
    The People of the State of New York ex rel. William R. Black, Relator, v. Douglas I. McKay, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    January 29, 1915.
    Municipal corporation — city of Mew York — certiorari to review discharge of policeman for an unlawful arrest — evidence not justifying removal.
    Certiorari to review the proceedings - of the police commissioner of the city of New York, dismissing the relator from the police force upon the ground that he had made an arrest without authority, had delivered the prisoner to another officer, and had failed to explain the cir- [ cumstances. Evidence examined, and held; that there was no crime committed in the presence of the relator, and that he did not in fact make an arrest, but brought certain persons to the station house to have “counter-charges” between them settled, and that, therefore, he should be reinstated.
    Thomas, J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 13th day of March, 1914, directed to Douglas I. McKay, as 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 Kings all and singular his proceedings had in removing the relator as a member of the police department of the city of New York.
    
      Jacob Rouss, for the relator.
    
      Edward A. Freshman [Thomas F. Magner and Frank L. Polk with him on the brief], for the respondent.
   Per Curiam:

The relator was dismissed the police force of New York city in that he arrested Dunleavy and without authority or reason delivered him to a brother officer, and in that he failed and neglected to inform the lieutenant on desk duty at the station house of the circumstances attending the arrest. Dunleavy’s lad fetched a bottle of milk from Bernstein’s grocery shop and was sent back with the milk because it was unfit. Mrs. Bernstein refused to return the money paid. Then Dunleavy went to the shop and there was a quarrel between him and the Bernsteins, man and wife. Mrs. Bernstein sent out a neighbor for a policeman. The relator responded to the call. He found Dunleavy there holding the door, but he did not witness any crime. Mrs. Bernstein said that Dunleavy had struck her with the bottle and that she wished to have Dunleavy locked up or to press a charge against him. The relator took Dunleavy, the Bernsteins and their witnesses to the station house. On their way they met Shea, a patrolman, who had been summoned by young Dunleavy to the Bernsteins’ shop, as there was a fight there, and he joined them. The party proceeded to the station house. The relator says that the Bernsteins’ shop was not on his post, but was on Shea’s post; that he turned the case over to Shea outside of the station house, and that then they entered the house, and that he told the lieutenant that he simply accompanied them in. The relator’s explanation is that Dunleavy, who was not a policeman, cried out to him, when he first arrived at the shop, I have all these people here under arrest; ” that there were charges and counter-charges; that no crime was committed in his presence, and that he took them all to the station house To have it settled practically.” He testified to the trial deputy at the outset that he did not practically put Dunleavy under arrest, but that he told them all to come to the station house, it was a case of counter-charges. We think that this was the exact situation, despite the fact that the trial commissioner by constant badgering made him “concede” that he “put them under arrest.” He had no right to put any one of them under arrest without a warrant (Code Crim. Proc. § 177), and we believe that he did not intend so to do and that he did not regard any of these people as under arrest when he turned them over to Officer Shea or when he made his said statement to the lieutenant. If he did not, then there was no intentional violation of the rules invoked against him. We do not approve of the manner in which this trial was conducted, for we think that it was unfair and oppressive to the relator.

The determination is annulled, with fifty dollars costs and disbursements, and the relator is restored to the force.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred; Thomas, J., dissented.

Determination annulled, writ sustained and relator restored to his position, with fifty dollars costs and disbursements.  