People ex rel. Frey v. Bell — 32 N.Y. St. Rep. 914

Majority

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The People ex rel. Frederick M. Frey v. James D. Bell, Commissioner.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Municipal cobpobations — Police—Removal.

Relator was tried and convicted, on conflicting evidence, with having unjustifiably maltreated a prisoner whom he was arresting. Seld, that his removal was proper under rule 133 of the Brooklyn police department.

Certiorari to review proceedings by which relator was removed from office as a patrolman. p

The complainant testified that he was sitting on a stoop when relator came along and struck him on the leg, and on his remonstrating stated he would arrest him and struck him with his club three times on the head. Eelator testified that complainant was drunk and lying on the sidewalk; that he attempted to raise him, when he seized the night stick and struck relator with it ; that they had a struggle and relator struck complainant with his pocket stick. He was. corroborated by other officers as to the prisoner’s violence while being taken to the station house, and plaintiff was corroborated by others who testified that they saw the occurrence.

Jerrry A. Wernberg, for relator; F. A. McOloskey, for resp’t.

This is a writ of certiorari to review the proceed- ■ ings of the defendant as commissioner of police of the city of Brooklyn in the trial and dismissal of the relator, who was a patrolman of the police department of the city of Brooklyn.

The specification of the charge upon which the relator was tried was “that said patrolman Frey, on September 2, 1888, at one A. M., wilfully maltreated his prisoner, John McLaren, using unnecessary violence towards the same, by striking him repeatedly over the head with a night stick, inflicting severe scalp wounds, while said McLaren did neither resist arrest nor assault said police- • man.”

The charge was for a violation of rule 133, which is this: “Any member of the force who shall wilfully maltreat or use unneces

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sary violence towards a prisoner or citizen, on complaint being made and the fact established by competent testimony, after a due trial had, shall be immediately dismissed from office or otherwise punished.”

The relator was tried before the commissioner in the usual manner and found guilty and sentenced to dismissal from the police force.

An examination of the testimony introduced upon the trial discloses a full justification of the condemnation of the relator. His treatment of the intoxicated man whom he arrested was entirely unjustifiable. He maltreated him and used unnecessary violence towards him, and he therefore fell under the condemnation of rule 133, and his punishment was justified by that rule.

The proceeding should therefore be confirmed.

Barnard, P. J., and Pratt, J., concur.