People ex rel. Sullivan v. Robb — 40 N.Y. St. Rep. 760

Majority

p. 760

The People ex rel. Jeremiah Sullivan v. J. Hampden Robb et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Municipal corporations—Police—Removal.

The board of park commissioners of the city of New York have the right to remove a policeman on a charge of indecent exposure under the power given them by the statute to remove for conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer.

Certiorari to review the dismissal of the relator from the police force of the park department

Purdy & McLaughlin, for relator; C. N. O’Neill, for resp’ts.

The relator was charged with indecent exposure while on duty.

It is urged upon the part of the relator, first, that there is not sufficient evidence to justify his conviction; and secondly, that there is nothing in the return to show that there is any rule in the department covering this case; and if there is no such rule, the board has unlawfully and improperly exercised the authority conferred upon it

In respect to the last objection the commissioners of public parks have undoubtedly the right to remove for the offense

p. 761

charged, because, by chap. 262 of the Laws of 1887, the board is given power to remove for any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer etc. It would be rather an anomaly in the enforcement of discipline in a force such as the police force, that every possible act must necessarily be expressly covered by the rules. Where the statute authorizes a removal for cause, unless the power is especially restricted, any cause detrimental to the service would be sufficient But in respect to the board of park commissioners, they are given by the statute, as already seen, express power to punish by dismissal in a case like the present.

A reading of the evidence in this case does not satisfy the court that the finding of the commissioners is so greatly against the weight of evidence as to justify the court in setting it aside. The most that can be said in favor of the relator is that it is a doubtful case, although there are many features in it tending to establish the verity of the charge.

By placing the hour a little in advance of the time fixed by the witnesses in support of the charge, the whole of the testimony may be harmonized; and if this evidence was before a jury for consideration they might in estimating the effect of the evidence bear this fact in mind. And in fact it would be their duty so to do. In the face of the positive testimony offered in support of the charge, if the case had been before a jury for determination, the court could not have dismissed the complaint, and as the commissioners in weighing the evidence occupy the position of jurors, and their conclusion is to have the same weight, there seems to be no ground for interference with it although a strong case may be made out upon the part of the defence.

We see no ground for interfering with the conclusion of the commissioners and the proceedings must be affirmed, with costs.

Bartlett and Barrett, JJ., concur.