
    The People of the State of New York ex rel. Robert A. Tighe, Relator, v. William McAdoo, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    July 23, 1907.
    Municipal corporations — dismissal of police officer in city of Mew York—evidence.
    Evidence upon which, a police captain in the city of New York was dismissed examined and. held to be insufficient, to establish neglect of duty or disobedience.
    On the trial of a police officer for neglect of duty, statements made in the private ' office of the police commissioner in the absence' of the relator are inadmissible,-
    
      Ceetiobari issued out of the Supreme Court and attested on the 20tli day of June, 1905, directed to William McAdoo, as commissioner of police of the pólice department of the city of New York, commanding him to certify and return to the office of. the clerk of the county of Kings all and singular his proceedings had in ' imposing a fine of thirty days’ pay upon the relator.
    
      Louis J. Grant [Jacob Rouss with him on the brief], for the relator.
    
      Edward H. Wilson [James D. Bell and William B. Ellison with him on the brief], for the respondent. ' '
   Per Curiam:

The charges of which the relator was found guilty were neglect and disobedience of orders, neglect and disobedience of the rules - of the police department numbered 5a, 29 and 45b, and neglect of duty. He was appointed a captain on May 6, 1903, and was sent to the Mercer street precinct, the sixteenth, on February 24, 1904. There he remained, except during his vacation and several intervals of sickness, until January 6, 1905. He had been twenty-nine years on the police force, and from several testimonials, among others those'of Inspector Titus and Police Commissioner McAdoo, by whom he was highly commended for zeal and “ valuable service,” it appears that' he had always held an enviable record. We have scrutinized the voluminous evidence in the case at bar with great care. From the testimony of many reputable business men, fortified by the evidence of his subordinates, we can only gather that the relator, Captain Tighe, had not only exercised unusual diligence- in the suppression of places of ill-repute, but that his efforts had been crowned with the esteem and the admiration, of the best people of the precinct.

The witnesses brought against the relator, many of whom were shown to.be of doubtful character, failed utterly to prove that the relator was remiss in the performance of his duties. That the. prosecution with all its efforts was not able to show the. existence of one house of ill-faine during the period of the relator’s captaincy, in a precinct long notorious-as one of the worst in the city, says more than volumes for his vigilance and efficiency. As to the four' pool rooms against which, after infinite labor, evidence was secured, the prosecution. was: only' able to. prove how; difficult it was to secure such evidence. Nowhere does it appear that the relator was negligent or. that he failed in his duty, of. that lie consciously violated the rules.

Moreover, we think that such admissions and statements' as were.' made in the. private office of the police commissioner^ in thé absence of the relator, should have-no bearing on the case. ■ Surely such testimony is no legal proof of the. relator’s remissness, since the admission" of this evidence,, although • improper and incompetent, . vvould be in direct conflict with the privilege of the accused to be-brought face to face with his accusers. The’rulings of. the deputy commissioner, and the means employed of “refreshing the memory'.., of, a' hostile witness,” were prejudicial to' the rights of' the relator. ■They were violative of his right to a fair and. impartial trial.

From People ex rel. Hogan v. French (119 N. Y. 493) it appears that the prosecution must be able to prove a. “ conscious and volun - tary violation of the rules.” This in the case before us is nowhere established.

' The determination of the police commissioner should be annulled, with'costs, and the fine of thirty days’ pay should'be remitted'.

Present — Woodward, Jenks, Hooker, Gaynor and Rich, JJ.

Determination of police commissioner annulled, with costs, and fine, of thirty .days’.pay remitted. . ' .  