People ex rel. Koenig v. French — 29 N.Y. St. Rep. 305

Majority

p. 305

The People ex rel. Herman A. Koenig v. Stephen B. French et al., Commissioners.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Municipal corporations—Police—Removal.

The mere fact that upon the trial of charges against relator he was the first witness called, is not ground for reversal of the commissioners' action in removing him, when it does not appear that they required him to be sworn or that he objected.

Certiorari to review the action of the police commissioners in dismissing the relator from the uolice force.

L. J. Grant, for relator; J. J. Delany, for resp’ts.

The only question which can be considered upon this certiorari is whether there was any such error in the proceedings of the commissioners as requires a reversal of their action.

The evidence was conflicting, and whatever maybe our opinion had we the right to determine the weight of evidence, no such

p. 306

right exists, and the action of the respondents cannot be interfered with upon that ground.

It is claimed that the return shows a clear violation by the commissioners of a fundamental principle of law; that is, that the relator was sworn by the commissioners and examined as the very first witness. But there is nothing in the record to show that the commissioners required the relator to be sworn as the first witness. The record simply states, “ charge read, defendant sworn,” and then the testimony goes on. What the relator’s rights would have been had he objected to being sworn , and testified before any proof was given of the truth of the charge for which he was to be tried, it is not necessary now to determine. But he did not so object, and he admitted upon his examination that the charge that he was off the post was true. No objection having been taken to this course of procedure, there is no ground upon which the action of the police commissioners can be reversed

It does not appear but that the defendant offered himself as a witness, and it was at his wish and request that he was sworn and examined as to the truth of the charge. The point presented affords.no ground for an interference with the action of the respondents, and their proceedings should, therefore, be affirmed and the writ dismissed, with costs.

Brady and Daniels, JJ., concur.