87 N.Y.S. 172 | N.Y. App. Div. | 1904
The relator, a police captain assigned to duty in the eleventh precinct in the city of New York, was, on the 9th day of December, 1902, charged by the police commissioner and by the senior police inspector with (1) conduct unbecoming an officer; (2) conduct injurious to the public peace and welfare; (3) neglect and disobedience of orders and of the rules and regulations of the police department; (4) neglect of duty; (5) making false reports under rule 44, paragraph B.
The charges contained three specifications, which were, in substance, (1) that from the 6th day of August, 1902, to the date the charges were made he suffered and permitted six houses of prostitution, the street numbers of which were given, to be kept and maintained in the district to which he was assigned; (2) that during the same time, at four places, the street numbers of which were given, he permitted persons to traffic in intoxicating liquors without a liquor tax certificate, in violation of subdivision 1 of section 11 of the Liquor Tax Law (See Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312);
Upon the charges stated, as supplemented by the specifications indicated, the relator, after a trial had before the first deputy commissioner, was found guilty and by the police commissioner dismissed from the police force. The relator thereupon obtained a writ of certiorari for the purpose of having the proceedings which resulted in his dismissal reviewed by this court. The Code of Civil Procedure gives Mm the right to this review (Chap. 16, tit. 2, art. 7), and it also limits the review to certain questions, among which is a determination of whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and if so, whether there was “ upon all the evidence such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof rendered in an action in the Supreme Court, triable by a jury, would be set aside by the court as against the weight of evidence.” (Code Civ. Proc. § 2140.) It is our duty, therefore, in reviewing the proceedings, to determine in the first instance whether there was any competent proof of all the facts necessary to. be proved to justify the conviction, and if so, then to determine whether there was such a prepon: derance of evidence against the determination of the commissioner as would necessitate setting aside the verdict of a jury as against the weight of evidence, had a jury found the existence of such facts in an action in the Supreme Court. (People ex rel. McAleer v. French, 119 N. Y. 502.)
Mindful of the duty thus imposed, we have carefully examined the record, and after such examination the court is unanimously of the opinion that the findings of the commissioner are so manifestly against the weight of evidence that the same must be set aside.
Having reached this conclusion, it would serve no good purpose to set out at length the evidence bearing upon such charges, except
As to the commissioner’s findings in so far as the same relate to 73 Elizabeth street. It will be borne in mind that the charges in this respect were that it was a house of prostitution which the relator suffered and permitted to exist during the time stated and that he made false reports with reference thereto in that he did not characterize it in the monthly reports made by him for September, October, November and December as a suspicious place. As to the character of the house seven witnesses were produced, six of whom Were detectives connected with the district' attorney’s office, and the seventh a police officer (none of them under the control of the relator), who testified, in substance, that on the twenth-sixth of November they, without difficulty, gained admittance to 73 Elizabeth street; that upon entering the place they were met by a woman,, apparently in charge, who, upon being informed of what they desired, directed them to go to the 'floor above where several women were found ready to participate in immoral acts; that they made but one visit to the place and there was nothing in the external appearance of the building, which indicated that it was a disorderly house, or that illicit practices were being conducted in it, nor did the dress of the women' whom they saw indicate that they were prostitutes. It did not appear when these women entered the place how long they remained, whether they or women of like character had been there before or went there thereafter. The evidence, therefore, at most simply established that on a single Occasion in a hotel, strangers, so far as appearances were concerned, were able to obtain admission to the building without difficulty and obtain therein women for immoral purposes. This fell far short of establishing that the
This brings us to a consideration of the second branch of the inquiry, and that is, whether the relator was guilty of making false reports under rule 44, paragraph B, with reference to this house, in that he did not designate it in his reports as a suspicious place. This rule, in so far as the same is material to the question under discussion, provides that captains of. the police force shall make, sign and transmit monthly reports in duplicate, one copy to the police commissioner and one copy to the first or second deputy, stating the following among other things: “ 4. Location of all suspicious places and places where it is suspected that violations of the law are planned or occur.” The rule is silent as to what constitutes a “ suspicious place,” but it is fair to assume that the same is to be determined by the exercise of good judgment and discretion on the part of the captain of the precinct, since he is required to make the report. Such judgment and discretion, however, are not a mere whim or caprice upon his part, but must have for their foundation some evidence. Otherwise, it is not difficult to see how reputations might be seriously injured and the value of property easily depreciated. This seems to have been the view entertained by the police department, because in this connection it appeared that the relator, prior to the time the charges were preferred against him, asked his superior officer — Inspector Brooks — what constituted a “ suspicious place,” to which the inspector replied: “ He thought the Captain of the precinct should be the better judge of that; that he should be guided by the reports made to him by detectives and officers doing duty in citizens’- clothes and his personal visits to the place, whether or not it should be termed a suspicious place.” The relator himself testified that he had always considered it necessary for a captain to obtain some evidence that the law was being violated at a place, before entering it upon his list as suspicious, and that was the way he had always been guided as a captain of police.
Under such circumstances I do not think it can be said that the reports which he made were false, and the finding of the commissioner that they were is against the preponderance of evidence.
In conclusion, therefore, it seems to me that the findings of the commissioner, judging the relator guilty of the charges made against him, are against the weight of evidence, and for that reason the same should be set aside, the writ sustained and the relator reinstated in his former position, with fifty dollars costs and disbursements..
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Proceedings annulled, writ sustained and relator reinstated, with fifty dollars costs and disbursements.