48 N.Y.S. 578 | N.Y. App. Div. | 1897
The relator was removed from his position as a member of the police force of the city of Yew York, after a trial before the commissioners, upon a charge of conduct unbecoming an officer, the ofíense consisting, according to the specification, of his having at some time, between the 18th and 31st days of Yovember, 1895, paid to some person unknown the sum of $200, a part consideration for securing his appointment on the police force of the city of Yew York. At the date mentioned the relator was a probationary member of the force ; that is to say, ■he- was on trial as to his fitness, and it is not to be disputed that if at the end of his probation he was not regarded by the commissioners as a competent person, he could have been dropped from the, service without any formal proceeding brought against him. (Matter of Murray, 18 App. Div. 337.) But while he was' thus on probation he was, nevertheless, under the control and subject to the authority and orders of the board. All appointees as patrolmen must have served a probationary period'. (Consol. Act [Laws of 1882, chap. 410], § 265, subd. 3, as amended in 1895 [Chap. 569].) Such probationers are not entitled to an absolute appointment until the test period has expired, but during that period they perform the duties, receive the pay, bear the responsibilities, are subject to the rules and regulations of the force, and for misconduct are amenable to the disciplinary jurisdiction of the commissioners. The
The principal objection urged to the determination of the commissioners now brought up for review by the writ of certiorari is that the relator did not have a fair trial; that one of the commissioners who passed upon his case was the accuser, the only material witness against him, and one of his judges; and that another of the commissioners was shown to have been so situated with reference to the subject-matter of the inquiry that he could -not give an impartial judgment. Of necessity, in the discharge of the duties of his office, a commissioner has authority to make his own preliminary inquiry into the efficiency and the acts of. any member of the force, and there are many cases in which he must be both accuser and witness. It was in the performance of his duty that the commissioner, witness in this case, became aware of the existence of facts upon which the charge was based against the relator of having procured his place upon the force by bribery. The original or preliminary investigation into that charge was had before another commissioner. It appeared that at some time prior to such investigation, the relator had made and signed in the presence of the commissioner who was the witness, a statement to the effect that he, the relator, had agreed to pay to a certain named person the sum. of $400 in case he were appointed on the force, and that he actually did pay to such person on account the sum, of $200. What purported to be a confession signed by the relator was identified and received by the trial commissioner, and the witness, the commissioner who produced that statement, was cross-examined by the relator’s counsel. The relator was then sworn, and testified to his having paid the sum of $200 to some person who asked him to join a Republican club, he being told that he never could wear the uniform of the force if he would not join that club and help it out, as. it was “ in hard circumstances.” There was no such club, but nevertheless the relator, by his own statement, paid that money to some person. He had said in his ex parte statement that he paid it
We express no opinion as to the merits of the case (leaving that matter to be considered in any future proceeding that may be instituted against him), but only determine that the relator did not have a fair trial, as the board that passed upon his case was constituted. It is not an answer to this-to say that accused policemen can be tried only by the commissioners, and that a majority of the board must concur to authorize a sentence. (Consol. Act [Laws of 1882, chap. 410], § 251, as amended by Laws of 1895, chap. 56.9.) There was a fourth commissioner who did not sit in the case, and whose presence would have made a tribunal properly composed and competent to sit in judgment on the relator’s case. There was no legal necessity to have the court composed of the three members who finally passed Upon the relator’s case. One of the commissioners, who was not a witness, had a personal interest in it, and, as the record shows, really put himself upon trial in the very proceeding before him. It is a fundamental rule that personal or pecuniary interest in a litigation disqualifies a person from acting judicially in that litigation; and there having been another commissioner who might have taken part in the trial, it cannot be urged that of necessity the court was properly constituted. ■
The action of the commissioners should be annulled and the relator reinstated.
Van Brunt, P. J., Rumsby and O’Brien, JJ., concurred; Ingraham, J., dissented.
Proceedings annulled and relator reinstated, with costs.