
    The People of the State of New York ex rel. Henry K. Boch, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    February 26, 1915.
    Municipal corporations — police officer, city of New York—rule 29, paragraph 50, construed—inducing tradesman to advertise candidacy of wife of police officer.
    Paragraph 50 of rule 29 of the police department of the city of New York forbidding police officers, without express permission, from making presents, bestowing testimonials or collecting or receiving money or anything else from citizens, etc., or from selling tickets for any purpose, does not prevent a police officer while off duty from asking a tradesman to deliver in packages sold to customers printed matter announeing the candidacy of the officer’s wife in a contest conducted by newspapers.
    Such act by a police officer is not ground for imposing a fine for violating said rule of the department.
    Thomas, J., dissented.
    Oebtiobabi issued out of the Supreme Court, and attested on the 24th day of September, 1913, directed to Rhinelander Waldo, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in regard to the trial and punishment of the relator.
    
      Florence J. Sullivan, for the relator.
    
      Edward A. Freshman [Thomas F. Magner and Frank L. Polk with him on the brief], for the respondent.
   Rich, J.:

This is a proceeding by certiorari to review the conviction of the relator, a member of the police force of the city of New York, of conduct unbecoming an officer, and violation of the rules and regulations of said department, and fining him fifteen days’ pay.

Specifications accompanied the charges as follows: First, that relator while off duty, but in uniform, entered a family liquor store conducted by one Goldman for purposes other than the discharge of police duty; second, that while in said liquor store the relator solicited said Goldman to put some slips advertising the candidacy of his (relator’s) wife in an automobile contest being conducted by a public newspaper, in packages sent out to customers; third, that the relator entered the dry goods store of Mrs. 0. E. Springer and informed an employee (Emma Herbet) that his wife was a candidate in such contest, and requested her to give any coupons that she did not want to use in said contest to his wife; fourth, that the relator entered the hardware store of one Tuthill and requested him to give to relator’s wife what was known as a voting coupon given to advertisers in the newspaper conducting said contest. These acts are alleged to have been in violation of paragraph 50 of rule 29 of the rules and regulations of the police department, which provides: Paragraph 50. Without the express permission of the Police Commissioner, members of the Police Force are forbidden to make presents, bestow testimonials, collect or receive money or anything else from citizens or others, circulate subscription papers or books, or sell tickets for any purpose.”

The charges, so far as embraced in the specifications relating to the requests made to Herbet and Tuthill, are disproved by their testimony and have no support whatever. Goldman testifies that the relator said: “‘Mr. Goldman, my wife sent these papers over to you; would you be kind enough to put these in your parcels when you deliver them to your trade ? ’ I said, ‘ I certainly will, Mr. Boch; why shouldn’t I ? Mrs. Boch and my wife are very intimate with each other.’ He said, ‘ You will do that, will you ? ’ I said, ‘ I will do that for Mrs. Boch.’” The relator’s recollection of the transaction differs from that of Goldman; hut conceding for the present that the transaction was as stated by him, I do not believe that the paragraph in question was intended to cover such a case. Under a strict construction a policeman would not be permitted to make a present to his wife or to his child, or to collect or receive money justly owing him, without first procuring the permission of the police commissioner. The section ought not to be so absurdly construed or enforced, and it is not necessary that it should he in this case because Goldman’s version of the transaction is not supported by a fair preponderance of the evidence. The conviction and imposed fine should not be permitted to stand.

The writ should be sustained, determination annulled and fine remitted, with fifty dollars costs and disbursements.

Jenks, P. J., and Stapleton, J., concurred, Thomas, J., dissented; Burr, J., not voting.

Writ sustained, determination annulled and fine remitted with fifty dollars costs and disbursements.  