People ex rel. Schauwecker v. Greene — 96 A.D. 249

Majority

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

Headnote

New York city police force—the trial of a member, on the accusation of one deputy commissioner, before another deputy commissioner, and a second trial befoi'e the latter on the accusation of the former, not approved — his refusal to testify is not insubordination — when one day is not sufficient time within which to report an infraction cfthe rules.

A member of the police force of the city of New York was tried before one ' Davis, a deputy commissioner of the police department of the city of New York, upon charges preferred by one Piper, another deputy commissioner of that department. The accused member was then tried before Deputy Commissioner Piper upon another charge preferred by Deputy Commissioner Davis, who testified at the trial. Subsequently the accused member was tried before Deputy Commissioner Davis upon a third charge preferred by Deputy Commissioner Piper, who was also sworn as a witness, and was dismissed from the force.

Held, that the procedure did not commend itself to the court.

The fact that a member of the police force of the city of New. York, while being tried before a deputy commissioner of the police department upon charges preferred against him, refuses, under the advice of counsel, to testify on behalf of the prosecution, does not constitute such insubordination as will justify his dismissal from the force, particularly where it appears that the accused member subsequently took the stand in his own behalf and was cross-examined at length by the prosecution.

The failure of a police sergeant of the city of New York to report an infraction of the rules of the department within less than twenty-four hours after knowl

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edge of such infraction, hut not of the identity of the persons guilty of such infraction, has been brought to his notice, will not justify the dismissal of the police sergeant. '

Certiorari- issued out of the Supreme Court and attested on the 26th day of August, 1903, directed to Francis Y‘. Greene, as police commissioner of the police department 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 relation to the dismissal of the relator from the police force of the city of New York.

The relator, a sergeant, was found guilty upon the two charges that, while on trial June 5, 1903, he refused to obey the order of Deputy Commissioner Davis to. testify, and that having knowledge that a. collection for an unauthorized purpose had been or was being made by members of the “ School of Instruction,” which he was conducting, he neglected to> prefer charges against the members.

Prior to the making of the charges upon which he was dismissed, the relator, on May 14,1903, was charged by Deputy Commissioner Piper with having, while conducting the school of instruction on April 3, 1903, accepted in the armory of the Sixty-ninth Regiment, from a member of the school, Joseph C. Hickey* a sum of money as a present. A trial upon this charge was had before Deputy-Commissioner Davis, at which Joseph C. Hickey and another member of the school, George Schneider testified on behalf of the prosecution. Thereupon the prosecution called the relator. The relator rose, but his attorney immediately objected to his testifying, and stated that under advice of his counsel the relator refused to be sworn, and the relator was not sworn. The prosecution rested, and then the relator’s attorney called the relator, and he was questioned as to receiving the money from Mr. Hickey, and denied the accusation and stated in effect that money was left in an envelope at his house for his wife. The relator was cross-examined at length. As the result of the trial he was found “ not guilty as charged,” and the complaint was dismissed.

After the trial another charge was preferred against the relator* and this time by Deputy Commissioner Davis, that during the trial of the charges against him before Deputy Commissioner Davis* when ordered by him to be sworn on behalf of the prosecution, he dis

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obeyed said order and refused to be sworn as such witness. This charge was tried before Deputy Commissioner Piper, Deputy Commissioner Davis appearing as witness against the relator. Decision was reserved, and subsequently the relator was found guilty, and this charge formed one of the two upon which he was dismissed.

Finally the relator was charged by Deputy Commissioner Piper with three specifications of neglect of duty: (1) That while in charge of the school of instruction he permitted members to take up a collection for an unauthorized purpose, in violation of the rules of the department, in the armory of the Sixty-ninth Regiment on or about April 3,1903 ; (2) that, having knowledge that such collection had been or was being made, he neglected to take any action to prevent the same, and (3) that, having knowledge that such collection had been or was being made, he neglected to prefer charges against the members of the school of instruction who were guilty of violating the rules relative to making assessments. Upon the first and second of these specifications the relator was found not guilty, but he was found guilty upon the third and this forms the second charge upon which he was dismissed.

With respect to this second charge, which was tried before Deputy Commissioner Davis, we have the testimony of Deputy Commissioner Piper, the relator, a stenographer, Officer Hickey and Officer Schneider. The latter testified that a collection had been taken up by the men in the school of instruction and the fifty-one dollars so obtained was put in an envelope and he gave it to Officer Hickey in the street opposite the Sixty-ninth Regiment Armory on April 3, 1903, and he did not know what Hickey did with it, but he never ■ received any of it back. Officer Hickey testified that on April third he received from Officer Schneider an envelope, but he did not know what was in the envelope, but he gave it to the relator on the floor of the armory; that he had personally given a dollar to Schneider for a general collection for a present, for whom he does not say.

The relator testified that he was a sergeant on the force for twenty-nine years with a clear record and in charge of the school of instruction ; that he did not have any knowledge that any collection was being taken and did not allow any such collection prior to or on April 3, 1903, and that the first intimation of such collection he received on April 4, 1903, in conversation with Deputy Oommis

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sioner Piper, and within one hour thereafter he was suspended from duty, and during that' hour was with another class in the school of instruction, and that he has been suspended ever since, and understands that during such time an officer has no right to perform •police duty,- and for that reason he had made no charges against others; that he received no envelope containing money from Hickey, ■ although at various times he had received other envelopes from him; that he told Deputy Commissioner Piper that an envelope had been left in the letter box of his house directed to his wife and at that time the class of the school had been appointed and gone; that he did not ascertain that any amount of money was contained therein and did not know up to the time of the trial that it contained a slip saying “ With the regards of your last class,” together with fifty-one dollars'; that he had never seen the slip nor the money.

A stenographer testified that he took down the conversation between the relator and Deputy Commissioner Piper on April fourth and that the relator then said: “All I know is that my wife told me an envelope came with some money xin it and the words ‘ With the regards of your last class,’ ” and that he left the money with his wife, and when asked if he gave back the money, said: “Ho, sir. How'could I?” and subsequently, “There was nothing improper about it.” And that the subsequent conversation was: “ It was a present harmlessly bestowed. I made no acknowledgment and rendered no service for this. Q. It has been the practice * * * and you could have stopped it. * * * This class gave it because it was the custom? A. It may have been before. When I came back here I found it. The conditions were there. * * * It was a custom, by whom introduced I do not know. I have been at fault in not breaking it up. As I told you the matter never came to me until it was all over.”

Deputy Commissioner Piper testified that he called the relator before him and asked him in regard to a collection of fifty-one dollars, and his reply in substance was that he did not know about it and had not personally received it; that it had been.received by a member of his family with a slip saying, “ Compliments of your last class,” and that he had not returned the money and asked how he could do so ;■ that he said he had not reported the matter to the commissioner; that it was. a custom which had grown up during

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the time he was not in charge of the school, and he did not consider anything wrong about it, and he was suspended that afternoon and thereafter he was not in a position to prefer charges; that the relator had not admitted that he ever permitted or had knowledge of the taking up of the collection.

The relator having been dismissed upon the separate findings of the two deputy commissioners that he was guilty of the two charges mentioned, he seeks a review of such determination by writ of certiorari.

Louis J. Grant, for the relator.

Terence Farley, for the respondent.

In reviewing the three trials upon the separate charges made against the relator, the most noticeable feature 'is that the two' deputy commissioners acted alternately as accuser, witness, prosecutor and judge, and it would seem that from the first the relator was- deemed by them to be guilty of a serious offense and that they were determined upon one charge or another to ultimately secure his dismissal from the force. Thus we have Deputy Commissioner Piper making the' first charge that the relator accepted money from the members of the school at the armory, which was tried before Deputy Commissioner Davis, the relator being found “ not guilty as charged;” and then Deputy Commissioner Davis charging the relator practically with insubordination, which charge was tried before Deputy Commissioner Piper, -who, upon the testimony of Deputy Commissioner Davis, found him guilty, and finally charges by Deputy Commissioner Piper, again with relation to the collection taken by members of the school, tried before Deputy Commissioner Davis, Deputy Commissioner Piper testifying against the relator who, upon one of the specifications, was found guilty.

The procedure followed does not commend itself, and it certainly does not tend to promote that spirit of fairness and appearance of impartiality which should characterize a court room, whether the accused be tried upon a crinainal offense in a court of law or for the infraction of the rules and regulations of a large department of the city government.

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Passing, however, the attending circumstances of the trial, which compelled the relator to meet ■ upon different charges the same person acting as accuser, opposing witness and judge, and without determining to what extent the relator was prejudiced thereby, we fail to find in the record a proper basis upon -which to dismiss the relator.

With respect to the first charge there was no dispute as to the facts. The. relator did not, when called by the deputy commissioner to testify against himself, comply, his counsel interposing and refusing to permit him to do so. That the prosecution' obtained whatever benefit could have been derived from calling the relator appears from the fact that he testified in his own behalf and was cross-examined at length. The deputy commissioner, however, complained that the relator, by disobeying the' direction that he should testify for the prosecution,. was guilty of a breach of discipline. We think a. distinction is to be made between the position occupied by a commissioner generally and when he is presiding as a judge at a trial. At stich times the accused has been suspended from the force, and the commissioner is acting not as his superior officer but as his judge upon the charges preferred. The rules governing judicial tribunals, therefore, and not the rules of the police department would seemingly apply-.. In People ex rel. Miller v. Elmendorf ( 42 App. Div. 309 ) it was said: “As the proceedings are quasi criminal in their nature, and valuable rights of. the accused official are at stake as well as his good name, the same- safeguards that are used to protect good name, fame, property or person in courts of justice should in substance be observed in these proceedings.” We think, therefore, that the failure of the relator to be a witness against himself when called by the commissioner, his attorney having advised him not to testify, could not properly form the basis of a dismissal from. the force, and more especially where as here he did thereafter take the stand and was cross-examined.

In regard to the second charge that, having knowledge that the collection had been or was being made, the relator failed to prefer charges against members who were guilty of violating the rules, it will be noticed that the deputy commissioners, by finding the relator not guilty upon the other specifications, reached the conclusion that the relator did not accept, in the armory of the Sixty-ninth Regi

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ment, from Hickey, a member of the school, on April 3, 1903, a present of money; that he did not, while in charge of the school, permit the members to take up an unauthorized collection in the armory on or about April.3, 1903; that he did not have knowledge at that time (April third) that the collection had been or was being made, and that he was not neglectful in failing to take any action to prevent the taking of the collection. This conclusion, we think, is the one that necessarily follows from the evidence, for the relator, from the time when he was first spoken to by the deputy commissioner on April fourth, the day after the collection is said to have been made, has consistently stated that he had no knowledge of the taking of the collection, and knew nothing of it until after it had occurred, when an envelope, addressed to his wife, was left at his home, and none of the witnesses testify that he had knowledge of the collection. This, taking the view most unfavorable to the relator, leaves less than one day after the collection was made on April third for the relator to prefer charges against the members of the school whd were responsible for leaving the envelope at his house directed to his wife with the slip inclosed saying that it was sent with the compliments of the class, for on April fourth the relator was called before the deputy commissioner at noontime when he stated that he did not know what to do and had done nothing, and within one hour, during which he was engaged at the school, he was suspended from the force, after which time, as the deputy commissioner conceded, he was not in a position to prefer charges. Furthermore it was not shown that the relator had any knowledge of what members were responsible for the collection and unless he had made charges against the whole class, based upon the slip contained in the envelope, it is difficult to see against whom he could have proceeded. Hickey, it is true, testified that, he gave to the relator an envelope in the armory, but this testimony was discredited by the deputy commissioners, who found the relator not guilty of receiving money in the armory from Hickey, and there was no support for this testimony, Officer Schneider testifying merely that on April third he gave Hickey an envelope containing money in the street opposite the armory. Although it now appears that Schneider and Hickey were instrumental in taking up the collection, we have no credible evidence that the relator knew of their participation. We

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think, therefore, that the alleged neglect to prefer charges against members of the school of which the relator was found guilty, should not have been made a ground for his dismissal because, assuming that the conclusion of the deputy commissioner was right that the relator did, on April third, acquire knowledge of' the collection, the fact that he was suspended on April fourth ■ shows that he did not have the time within which he could reasonably have been expected to ascertain those who had violated the rules of the department and to prefer charges against them.

The writ should accordingly be sustained, the proceedings annulled and the relator reinstated, with fifty dollars costs and disbursements.

Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.

Writ sustained, proceedings annulled and relator reinstated, with fifty dollars costs and disbursements.