
    In the Matter of Roman J. Laurence, Petitioner, against John A. Gaffney, as Superintendent of New York State Troopers, Division of State Police, Respondent.
    Fourth Department,
    November 12, 1947.
    
      
      William B. Mahoney for petitioner.
    
      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Solicitor-General, and Matthew A. Tiffany, Assistant Attorney-General, of counsel), for respondent.
   Harris, J.

The petitioner, Boman J. Laurence, became a member of the New York State Police force July 1, 1931; he remained in such position until his dismissal and discharge therefrom, on September 30, 1946, on charges preferred by the Superintendent of the New York State Troopers Division of State Police. During his service in the State Police, he was inducted into the armed services and after serving therein was honorably discharged from such armed services. By reason of his service in the United States Army, he became entitled to, and was given, a trial on the charges. By this proceeding, he seeks review of the determination and discharge.

The only question that comes before this court in this proceeding is whether there is in the record of his trial sufficient evidence, that would appeal to a person of reasonable mind, to sustain the charges. (People ex rel. Masterson v. French, 110 N. Y. 494; People ex rel. Hogan v. French, 119 N. Y. 493; People ex rel. Guiney v. Valentine, 274 N. Y. 331; Matter of Weber v. Town of Cheektowaga, 284 N. Y. 377; Matter of Miller v. Kling, 291 N. Y. 65.) Whether there is sufficient evidence is to be determined from the contents of the record on which the determination was made.

The following is a summarized statement of the entire proof presented before the Superintendent of State Troopers at the time of the hearing on such charges:

The petitioner was a member of the New York State Police force and actively so (except during his service in the armed forces during World War II) for fifteen years and three months. At no time were there any other charges preferred against him and, so far as the record shows, his conduct while in such service, except for the matters now under consideration, was in every manner satisfactory. At the time that the episode occurred on which the charges were based, he was president of the Police Benevolent Association of New York State Police, Inc. (This court was informed on argument that this organization includes only men in the ranks of the troopers, and its members numbered approximately 40% of the troopers without rank.) The petitioner resides with his wife in the city of Niagara Falls, N. Y.; his wife, Mrs. Mary Genevieve Laurence, was the paid recording financial secretary of the association and had charge of their funds and the receiving and banking thereof. The charges center on one occurrence: A captain in the United States Navy, while driving through the State of New York, left his uniform cap in a restaurant in the vicinity of Le Roy, N. Y. The petitioner, at that time, was assigned to duty at, and lived in, the barracks in Batavia, N. Y. In endeavoring to locate his cap which had been left at some place, the location of which he could not remember, the naval captain wrote to the New York State Police at Le Roy, N. Y., asking that the cap be located and said, “ if the cap can be located and mailed to me I will be glad to send a $5.00 reward to whoever is responsible for mailing to me. Perhaps one of the State Police having that area can locate the cap. Any assistance will be appreciated, and if located please ask the responsible party to notify me by mail and return address on package, and I-will send the $5.00.” In the routine order of business, the assignment for locating the cap came to the petitioner. He located the cap in a restaurant outside of Le Roy, N. Y., packed it into a box addressed to the naval captain, and placed on the outside of the box a return address as follows: “From R. Laurence, 718-1 81st Street, Niagara Falls, N. Y.” which was the home address of his wife and himself. The uncontradicted testimony was that this inscription was put on the package so that if the package went astray it could be returned to the sender who, by departmental rule, was held responsible for the return of the cap. After shipping the cap, he made a report to his superior officer as follows: ‘ Troop ‘ A ’ Batavia, New York July 5, 1946 Subject: Capt. J. D. Green, Naval War College, Newport, B. I. To: Trooper Commander, Troop ‘ A ’ 1. The above subject submitted the enclosed letter to this troop Hdqts., requesting a check be made in an effort to locate his Naval Officer’s Cap which was left in a restaurant about 52 miles from Buffalo, on route 5. 2. This assignment checked with restaurants along Boute 5 and located subject’s cap at the Shady-Best Inn, Le Boy B.F.D. #1. This Inn is operated by Mrs. Ethel Schneider. When interviewed she produced the hat. When informed of the contents in the letter the hat was put in a box, wrapped and mailed to the above subject’s address. Bespeetfully submitted /s/ B. J. Laurence TBP B. J. Laurence.” The naval captain sent a check for $5 to the address in Niagara Falls, marking on such check For return of cap ”. The check never came to the attention of the petitioner before the charges were brought, but was received by his wife and deposited by her in the bank with other funds to the credit of “ Police Benevolent Association of New York State Police, Inc.” Previous to such deposit she indorsed the check B. Laurence ”. The check was to the order of B. Laurence. She made this deposit in the belief that the check was a gratuity intended for the association fund, as other checks had been sent and received for that purpose. Through further correspondence from the naval captain, the petitioner’s superior officer became informed of the manner in which the cap was returned with the name and home address of the petitioner on the outside of the package, and of the fact that the naval captain had sent the $5 check addressed to B. Laurence at that home address. There then was undertaken an investigation by the department in which the petitioner was employed and, as a result of such investigation, charges were preferred against him as follows: Exhibit A \ Charges and Specifications, State of New York, Executive Department, Divi•sion of State Police, Albany, N. Y., Batavia, N. Y., August 12, 1946. To the Superintendent of State Police, Capitol, Albany, N. Y. (Through Official Channels) I hereby Charge Trooper B. J. Laurence, a member of Troop ‘ A ’, Division of State Police, Batavia, N. Y., with: Charge No. 1. Violation of Article 8, Section 8.3 of the Bules and Begulations, Division of State Police. Specification, Trooper B. J. Laurence did on or about July 5th, 1946, in violation of Troop Order No. 61, dated June 7th, 1944, subject: ‘ Official Correspondence conduct correspondence on State Police official business without direction of the Troop Commander. Charge No. 2. Violation of Article 8, Section 8.26 of the Bules and Begulations, Division of State Police. Specification, Trooper B. J. Laurence did between July 5th, 1946, and July 22, 1946, accept a reward or gratuity for a service resulting from the performance of his duty without the approval of the Commanding Officer. Charge No. 3. Violation of Article 8, Section 8.38 of the Bules and Begulations, Division of State Police. Specification, Trooper B. J. Laurence did on or about July 5th, 1946, in the performance of his official duties, display reluctance to perform properly his assigned duties, and acted in a manner tending to bring discredit on the Division. Charge No. 4. Violation of Article 9, section 9.4 of the Bules and Begulations, Division of State Police. Specification, Trooper B. J. Laurence did on or about July 5th, 1946, submit to his Troop Commander a report that was not complete as to facts and details.” After the hearing on such charges, the petitioner was found guilty on all such charges and dismissed from the service. It is to be gathered from the record that such charges have only to do with the violations arising from the loss of the cap and its return and the sending of the $5 check by the naval captain. That portion of the rules and regulations of the New York State Troopers which were deemed applicable by the hearing Superintendent, are as follows: “ New York State Troopers ’ Bules and Begulations Article 8. Conduct. * * * 8.3. It shall be the duty of every member of the Division of State Police to obey every lawful command or order issued orally or in writing by competent authority which shall mean, the Commanding Officer, commissioned officers, non-commissioned officers or members of the Division senior in rank and/or grade to the recipient of the command or order. * * * 8.26. No member of the Division shall accept a reward or gratuity for a service resulting from the performance of his duty without the approval of the Commanding Officer. * * * 8.38. Any member of the Division who shall in the performance of his official duties display inaptitude, inadaptability, reluctance to perform properly his assigned duties, or who acts in a manner tending to bring discredit on the Division or fails to assume responsibility or exercise diligence, intelligence and zealousness in the pursuit of his duties may, after a hearing, be deemed incompetent and shall be subject to reduction in rank or dismissal from the Division. * * * Article 9 General. * * * 9.4. All members of the Division shall make all their official activities the subject of a written report, submitted to the Commanding Officer or the Troop Commander as applicable. All such reports shall be legible, neat in appearance, in proper form as to spelling, grammar and punctuation, in proper chronological order and complete as to facts and details. They shall be submitted promptly and shall, when possible, be typewritten.” ■“ Troop Order No. 61, June 7,1944, Subject: Official correspondence. To: All Members, Troop ‘ A.’ I. All Troop * A ’ State Police, official correspondence will be conducted by Troop ‘ A ’ Headquarters clerical staff under the direction of the Commanding Officer. 2. No member other than those of the Headquarters staff will write letters or write replies to letters that pertain to State Police official correspondence. J. B. Lynch, Act. Commanding Officer.” To sustain the charge that there was a violation of that regulation or rule which reads as follows: 2. No member other than those of the Headquarters staff will write letters or write replies to letters that pertain to State Police official correspondence ”, the respondent Superintendent asserts that the return card of the address placed by the petitioner on the outside of the package by which the cap was returned, was a violation of such rule or regulation. Such a contention is not reasonably supported by the language of such rule or regulation. The placing of the inscription on the outside cover was not the writing of a letter, or the writing of a reply to a letter, in the ordinary use and meaning of such words. As has been indicated above, not only did not the petitioner accept or receive the $5 check, but he knew nothing of the sending and receipt of the same. In the proof above mentioned, there is nothing to sustain a finding that Trooper R. J. Laurence, the petitioner, did display reluctance to perform properly his assigned duties ” and acted “ in a manner tending to bring discredit on the Division ”. And there is no proof to sustain a finding, as made by the Superintendent, that the petitioner submitted to his troop commander a report that was not complete as to facts and details.

It is true that the credibility of all of the witnesses was to be passed on by the trial officer, and he was entitled to draw such legitimate and reasonable inference as he deemed proper, if there were more than one inference to be drawn from, undisputed testimony. There was no proof offered to contradict the testimony of either the petitioner or that of his wife; their testimony was not impeached by anything in the record and cannot be disregarded as unbelievable, and there does not appear anything substantial, even in the way of an inference, to sustain the findings of the trial officer.

From the foregoing, the conclusion is reached that there was not sufficient evidence to sustain any of the charges.preferred against the petitioner on which a reasonably minded superior could find him guilty of any of the charges preferred against him.

The determination under review should be annulled and petitioner reinstated, with $50 costs and disbursements.

Larkin, J.

(concurring). The limitation on the power of this court to review this determination is made clear by a long line of decisions, of which three are recent ones — Matter of Weber v. Town of Cheektowaga (284 N. Y. 377), Matter of Miller v. Kling (291 N. Y. 65) and Matter of Cole v. Lybolt (296 N. Y. 659). Still a civil service employee, who is a veteran, has the statutory right to have reviewed, in the courts, a hearing, on charges, resulting in an adverse determination. Unless, then, the construction placed upon the power of review authorizing, only, an examination of the record to see if the determination made was supported by substantial evidence,” is a hollow thing, a mere lip service to the veteran’s right of review, then “ substantial evidence ” means not any evidence,” but rather that quantum of proof which would satisfy any fair minded person of the employee’s guilt.

It is patent that there was no direct evidence that petitioner ever personally received the reward. If, however, there was enough to establish that he solicited the sending of a check made to his order, to his home address, with the intention that his wife, the paid financial secretary of the State Police Benevolent Association, of which he was president, should receive it, indorse his name thereon, and deposit it to the credit of the association, then, even though petitioner did not personally profit by the reward, such conduct would be a violation of the spirit of the regulation.

The record discloses that the. foregoing essential finding could only have been made by the trier of the facts drawing from other facts which were established and uncontradicted, two inferences: (1) That when petitioner placed his name and home address on the package enclosing the cap to the owner, he did so for the express purpose of having a check for $5 payable to his order sent to him at his home address in Niagara Falls; and (2) That he knew that his wife had received the check and had deposited it to the credit of the association.

Concededly there are admitted facts warranting the first inference. Petitioner frankly admitted knowledge of the contents of the letter written to the Batavia Barracks by the owner of the lost cap; that he had it in his possession when he recovered the cap; and that he did place his name and home address on the package. These facts, standing alone, warrant the inference that he did so for the purpose of having the check sent to him at his home address. Indeed, if that were the only permissible inference it would probably, in connection with the other testimony, have furnished the substantial evidence required to sustain the charge. However it seems to me that was another equally permissible inference. Petitioner testified that when he found- the cap he suggested to the restaurant keeper who then had it, after informing her of the contents of the letter, that she mail it to the owner, but that she requested him to do so because she did not have the requisite facilities to return the cap to its owner. This woman was interviewed by an investigator for petitioner’s superior officer prior to the preferment of charges. If petitioner’s testimony in this respect was untrue, contradiction was possible by calling her. She was not called, nor was any proof made that she was unavailable. One is warranted, then, in accepting that much of the trooper’s testimony as true. If so, then certainly when he made that suggestion he did not then have in mind soliciting the payment of the reward to himself, personally, or for the benevolent association. Under the regulations, when he received the cap into his possession, he became responsible for its safe return to the owner. Putting his name and address on the box was simply the precaution which the ordinary prudent person would have taken. The practice, if not the official regulation, of the Post Office Department requires a return address on a package. Rejecting entirely the trooper’s explanation as to his purpose, still the inference, which seems to me equally as permissible and reasonable as the one which must have been drawn, remains, that he wrote his name and address for the exact purpose to which he testified.

If, then, petitioner’s act gave rise to two equally permissible and reasonable inferences, one favoring hdnesty of purpose, and the other, dishonesty, certainly the elementary rule is, since fraud or dishonesty is never presumed, the inference establishing an honest purpose should have been drawn, and not the one establishing a dishonest motive. That is especially true as to petitioner, who, for more than fifteen years, had served efficiently in the State Police Department without a blemish on his record. I conclude, therefore, that there was no basis for the drawing, by the trier of the facts, of an inference of a dishonest purpose on the part of petitioner to solicit the reward to be paid to him.

Passing now to the second inference, again, there was no direct evidence that petitioner even knew that the owner of the cap had sent the $5 check payable to Ms order, or that his wife had indorsed Ms name and deposited it to the credit of the association. Her act in doing so was a natural one. She would normally conclude, from the words on the check “ For return of' cap ”, that it represented a donation sent to her husband for the association, of which he was president. The inference that he did have that knowledge could only be drawn, however, from the relationship of petitioner and his wife. I concede that if this were a normal relationship, where a husband and wife lived together in the same house practically every day, it would be strange that his wife should not disclose to him the receipt of this check and what she had done with it. However, this was not a normal relationship. Petitioner was stationed at the Batavia Barracks, on twenty-four-hour duty, approximately forty miles from Niagara Falls, where Ms wife lived in their home. To infer then, from such a relationship, that petitioner knew of the receipt and use of this check would be basing that inference of fact upon a rather frail basis. In any event, if the drawing of the first inference establishing a dishonest purpose be regarded as unwarranted, there would be still less basis for the drawing of the second inference.

Although the trier of the facts was.not required to believe the testimony of petitioner and Ms wife, since they were inter-' ested witnesses, still nothing is clearer than the rule stated in Moore on Facts (Vol. 1, § 131) citing Miller v. Smith (20 App. Div. 507, 510-511) and Williams v. Van Norden Trust Co. (104 App. Div. 251, 256) that although the trier of facts is not bound by the testimony of a witness because he is an interested party, there is .no justification for not only refusing to believe the witness, but without further evidence, finding the exact contrary from his testimony. While' there can be no question of the evidentiary rule as to an interested witness, still there is a recognized exception, which is, that the rejection is unwarranted where the testimony is uncontradicted, as here, by any direct evidence, or by any legitimate inferences from other evidence, and it is not improbable, nor in its nature surprising nor suspicious (Hull v. Littauer, 162 N. Y. 569). The testimony of this couple, I believe, falls within the foregoing exception. I find nothing unreasonable nor improbable in it.

Petitioner’s complaint of the refusal to permit any cross-examination of the superior officer preferring the charges is justified. TMs cross-examination was clearly to develop facts which would have warranted a finding of bias and ill will toward petitioner. While I appreciate that the Superintendent, as trier of the facts, although he could not refuse petitioner the right of cross-examination, could limit it (Matter of Friedel, 296 N. Y. 347, 352-353), still the rather sharp curtailment of the cross-examination in this respect attracts one’s attention, and while standing alone, would not warrant a reversal of the determination, nevertheless it is a circumstance which may well be considered in determining the basic question whether there was substantial evidence to sustain the charge.

I conclude that the finding of guilt is not supported by the requisite quantum of proof. 1 have discussed the second charge only, because the other three are interlinked with it, and fall if it does.

All concur with Harris, J.; Larkin, J., in a separate opinion. Present — Harris, MoCurn, Larkin and Love, JJ.

Determination annulled on the law and facts, with $50 dollars costs and disbursements and petitioner ordered reinstated.  