People ex rel. Langan v. Hayden

30 N.Y.S. 332 | N.Y. Sup. Ct. | 1894

CULLEN, J.

This is a certiorari to review a decision of the respondent dismissing the relator from the police force of the city of Brooklyn for alleged misconduct. We think there was no legal error committed on the trial of the relator. The second charge at least set out a substantial offense, to wit, that of being engaged in a fight with certain named persons, “during which he is accused of attempting to shoot George Myer.” The criticism on this specification— that it does not charge that, as a matter of fact, the relator did attempt to shoot, but merely that he was accused of attempting to shoot—is technically well taken, and probably such an allegation in an indictment would be bad. But technical accuracy is not requisite in these proceedings. It is sufficient if the charge fairly apprises the relator of the offense of which he is accused. This the specification did.

Though the report of the captain of the precinct, made on an examination of the relator’s alleged misconduct, is attached to the changes, and found in the return, we cannot find that it was put in evidence on the trial. On the contrary, the captain was sworn as a witness on the trial, and examined. No error was therefore committed in the receipt of evidence.

That the relator was engaged in a broil in the saloon, and drew his pistol, was undisputed. Whether the relator was the aggressor, and at fault, or whether he acted in self-defense, was a question sharply contested, and the witnesses on one side flatly contradicted those on the other as to the details of the occurrence. To which set of witnesses credence was to be given, depended largely on the appearance of the witnesses, and the manner of their testifying. The commissioner had the advantage of seeing and hearing the witnesses. We have not those means of judging of their credibility, and the evidence, on its face, shows no such clear preponderance as justifies our interference with the determination of the commissioner, under the settled rule applicable to these cases. Barnard v. Gantz, 140 Y. Y. 249, 35 Y. E. 430. The proceedings should be affirmed, with costs. All concur.