
    The People of the State of New York ex rel. Jacob Simermyer, Relator, v. Theodore Roosevelt and Others, as Police Commissioners, etc., Respondents.
    
      Police commissioners of New York city — the record, of a member of the force may he used in deciding upon his punishment, hut not upon his guilt — evidence to he ■ stated in a return to a certiora/ri—officer of a society to enforce the laws distinguished from, a private detective.
    
    'The presumption is that the police commissioners of New York city, being.public officers, observed the rules which the law prescribes for the trial of a member of the police force, and an appellate court cannot reverse their decision for a ■ failure to do so, unless it appears affirmatively that they disregarded such rules "The police commissioners of New York city, in determining the question whether a member of the police force is guilty of the offense charged, have no right to con .aider the record of the member, but after they have determined the question of .-guilt or innocence, and have come to the question of punishment, they have a right to consider not only the record of the member, but any other fact which is within their personal knowledge.
    ..'It is the duty of the police commissioners in such a case in making a return to writ of certiorari to state specifically the evidence which they considered in determining the question of guilt or innocence.
    "Whatever criticism courts- may have made iipon the evidence of private, detec ' tives, their remarks do not apply to an officer of a society organized for the purpose of aiding in the enforcement of law and the suppression of crime.
    Motion by the relator, Jacob Simermyer, for a reargtiment of the ^appeal pending in the Appellate Division of the Supreme Court for -the first judicial department. (Reported in 1 App. Div. 434.)
    
      
      Robert J. Robeson, for the motion.
    
      Theodore' Oonnoly, opposed.
   Per Curiam :

The counsel for the relator entirely misapprehends the rule as to the effect of the consideration of the record of the relator by the commissioners. In determining charges against a member of the police force the commissioners first have to determine whether or not the person charged is guilty of the offense with which he has been charged. That question can only be determined upon evidence before the commissioners; and if it appeared by the return that the commissioners had considered other facts, not introduced in evidence before them, it would be our duty to reverse the conviction. Where, however, the commissioners have determined the question as to the guilt or innocence of the relator under the charges preferred, they then have to determine what punishment should follow ; and iii determining that question they have a right to consider the relator’s record or any other fact that is within their personal knowledge. This principle was established in the case of People ex rel. McAleer v. French (119 N. Y. 505). The respondents, therefore, had the right to have before them the record of the relator; and while they had not the right to consider that record in determining whether or not the relator was guilty, it was properly before them for the purpose of considering the qmnishment.

The presumption is that the commissioners, being public officers, properly performed their duty and observed the rules that, the law prescribes for the trial of cases' of this kind; and before we can reverse the decision on this ground, it must appear affirmatively that they disregarded this rule and considered upon the trial of the relator his record, which was before them; and this nowhere appears. The return states that at the termination of the trial or hearing the said charges and specifications, the proceedings and the relator’s record were duly considered by the respondents, and that after due consideration thereof they determined that this relator was guilty as charged; and they thereupon passed a resolution dismissing him from the police force. There is nothing here to -show affirmatively that the respondents considered the record of the relator in determining Ms guilt or innocence. If the relator had wished to pre-" sent that question, he should have moved to compel the commissioners to make a more specific return, stating expressly upon what . they based their findings. As to the guilt or innocence of a person charged with an offense against the rules and regulations of the . departments, we think that, in a return of that kind it is the duty of the commissioners to state specifically just what they considered - in determining that question. But as the return does not show specifically that they did consider anything except the evidence before them, upon that question we are not required to reverse their • . proceedings.

In deciding the question no notice was taken of the point made that the evidence of Dennett, the person making the charge, was not to be considered unless corroborated, on the ground that he was a detective, because we deemed it quite unworthy of consideration. The plain distinction between an officer of, a society organized for the purpose of aiding in the enforcement of the law and the supr pression of crime, without personal ends to serve, and a private detective employed and paid by an individual who, for some personal reason, wishes to show that another has be.enx guilty of -an offense, is so apparent that we thought it entirely unnecessary to ' ■.call" attention, to- it. It is clear that whatever criticism the courts have made upon the ■ evidence of such private detectives had nó application to a case like the present. Deñnett ivas no more a private detective, within the meaning of the criticism of the witnesses in the case cited by the relator, - than was the relator himself, who-was a police officer, and whose duty it was to enforce the law.

The motion for reargument should be denied,, with ten dollars ■costs.

Present—Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.

Motion denied, with ten dollars costs.  