p. 246The People ex rel. George Hansen v. John McClave et al., Com’rs.(Supreme Court, General Term, First Department,Headnote
Municipal cobpobations—Police—Removal.Relator was charged with conduct unbecoming an officer, in arresting one Gr. for violation of the excise law, and entering into an agreement with him to make the charge one for exposing for sale instead of selling, for the consideration of $25. G-. testified that at his request he was arrested instead of his barkeeper; denied that an agreement as to payment of money was made, but stated that on his discharge he gave relator $10 to take a drink. Relator denied having received the money. Held, that it was for the commissioners to determine whether the charge was sustained; that it was sufficient to sustain the charge that he received this sum of $10, and that his removal was proper.
"Writ of certiorari to review the action of the commissioners in dismissing the relator from the police force of the city of New York.
John M. Tierney, ror relator: John J. Delaney, for resp’ts.'
The relator was cnarged with conduct unbecoming an officer, consisting in the act of arresting August Gloistein/ the proprietor of a liquor saloon, for a violation of the excise laws, and entering into an agreement with him to make the
p. 247charge against him that of exposure for sale, instead of for an actual sale, for the consideration of twenty-five dollars, and that he received for that the sum of ten dollars, and afterwards called upon the person arrested and demanded the additional fifteen dollars. Upon the hearing before one of the commissioners Grloistein was sworn and. examined as a witness, and testified that the officer first arrested his bartender, and at his own suggestion discharged the bartender and arrested Grloistein himself; that he was taken to the Essex Market, where he was discharged, and that he handed to the officer the sum of ten dollars to take a drink, because it was a big favor he had done, taking himself instead of the bartender. His statement was that no contract was made between himself and the officer for the payment of this money. The arrest was made at half past one o’clock in the morning, when it was apparent the law was being violated by having the saloon opened for the sale and disposition of intoxicating liquors. The officer denied having received this money from Gloistein. But upon this state of the evidence it was for the commissioners to determine whether the charge was, or was not, sustained. They had the witnesses before them, observing their appearance and demeanor and probable truthfulness, and concluded that the charge had so far been made out, as the evidence of Uloistein tended to sustain it.
It was not necessary that it should be proved that the officer received the entire amount mentioned in the specification. It was sufficient to sustain the charge that he received this sum of ten dollars, and the probabilities of what appears to have taken place were that Grloistein was an unwilling witness, intending to swear to no more than he could avoid in support of the charge, and it could, therefore, be very well assumed, as it undoubtedly was by the commissioners, that the money was, in fact, handed to the officer in performance of an agreement to pay it for the favor conferred by him upon this witness.
This was an abuse of his authority and if it should be tolerated it could not be otherwise than generally mischievous in its results. For an officer making an arrest might very well then understand that what should be given to him for favoring the person arrested, or concealing an actual violation of the law, would not involve him in the liability of dismissal from the force. It could not prove otherwise than demoralizing, inducing officers to violate their obligations and to tolerate abuses and offenses which otherwise would, and should, be made the subject of punishment. The officer has no such authority. The law will not permit him, for favors or indulgences extended to persons arrested, to receive gratuities in this manner whose direct effect would be to induce the violation of its obligations and the disregard of their own duties. The case was sufficiently made out to sustain the conclusion reached by the commissioners. It was not essential that the entire twenty-five dollars mentioned in the specification should have been paid to him or that he himself should call upon Grloistein for that sum: but it was sufficient that he received this
p. 248amount of money, as he undoubtedly did, for favoring Gloistein in the charge made against him when he was taken to the court.
The order made by the commissioners should, therefore, be affirmed.
Van Brunt, P. J., and Brady, J., concur.