People ex rel. Gibson v. French — 16 N.Y. St. Rep. 1012

Majority

p. 1012

THE PEOPLE ex rel. WILLIAM GIBSON, App’lts, v. STEPHEN B. FRENCH et al., as Police Commissioners, Resp’ts.

Headnote

New York city—Police commissioners—Removal op police officers by—When justified.

Gertiorari to review action of the police commissioners in removing the appellant from the police force.

H. P. Lawrence, for app’lts; David J. Dean, for resp’ts.

The relator claims a reversal of the proceedings of the police commissioners upon the grounds that the charges were not sworn to as required by the rules and regulations of the department, and that there was no sufficient evidence to justify the finding against the relator.

In respect to the first ground it is sufficient to say that if the relator had taken the objection when called upon to answer the charge that it was not sworn to, this question might have been before us for review, but by appearing and answering the charge without objection this informally was clearly waived.

The evidence was more than sufficient to justify the conclusion arrived at by the commissioners.

That the relator was in a condition which justified his removal, unless explained, was amply shown without giving any weight to the hearsay evidence complained of.

The prevarications of the relator in his attempt to explain his condition necessarily lead to the conclusion reached by the commissioners.

He attempted to explain his condition because he had taken gas for the purpose of having some teeth extracted some seven days before, and because, on the twenty-fourth October, he had taken twenty grains of quinine, which had been prescribed for him by the doctor on the following day, viz., October twenty-fifth.

The mere statement of such an explanation affords sufficient proof of the charge.

If the previous record of the officer had been offered in evidence upon his trial, it might have been considered by the commissioners, as the accused would then have an opportunity for explanation, but unless so offered it cannot be considered.

The previous record of an officer would seem to be competent evidence upon which the commissioners might very well have based a judgment as to the severity of the punishment. What would seem to be a very severe sentence for a first offense would appear to be entirely just if the accused was shown to be an old offender against the discipline of the force.

The proceedings of the commissioners should be affirmed, with costs, and the writ dismissed.

Brady and Daniels, JJ., concur.