People ex rel. Brown v. Greene — 106 A.D. 230

Majority

p. 230

The People of the State of New York ex rel. Andrew Brown, Relator, v. Francis V. Greene, as Commissioner of Police of the Police Department of the City of New York, Respondent.

Headnote

Trial of a member of the New York police force before a deputy police commissioner ■— the deputy is not disqualified because he directs tile captain to prefer charges — error in refusing to grant an adjournment, iiow cured — when the decision of the commissioner will not be disturbed.

The fact that a deputy commissioner of police of the police department of the city of New York directs a police captain to prefer charges against a patrol,rhan for unlawfully clubbing a citizen, does not disqualify the deputy commissioner from presiding at the trial of the patrolman upon the charges preferred against him pursuant to such direction, particularly where it appears that under the rules of the department it was the duty of the captain to prefer the charges without any direction from the deputy commissioner.

■Any error, involved in the refusal of the deputy commissioner to grant the accused patrolman’s request, for an adjournment of the trial, made on the ground that his counsel could not be present and that his witnesses were not in attendance, is cured, where, after the examination of three witnesses, the deputy commissioner grants an adjournment and on the adjourned day produces for cross-examination the witnesses previously sworn.

The good of the police service in the city of New York requires that a wide discretion should be vested in the police commissioners and that their judgment ■ and determination in a given case should mot be disturbed unless there is an absence of evidence to sustain.it.

Their findings and determination on the facts, when the evidence is conflicting and contradictory, should be' regarded as conclusive when there is sufficient evidence, if believed, to sustain their determination.

Certiorari issued out of the Supreme Court and attested on the 29th day of December, 1903, directed to Francis Y. Greene, as commissioner of police of the police department of the city of New York, commanding him to certify and return to the office of the

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clerk of the county of Kings all and singular his proceedings had in relation to the removal of the relator from the police force of the police department of the city of New York.

Samuel J. Rawak [Louis J. Hamel with him on the brief], for the relator.

James D. Bell [Edward H. Wilson and John J. Delany with him on the brief], for the respondent.

This is a writ of certiorari bringing before us for review the determination of the defendant finding the relator guilty of a violation of the rules of the police department of the city of New York, and dismissing him from the force.

There is no question that the defendant had jurisdiction of- the subject-matter and that he pursued the authority conferred upon him in the mode required by law to authorize his determination, and there is no force in the contention of relator that the deputy .commissioner, before whom the evidence was taken and who recommended the dismissal, directed Captain Bedell to make the charges and for that reason was the actual complainant in the case. The defendant made a return September twenty-fourth in which he states that there was no order issued by the deputy, and that by the rules of the department it was the duty of captains to prefer charges against any patrolman who, while on duty, used his club on a citizen except in self-defense. Such an order would not have disqualified the deputy commissioner or furnished an adequate cause for his not proceeding with the hearing. (People ex rel. Campbell v. Partridge, 99 App. Div. 410 ; affd., without opinion, 180 N. Y. 542 .) It appears that when the proceedings came on to be heard, the deputy commissioner refused the relator an adjournment asked on the ground that his counsel could not be present and that his witnesses were not in attendance, and proceeded with the hearing, but after the examination of three witnesses he granted an adjournment, and on the adjourned day all the witnesses previously examined were produced for cross-examination by the relator’s counsel, at which time the relator produced his own witnesses, who. were examined in his behalf, and this cured the error complained of. No prejudicial error was committed by the deputy commissioner in

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his rulings on the trial. Competent proof was made of all the facts necessary to be proven in order to authorize the determination under review; although the evidence was contradictory and conflicting, we are limited by section 2140 of the Code of Civil Procedure to the determination of whether there was upon all the evidence such a preponderance of proof against the existence of the material facts necessary to sustain the determination that the. verdict of a jury affirming the existence thereof upon the samé facts would be set aside as against the weight of evidence. ■ I think it would not.'

There is no question but that between the hours of four and five o’clock on the morning of September 4, 1903, the relator arrested James L. Halliday at Myrtle avenue and Adams street in the borough of Brooklyn, and at that time and place used his club upon Halliday to such an extent as to render his removal to the Brooklyn ■ Hospital necessary, and that the injury sustained by him was .very serious admits of no doubt. The only contention on the hearing was as to the circumstances: .'attending the arrest and whether the relator was justified in the use he made of his club. Three witnesses were sworn on each side; their testimony was conflicting and at variance, and their conduct and character open to criticism. The Credibility to be given them and the weight to be attached to their evidence was peculiarly within the province of the deputy commissioner. The holding of the appellate courts of this State has uniformly been that, the good of the service, requires that a wide discretion should be vested in police commissioners, and that their judgment and determination in a given case will not be disturbed unless there is an absence of evidence to sustain it. They being/the statutory judges of offenses against the discipline and efficiency of the police force under their jurisdiction, their findings and determinations on the facts, when the evidence is- conflicting and contradictory, should, be regarded as conclusive, when there is, as in this ease, sufficient evidence, if believed, to sustain their determinations.

The determination of the defendant should be confirmed, with costs.

HirSchbeeg, P. J., Babtlett, Woodwabd and Jenks, JJ., concurred.

Determination confirmed, with costs.

Cases cited

People ex rel. Campbell v. Partridge 99 App. Div. 410 N.Y. App. Div. 1904-12-23 p. 231