
    The People of the State of New York ex rel. Jacob Simermeyer, Relator, v. Theodore Roosevelt and Others, Police Commissioners of the City of New York, Respondents.
    
      Police board of New York—officer disobeying the orders of his captain as to violations of the Excise Law — dismissal from the force.
    
    Where a police officer is stationed by his captain at the back door of a saloon on Sunday, with orders to prevent any violation of the Excise Law, and is ■ instructed to follow into the saloon any person who enters it, and the officer does not remain at the door of the saloon and does not follow persons who enter it, the board of police commissioners are justified in finding that the officer neglected his duty and his dismissal from the police force will not be set aside.
    Gertiorari issued out of the Supreme Court and attested on the 28th day of December, 1895, directed to Theodore Roosevelt, Avery D. Andrews, Andrew D. Parker and Frederick Grant, as police commissioners of the city of New York, constituting the hoard of police of the police deparnment of the city of New York, requiring them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in reference t.o the dismissal' of the relator from the police force of said city.
    
      Robert J: Robeson, for the appellant.
    
      Theodore Gbnnoly and Terence Farley, for the respondent.
   Ingraham, J.

The charge against the officer was neglect of duty, the specification being that- the officer neglected and failed to make an arrest for a violation of the Excise Law (Laws of 1892, chap. 401). The captain, of the precinct testified that on the morning ■ of Sunday, July 28, 1895, he saw a woman going into a saloon at 247 West Sixtieth street, through the back door, with a can. I started to cross the lot and I met a man on the outside watching. As soon as I got there I was informed that everything was tight, I could not get in.” Subsequently the woman that the captain had seen go in with the can came out. That afternoon the captain sent the relator in uniform to this place. He, the captain, said, “ This man ’round here is doing business in that ])lace; I have not only seen it but I have reports from people that they are doing business there; I want you to stand there and prevent anybody going in.” An hour after-wards the captain went down to the place and found the officer, instead of being where he was directed to stand, down on the corner. The officer said to the captain, They have not done anything all day.”

From where the officer stood when on duty in the building he could see whether a person that went into the house went upstairs or whether he went into the rear of the saloon. The captain’s orders to the officer were that if a person was going into the saloon to stick to him and go in with him.” Dennett, the complainant, testified that on this Sunday afternoon he went to this place and stood in the doorway of the saloon a minute and then he went in the back way; he was preceded into the place by a man with a tin pail, and was followed immediately afterwards by two others ; that this officer stood at the hallway leading to the back door of the saloon ; that he passed right by the officer and had a talk with him on his way in. The officer did not follow him. Dennett, while he stood talking to the officer, saw a woman, called his attention to her and said, Probably she is going after some beer.” Dennett then went into the saloon and bought some whisky. The officer swore he did not see Dennett, and saw no violation of the Excise Law while he was there; that if any one went into the saloon while he was there he followed them in.

The officer was stationed at this saloon to prevent a violation of the Excise Law. If he had followed each person into the saloon, he could have made an arrest if there had been a violation of law. In disobeying his instructions he failed to be present when the law was violated and thus to arrest the offender. It will not do for him to say that if he had obeyed the instructions of the captain the proprietor of the saloon would not have violated the law.

■ The commissioners were justified in finding that the law was violated and that in consequence of the relator’s neglecting to obey the instructions of his captain, he was not present at the time the offense was committed, and thus failed to make the arrest for its violation.

It follows, therefore, that if the commissioners believed Dennett and the police captain, they were justified in finding that the officer was guilty of neglect of duty, and the proceeding must be dismissed, without costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, J.J., concurred.

Proceedings dismissed, without costs.  