111 N.Y.S. 270 | N.Y. App. Div. | 1908
The relator was a member of the fire department of the city of New York, had never been charged with any dereliction of duty, and he was enrolled in the honor list of the department. He was charged jointly with Lieutenant Thomas F. Burke with three offenses, as follows:
(1) Neglect of duty. The specification was that relator “failed to notify his commanding officer or superior officers in. the department of a matter affecting the welfare and discipline of the department, and of which he had been fully informed and was duly cognizant of, to wit, the alleged theft of an article by a member of*7 this department at a fire, * * * in violation of Section 195, Rules and Regulations 1903.”
(2) Conduct unbecoming a gentleman and member of the department, in that “ he entered into, or was a party to and fully cognizant of, a conspiracy entered into by certain members- of Hook and Ladder Company Ho. 6, for the sole purpose of injuring and discrediting the • commanding officer of that company, Foreman William H. McCarthy, by insinuating or alleging that said Foreman William H. McCarthy had stolen from Mr. M. Lipschitz * * * an article known as a button fastener, and had placed same in the drawer of his (McCarthy’s) desk, and then causing Mr. Lipschitz to be notified that he could find the article alleged to be stolen in said desk.”
(3) Violation of section 211, rules and regulations 1903, in that “ he was guilty of deception and evasion in failing to truthfully inform Deputy Chief of Department, Charles W. Kruger, of the true state of affairs in his investigation and complaint of Mr. M. Lipschitz in relation to articles stolen, or alleged to be stolen, from him on the occasion of a fire in his premises.”
The relator was put on trial before Deputy Commissioner Churchill, and he was found not guilty under the first two charges and specifications, so that the inquiry upon this review is as to the evidence in support of the 3d charge and specifications. Section 211 of the rules and regulations requires that a member shall “ not be guilty of deception, or evasion of any, law, ordinance, rule, regulation or order, general, special or verbal.” The theory on which the "relator has been convicted under this charge, and been dismissed from the service, is that in answering the questions put to him by the deputy chief of the department in the investigation of the alleged theft by the foreman, William H. McCarthy, the relator was impliedly “ ordered ” to tell all that he knew about the, matter, and that in telling what he did tell he misrepresented the facts as he knew them to be. Passing by the fact that this is a strained and unnatural construction of this rule, let us assume it to be the correct one. The report of the deputy chief of the department which is contained in the record, though it does not appear to have been offered or received in evidence, says that he examined the relator at about eight-thirty a. m., on the l9th day of October, 1904,
This is all the statement the relator is alleged to have made to the deputy -chief,' and. the charge is that he was guilty of' “ deception and evasion in- failing to truthfully inform Deputy Chief of Department Charles W. Kruger of the true state of affairs in his investigation,” etc. The evidence before Deputy Commissioner Churchill does 'not show that any different state of affairs existed than that which the relator is alleged to have told him.' The relator- testified to substantially the.same state of facts -upon' the trialhe was fully corroborated by Policeman John McGroarty, who was in no wise impeached, who was not shown to have any interest in the matter, or to have any grievance against Captain McCarthy, and the deputy commissioner having dismissed the charges relating to the conspiracy, it cannot now be suggested that this witness was involved in a conspiracy against McCarthy for the purpose of dis- - crediting him. So far as anything in the record is concerned this witness. appears to have been wholly disinterested, and it may not be presumed that Policeman McGroarty deliberately perjured himself by testifying that he saw McCarthy steal this implement. He is entitled to the usual presumptions of innocence of crime and that he has done his duty in testifying in a public investigation, and
It is difficult to read over this; record with the aid of counsel’s brief and reach any other conclusion than that there was a determination to find the relator guilty of something, regardless of the evidence, and he has been found guilty of a charge so vague and indefinite that it could hardly' have been conceived in fairness., The evidence is overwhelming that the relator told the true situation as it appeared to him ;' he did not attempt, to disguise the fact that he was not friendly with McCarthy, even that lie was actuated by a desire for revenge in calling attention' to the alleged theft,, but the. motive which prompted liim to act has nothing to do with the case; he had a right to disclose a crime even for a bad motive, and the effort -to establish a conspiracy having been abandoned, and it not appearing .that any one other than McCarthy placed the button fastener in the desk,, and two witnesses having testified to having seen McCarthy take it, there was mo evidence in this case on which the relator could projierly be convicted of the charge upon which he has been removed from his position. If the relator had been convicted upon the charge of failing to disclose to his superior officer the fact of the crime, the evidence would have come much nearer justifying the result, for there was a period between September twenty-ninth, the date of the fire, and October eighteenth, during which the relator knew of the facts, assuming them to be true, and yet lie made no effort to disclose the truth to his superior officers. But he is not' guilty of this charge, as the deputy commissioner finds, because McCarthy did not steal the button fastener, and hav^ "ing reached this conclusion, it was necessary to find some other pretext, and so the third charge was sustained, though,-as we- have' already briefly pointed out, it was necessary for the tribunal hearing
Jenks and Hooker, JJ., concurred; Gaynoe and Miller, JJ., dissented.
Proceedings of the fire commissioner annulled on reargument, with fifty dollars costs and disbursements, and the relator restored to his position.