People ex rel. Skahan v. Board of Police Commissioners , 17 N.Y. Sup. Ct. 106 ( 1877 )

Davis, P. J.:

Tbis case is brought to a bearing upon tbe return to tbe oertiora/ri. No issue has been taken by tbe relator upon any of tbe facts alleged in such return. Tbe court is not, therefore, at liberty to look behind tbe return for any of tbe facts of tbe case.

Tbe return shows that tbe relator was charged by tbe captain and sergeant of tbe twenty-ninth precinct, “ with neglect of duty, and conduct unbecoming an officer.”

Tbe specifications under tbis charge were, in substance, that tbe relator, while on bis post, beard tbe cry of “police,” and .saw two men fighting in tbe street, and acting in a disorderly manner, and failed to arrest said men then, but subsequently did arrest one of the men, but failed to make a complaint against him at the station-house that would warrant his detention by the sergeant in charge,

Second, that on the relator’s attention being called by Commissioner Joel B. Erhardt to the two men fighting, he used words unbecoming an officer and gentleman, to wit: “What in hell is it of your business,” or words to that effect.

Due personal service of the charges and specifications and of the notice of trial for the 3d of November, 1876, were admitted. On the third of November, the hearing was adjourned to the ninth, and on the ninth it was adjourned again to the sixteenth of November, on which day the hearing was had before Commissioner Erhardt, the charge was read to the relator, and he was sworn. No other testimony was taken, and his statement was laid before a full board of' the commissioners, in accordance with rule 131 of the board, regulating the hearing of such charges.

The board found the relator guilty of the charges and ordered his removal. The return states that all the commissioners concurred in the finding and order except Commissioner Erhardt, who did not vote. So far as relates to the first specification, the evidence of the relator himself shows a clear neglect of duty. He saw disorderly persons fighting in the street, and neglected to arrest them; and afterwards, when he arrested one of them upon a charge made by the other that the former had stolen a pistol from him, he neglected to make any charge at the station-house that warranted his detention.

The commissioners thought the excuses made by him were insufficient. We concur in that view, for it was the plain duty of the relator to have arrested the persons guilty of disorderly conduct in the street at once, and to have made proper charges against them. But if we did not concur, nevertheless the evidence was sufficient-to.call for .the judgment of the commissioners, and their conclusions of fact and' as to the sufficiency of the excuses are not so wholly unwarranted as to justify our interference.

It was objected that the relator was tried before Commissioner Erhardt, who was himself a witness of the transaction, and to whom the improper language is charged to have been used.

But the commissioner was not called as a witness on the hearing, and he does not appear to have been the complainant, or even to have instigated the complaint. If he had made the complaint, that act would have been in the line of his duty, and would not necessarily have disqualified him from investigating the charges.

But it appears, in this case, that he only took the testimony of the . relator and submitted the same to the full board, and did not vote upon the question of conviction. The trials of this class of cases are summarily conducted without the formalities of courts of law, and it is enough that it appears that the case is one in which the board of commissioners had jurisdiction of the subject-matter of the charges and of the person of the accused, and that coTnpetent evidence was given which called for the exercise of their judicial functions. (Haines v. Smith, 45 N. Y., 776 ; People ex rel. Cook v. Board Police, 39 id., 506 ; Mullins v. People, 24 id., 399.)

The proceedings should be affirmed and the writ dismissed, with costs.

Daniels, J., concurred.