People ex rel. Unger v. Bingham — 134 A.D. 973

Majority

p. 973

The People of the State of New York ex rel. William J. Unger, Belalor, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.

Headnote

New York city —police — removal—absence from post.

Certiorari to review the determination of the police commissioner in dismissing the relator from the police force of the city of New York.

Determination confirmed, with costs. No opinion. Hirschberg, P. J., Burr, Rich and Miller, JJ., concurred; Woodward, J., read for reversal.

(dissenting): The relator was charged with neglect of duty, in that “said Patrolman William J. Unger, Shield No. 1285, having been assigned to patrol Night Posts No. 20 and 21 (Pearl Street from Pine Street to Maiden Lane, and Pearl Street from Maiden Lane to Fulton Street, Fletcher Street from Pearl to Water Street), was absent from said posts, and when seen at 7:07 a. m. June 9th, 1908, was standing in front of bar of licensed liquor saloon at No. 168 Pearl Street. This during his tour of patrol duty from 2 a. m. to 8 a. m., June 9th, 1908,” and having been convicted under this charge the relator has been removed from office. The evidence against the relator was furnished by Sergeant William J. Colyer, who testified that at about five minutes past seven o’clock on the morning of the ninth of June he saw relator at the corner of Pine street; that “ while I was looking up the street towards him, he turned and walked across the street. I was about to walk down Wall Street, when I saw him give a searching look behind him up Pine Street.” The witness explained that he meant by a searching look that the relator was perhaps looking for somebody, and continued : “I, therefore, watched him, and saw that he crossed in a diagonal manner that would take him off his post. As soon as he disappeared I walked up a block to the corner of Pine Street, and I saw him through the window in the saloon. * * I walked across, into tile saloon, right up behind him, and asked what he was doing. He turned around, and he was rather surprised to see me; he could not speak for a moment, I guess. He said, ‘I was called in,' and he turned to the bartender and said, ‘What do you want of me?’ The bartender did not answer. I gave him time enough, plenty of time to answer if he would. He made no answer, so I told him, ‘Apparently, he did not call you in. Go out on post.’ He came outside and he said again that he had •been called in, and I said, ‘You had better go out and patrol your post now. I shall make a complaint.’” The relator admitted that he was found in the barroom, but insisted that he was called in by some one in the barroom, and that he found when he got in that they wanted to refer some unimportant question about street numbers to him, and no one disputes him upon this point. The complaining witness says there were three other persons in the barroom, and he knew that he intended making a complaint for he told the relator so at the time, yet no effort is made to produce any witness to contradict the relator. The relator did not say that the bartender called him in, and

Dissent

p. 974

the bartender’s silence did not tend to show that the relator was not called in by some of the men who were concededly present at the time. Indeed, the relator testifies that it was a “citizen” who called him in, evidently intending to distinguish the person from the bartender, and it remains uncontradicted, therefore, that the relator, a police officer at the corner of a street, at the request of a citizen entered this barroom which was diagonally across the street from where he was supposed to be upon his beat. For this he has been convicted and punished by removal from the force, the extreme limit of the commissioner’s power No one suggests that the relator entered this barroom for the purpose of taking a drink ; there is no evidence whatever that anything improper was taking place in the saloon, and the whole sum and substance of the offending, as it appears from the evidence, is that the relator had passed out of the geographical limits of his beat by a few feet, though within plain sight of the territory which was within his jurisdiction, and had entered a saloon because he was requested by a citizen so to do. The saloon is a-lawful place; the offense, in law, is not greater for entering a saloon than for entering a dry goods store, and it would require quite a stretch of construction to make it a serious offense for a police officer to step outside the geographical limits of his beat to respond to a call on the opposite side of the street in plain view of his territory. Our attention is not called to any such rule; I do not believe there is any rule which forbids a policeman going outside of his beat when called, and especially where he is not called upon to go out of sight of the territory assigned to him, and there is no contradiction of the relator on the question of his having been called. The fact that he was not called to discharge any duty relating to his position as a police officer is not important; he could not know what he was called for until he had responded, and he does not appear to have had any other motive than the one assigned, for there is no suggestion that the bartender was in the act of serving drinks or that anything of the kind had been mentioned by any one. This "occurred at or about seven o’clock in the morning. At five minutes past seven the relator was concededly upon his post discharging his duty. At seven minutes past, as the charge reads, he had abandoned his post, and the relator says he crossed the corner and entered the saloon át the request of a citizen. Conceding the truth of his statement, and it was in the power of the prosecuting witness to produce the witnesses if it was not true (the claim having been made in the presence of all of them), where is the neglect of duty which warrants the drastic treatment which has been accorded the relator? As we remarked in People ex rel. Devney v. Greene ( 89 App. Div. 296 , 299), “ While it is true that the statute vests the discretion in the police commissioner of determining the punishment, it is hardly possible that the Legislature intended that the extreme penalty should under ordinary circumstances be visited upon a police officer for a mere technical violation of a rule which is not shown to have prejudiced any rights of the public or interfered with the proper discipline of the department,” and I am clearly of opinion that the evidence before the commissioner did not warrant the conclusion that the relator had been guilty of any act meriting the severity of punishment which has been meted out to him. The determination of the commissioner should be annulled and the relator restored to his position upon the police force.

Cases cited

People ex rel. Devaney v. Greene 89 App. Div. 296 N.Y. App. Div. 1903-12-30 at 299 p. 974