People ex rel. Van Bergen v. Welles — 69 N.Y. St. Rep. 112

Majority

p. 112

The People ex rel. Ernest Van Bergen, App’lt, v. Leonard R. Welles, as Commissioner, etc., Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 26, 1895.)

Headnote

Municipal corporations—Police—Removal.

The decision of the commissioner of police in removing the relator from the police force on the charge oi larceny cannot be sustained, where the article, alleged to have been stolen, was taken with the permission of the owner’s clerk, though the latter had no authority to give such permission.

Certiorari to review the decision of the commissioner of police and excise of the city of Brooklyn, in dismissing relator from the police force.

James C. Church, for relator; Jacob Brenner, for resp’t.

This is a proceeding by certiorari to review the action of the defendant, as commissioner of police and excise of the city of Brooklyn, in removing the defendant from his position on the police force. The relator was a patrolman in the city of Brooklyn, and was dismissed from that position after a trial by the defendant upon the charge of larceny. The specification of the charge was that on the 17th day of June, 1894, the relator violated a rule of the police department by leaving bis post and entering a milk and butter store and stealing eggs from a box. "Upon the trial it appeared that the relator went to the store of S. Y. Coles and took some eggs. It appeared, further, upon the trial, without contradiction, that permission had been given to the relator to enter the store at any time and help himself to such articles as he wanted; and, when the witness was asked if he specified eggs as an article which he could take, he answered that he told the relator to take anything he wanted. The relator acted upon that permission, which seems to have been given to other policemen besides himself, and took the eggs in question for the purpose of having them boiled to eat himself. Under this state of facts, it is entirely plain that the criminal intent necessary to the conviction of the relator of the crime of larceny is entirely wanting. The clerk gave him permission to take the articles which he took, and it is immaterial whether the clerk had authority to do so or not. The relator took the eggs because he supposed he had the right to do so, and he had ample reason for such belief. The proceedings which resulted in his conviction should, therefore, be reversed, and he should be restored to his position as patrolman of the police.

All concur.