People ex rel. Hansen v. Waldo — 163 A.D. 665

Majority

p. 665

The People of the State of New York ex rel. Frederick Hansen, Relator, v. Rhinelander Waldo, Police Commissioner of the City of New York, Respondent.

Second Department,

July 31, 1914.

Headnote

Municipal corporation — city of Hew York — certiorari to review dismissal of police officer for writing anonymous letter to commissioner — evidence — handwriting expert.

Certiorari to review the dismissal of a police officer of the city of New York upon the ground that he wrote an anonymous letter to the police commissioner and denied that he wrote it.

Testimony of an expert on handwriting which was the only direct evidence given examined, and held, that the determination of the commissioner should be annulled and the relator reinstated.

Certiorari issued out of the Supreme Court and attested on the 23d day of October, 1913, directed to Rhinelander Waldo, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

Alfred J. Talley [Joseph A. McNamara with him on the brief], for the relator.

James D. Bell [Charles J. Druhan and Frank L. Polk with him on the brief], for the respondent.

The relator was dismissed the police force of the city of New York because he wrote an anonymous letter to the commissioner of police and denied it. I think that the proof of his guilt, tested by the criterion of subdivision 5 of section 2110 of the Code of Civil Procedure, is not sufficient. The direct evidence against him is the testimony of an expert on handwriting, founded on his comparison of the letter and certain writings of the relator, whereby the expert reached “ an irresistible conclusion.’" I have no intention to reflect upon this expert or to belittle him. He stands high in his calling and is a fre

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quent witness. But this kind of evidence is characterized by our Court of Appeals as of a dangerous nature. (Hoag v. Wright, 174 N. Y. 43 .) And in Hardy v. Harbin ( 154 U. S. 605 ) Hunt, J., writes as follows: “Those having much experience in the trial of questions depending upon the genuineness of handwriting will not require to be reminded that there is nothing in the whole range of the law of evidence more unreliable or where courts and juries are more liable to be imposed upon.” And in Black v. Black ( 30 N. J. Eq. 224 ) Van Fleet, V. 0.,- says: “The opinion of experts, based on comparison alone, is evidence of low degree, and has been regarded by eminent judges much too uncertain, even when only slightly opposed, to afford a safe foundation for & judicial decision. Gurney v. Langlands, 5 Barn. & Ald. 330; Doe v. Suckermore, 5 Ad. & El. 751; 1 Greenl. Ev. § 580, note (2); Stark. Ev. 173, .note (e).^[1] ” Mr. Moore in his valuable work on Facts has assembled various judicial utterances to the effect that this kind of evidence is most unsatisfactory, very inconclusive, most unreliable and of the lowest probative force. (Moore Facts, § 615.) And an eminent writer has said that “A jury is bound, therefore, to accept the opinion of an expert as to handwriting, even when uncontradicted, as an argument rather than a proof; and to make allowance for all the disturbing influences by which the judgment of the expert may be moved.” (1 Whart. Ev. [3d ed.] § 722.) And, finally, it is common knowledge that experts of the highest standing, even when most positive in their opinions, have erred. (And see Moore on Facts, § 634.) The peculiar value of cross-examination of this kind of witness is recognized (Hoag v. Wright, supra, 42 ), and yet in the case at bar, by the refusal to adjourn the trial in order that the relator’s counsel might attend, until after this expert was dismissed from the stand, the relator was deprived of the benefit of counsel’s services in cross-examination of this witness.

The character of this letter does not indicate that the writer thereof was this relator or was a member of the police force. It was a complaint against the conditions of certain work doing

* See Sharswood’s edition.— [Rep.

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in “our neighborhood,” against the inattention of the local policemen, the difficulty of finding any of them in the neighborhood, their neglect of duty for the frequenting of groggeries and against the sale of beer from a certain inn on Sunday. Investigation by a police lieutenant of the conditions charged revealed that this relator resided in the neighborhood, and hearsay was admitted to show that a contractor doing the work in that locality thought that the relator was inimical to him and had been the cause of telephonic complaints against him.

My own comparison of the exhibits (See Luco v. United States, 23 How. [U. S.] 515, 541) does not convince me of the correctness of the expert’s conclusion. On the other hand, the relator took the stand to deny that he wrote the letter or had any knowledge thereof. A paying teller of the bank wherein the relator kept his account expressed his opinion that the relator did not write the letter, and the relator’s wife testified likewise. An inspector of the department of health testified that he had received two or more letters of complaint against the condition of that neighborhood, of which letters one was unsigned and another was from an existing person living ip that vicinity. He refused to reveal the identity of the writer in obedience to the rule of his department, but testified that it was not the relator. The relator’s counsel was refused an opportunity to bring the letters into court and to have the expert recalled in order that they and the letter in question might be submitted for his opinion.

It is true that there is one curious feature in the testimony of the relator. When asked by his counsel whether he wrote the letter, he answered: “I would like to have my memorandum book.” He was then asked by his counsel to put the memorandum book down and told to answer the question, whereupon he answered: “lam positive, as I stated before, that I didn’t, and I state again I didn’t write it. Q. Well, I ask this question: Whydid you ask the Commissioner for your memorandum book ? You didn’t find your memorandum book necessary to find out whether you wrote that letter, did you ? ” The deputy commissioner: “Just one question at a time. Why did you ask the Commissioner for your memorandum book ?

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out it.” Naturally, such testimony is subject to the very criticism which the questions implied, and it permits the surmise that the relator may have written some letter at some time upon the subject. Nevertheless, upon the entire case, I think the determination should not he confirmed, and, therefore, I advise that the writ should be sustained, the determination should be annulled and the relator should be restored to his office, with fifty dollars costs and disbursements.

Burr, Carr, Rich and Putnam, JJ., concurred.

Determination annulled and relator reinstated, with fifty dollars costs and disbursements.