People ex rel. Simermyer v. Roosevelt — 74 N.Y. St. Rep. 430

Majority

p. 430

People ex rel. Jacob Simermyer, App'lt, v. Theodore Roosevelt et al., as Commissioners, etc., Resp'ts.

(Supreme Court, Appellate Division, First Dept.,

Filed March 20, 1896.)

Headnote

1. _ Municipal corporation—Police—Removal.

The question whether or not a member of the police force is-guilty of the offense with which he has been charged, can only be determined upon evidence before the commissioners; and, if it appears by the return that the commissioners have considered other-facts, not introduced in evidence before them, it is the duty of the-court to reverse the conviction.

2. Same.

In determining such question, the commissioners have a right to consider the relator’s record, or any other fact that is within their personal knowledge.

8. Same—Presumption.

The presumption is that the commissioners performed their duty and observed the rules that the law prescribe for the trial of such cases; and, before the court can reverse their decision on this-ground, it must affirmatively that this rule.

4. Same—Return—Recitals.

Where the return states that, at the termination of the trial or hearing- of the said charg'es and specifications, the proceeding's and the relator’s record were duly considered by the respondents, and that after due consideration thereof, they determined that the relator was guilty as charged, and they 'thereupon passed a resolution dismissing him from the police force, there is nothing to show that the respondents considered the record of the relator in. determining' his guilt or innocence.

5. Same.

Ima return of this kind, it is the duty of the commissioners to state specifically just what they consider in determining the question as to the guilt or innocence of the person charged with the oifense.

6. Detective—Corrobortion.

An officer of a society organized for the purpose of aiding in the enforcement of the law and the suppression of crime, without personal ends to serve, is not a private detective, employed and paid an individual who, for some personal reason, wishes to show that another has been guilty of an offense.

7. Same.

In such case, his testimony need not be corroborated, to be considered by the board of police commissioners.

Motion for reargument.

Robert J. Robeson, for the motion; Theodore Connoly, opposed.

The counsel for the relator entirely misapprehends the rule as to the effect of the consideration of the' record of the relator by the commissioners. In determining; charges against a member of the police force, the commissioners, first have to determine whether or not the person charged is guilty of the offense with which he has been charged. That question can only be determined upon evidence before the commissioners ^ and if it appeared by the return that the commissioners had considered other facts, not introduced in evidence before them, it. would be our duty to reverse the conviction. "Where, however, the commissioners have determined the question as to the guilt or innocence of the relator under the charges preferred, they then have to determine what punishment should follow; and, in determining that question, they have a right to consider the relator’s record, or any other fact that is within their personal knowledge. This principle was established in the case of People ex rel. McAleer v. French, 119 N. Y. 505 ; 30 St. Rep. 72 . The respondents, therefore, had the right to have before them the record of the relator; and, while they had not the right to consider that record in determining whether or not the relator was guilty, it was properly before them for the purpose of considering the punishment.

The presumption is that the commissioners, being public officers, properly performed their duty, and observed the rules that the law prescribes for the trial of cases of this kind; and, before we can reverse the decision on this ground, it must appear affirmatively that they disregarded this rule, and considered, upon the trial of the relator,, his record, which was before them; and this nowhere appears. The return state that, at the termination of the trial or hearing the said charges and specifications, the proceedings and the relator’s record were duly considered by the respondents, and that, after due consideration thereof, they determined that this relator was guilty as charged, and they thereupon passed a resolution dismissing him from the police force. There is nothing here to show affirmatively that the respondents considered the record of the relator in determining his guilt or innocence. If the relator had wished to present that question, he should have moved to compel the commissioners to make a more specific return, stating expressly upon what they based their findings. As to the guilt or innocence of a person charged with an offense against the rules and regulations of the departments, we think that, in a return of that king, it is the duty of the commissioners to state specifically just what they considered in determining that question. But, as the return does not show specifically that they did consider anything except the evidence before them upon that question, we are not required to reverse their proceedings.

In deciding the question, no notice was taken of the point made that the evidence of Bennett, the person making the charge, was-hot to be considered unless corroborated, on the ground that he

p. 432

was a detective, because we deemed it- quite unworthy of consideration. The plain distinction between an officer of a society organized for the purpose of aiding in the enforcement of the law and the suppression of crime, without personal ends to serve, and1 a private detective, employed and paid by an individual who, for some personal reason, wishes to show that another has been guilty of an offense, is so apparent that we thought it entirely unnecessary to call attention to it. It is clear that whatever criticism; the courts have made upon the evidence of such private detectives' had no application to a ease like the present. Dennett was no more a private detective, within the meaning of the criticism of the witnesses in the case cited by the relator himself, who was a police officer, and whose dnty it was to enforce the law.

All concur.

The motion for reargument should be denied, with $10 costs.