
    The People of the State of New York ex rel. Thomas C. Hayden, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Defendant.
    First Department,
    November 7, 1913.
    Municipal corporations — discipline of police officer, city of New York —paragraph 78 of police regulations construed.
    Certiorari to review the determination of the police commissioner of the city of New York fining a patrolman for a temporary absence from his beat. Evidence examined, and held, that the fine should be remitted.
    Paragraph 78 of the rules and regulations of the police department requiring patrolmen who are compelled to leave then posts for reasons other than the discharge of their duties to first telephone to the precinct station house and obtain permission, does not apply to a patrolman who enters a building on his beat in order to direct the occupant to remove incumbrances from the sidewalk.
    Certiorari issued out of the Supreme Court and attested on the 18th day of October, 1911, directed to Rhinelander Waldo, police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in the hearing and trial of the relator.
    
      William E. Murphy, for the relator.
    
      Harry Crone, for the respondent.
   Dowling, J. :

This is a writ of certiorari to review the determination of the police commissioner in fining the relator, a patrolman of the police force of the city of New York, fifteen days’ pay.

The charge against the officer was that he had been absent from post for five minutes on the morning of June 21, 1911, beginning at four-twenty A. M. The relator admitted his absence from post during that period, but explained it by testifying that an Italian living in the rear house at 75 Mulberry street (which was on his post of duty at the time in question), had obstructed the sidewalk in front of said premises by unloading barrels of salads thereupon, rendering it almost impassable for pedestrians. Discovering this condition at the time in question he went to the man’s residence through an alley leading to the rear tenement, and notified him to immediately remove the obstruction. This person had been in the practice of returning from the market at the same hour each morning and leaving goods on the walk, and from this custom the officer knew who it was that had created the obstruction. He made an entry in his memorandum book, which was turned in to the station house at the close of his tour of duty that morning, and at a time when he had no knowledge of any charges againskhim, corroborating his testimony as to the purpose of his leaving post, and this was signed by the lieutenant in charge at the desk upon its being turned in.

There is no reason disclosed by this record to doubt the testimony of the officer, nor was it sought to contradict him. The action of the deputy commissioner in imposing the fifteen days’ fine seems to have been based upon a misinterpretation of paragraph 78 of the rules and regulations of the police department, as adopted September 17, 1908. That paragraph reads as follows: “Patrolmen compelled to leave their posts for reasons other than the discharge of their duties, will, prior to so doing, telephone to the Precinct Station-house, from the nearest Signal-box, and obtain permission of the Lieutenant, and will report to the Lieutenant in the same manner, their return to post.”

Upon the relator’s testimony he was absent from his post for the five minutes in question in the discharge of his duties. It was not, therefore, incumbent upon him to telephone to the station house before entering upon the performance of his duty, and when he had entered in his memorandum book the length and reason of his absence from post and promptly turned the same in upon his return to the station house he had complied with all that was incumbent upon him to do under the circumstances.

The deputy commissioner was of the opinion apparently that because he had acknowledged leaving post without permission from the lieutenant he was guilty of the charge; but wé' are referred to no other paragraph of the regulations which he is claimed to have violated, save the 78th, and that has no application to this case.

The writ will, therefore, be sustained, the proceedings annulled and the fine remitted, with fifty dollars costs and disbursements to relator.

Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred.

Writ sustained, proceedings annulled, fine remitted, with fifty dollars costs and disbursements. Order to be settled on notice.  