People Ex Rel. Voss v. . Greene

Haight, J. The relator was charged with conduct unbecoming an officer, in that he testified falsely upon a trial of another officer. The return shows that the trial took place before Deputy Commissioner Davis, who was duly authorized to hear the same; that he took the evidence and submitted the same to the commissioner, ivho subsequently made his decision thereon finding the relator guilty of the offense charged, and thereupon adjudged that he be dismissed from the police force. Upon the hearing before the deputy commissioner the relator was represented by counsel but no objection was made nor exception taken to the power of the deputy commissioner to take the evidence" and"report it to the .commissioner. It is now contended that the deputy commissioner was not authorized to hear the case and that in consequence thereof the dismissal of the relator from the force was void. We think it sufficiently appears from the return that he was authorized, but if it did not we are of the opinion that the question was disposed of by our determination in the case of *486 People ex rel. Garvey v. Partridge (180 N. Y. 237), in which Webneb, J., speaking for the court, says that, under the present charter, “ the deputy commissioners are authorized to examine, hear and investigate charges against members of the force, but that the power to convict and punish upon such charges is vested solely in the commissioner except in Ms absence or disability, when it devolves upon his deputies in the order of their rank.” The practice thus authorized is analogous to that often adopted in the Supreme Court when a controverted question of fact arises upon a contested motion. The court appoints a referee to take the evidence and to return the same to the court. It is quite customary to add thereto, with Ms opinion as to the facts established thereby, but the report with Ms opinion is not essential to the validity of the proceedings, for the court must determine the facts from the evidence either with or without the aid of the views of the referee. While we are not disposed to impose unnecessary burdens upon the commissioner or his deputies it would, we think, be a more satisfactory practice if the commissioner did require the deputy assigned to hear a case to state his opinion as to the facts established in making his return of the evidence. The deputies, as we have seen, are authorized by the statute and the rules promulgated by the commissioner to take the evidence upon charges of misconduct made against members of the force. It is quite true, as claimed by the appellant, that the record discloses no written designation of Deputy Davis to take the evidence in this particular case other than that appearing from the return, to which we have already called attention. The commissioner, doubtless, has the power to designate the deputies to hear the cases. lie may say to the first deputy: You hear A’s. case; to the second deputy: You take B’s case,- and to the third deputy he may assign O’s case. We think it is unnecessary that such assignments should be in writing, but-that the power of the deputy will be assumed in view of the fact that, under the statute, he is given the power to take the evidence in such cases, and that subsequently the *487 commissioner reviewed the evidence so taken, especially when no objection was taken on the trial, and passed judgment thereon. The order should be affirmed, with costs. Cullen, Ch. J., O’Brien, Vann, Werner, Willard Bartlett and Hiscock, JJ., concur. Order affirmed.