D'Emidio v. Adams

The police commissioner has the direct responsibility of passing on the satisfactory nature of the probationary civil service record before he makes a permanent appointment of a patrolman in the police department. If the commissioner acts on mere suspicion, or not in good faith, a triable issue may be presented to determine whether the decision was arbitrary (Matter of Maynard v. Monaghan, 284 App. Div. 280, 283; Matter of Hamilton v. Monaghan, 285 App. Div. 692). But here a full adversary examination into the departmental charges against petitioner was conducted, witnesses were examined with full opportunity allowed to petitioner’s counsel to cross-examine. If the evidence against the petitioner be accepted as true, the commissioner was justified in terminating his probationary employment. The weight of the evidence would not be reviewable at Special Term; the question would be whether there was substantial evidence to support the determination. The court could not determine on this kind of a review that the evidence ought not to have been believed. An examination of the record shows clearly that there was substantial evidence before the commissioner which, if credited, would justify termination of probationary employment. We have considered the issues as tendered by petitioner, and it is, therefore, unnecessary for us to pass upon the power generally of the commissioner to terminate a probationary employment. Order directing a trial of the issues unanimously reversed and the petition dismissed. Concur — Breitel, J. P., Botein, Rabin, Cox and Bergan, JJ. [See ante, p. 883.]