People ex rel. Sinnott v. Board of Trustees of New York & Brooklyn Bridge

Majority

p. 397

The People ex rel. Richard Sinnott v. The Board of Trustees of the New York & Brooklyn Bridge.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Police—Removal—Brooklyn bridge.

The rule adopted by the trustees of the New York & Brooklyn Bridge that the hearing upon charges against policemen shall be had before the president of the board, who; in case he recommends dismissal shall report the evidence to the board, is valid.

3. Same.

Where the relator did not object to the evidence when it was given or deny the facts on the trial, he cannot complain that the facts alleged were not proven by competent evidence.

3. Same—De facto trustee.

One B. was acting as comptroller and trustee. Held, that he was a de facto trustee, and his title could not be assailed collaterally.

Certiorari to review the dismissal of relator from the police force of the New York & Brooklyn Bridge.

Pollin E. Beers, for relator; William M. Dykman, for resp’ts.

The relator, a policeman on the New York and Brooklyn Bridge, was charged with absence without leave and falsely reporting sick. Notice of the charges was served upon him and a hearing was had before the president of the. board of trustees. After such hearing he was removed by the trustees.

Under chap. 192, Laws of 1887, policemen are removable only after written charges preferred and a public examination thereon in such manner as the rules and regulations of the said trustees may prescribe, but no removal can be made after such hearing

p. 398

unless by a majority vote qf all of said trustees. Eules enacted by the trustees under this statute direct that the hearing shall be had before the president of the board, who, in case he recommends-the dismissal of the person charged with the offense, shall report the evidence to the board. This regulation that the hearing-should be had before the president, instead of the board, was " valid. A similar rule of the Board of Police in New York, directing the testimony to be taken before a single commissioner, has been upheld by the general term of the first department. People v. Commissioners, 20 Hun, 402 ; People v. Commissioners, 28 id., 351. In the latter case it is said by Judge Davis: “If it was necessary that a majority of the board should always be present on taking testimony on charges of this kind, it would be difficult if not impossible to perform the numerous functions devolved by law on that board.” This argument is far stronger in the case of a board composed of twenty members, meeting but monthly.

The proceedings before the president were most crude in form and irregular. They should not serve as a precedent for other trials. But we are satisfied not only that substantial justice was-done, but that the relator had a fair opportunity to defend his rights. The evidence of the captain of the police established the-" absence of the relator from duty. This he did not deny, but asserted he was sick. There was read the report of the physician of the police that he had visited the residence of the relator and found the latter out and could not learn of his illness. This report was certainly not competent evidence. Proceedings of the character of the one under review are judicial, and the accused must be confronted with the witnesses and have an opportunity to cross-exam-inc. The People v. Nichols, 79 N. Y., 582 . But to the admission of the report the relator made no objection. Nor did he make any denial of the facts asserted in the report or offer any explanation. Had he objected, the witness could have been produced.

The absence of the relator from his residence at the time he reported himself as sick, and was absent from duty, required explanation, and in the absence of explanation he could not insist on having his statement that he was sick credited. Having made no objection to evidence nor denied the facts, he cannot complain-that the facts alleged were not proven by competent evidence.

The further objection is raised that, the removal was not made by a majority vote of all the trustees, in that Mr. Brinkerhoff was not comptroller of the city of Brooklyn, and, therefore, not a trustee. It appears from the return that Brinkerhoff was acting as comptroller and as trustee. He was, therefore, a trustee de facto, and his title cannot be assailed collaterally. There is also_ another answer. If Brinkerhoff was not comptroller, then the office of comptroller was wholly vacant. In such case there were but nineteen members of the board, and the vote of ten of such trustees was a majority vote.

The proceedings of the board of trustees should be affirmed, ■with costs.

- Barnard, P. J., concurs.