contrary to that of the commissioner. These conclusions of the commissioner, at variance with the evidence, can only be explained when it is recalled' that he had expressed a determination to find some- charges upon which to dismiss the relator, and for that purpose unearthed a number of matters which had never before; during the several years the chief was in office, provoked criticism. With respect to the charges which the commissioner was unable to find evidence to susr tain, he did not as to some of them acquit the relator, but, while admitting they were not substantiated, stated that he was unable ' to make a finding. As to the charges or specifications where, as ■we have shown, a conflict of testimony was presented, the relator on the one hand was met by department rumors not brought home to any source which could be investigated, and by statements of men
Another comment which we think is justified by this admission as to the manner in which the conclusion of the commissioner was . reached is, that there was an evident impropriety in the commissioner taking up the record with the corporation counsel and his assistants who, as stated, “ conducted the prosecution,” and being, as would appear, controlled by their view as to what rulings, practically all of which were made at the trial upon their suggestion, were erroneous, and what testimony the commissioner- had a right to regard as incompetent. Having had the aid of the corporation counsel and his assistants, as was entirely proper, in examining the witnesses and, if possible, proving the charges, there was evident impropriety in having those who had thus been enlisted in establishing the relator’s guilt consulted in the final rendition of the judgment. In a criminal or civil case, where the liberty of a person or his property is involved, or where the judge finally passes upon the facts, as here, it would be regarded as highly improper for him to surrender his own views on the facts and be controlled by those of counsel whose duty it is to prosecute, or to whose interest it is to obtain a judgment. This trial, it is true, was not a criminal prosecution, nor did it in a strict sense involve a right of property. It, however, did involve the right to a position which the relator had obtained as the result of many years of. service in one of the departments of the city government. As the result of the growth of the civil service system he was protected in that position to the extent. that as long as he honestly and efficiently discharged his duties he was safe from removal, and he could only be removed for cause after a trial. The law has been careful to. throw safeguards around the public service so as to prevent the removal of any one in such service who honestly performs his duty, and for any cause other than a breach of duty, and to that end requires that before his removal charges shall be specified, upon which the accused is entitled to a
Our conclusion upon the whole, record, therefore, is that, beginning with a disagreement between the relator and the commissioner, in which the Court of Appeals has sustained the position then taken by the former, the'commissioner determined upon seeking cause for the relator’s dismissal, and openly expressed his determination that there should be a- speedy trial for this purpose; that charges were ' preferred at the commissioner’s instigation, taken from the relator’s entire record as chief of the department, and comprising for the most part stale charges .which, if they could have been sustained, should not have been permitted to lie dormant for so long a time, and for which in many instances the commissioner was unable at the trial to find any foundation; that the evidence presented as to the charges did not prove the relator guilty, but, on the contrary, with respect to some of those upon which he was found'guilty he was entitled to an acquittal, and with respect to the others he was prevented from ' fairly and fully presenting his defense; and that throughout the trial the commissioner, in his rulings and by his attitude and conclusions, manifested a prejudice and bias which affected his judgment in holding the relator guilty and dismissing him.
It follows, therefore, that the writ should be sustained and the proceedings of the defendant annulled, with costs, and the relator reinstated.
Van Brunt, P. J., O’Brien and Laughlin, JJ., concur.
Concurrence Opinion
I concur in the reversal on the ground that the evidence was insufficient to sustain any of the charges made against the relator.