People ex rel. Hayes v. Carroll — 6 N.Y. St. Rep. 63

Majority

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People of the State of New York ex rel. James J. Hayes v. Thomas Carroll, as Commissioner of Police and Excise, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886)

Headnote

1. Police Department—Dismissal from force fob breach of rules of DEPARTMENT.

Relator, a member of the police department of the city of Brooklyn, was charged with having committed an unprovoked assault upon a citizen while off duty. The commissioner of police and excise, by Laws of 1873, chapter 863, title 11, section 14, as amended by Laws Í881, chapter 457, section 2, has power in his discretion to dismiss a member of the force, among other things, for violation of the rules'of the department or conduct unbecoming an officer. By section 8, the board may make such rules as they deem proper. Rule 136 provides that no policeman shall abuse or ill treat a citizen. By rule 145, it is provided that a policeman is at all times subject to the rules. Held, that the commissioner had jurisdict on over the charge, and he obtained jurisdiction over the officer by his appearance without objection to answer a written charge.

2. Same—What degree of strictness required in pleading.

Held, that even at common law, the words of a statute or rule need not be used; that if the substance of the charge be expressed, it is good pleading; that these proceedings were not such as called for the strict common law rules either of pleading or trial.

Appeal from an order made by the Kings county special term quashing a writ of certiorari to review the proceedings of the commissioners of police and excise of the city

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of Brooklyn dismissing the relator from his position on the force.

The relator was a member of the police force of the city of Brooklyn. On January 30, 1886, a verified complaint in writing was made by one Robert Cullen, charging him with having committed an unprovoked assault upon him on the day previous. On that day the relator was not on duty. ' Due personal service of a copy of the complaint was made upon him and of the notice of the time and place of trial. Upon the return day, at the request of relator an adjournment was granted.' On the adjourned day the trial went on and he was adjudged guilty of the offense charged and dismissed from the force. The commissioner of police and excise is empowered by Laws 1873, chapter 863, as amended by Laws 1881, chapter 457, title 11, section 14, to dismiss a member from the force on his conviction of a violation of the rules or of conduct unbecoming an officer. Provision is made for the making of rules by the board in section 8 of the same act and title. By rule 145 it is provided that a policeman is at all times subject to the rules, and by rule 136 that no policeman shall abuse or ill treat a citizen.

Edward F. O’Dwyer, for relator, app’lt; F. A. McCloskey, for resp’t.

The relator was a member of the police department of the city of Brooklyn. The respondent is the police commissioner, and by chap. 863, Laws of 1873, as amended by chap. 457, Laws of 1881, title 11, sec. 14, has power to dismiss from the force a policeman who violates the rules of the department. He has also power to dismiss for conduct unbecoming an officer. The relator was charged with an unprovoked assault upon a citizen while he, the policeman, was off duty.

He was tried for this offense and dismissed.

It is one of the rules that no policeman shall wilfully abuse or ill treat a citizen. Rule 136. The policeman is at all times subject to the rules. Rules 145. Both rules are necessary and proper. The policeman is to protect the public. He must not be a brawler and fighter, either when on or off duty, for his efficiency depends upon a public respect for his office, and a confidence in the acts and deportment of the officer. The commissioner thus had jurisdiction over the charge, and he obtained jurisdiction over the officer by his appearance without objection to answer the written charge. McCormick v. Penn. R. R. Co., 49 N. Y., 303 .

The charge is sufficiently explicit. Even at common law the very words of the statute or role need not be used. If

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the substance of the charge be expressed it is good pleading. These proceedings are not such as call for the strict common law rules, either of pleading or trial. People ex rel. McCarthy v. Com. of N. Y., 98 N. Y., 332 ; People ex rel. Flanagan v. Com. of N. Y., 93 id., 97.

The issue of fact, if the evidence be merely conflicting, does not call for a reversal for that reason. People v. Com., 82 N. Y., 358 .

The evidence in this case supports the conclusion of the commissioner.

Judgment affirmed, with costs.

Dykman, J., concurs.