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People ex rel. Quirk v. York

52 A.D. 295 Court N.Y. App. Div. English

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p. 295
The People of the State of New York ex rel. Martin J. Quirk, Relator, v. Bernard J. York and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.

Headnote

The record of a police officer — competent on Ms trial in determining the punishment, hut not in deciding upon Ms guilt.
The police commissioners of the city of New York have no power to consider the record of a'police officer on trial "before them as bearing upon the question ■ of his guilt, although they may use it in determining the degree of punishment which shall be inflicted upon him if he is found guilty.
Certiorari issued out of the Supreme Court and attested on the 5th day of March, 1893, directed to Bernard J. York and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the removal of the relator from the police force of said city.
Louis J. Grant, for the relator.'
Terence Farley, for the respondent.

The evidence was abundant from which the commissioners were authorized to determine that the relator was guilty of the offense with which he was charged.

It appeared, however, that the record of the officer was introduced in evidence and considered as bearing upon the question of his guilt. This was improper, and has been condemned by this court and the Court of Appeals. • It is only proper for the commissioners to consider the officer’s record as bearing upon the degree of punishment which they inflict.. It cannot be used to determine guilt. Such was the express holding of this court in People ex rel. Dermody v. York ( 50 App. Div. 359 ). The record in that case is almost precisely similar to the record in the present case and, as such, the decision is conclusive on the question.

p. 296
The proceedings should, therefore, be annulled and a new trial ordered before the commissioners, without costs.

Present — Van Brunt, P. J., Bumsey, Ingraham and Hatch, JJ„

Proceedings annulled and new trial ordered, without costs.

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