67 N.Y. 475 | NY | 1876
The relator, as a member of the police force of the city of New York, could only be removed by the board of commissioners after written charges had been preferred against him, and after the charges had been publicly examined into upon reasonable notice to him, and in such manner as the rules and regulations of the board of police might prescribe. (Laws of 1873, chap. 335, § 41.) Whether the board had prescribed any general rules for the government of the force or for the examination of charges against members of the force, or if so, what were the rules and regulations, does not appear. The relator was entitled to a compliance with the statute and to hold office until, after a public examination of charges made, he had been found guilty of some offence which should be deemed sufficient to warrant his removal. Charges were preferred and notice given of a time and place of hearing, as required by the statute; but there was no examination of the charges and no inquiry into their truth by *477 the board of police commissioners, either publicly or in private. He was dismissed upon a written admission of the truth of the charges and a consent to waive a trial, not made to, or in presence of, the board, and without proof of the genuineness of the signature, except as by the statement under oath of the accused, in which he recanted and withdrew the admission, revoked the waiver of a trial, denied and fully answered the charges, and fully explained the reason why and the circumstances under which the admission was made. The admission was not before the board with the assent or by the authority of the relator, and the second statement was an answer to the charge, and called for an examination as if the admission had never been signed. The accused was not estopped by this admission, which was not made to the tribunal having jurisdiction, as his answer to the charges, and his consent to waive a trial were revocable. The board do not profess to have acted upon the waiver, but claimed to have examined into the truth of the charges and held them proved by the admission. When the board of police convened on the day assigned for the hearing, they had before them the withdrawal of the consent to waive the examination and a demand of trial, and the verified answer of the accused, corroborated by the affidavit of every other person present on the occasion except the complainant. The accused did not appear in person or by counsel, and the board were therefore authorized to proceed and publicly examine into the charges and inquire into their truth in his absence and ex parte. Instead of doing this they ignored the documentary evidence before them and the revocation of the consent to waive the examination and the sworn denial of the accused, and adjudged him guilty upon a paper not legitimately before them, taking it as the answer to the charge, notwithstanding the protestation of the accused that it was not his answer and was untrue. There was no trial or examination, and the dismissal was illegal. Judge LAWRENCE has covered the case in his dissenting opinion, which obviates the necessity of any further discussion of the question. It is as important to the discipline of the force *478 that the trials of members upon charges should be strictly legal, as that the authority of the board, when properly exercised, should be upheld.
For the reasons assigned by Judge LAWRENCE the judgment of the Supreme Court and the order of the board of police commissioners should be reversed and the proceedings remitted for such further proceedings as may be lawful.
All concur, except FOLGER and EARL, JJ., not voting, and ANDREWS, J., absent.
Judgment reversed.
