129 N.Y.S. 255 | N.Y. App. Div. | 1911
On December 17, 1910, the relator, who had been for nearly thirteen years assistant registrar of records of the department of health of the city of New York in and for the borough of Bichmond, was served with charges involving such unprofessional conduct on his part towards his patients in his private practice as would, if true, have constituted misconduct showing him unfit to1 occupy any public position, and particularly one his retention in which would have furnished him with a certificate of professional character, rendering it possible for him to continue his course of taking undue and improper advantage of his private patients. Belator, being a volunteer fireman,, was given the hearing to which' he was entitled. (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) The charges related sptóly to his actions with patients in the. practice of medicine • which he was pursuing outside of his official duties. If true,' they established such a disregard of morality, decency and professional ethics as constitutes convincing proof of misconduct, evidencing unfitness for the official position he occupied, or any other.
It is objected that relator cannot now be punished for his assault upon Mrs. De Camera, as he was acquitted by the jury upon his trial for a rape committed upon her. But the charge preferred against him- in these proceedings was that, under the pretense of treating her proféssionally, he grossly and indecently, by subterfuge, force and ^gainst her will, committed an outrageous assault upon her. This charge is-digtinct from the criminal one, upon which he was acquitted. The elements of the two are different; the amount of proof required and 'the rules, applicable thereto are not identical. An act might be suf-' ficient to constitute an indecent assault without constituting the statutory crime of rape (Penal Law, § 2010); and there could be no conviction of the- crime without corroboration of the female defiled. (Id. § 2013.) Nor is the fact that relator
The proceedings of the board of health should, therefore, be affirmed and the writ of certiorari dismissed, with fifty dollars costs and disbursements to respondent.
Ingraham, P. J., and .McLaughlin, J., concurred; Scott and Miller, JJ., dissented.