
    The People of the State of New York ex rel. William Cohen, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.
    First Department,
    November 20, 1914.
    Municipal corporations — city of New York—discharge of policeman for taking of money in order to procure an arrest.
    A member of the police force of the city of N ew York, detailed as a detective, who accepted money voluntarily furnished, with the understanding that a certain person would show but not deliver it to another and thereby procure information leading to an arrest, and promptly returned the money, should not be removed under a rule of the department providing that ‘1 Without the express permission of the Police Commissioner,. members of the Police Force are forbidden to * * * collect or receive money or anything else from citizens or others.”
    Certiorari issued out of the Supreme Court and attested on or about the 4th day of February, 1913, directed to Rhine-lander Waldo, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in dismissing the relator from the police force of the city of New York.
    
      Isidore Cohen, for the relator.
    
      Terence Farley, for the respondent.
   Laughlin, J.:

This proceeding is presented on the record in People ex rel. Murphy v. Waldo (162 App. Div. 861), supplemented by the charges against this relator and proof of service thereof, and the order adjudging the relator guilty and dismissing him from the force, and a verbatim copy of the rule the substance of which only was stated in the other record, and the record of the relator while a member of the force.

This relator and Murphy, whose removal we recently reviewed (162 App. Div. 861), were patrolmen of the New York police force detailed to the seventh precinct for detective work and assigned to the investigation of crimes relating to the poisoning of horses and to extortion in connection therewith. The charge against this relator was conduct to the prejudice of good order and discipline of the force, and the specifications of the charge were that he received from one Epstein $100, which he claimed “was to be used by him for the purpose of obtaining evidence in a criminal investigation in which the said Henry Epstein was the complainant.” The rule of the department which it is claimed the relator violated in receiving the money is rule 29, paragraph 50, and is as follows: “ Without the express permission of the Police Commissioner, members of the Police Force are forbidden to make presents, bestow testimonials, collect or receive money or anything else from citizens or others, circulate subscription papers or books, or sell tickets for any purpose.”

The material facts are stated in our opinion on the former review of the record. On that review we expressly refrained from expressing an opinion with respect to whether the rule prohibited Cohen from taking the money without the permission of the police commissioner. That question is now presented for decision. It will be seen by our statement of facts on the other review that Cohen and Murphy were endeavoring to find and arrest one Levison, who had been indicted for attempting to extort money under a threat to poison Epstein’s horses; that Cohen reported to Epstein that one Calaban offered through a young woman to give information that would enable the detectives to find Levison provided he received $100 therefor; that Epstein repeatedly offered the money to Cohen and urged him to take it for the purpose stated; that finally Cohen devised a plan whereby the girl was to show but not to deliver the money to Calaban, and in that manner to obtain the information from him; that the money was voluntarily furnished by Epstein to Cohen for that purpose and three times returned to him on account of the failure of the plan; that the discussions with respect to the money were open and above board, as was the delivery thereof, and there was no evidence to warrant a suspicion that Cohen on receiving it was actuated by any other motive than what he conceived to be the performance of his official duty, and it was so regarded by Epstein. As we stated in our former opinion: “It is manifest that Epstein had entire confidence in Cohen, and considered the transaction perfectly legitimate. His understanding was that the money was to be shown, but not delivered, and was to be returned to him in any event; and it was so returned promptly.”

There is no reasonable basis for the claim that the conduct of Cohen was prejudicial to the good order and discipline of the police force, and his removal cannot be sustained unless he violated some rule of the department. We are of opinion that the facts do not bring his acts within the prohibition of rule 29, paragraph 50. The prohibition against receiving money contained in that rule was intended to prevent members of the force from receiving money or other presents to influence, or which might influence, their oficial conduct. It may well be said that there is danger that if patrolmen and detectives are permitted to receive money in this manner without the knowledge of their superior officers the door to imposition or corruption will be opened and, doubtless, it would be within the jurisdiction of the commissioner to make a rule forbidding it; but the members of the force would not understand that such was the purpose of the rule in question. It follows, therefore, that the proceedings should be annulled and the relator reinstated, with fifty dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Proceedings annulled and relator reinstated, with fifty dollars costs and disbursements. Order to be settled on notice.  