People ex rel. Carrigan v. Board of Police — 29 N.Y. St. Rep. 822

Majority

p. 822

The People ex rel. George E. Carrigan, v. The Board of Police of the City of Yonkers.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Municipal cobfobations—Police—Removal.

Relator being sick, requested his physician to report his illness to the police authorities, which was done, but not until after roll-call. The police surgeon was notified of the nature of his illness, and the treatment pursued. Held, that such absence from roll-call did not constitute the offense of absence without leave, and that the charge of misleading the police surgeon was not sustained, as, after such notice from his physician, relator was under no obligation to give further information.

Certiorari to review proceedings of respondents removing relator on charges of being absent from roll-call without leave, and of seeking to deceive and mislead the police surgeon in relation to his illness.

John F. Brennan, for relator ; J. P. Sanders, for resp’ts.

The testimony of the police surgeon proved relator’s illness to be real and serious. It was a valid ground for his absence from duty, and he requested his physician to make a report of his illness to the police authorities, which report was in fact made, although-not till half an hour after roll-call. Such an absence from roll-call does not constitute the offense of “ absence without leave,” for which he could legally be removed from offica Nor was the charge of misleading the police surgeon established. He requested his physician to inform the police surgeon of his illness, which was in fact done. The surgeon was not misled. He was not only notified of the illness, but of its nature and the treatment pursued. After such notice from relator’s physician, there was no reason why relator should give any further information on the subject.

The evidence does not establish that the illness was the result of misconduct. Other possible causes were given by the police surgeon. There is no presumption in favor of crime, and the legal presumption is the other way.

It follows that relator’s discharge from the police force was unauthorized, and the proceedings must be reversed.

Barnard, P. J., and Dykman, J., concur.