
    The People ex rel. John McCabe, App’lt, v. The Board of Fire Commissioners, etc., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 3, 1887.)
    
    
      1. Office and officers—Incapacity—Error of judgment.
    The rule that an officer shall be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property, does not embrace possibilities. To include possibilities it should be that he would be held responsible for any loss which might occur. Such- a rule would seem to be unreasonable. Under the rule a loss must have actually resulted for the want of judgment. To warrant a dismissal on the ground of incapacity, more than a single error of judgment must be proved. Incapacity means a general unfitness, a defect of intellectual grasp, experience, or application, a want of comprehension to appreciate surroundings and conditions and to deal with them skillfully not on one occasion, but generally.
    2. Fire commmissioners—Jurisdiction of the supreme court to review their action.
    The power of the supreme court to review and to reverse removals made by the- fire commissioners cannot be doubted.
    Certiorari to review proceedings of the fire commissioners in removing relator.
    
      'Elihu H. Root, for relator; D. J. Dean, for resp’ts.
   Brady, J.

The relator was the second assistant chief of the fire department and was removed for alleged incapacity. The specification accompanying the charge was that at a fire on the 5th of July, 1886, he unnecessarily sent out a signal known as the three sixes or simultaneous call, the effect of which was to put in motion more engines and trucks on the way to the fire, some of which only arrived, however, the order having been countermanded by the chief. The other charge, which was a corollary of the first, was not proved.

It is, that having given the signal mentioned, he thereby, without due cause and reason, and for want of judgment or skill on his part, which may have caused unnecessary loss of life, limb or property, uncovering and depriving of all fire extinguishing apparatus and seriously endangering life and property in a large and important section of the city and thereby leaving only two companies in quarters on Manhattan island, north of Fourteenth street, during the celebration of Independence day, when fires are invariably of very,frequent occurrence, and when it was of the utmost importance that no part of the fire extinguishing force should unnecessarily be out of quarters, and this was based upon a general order which is as follows, declaring that an officer shall “be responsible for any want of judgment, skill, neglect or failure which may cause unnecessary loss of life, limb or property.

The rule, it will be perceived, contemplates the actual happening of one of the several events stated, namely, unnecessary loss of life, limb or property, but the specifietion is “may have caused,” which is entirely different in form and substance—all the difference between the affirmative and possible. If the rule is designed to include what might happen as contradistinction from what did happen, then we are in the realm of possibilities and dealing with shadows and not substances with what might be but is not, and this the rule does not accomplish. The word ‘ ‘unnecessary” in its relation to the other words of the rule indicates clearly indeed that one of the several losses may occur, and therefore if not unnecessary it has no vitality. In other words if an error be made and it causes any of the losses designated, but not an unnecessary one, then the' officer is not •responsible. If the design were to provide against any contingency of the kind mentioned, it should have been that the officer would be held responsible for any loss of life, limb or property caused by his want of judgment or skill, neglect or failure, and if he include possibilities as well, it should be that he would be held responsible for any loss which might occur through his want of judgment, skill, neglect or failure.

The rule does not embrace such possibilities, and if it did it would seeem to be unreasonable. As the rule must be interpreted, however, the proof failed to show its violation. The charge resting upon it clearly was not established, no loss having resulted from the call made. It is not supposed that the commissioners meant to base their judgment upon the theory that, although the call might have caused a loss, but did not, the relator was responsible and must be dismissed, but that they thought his incapacity proved and his unfitness established. The alleged incapacity rests, therefore, upon a single act, yielding to the respondents all they can claim. And this act was neither a violation of duty, nor conduct injurious to the public welfare nor the cause of loss of life, limb or property, but an error of judgment, and an error of judgment only. It was not charged that the relator had failed in his efforts to subdue the fire, or that in the management or control of the different instruments and agents actually employed for that purpose he had erred or had shown his incapacity, but that he had in the exercise of his judgment, and it would seem from excessive caution or zeal called into requisition more power than the emergency demanded. It was no want of skill, therefore, in handling the apparatus at the fire, no want of judgment in commanding, directing or guiding the men under his command, but simply and only in calling out too many engines and trucks by which for a time other parts of the city might be exposed in consequence; although, in fact, they were not so exposed, no fire having occurred. The relator was not said to have been unfit for duty by any act of indiscretion or folly, or to have shown incapacity in any other respect than that mentioned namely in ordering to the fire by a signal, and on one occasion only, more engines that were needed. It must be noted also as bearing upon the subject that the chief officer who was his superior in rank, and called against him, testified that he was a fireman pf skill and experience accustomed to command and had commanded at fires, and that no complaint had ever before been made against him. It appeared, indeed, that he rose up to the position he occupied by merit, having shown the necessary capacity to warrant his advancement. And, indeed, whether his order which induced his removal was an error of judgment depended, it must be said, upon the opinion of experts who admitted that a difference of opinion on the subject might exist between firemen and firemen of skill and experience. Thus far, therefore, we have arrayed against the charge of incapacity many cogent facts namely, that the relator is a fireman of skill and experience who rose by force of his own merits to the position he occupied, and who has not only discharged the duties faithfully and well, of humbler places in the department, but also in his last and highest position, and has commanded at several fires successfully. And consequently it must be said that having so commanded he must have had the capacity to discharge that. important duty. Indeed it must be further said that he commanded at this fire successfully, inasmuch as no complaint of any result in reference to it has been made against him, and the inference fairly to be drawn from all these facts is not one of incapacity, but that a mistake was made, and that too not in the manner in which the apparatus at hand was employed as the force present was directed^ but in giving a signal for further aid, which, while it seems to have been unnecessary, might at the moment the order was given have been quite justifiable in the exercise of a vested discretion.

This last suggestion is made for the reason that after the call a change occurred in the existing conditions by the falling of beams without causing the fall of the walls, which diminished the danger of a more extended conflagration. It must be conceded in the estimate of the evidence against the relator, which consists chiefly of opinions, that the various elements which are 'to be contended with in contemplating an extensive fire, when the double purpose of extinguishing it and preventing its advance, is to be accomplished, may well lead to errors of judgment in the ablest and most experienced fireman. Indeed the testimony justifies the view that it has done so, and this conclusion alone seems to demand that more than a single error of judgment shall be proved to warrant a dismissal on the ground of incapacity. No adjudicated case bearing directly upon this subject has been found except The People ex rel. Folk v. Board of Police (69 N. Y., 411), and that is not at all analogous for the reason that there were many charges of omission and commission, which grouped together, were regarded as sufficient to justify the charge of incapacity. They were acts which affected the discharge of the relators duty in various and several aspects, and therefore entirely different from this case in which the charge rests, not upon omission of duty or error in the performance of duty or error in actually extinguishing the fire, but an error of over zeal by which too much was done to render success beyond question in combating a destroying element. The history of all struggles when subjected to criticism, whether arising in time of peace or war, reveals errors" of judgment, errors committed by commanders of acknowledged, unquestionable ability and experience, but this has not been regarded as evidence of incapacity. Indeed, it may be said truthfully that the man is yet to come who in all emergencies has not blundered, whether he be lawyer, juror or judge, major-general, minister, governor, crowned head or president, and while the error committed has demonstrated that as to the particular subject, a failure to deal with it properly could not be denied, it has not been regarded as evidence of in-

& capacity to discharge the duties of the position held or to command. Indeed, giving the full measure to capacity in its broadest sense it does not mean infallibility, and incapacity e conversa does not imply absolute fitness, unerring ana- unfailing ability. It means general unfitness to command—a defect of intellectual grasp—experience of aptitude to cope with the emergency in all its varied aspects, not on one occasion only but generally—a want of comprehension to appreciate surroundings and conditions, and to deal with them skillfully if not successfully, not on one occasion, but generally. Experience, the master teacher, often demands the occurrence of more than one incident to prepare and instruct, and rarely contributes to success, to great achievements, to grand results, except after many impressive events. In the language of a distinguished author: “ Experience, like the light in the stern of a vessel, illumines only the path that is past.

The conclusion, therefore, which impresses itself irresistibly, is that a single error of judgment by him, assuming one to have been committed, such as proved herein, is not sufficient evidence of the relator’s incapacity to warrant his removal. The power of this court to review and to reverse for this reason cannot be doubted. People ex rel. Dumahaut v. Fire commissioners, 96 N. Y., 672; People ex rel. Munday v. Fire Commissioners, 72 id., 445; People ex rel. Mayor v. Nichols, 79 id., 588.

The findings and sentence against him should therefore,be annulled and he reinstated.

Ordered accordingly, with costs.

Van Brunt, P. J., and Daniels, J., concur.  