People ex rel. Dermody v. York

64 N.Y.S. 2 | N.Y. App. Div. | 1900

O’Brien, J. :

The relator herein was charged with conduct unbecoming an officer, the specifications in substance being that on November 14,1897, he entered the back room of a café on Allen street, in the city of New York, and accosted one Hoses Abramsky and, after arousing him from a sleep, took from his pocket a gold watch, chain and locket, which on demand he refused to deliver. By the return to the writ, it ■appears that, at the termination of the trial or hearing, the relator’s record was considered by the commissioners in addition to the testimony on the trial, and the relator was found guilty.

We have had frequent occasion to state the rule that although the record of an officer on trial may be introduced in evidence and considered upon the question of his punishment, it is not to be considered upon the question of his guilt; and that it is violative of the rights of the person tried to take up such record after the proceedings have closed without introducing it in evidence — as was done in this instance — and consider it upon the question of guilt. As said in the head note, which correctly summarizes the opinion in People ex rel. Kiebrick v. Roosevelt (1 App. Div. 577): “ The dismissal of a member of the police force of the city of Hew York is-not justified, where it appears that the police commissioners in reaching a determination considered not only the testimony in the-case, but also the record of the member which was not introduced in evidence upon the trial and as to which the accused had no opportunity for explanation. If the record of the member is to be' treated as the knowledge of the commissioners, it is still improper,, as they have no right, in discharging a member, to act upon their own knowledge or to supplement the evidence by such knowledge.”' In People ex rel. Miller v. Wurster (91 Hun, 234) it was said by the court: “ The respondent has annexed to his return the record of the relator as a member of the fire department * * * but it was not given in evidence upon the trial, and the relator was offered no opportunity to explain it. It will not, therefore, be considered on this hearing, except as it has a tendency to show that matters-other than the charges against the relator above referred to, and the proceedings on his trial, were permitted to influence the respondent in'forming his judgment.”

It here appears by the return to the writ that at the termination of the trial, without the record having been introduced in evidence, it was considered by the commissioners upon the question of the relator’s guilt. For the error thus committed, there should be a new trial before the commissioners.

The proceedings should be annulled and a new trial ordered, without costs.

Yam Brunt, P. J., Rumsey, Patterson and McLaughlin, J.J.,. concurred.

Proceedings annulled, and new trial ordered, without costs.