People ex rel. McCormack v. French — 3 N.Y.S. 841

Majority

p. 841

People ex rel. McCormack v. French et al., Police Commissioners.

(,Supreme Court, General Term, First Department.

January 28,1889.)

Headnote

Witness—Refusal to Hear—Credibility—Intoxication.

The action of the police commission of the city of New York, in dismissing a policeman, will be reversed, where it appears that, at the hearing of the charge against him, a witness called in his behalf was rejected before he had given any evidence, merely on a showing that the witness had been discharged from the post-office department because of absence from duty without leave, which was due to intoxication.

Certiorari to police commissioners of the city of New York.

Action by the people on the relation of Hugh McCormack to review the action of the police commissioners of the city of New York in dismissing the relator from the police force. The charge upon which his dismissal was based was that he had assaulted one Joseph Danut, and did not arrest him. A witness called for the relator, on his examination by the police commissioner, was not permitted to testify, on his stating that he had been removed from the post-office department because of being absent from duty without leave, .and that such absence was due to intoxication.

Argued before Van Brunt, P. J., and Brady and McComber, JJ.

John M. Tierney, for relator. William L. Turner, for respondents.

The relator was charged with assaulting one Danut in a restaurant, and on the trial had no counsel. The examination of the witnesses was conducted by one of the commissioners, and the defendant on eross-ex.amination asked few questions. The testimony presented against the relator was conflicting, a condition which was increased when he was examined, and ;a jury might well have found in his favor or disagreed. This view is not important in consideration of the powers of the commissioners, who are not Wholly controlled by the rules which must prevail in judicial investigations, but it becomes so in connection with an incident of the trial to which refer- • ence must be made. The last witness called was for the defendant, whom he (Succeeded. He was examined by one of the commissioners, and asked questions as to his business, his connection with the post-office department, and his removal. This sufficiently appears from the record, indeed conclusively so, -and as a result of such examination the commissioner said; “I do not want your testimony.” The relator had asked no question, although the witness was called on his behalf, but taken in hand by the commissioner at once, and put aside. It does not appear that the defendant did not want his testimony. •On the contrary, having been called on his behalf, it must be presumed that lie did want it, and it may be that if given it would have satisfied the commissioners that the charge made was not sufficiently sustained to warrant the relator’s dismissal. However that may be, no tribunal proceeding according to the course of the common law, or subjected to its rules in part, can arbitrarily reject a witness called by the accused before he has given any evidence, merely from developments which might affect his credibility with the tribunal

p. 842

in which he appears. The act oí the commissioner was a judgment in anticipation, and therefore premature. It did not follow that the witness, because-of his removal from the post-office, and seemingly for intoxication, was disqualified. His condition at the time of the occurrence as to which he was1 probably called might have been, and it is to be presumed was, such as to enable him to give an account of what he saw and heard, and it might be, as already suggested, so impressive as to change the opinions theretofore entertained of the truthfulness pf the charge under investigation. For this reason the dismissal cannot be sustained, and the judgment of the commissioners-must be reversed. Ordered accordingly. All concur.