People ex rel. Kelly v. Waldo

146 N.Y.S. 581 | N.Y. App. Div. | 1914

Jenks, P. J.:

The relator, a member of the police force of the city of New York, was found guilty of a violation of section 1 of rule 30 of the police department, and dismissed the force. The pertinent part of the section reads as follows: “ No member of the police force or employee of the police department shall, under any pretense whatsoever, share in, for his own benefit, any present, fee, gift or emolumenc for police services or for services of the police department or any member thereof, additional to his regular salary, pay or compensation. ” The relator, who was detailed as an inspector of boilers, is charged with receiving $10 after his inspection of boilers in the House of the Good Shepherd, from Bogle, who was the engineer. Bogle testifies that when the inspector called upon a week day for the purposes of inspection the inspection was postponed until Sunday. The proof of the offense depends upon the personal testimony of Bogle. There are no corroborative circumstances that support him. The only suggestion of reason for the payment of what Bogle admits was a voluntary gratuity is that the inspection was made on Sunday. But Bogle testifies that before the relator called on a week day for the inspection, the lieutenant of the squad had acceded to Bogle’s request that the inspection be made on Sunday; that he so informed the relator; that he gave an apparently good reason to the relator for the postponement, and that the relator thereupon acquiesced without demur or complaint, all before Bogle said he would pay him for his time. The relator denies absolutely his receipt of any money. The alleged act was a misdemeanor (Penal Law, § 855), and the relator was entitled to “the presumption that he was innocent of. the charge * * * so that even if the proof was otherwise evenly balanced, this presumption might properly prevail with the police commissioner in favor of the complainant.” (People ex rel. Callan v. Partridge, 87 App. Div. 573, 575.)

It may be asked, in weighing the probabilities, what reason moved Bogle, who so far as it appears was an entire stranger to the relator, to fabricate testimony. We are not bound either to seek out a reason or to credit his testimony if we cannot find one or suggest one. But it may be noted that Bogle testifies he had secured the $10 from his employer for the purpose of paying it to the relator.

We think that the determination should be annulled, with $50 costs and disbursements, and the relator reinstated.

Burr, Carr, Eich and Stapleton, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and relator reinstated.