People ex rel. Eggers v. Bingham

106 N.Y.S. 330 | N.Y. App. Div. | 1907

Rich, J.:

This is a review by certiorari of the proceedings of the police commissioner of the city of New York and of his order finding the' relator guilty of conduct unbecoming-an officer and willful neglect of duty and " dismissing him 'from the- service. The relator was a sergeant and acting captain in charge of the “ vice squad,” so called, and concedédly directed two officers under his command to. ascertain, if possible, whether -the law was being violated at No. 158 West Fifty-fourth street by the keeping thereon of a disorderly house. These officers testified that upon receiving such directions they visited the premises and reported to him that they had procured evidence that the house was . a disorderly house, and that one of them — Johnson—- twice thereafter called his-attention to the case and was directed to let the matter -drop or to let it rest, to take. no further action against the house at that time. The relator con-ce'des that Johnson .reported direct to him and- informed him-that the other officer had been in the house also and- that they had some evb dehce against the place; that Johnson- twice later called his atten-' tion to the case ; that he- made no report to any siiperior police officer and that no arrests or application for a warrant were made. There is no question on the tin contradicted evidence of-these officers that the house was a-disorderly house and that the'evidence pro-, cured by them called for a prosecution. It was the duty of the relator to have caused such action to be.taken, but he justifies his course upon the theory that Police Commissioner McAdoo, the predecessor of the respondent, who approved the findings and made the order complained of, had given him general directions to report in cases of this character to his secretary, one Howell, and take orders from him as to the action to be followed in such cases, in pursuance of which he did r'eport to Howell that two of his men had made visits to the place and - had secured some evidence and was directed by Howell, “ Well, don’t do anything with that; don’t act on this place just now until you get stronger evidence,” in conformity with which he advised Johnson that Howell had directed that no action be taken on the case until he directed action. The relator’s testimony that he was given such directions by the police commissioner was not controverted. Even if he refrained from the performance of his duty in obedience to the request of Howell, this cannot of course exeuse-his conduct. If he had' knowledge that the law was being violated, it-was his duty to suppress the violationbut if in failing to do this he acted under orders of his superior, we think the punishment was too severe, while if he did not. refrain from acting in consequence of any superior interference, but simply neglected his duty, the decision ought to stand. The crucial question, therefore, is, did the relator fail to act upon the advice of Howell or from motives of his own ? We are not entirely satisfied that he did not honestly intend to suppress the place. Howell testifies that he did not receive any such report as to the premises in question from relator or give him any directions regarding the case that he can remember. It is incredible that-he should not remember whether such report was made and directions given. The relator had been a member of the force for fourteen years, and only about a month before this occurrence had received honorable mention from the commissioner for “ exceptional zeal, intelligence, fidelity, integrity and marked good results of police service.” He had just before that time raided this same' house ; he had applied for hundreds of warrants and caused hundreds of raids to be made as the uncontradicted averments of his petition show. At the same time that he directed the procurement of evidence against this house he directed similar action against a house located at 204 West Forty-sixth street, and upon receiving the reports of his officers directed" the procurement of a • warrant, which was refused by the magistrate to whom application was made, because of the insufficiency of .the evidence. Upon the hearing he repeatedly sought to show that in pursuance of his general-order from the police commissioner, and with-his knowledge and approval, he had repeatedly reported to Howell in this class of cases and received orders from him which he had obeyed. This evidence was both material and competent, and its exclusion was error.

When the witness-Johnson-'was on the stand he was permitted on his direct examination to state the conversations between the relator and himself .when the former directed no further proceedings to be taken against the premises in question. Upon his cross-examination counsel for the relator asked him if in those conversations, and particularly the last one, the relator did not say to him,. “Don’t do anything for a while, as I have received orders' from Mr. Howell not to do anything in regard to that house at present.” At different times during'the cross-examination counsel labored strenuously to get this evidence on.-tlie record with the same result. -It requires no argument to establish- the legal proposition that when one litigant upon a trial proves part of a. conversation, competent and material,. his adversary is entitled to the whole of it, and the exclusion of this evidence was error. An officer ought- not to be deprived of an enviable record honestly and meritoriously earned by years of faithful and commendable service, unless the evidence against him shall be convincing and preponderating in weight, and nothing short of this should be held to justify a punishment as severe as that inflicted upon the relator, and the proceedings of the police commissioner must be annulled, and set aside, and the relator restored to his position, with fifty dollars costs and his disbursements in this court.

Hirschberg, P. J., Woodward and Jenks, JJ., concurred; Miller, J., dissented.

Determination reversed and relator, restored to his position, With 'fifty dollars costs and Ms disbursements.