People ex rel. Rooney v. Bingham — 114 N.Y.S. 110

Majority

p. 110

PEOPLE ex rel. ROONEY v. BINGHAM, Police Com’r.

(Supreme Court, Appellate Division, Second Department.

December 30, 1908.)

Headnote

Municipal Corporations (§ 185^[1] ) — Officers—Police Officers—Neglect of D utt—Trial—Evidence.

Evidence held to justify the commissioner of the police department of the city of New York in finding a police sergeant guilty of neglect of duty and reducing him from the rank of sergeant to that of patrolman, requiring the affirmance of the order of certiorari.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 185.*]

Certiorari by the People of the State of New York, on the relation of James J. Rooney, against Theodore A. Bingham, as Commissioner of the Police Department of the City of New York, to review an order of the commissioner finding relator guilty of neglect of duty and reducing him from the rank of sergeant to that of patrolman. Order affirmed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

Robert H. Hibbard (Albert R. Lesinsky, on the brief), for relator.

James D. Bell, for respondent.

The trial was before the police commissioner in son, and he found the relator, a police sergeant, guilty of neglect of duty." A deputy commissioner testified that he went into a café at 12:35 at night, and while passing through a room on the way to the toilet found the relator and a patrolman standing together talking. A woman was leaning over the banister of a stairway in front of them. He asked the patrolman why he was there, and was answered by him that he had been to the toilet. He asked the relator why he was there, and he said he came in to look for the patrolman. To a question of the deputy commissioner why he came in he answered because he did not find the patrolman in front; and to repeated questions why he came into that particular place, and why he expected the patrolman to be in front of that particular place rather than any other place, he remained silent, and when told by the deputy commissioner to go out, fainted away. The relator testified that as he came along a man in front of the place told him the patrolman had gone in there to the toilet. The patrolman testified for the reldtor that he went in to the toilet, and asked a cabman before going in to tell the sergeant if he should come along where he, the patrolman, was. The cabman corroborated this. The sergeant testified that he told the deputy commissioner he

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came in for the patrolman because he did not find him outside, "and I think I said I was told he was in there.” The patrolman testified he was in the closet “7 or 8 minutes.” He does not say the sergeant said to the deputy commissioner a man outside told him the patrolman was inside. His post was about nine blocks long. A rule forbids a patrolman to leave his post without first notifying his station house by the telephone. The police commissioner was not obliged to believe the testimony for the relator; indeed, many, including those under him, would think him very credulous, and probably laugh at him, if he did.

The order should be affirmed.

Determination confirmed, with $50 costs and disbursements. All concur.