People ex rel. Deloughry v. Welles

Hatch, J.: The relator was called upon to answer two written charges, with specifications attached, of violation of duty in connection with his office of patrolman of the police force of the city of Brooklyn. [524] The first of these charges was for violation of rule 12, section 5 of the rules adopted for the government of the police force of said' city. The specification was: “ That at the City of Brooklyn, on the 16th day of January, 1895, the said Patrolman Patrick Deloughry, violated Rule 12, Sec. 5, hy leaving his post. The said patrolman was assigned to duty on 5th Avenue from 12th to 13th Streets, and he was found at about 12.30 r. m. on 5th Avenue near 11th Street.” The second charge was for violation of the same rule and section, aud the specification reads : “ That at the City of Brooklyn, on the 17th day of January, 1895, the said Patrolman Patrick Deloughry, violated Rule 12, Sec. 5, by leaving his' post. The said patrolman was assigned to duty at the 7th Avenue Railroad Depot, corner 7th Avenue and 20th Street, and he was found at about 3.28 a. m. on 20th Street near Sixth Avenue.” Upon these charges the relator was tried, adjudged to be guilty by the commissioner, and was dismissed from the police force of said city. The charges were not verified by the oath of any person, and they seem to be much more formidable in character than is the evidence adduced in their support. Respecting the first charge all the evidence of violation of duty is found in the testimony of Roundsman O’Connor, and consists of this : “ Q. This man left his post at Fifth Avenue and Eleventh Street? A. Yes, sir, I found him a block away from his post. The captain sent me with four men to cover two blocks. I placed one man on each block.” The officer was sworn and testified : “ I want to say that I had two blocks to Cover. The roundsman came out with four men. I did not understand him, and I kept on patrolling the two blocks.” There is no evidence whatever of any instructions having been given by the captain or the roundsman or any other person in authority, as to the particular block or blocks the patrolman should patrol. The statement of the roundsman is that the captain sent him with four men to cover two blocks, and that he placed one man on each block. How he cordd place only one man on each block when he had four men and but two blocks, is not exactly clear. But if by some occult process he did this, he nowhere states that the beat was limited to the one block, or that he gave any instructions to that effect. The ■officer states that he understood he should patrol two blocks, and did so. The roundsman was not called to say that he did not give such instruc [525] tions or that he gave any respecting the limits of the patrol. The captain was subsequently recalled, but he gave no testimony upon this point. The obligation rested upon the party charging dereliction of duty to establish it by proof, and until that was done the officer was not called upon to answer. We may not infer from the language, “ I placed one man on each block,” that of necessity he was limited in patrol to that block, in the absence of any proof that the roundsman gave such instruction, and especially where it appeared and was not disputed that the officer thought it his duty to patrol two blocks. (People ex rel. Roe v. MacLean, 57 Hun, 141.) This charge and specification was, therefore, not sustained by legal proof. Respecting the proof to sustain the second charge, it is meagre and unsatisfactory. Sergeant McGovern testified that at twelve o’clock midnight the officer was assigned to w^atch the railroad property at Seventh avenue and Twentieth street. The sergeant reached the depot at three-ten, and at three-twenty-eight found the officer coming down Twentieth street from Eighth avenue, who stated to him that he followed two motormen up there. When the sergeant saw the officer he was seventy-five feet from the property. Captain Murphy testified that when the officer was assigiied to duty, he was told to be particular in his attention to that property. The patrolman, in his defense, testified that the depot which he was placed to pi’otect extended nearly half a block ; that he conceived it to be his duty to go around it; that there were some vacant lots on Eighth avenue and lie saw some parties go up Nineteenth street, went after them, crossed the lots and came down on the other side. Captain Murphy was recalled and testified that the officer could not go around the property, on account of houses. It is quite evident from these statements that the duty of the officer was to protect the property, watch it; that he could do this when at a distance of seventy-five feet from it is no strain upon the understanding. That he was required to watch its rear, as well as its front, was quite within a proper conception of his duty. If he saw suspicious characters near it, whom he might reasonably think meditated designs upon it, it was clearly within his duty to watch them, so far as to see that they did not approach the property from any side. The evidence fails to disclose that, at any point, where the officer -was found, or where he claims to have been, some portion of the property was not within [526] his view and subject to bis inspection, or but that his position would have enabled him to have gone to its relief if any attack had been made upon it. Perhaps there is slight proof warranting, a different inference. But this is not sufficient. The dereliction of duty upon the part of the officer must be proved before the officer can be dismissed. (People ex rel. Masterson v. French, 110 N. Y. 494.) And when the proof fails in this regard the charge must fall with it. In -the present case the explanation offered by the officer was consistent with the proper performance of his duty. And the proof given to sustain the charge did not go to the extent of convicting him of a violation of his duty, so far as to say that what he said in explanation, was a mere palliation of an offense which had been established. We admit the rule which vests in the officer the determination of questions of guilt when the evidence is sufficient to call for the exercise of his judgment, and that such determination is binding upon us. But such rule is without application unless the evidence be sufficient to warrant the finding. We think the evidence here is not of that substantial character which the law requires, and that within the authority conferred by section 2140 of the Code of Civil Procedure á case appears which requires that the conviction and judgment based thereon should be set aside. (People ex rel. Fitzsimmons v. Jourdan, 1 Civ. Proc. Rep. 337; People ex rel. Gaus v. Welles, 88 Hun, 190.) The determination should be annulled, and the relator restored to his office, with fifty dollars costs. All concurred. Determination annulled, and relator restored to his position, with fifty dollars costs and disbursements.