
    The People of the State of New York ex rel. William E. Wells, Relator, v. Cornelius A. Hart and Charles W. Alexander, Police Commissioners of Richmond County, Respondents.
    
      Police commissioners — unauthorized dismissal of a patrolman.
    
    The dismissal of a patrolman upon a charge of disrespect towards his superior officer and conduct unbecoming an officer, upon a specification charging that he made the remark “That (using an extremely opprobious epithet) is trying to pound me,” thereby referring to a roundsman, named in the specification, is not justified where there is no proof or circumstance tending to indicate the person concerning whom-the remark was made.
    Hatch and Cullen, JJ., dissented.
    
      Certiorari issued out of the Supreme Court and attested on the 27th day of September, 1897, directed to Cornelius A. Hart and Charles W. Alexander, police commissioners of Richmond county, commanding them to certify and return to the office of the clerk of the county of Richmond all and singular their proceedings concerning the dismissal of the relator from the police force of said county upon the ground that said relator had been guilty of dis_ respect towards his superior officer, and of conduct unbecoming an officer.
    
      David Thornton, for the relator.
    
      Sidney F. Damson, for the respondents.
   Willard Bartlett, J.:.

The relator was a patrolman on the Richmond county police force. He was tried by the police commissioners under section 13 of chapter 108 of the Laws of 1897, upon a charge of disrespect toward his superior officer and conduct unbecoming an officer. There were two specification's. The first alleged that while on duty at Hew Brighton on the night of August 24,1897, the relator, when asked by his superior officer, Roundsman Frank S. Hodge, if he, Patrolman Wells, was off duty, said: “Ho. Ho jay like you can pound me; if you do you will take a tumble.” The second specification alleged that subsequently, on the same evening, in the same neighborhood, the relator said to three persons: “That” (using an exceedingly opprobrious epithet) “ is trying to pound me; ” thereby referring to the aforesaid roundsman, Frank S. Hodge.

■ Upon the hearing before the police commissioners the relator was declared not guilty upon the first specification, but adjudged guilty of the charge as stated and set forth in the second specification. Only two witnesses testified that the relatormade use of the language set out in the second specification, and neither of them would say that the remark was spoken of or addressed to the roundsman. Even the roundsman himself was unwilling to assert that lie understood the words, to apply to him, for when asked by the relator whether he interpreted the insulting term as applicable to himself, the rounds-man responded: “ Will not swear to that; haven’t testified to that fact; testified to your remarks.” The other witness who heard the words used said he had not any idea to whom the relator alluded until the roundsman stepped out from a neighboring store into view just as the "remark was made. Then he says it came to his mind that the conversation might have been directed toward Hodge.

In the evidence of the persons who actually heard the words spoken, there seems to be absolutely nothing to show that they were spoken of and concerning the roundsman. If, however, the relator, earlier in the evening, had accused the roundsman of “ pounding ” him, as set out in the first specification, the police commissioners might very well have inferred that the relator had the roundsman in mind arid intended to characterize his conduct in what he said subsequently. But it is impossible to see how the commissioners could have acted on this view, for they acquitted the relator of the charge as stated in the first specification. As the case stood, therefore, when the commissioners came to pass upon the second specification there was no circumstance tending-in the slightest degree to show to what person the relator referred by the improper language he is said to have used. Their action in regard to the first specification was in substance a determination that he had not previously said anything about the roundsman pounding ” him; and without that statement the objectionable epithet subsequently used might just as well have referred or applied to anybody else as to the roundsman.

This court is committed to the proposition that the technical formality of a criminal prosecution need n'ot and should not be required in proceedings to discipline police officers. (People ex rel. Powers v. Welles, 18 App. Div. 132.) I am not disposed in the least to qualify what was said on that subject by Mr. Justice Cullen in the case cited. It seems to me, however, that the defect here is very much more than a mere irregularity or informality. If the commissioners were right in their decision upon the first specification, there was no evidence in the case except that which they had already rejected as unworthy of credit that would permit any judicial tribunal to find that the second specification was true.

In my opinion the determination ought to be annulled.

All concurred, except Hatch and Cullen, JJ., dissenting..

Hatch, J. (dissenting):

I dissent from the views of the court as expressed in the opinion of Mi-. Justice Bartlett for the reason that I do not think .it can be affirmed that there was no evidence upon which the commissioners were authorized to find the relator guilty of the offense charged in the second specification. On the contrary,. I am of opinion that the evidence fairly sustained the charge contained therein, and that this court should not interfere with such conclusion. It is undisputed, indeed it was admitted by the relator, that he made use of an opprobrious epithet, and while he varied the form in which he claimed to have used it, yet it remained in its objectionable features the same. That the epithet was of a character unbecoming an officer engaged in the discharge of his duty when applied to his superior officer is conceded. It became, therefore, the duty of the commissioners to determine whether the language was intended to be applied to the roundsman. Upon this point I think that the evidence preponderates in favor of the conclusion reached by the commissioners. They were entitled to take into consideration not only the oral statements, but the attendant circumstances.

It appeared from the testimony of the relator that he had had some words with the roundsman before he made use of the epithet. There seems to have been no occasion for the relator to make the remark with reference to any other person, and it followed closely upon the heels Of the charge by the roundsman that the relator was off his post, When the remark was made the roundsman spoke to the relator of its having application to him, and the relator interposed no denial that the language was so intended, and made no, protest or excuse that it should not be so considered. The fact that the roundsman upon the trial would not say that the relator meant to apply the language to him, does not change the fact that the epi- , thet was made nor the right of the commissioners to find that it, was applied to the roundsman and referred to him. The testimony simply shows that the roundsman related the circumstances as they occurred, and in no substantial respect did he vary his statement in this regard. ' It was. not for him to say for whom the epithet was-intended; that was a fact which the commissioners were to determine, and if objection had been interposed, the answer would not. have been proper, as it would have determined the question which the commissioners were to' try, and is not within the exceptions rendering such testimony competent.

It is quite clear that the charge contained in the first specification was not considered, for the reason that respecting such charge the relator desired to call other witnesses, and as this necessitated an adjournment, this charge was disposed of by an acquittal.

Upon the second charge all of the evidence which either party had to give was received and considered.

We may- think that the punishment was unnecessarily severe, but with that question we have nothing to do. I cannot resist the conviction that this ease falls within our former decisions, which require us to support the determination. (People ex rel. Powers v. Welles, 18 App. Div. 132; People ex rel. Deloughry v. Welles, 5 id. 523.)

For these reasons I think the determination should be affirmed.

Cullen, J., concurred.

Determination of police commissioners annulled, with ten dollars costs and disbursements, and relator reinstated.  