People ex rel. Sciford v. MacLean — 33 N.Y. St. Rep. 796

Majority

p. 796

The People ex rel. Chester S. Sciford v. Charles F. MacLean et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Municipal corporations—Police—Removal.

Relator was removed for neglect of duty in failing to arrest a man who made a murderous assault on a woman. The blow was given suddenly, and relator on attempting to arrest the man was caught by the woman and swung around, and while freeing himself the man escaped. Held, that no neglect of duty was shown and that the removal was improper.

Certiorari to review dismissal of relator from police force.

Louis J. Grant, for relator; John J. Delany, for resp’ts.

The relator was charged with neglect of duty in failing to arrest a man who committed an assault upon a girl in his presence which resulted in her death.

We find no evidence whatever to sustain the dismissal of the relator in this case. It is true that he did not succeed in arresting the murderer, as it was his duty to do; but the whole of the evidence shows that the blow was given suddenly, unexpectedly and without a word of warning, and that the relator immediately attempted to arrest the murderer, but was caught by the arm by the dying woman, and swung partly round, and whilst freeing himself from her grasp the murderer got out of the door and temporarily escaped. We cannot see in this evidence proof of neglect of duty. The relator had been but a short time upon the force, and had not had consequently that experience which older members of the force have acquired; and if he did not succeed as well in the performance of his duty as some more experienced man might have done, such want of success affords no ground of dismissal. If he did the best he could under the circumstances, that is all that could be expected, as there was nothing to show absolute incapacity.

The proceedings should be reversed, and the relator restored, with costs.

Brady and Daniels, JJ., concur.