96 N.Y.S. 1046 | N.Y. App. Div. | 1905
This is a writ of certiorari to review the proceedings of the fire commissioner of the city, of- New York, on thé trial of charges preferred against the relator as assistant foreman in that department. In August, 1901, Stuart, an engineer, was tried for an assault upon ’ Grady, a foreman, and. dismissed the department. The relator Was a witness against 'Stuart. ■ Stuart did not seek a review of the proceedings. In 1902 the Legislature passed an act (Laws of 1902, chap. 554) that authorized the then commissioner in his discretion to rehear Stuart’s case and to reinstate him. The relator. was a witness on the rehearing. Stuart, was reinstated, and thereafter the relator was tried on charges that he had Sworn falsely on these trials when he testified that he witnessed the quarrelbetween Grady and' Stuart'; that Stuart -struck Grady, and that he had advised other members of the force not to appear as witnesses of the quarrel. He was found guilty and dismissed the department. ■ The principal charges against the relator involve his commission of a felony under - section 96 -of the Penal Code,. Therefore the relator is “ entitled to the saíne- presumption in his favor that would have existed if the said charge had been mide against him ifi a criminal court.” (People ex rel. Campbell v. Police Comrs., 13 App. Div. 69 ; appeal dismissed, 153 N. Y. 657.) Greenleaf on Evidence. (Vol. 1 [15th ed.], § 257) says that to sustain a Conviction'of perjury the evidence “must be at least strongly-corroborative of the testimony . of the accusing witness, or, in the quaint but • energetic language of Parker, C. J., ‘ a strong and clear evidence, and more ■ numerous -than the evidence given for the defendant.’
The other charge is that the relator urged membei’S of the department not to appear as witnesses of what took place. The specifications explain the charge. It is not that he attempted to keep the witnesses of the quarrel from the witness stand, but that he suggested that they should not remain in the vicinity of the quarrel if they did not wish to be witnesses. The language of the specifications is: “ Why don’t you take a walk if you don’t want to be a witness in this case,” and, “ Between the two of us we will know nothing and mind our own business.” Garvin testifies that- to a group made up, as far as he can remember, of Firemen Hunt and O’Leary and himself, the relator said words “ to the effect that the boys better take a walk or go down to the corner, something to that
We think that the evidence is insufficient to sustain the charge. The determination is annulled, and the relator must be reinstated, with costs.
Hirschberg, P. J., Bartlett, Jenks, Hooker and Miller,, JJ., concurred. ' -
Determination annulled, with costs, and relator restored to his position.
See Queen v. Muscot (10 Mod. 194).— [Rep,