p. 915The People ex rel. Robert O’Rau, App’lt, v. Charles F. MacLean et al., Com’rs, Resp’ts.(Supreme Court, General Term, First Department,Headnote
Municipal corporations—Police—Removal.The removal of a policeman on the charge of being in a liquor store during his tour of patrol duty cannot be sustained where there is no evidence that he was on patrol duty at the time.
Certiorari to review proceeding of respondents in removing relator from the police force of Hew York city,
Louis J. Grant, for relator, app’lt; Wm. H. Clark, for resp’ts.
The relator was dismissed from the police force of the city of Hew York upon conviction by the commissioners of the charge that on the 3d day of April, 1891, he was in a liquor store during his tour of patrol duty. This decision of the commissioners is brought before us for review on certiorari. The record certified to us contains what purports to be the whole proceedings in the inquiry before the commissioners, and from an inspection of that record it is plain that the testimony was utterly insufficient to convict the relator, in this: that there was not a word of proof to substantiate the most material part 'of the charge, viz.: that it was while on a tour of patrol duty that the relator went into the liquor store. It seems to have been assumed that it was so, but we cannot act on that assumption as there is not one word of proof concerning it, unless it may be that the roundsman followed the relator and another officer into the
p. 916saloon and found them there; but that does not show that either the relator or the roundsman were on dirty and we cannot be left to a simple inference as determinate of the matter. In a case precisely like this it was held by this court on appeal.
People ex rel Roe v. MacLean, 32 St. Rep., 831 , that where a patrolman was accused of sitting in a restaurant during his tour of duty .it was absolutely necessary to prove that he was on a tour of duty at the time, and for want of such 'proof the decision of the commissioners directing his dismissal was reversed. This case lacks that proof as the record comes before us, and we can consider nothing but that record. There is only the charge of the police captain on the complaint of the roundsman, and of course that charge does not prove itself, although it does come up with the record. The previous career of this relator as a member of the police force may have been bad. He was not on trial for that, but for a specific offense, and whether from inadvertence in the haste with which these proceedings before the police commissioners are conducted the requisite proof was not supplied we cannot say; it is enough that the requirements of the law were not complied with and the proceedings of the commissioners must be reversed and the relator restored to duty.
O’Brien, J., concurs; Yan Brunt, P. J., concurs in result.