In re Koch — 91 A.D. 194

Majority

p. 194

In the Matter of the Application of Christian W. P. Koch, Relator, for a Writ of Certiorari to Review the Proceedings of Francis V. Greene, as Police Commissioner of the City of New York, Respondent.

Headnote

Dismissal from the New Yorh police foi'ce on a charge that the officer was, while on-duty, sitting on a barrel, not sustained on appeal — measure of review of the-action of the police commissioner by the Appellate Division,

Upon the hearing under a writ of certiorari, issued to review the action of the polices commissioner of the city of New York, in dismissing the relator from the position of patrolman because of an alleged neglect of duty, it appeared that, upon • the trial before the police commissioner, the roundsman who made the charge-stated that on patrolling the: relator’s post he found the relator sitting on a. barrel; that when the relator saw him he jumped off the barrel and said that he was watching some people who were coming from a ball.

The roundsman admitted that the relator was on his post in plain view and that there were people coming from a ball who were singing. The relator denied’ that he was sitting on a barrel and asserted that he was standing in a doorway-watching certain people.

Held, that the evidence in support of the charge was unsatisfactory and did not warrant the relator’s dismissal (Patterson, J„ dissented);

That within the limits of the power conferred upon the police commissioner of the city of New York with respect to examining into the conduct of police^ officers, the widest latitude and discretion should be accorded to him, and that-the Appellate Division would not ordinarily interfere with the judgment of the= commissioner, either in his determination of disputed questions of fact or his. conclusion as to -the extent of the punishment that should be administered to-a delinquent officer.

Certiorari issued out of the Supreme Court and attested on the-. 16th day of July, 1903, directed to Francis Y. Greene, 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 New York all and singular his proceedings had in dismissing the relator from the-police force of the city of New York.

The relator was charged with neglect of duty, the specification being that “said Patrolman Christian W. P. Koch was sitting on a-barrel in front of $ 639 Lexington Avenue at 2:37 a. m., March, 16th, 1903, during his tour of patrol duty.”

The entire testimony upon the trial was that of Roundsman James-O’Hara, who made the charge, and the relator, and is as follows s

p. 195

“ Q. [To the roundsman] State what you know about the case 2 A. On the morning in question I reached the officer’s post, the northerly end of it and travelled south and in front of jíí 639 Lexington Avenue I found the officer sitting on a barrel. I asked him if sitting on a barrel was the way to patrol. He said he was watching some people. I told him I would prefer charges against him and ordered him to patrol his post, which he did.” “ Q. [To relator] What have you to say 2 A. I was simply leaning in the doorway watching people. Q. You were sitting 2 A. Ho, sir, just standing in the doorway. Q. Was he sitting on a barrel or standing 2 [Rounds-man O’Hara recalled] Sitting on a barrel. Q. And the only explanation that he gave was that he was watching somebody 2 A. Well when he saw me he jumped off the barrel and there was some people coming from the Jewish ball and they were having a little quiet song, but not making any disturbance and he told me he was watching those people; but I saw the people two blocks away. Q. Is there anything further you want to state to the Court 2 The defendant: Ho, sir. Q. Any other testimony you want to give 2 A. Ho, sir.”

Upon this evidence the relator was dismissed on March 20, 1903, and by writ of certiorari he now seeks reinstatement.

Charles E. Hunter, for the relator.

Theodore Connolly, for the respondent.

Considering the great responsibility placed upon the head of the police department, the importance of the interests confided to the protection of the department and the necessity for requiring the highest degree of discipline' and efficiency in the force, we recognize that within the limits of the power conferred upon him by law of examining into the conduct of police officers, the widest latitude and discretion should be accorded to the commissioner. Ordinarily, therefore, we are not disposed in this class of cases to interfere with the judgment of the commissioner either in his determination of disputed questions of fact or his conclusion as to the extent of the punishment that should be administered upon finding that a police offi

p. 196

cer has been guilty of a charge in violation of the rules of the department.

We cannot, however, entirely divest ourselves of the jurisdiction which has been conferred to review these trials, nor refrain from exercising such jurisdiction when satisfied that an injustice has been done. Where, therefore, the "facts are not in dispute and the charge itself is trivial, th^re would be no reason for' the provision of law giving an officer dismissed the right to have the proceedings reviewed, if, upon being convinced that there was error in the conclusion reached upon the facts, we did not exercise our jurisdiction in reversing the dismissal. ■

There is no evidence as to how long thé relator was sitting on the ' barrel, and the roundsman says that when the relator saw him he jumped off. . It was night time and the opportunity for mistake, under such circumstances, was great. The relator denied that he was actually sitting, but said he was leaning in the doorway, and the explanation upon the trial of his doing so was the same that he gave to the roundsman at the time, namely, that he was watching some people. The roundsman admits that relator was on his post in plain view and that there were people on their way home from a ball who were singing although making no disturbance, and thus the relator’s explanation of his not patrolling his post was to some extent corroborated. The object of patrolling is to detect and suppress disturbances, and merely stopping for observation was not shown to be an infraction of any rule of the department. This case in. some features and in principle is like People ex rel. Howard v. Roosevelt ( 15 App. Div. 401 ), where the police officer was sitting on a box and there was no evidence that he had been there any length of time and he explained his being there by saying he felt the effects of a wound. It differs from People ex rel. Butts v. MacLean ( 37 N. Y. St. Repr. 944 ), where an officer was discharged for lying down while on duty. There the relator’s own testimony in part corroborated that of the roundsman that he was lying down when he should have been patrolling, and, besides, the record of the relator was considered showing previous violations of the rules of the department.

Our conclusion is that the evidence to support the charge is unsatisfactory and did not warrant the relator’s dismissal. The writ

p. 197

'should accordingly he sustained, the proceedings annulled and the relator reinstated, with costs.

Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred; Patterson,. J., dissented.

Writ sustained, proceedings annulled and relator reinstated, with costs.

Cases cited

People ex rel. Howard v. Roosevelt 15 App. Div. 401 N.Y. App. Div. 1897-03-05 p. 196