People ex rel. Flynn v. Hayden — 40 N.Y. St. Rep. 821

Majority

p. 821

The People ex rel. Joseph Flynn v. Henry I. Hayden, Commissioner.

(City Court of Brooklyn, General Term,

Filed October 26, 1891.)

Headnote

1. Municipal Corporations—Police—Removal.

On the trial of charges against the relator an envelope containing his former record was admitted in evidence. Held, that ^while the practice was not proper, no injury was done to relator thereby, as it did not appear that the envelope was sealed or that relator was not allowed to read its contents.

3. Same.

Two witnesses were cross-examined in part by relator, but on the adjourned day they did not appear. Held, that if relator’s counsel wished to further cross-examine them his remedy was by subpoena and attachment for non-attendance.

Certiorari to review the action and proceedings of the respondent in removing relator from the position of patrolman in the department of police and excise of the city of Brooklyn.

The relator' was appointed a patrolman in the department of police and excise of the city of Brooklyn, on the 27th day of April, 1889, and thereupon qualified, and entered upon the discharge of his duties, and continued in the performance thereof until August 1, 1890, when he was dismissed from the department.

On the 30th day of June, 1890, the relator was charged with a violation of § 2 of rule 117 of the department, and thereafter and on the 3d, llth and 25th days of July, and the 1st day of August, 1890, the charge so preferred was examined into, and the proofs submitted to the respondent who thereupon adjudged the relator guilty of the said charge.

p. 822

The rule, the violation of which relator was charged with, is as follows:

“ Rule 117, § 2. No member of this force while in uniform, except in the performance of his duty, will enter, or attempt to enter, any saloon or place in which any kinds of intoxicating drinks are sold or furnished.”

Two witnesses were produced on the hearing in support of the charge, viz.: Patrick McCabe and Mrs. McCabe, relator’s counsel being absent during their examination. Said counsel at th<e next meeting held July 25th, informed the commissioner, in form as follows, that he desired to cross-examine said witnesses.

“Defendant’s counsel states that before proceeding with his case, he desires to cross-examine Mr. and Mrs. McCabe; that he has subpoenaed them to be present, but they have not come; he therefore asks an adjournment.”

At the same session an envelope containing the relator’s previous record was admitted in evidence.

E. F. O'Dwyer, for relator; F. A. McCloskey, for resp’t.

The relator, Joseph Flynn, was appointed a patrolman on April 17, 1889, and was dismissed from the force on the 1st day of August, 1890. He was charged with the violation of the rule of the department which provides that a member while in uniform shall not enter a saloon, except in the performance of his duty. Charges were preferred in proper form and a trial was had, and testimony taken. A certiorari was granted, and the proceedings before the commissioner are now before us for review.

The learned counsel for the relator contends that there was not sufficient evidence to uphold the finding that he (Flynn) was guilty of the charge. The testimony before the commissioner was conflicting, and, after a careful review of the record, we see no reason to disturb his conclusion. The relator complains that, on the trial, an envelope containing his previous record in the department was received in evidence. No objection was taken at the time, and we assume that the contents were the same as printed at folio 33. It does not appear that the envelope was sealed, or that the relator was not allowed to read its contents. We cannot understand why the envelope was offered in evidence, and do not approve of the practice, but cannot see that any injury was done to the relator. Mr. and Mrs. McCabe did not fail to appear for cross-examination. Their examination was completed, and if the counsel for relator desired their appearance again for cross-examination, his remedy was by subpoena, and by attachment for non-attendance.

Proceedings affirmed, with fifty dollars costs and disbursements.

Clement, Ch. J., Van Wyck and Osborne, JJ., concur.