
    The People of the State of New York ex rel. John J. McCarthy, Relator, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    February 17, 1911.
    Municipal corporations—police officers — facts not justifying dismissal.
    Certiorari to review the action of the police commissioner of the city of New ' York in discharging a police officer for neglect of duty and assault. Evidence examined, and held, insufficient to justify the dismissal and that the relator should be reinstated.
    Certiorari issued out of the Supreme Court and attested on the 18th day of January, 1910, directed to William F. Baker, as police commissioner of the police department of the city of Hew 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 relation to the dismissal of the relator from the police force.
    
      Louis J. Grant and Jacob Rouss, for the relator.
    
      James D. Bell and Frank Julian Price [Archibald R. Watson with them on the brief], for the respondent.
   Woodward, J.:

The charges against the relator are that he has been guilty of neglect of duty and violation of rules, the specifications being that lie was absent without permission from the sixth precinct station house from about twelve-fifteen a. m. until about seven-thirty a. m., October 22, 1909, during his tour of reserve duty from twelve midnight until eight a. m. on October 22, 1909 ; that relator failed to enter in said station house blotter that he was absent from said station house during that tour of reserve duty, and that the relator on his return and during his said tour of reserve duty (between seven-thirty and eight o’clock a. m. on October 22, 1909), did fail to enter in said station house blotter the fact that he had been absent from said station house, and that relator did falsely enter in the said blotter that he had been on reserve for his tour of reserve duty from twelve midnight to eight a. m. on October 22,1909. A second charge of conduct unbecoming an officer, violation of rules and of neglect of duty embraced two specifications : First,- that relator, while absent from reserve duty without permission, did at about seven-thirty a. m. on October 22, 1909, at 83 Bayard street, Manhattan, while under the influence of some intoxicating agent, threaten with assault with a blackjack one Fred Barone, and used vile, indecent and profane language; and, second, that relator about one-tliirty a. m. entered premises at 89 Bayard street, and did unlawfully, with force and violence, effect an entrance into the apartments of one Dominick Vaccaro by breaking in the door, and did therein use vile, indecent and abusive language to Bose Vaccaro, and did display a blackjack and threaten and assault said Bose Vaccaro.

The story to be gathered from the testimony of Bose Vaccaro, the complaining witness, is to the effect that she was married to Dominick Vaccaro on the evening of October 21,1909; that at some time near midnight she repaired to her apartments with her husband, and that after they had been in bed some little time, and about one-tliirty o’clock in the morning, the door leading into her apartments was battered down by a company of men, the relator among the number, who invaded the sleeping room and indulged in coarse, vulgar and obscene conduct, including an assault upon the complaining witness, her husband boingpresent and finally inducing the intruders to go away. The complaining witness had never known the relator; she says the way she knew that relator was among the revelers was that her husband told her that he was there, but the husband, who was concededly present, says that he did not see the relator there, and while his examination is not entirely clear and satisfactory, and is not entirely in harmony with ah affidavit which he had made before the third deputy commissioner some days previously, it may be fairly said that the testimony of the husband does not show that the relator was present in his room during the early morning of October 22, 1909, and there is no evidence corroborating the complaining witness, who appears, naturally enough, to have been greatly excited. She testifies that at one time her husband was trying to strike his own brother, who was one of the intruders, and that he was prevented from doing so by the relator, and then after repeating this story she finally concludes that this was a mistake, and the only ground for her statement that the relator was present is the claim that her husband told her that he was among those present, while the testimony of the husband is to the effect that the boys, friends of his, told him that the lieutenant was present while his head was covered up with the bed clothes, and the husband makes no claim either that the relator or any one else assaulted him or threatened to assault him, or interfered, in any way with his striking his own brother. In fact the evidence goes little, if any, further than to show that some friends of the husband broke into the apartment to serenade the couple; that there was some talk and that the husband asked them to go away, that they complied with the request and that subsequently some of them came back and continued the serenade, finally leaving, and that there was a declaration on the part of these marauders that the lieutenant, not definitely identified as this particular lieutenant, was present. It does not appear that there was any light in the apartment or that the complaining witness knew the relator’s voice, or even that she saw him with sufficient clearness to distinguish him from any one of the others present, and the husband refused to swear that the relator was present, or that he was sufficiently familiar with his voice to recognize it among the others. The complaining witness’ brother-in-law was concededly in the party, but he does not appear as a witness, and this is true of several of the other friends of the hus- ■ band, any one of whom, we may assume, could have told whether the relator was present or not.

In opposition to this flimsy case against the relator, he takes the stand and swears that he has been in the police department for seventeen years, with only trifling complaints against him, and that for fourteen years he had had no complaints ; that he performed desk duty up to eight p. at. on October twenty-first, and then performed his tour of patrol duty until midnight, when, as was his duty, he went on reserve until eight a. m. ; that at no time between midnight and eight a. m. was he absent from the station house and, therefore, did not enter the fact of such absence in the blotter. All of the charges hinge upon the question of whether the relator was present and participated in the disorderly conduct in the apartments of Dominick Vaccaro, and the relator swears that he was not out of the station house during any of the time that the outrage is alleged to have taken place. He is corroborated in this to some degree by the testimony of Lieutenant Thomas Gleason, who testified that his tour of duty commenced at twelve midnight and ended at eight a. m. on the twenty-second of October ; that he saw relator shortly after he went on duty (presumably after twelve o’clock), and that relator went behind the desk and signed the blotter and then started towards his room, and this was the last the witness saw of him; that relator was not intoxicated and his condition was then normal. So at some time after twelve o’clock of October twenty-first, or the morning of October twenty-second, this policeman of good standing was sober; was in a normal condition, registering in the usual manner and starting for his room. At seven-thirty in the morning of October twenty-second the bootblack entered his. room, took out his shoes and polished them and returned them. At that time there was some one in the relator’s bed, whom this witness assumed to be the relator, and fifteen minutes later the doorman testified that he woke the relator; that he (the relator) was then lying in his bed asleep. This is exactly what we should expect to find if the relator had actually gone to his room at the time he started in that direction, after registering, with his tour ending at eight o’clock in the morning. The act charged against the relator of breaking into the apartment of Dominick Vaccaro is a crime, no motive for which is given in the evidence; he was sober at some time after twelve midnight, and that condition once established may be presumed to have continued until a different condition was shown, and no one claims that the relator was drunk until seven-thirty in the morning, at which time, as we have seen, two witnesses, unimpeached, substantially agree that he was in bed and asleep in the station house, and yet other witnesses, entirely entitled to credit, so far as appears from the testimony, met the relator between eight and nine of the same morning and found him sober then, entirely corroborating the relator in his testimony as to what occurred at 83 Bayard street, where the alleged assault upon the father of the complaining witness is alleged to have taken place. When we take into consideration the character of the evidence against the relator, and find him concededly sober after midnight, it is hard to believe that he deliberately walked out into the night and perpetrated a crime such as the prosecution has asserted; it would be hard to believe it if it was not denied, but when it is denied in a simple, straightforward manner by a man whose general reputation is in no wise questioned, when he is supported in this denial by the surrounding circumstances, no effort being made to dispute the bootblack and the doorman as to the conditon of the relator at seven-thirty and seven-forty-five of the morning after this alleged crime; when it is still further supported by the testimony of witnesses who met him afterward and found him sober near the very hour when it is alleged he was drunk and violent toward the father of the pomplaining witness, we think it is asking too much of credulity to credit the story.

The order dismissing the relator should be annulled, and he should be reinstated to his position, with costs.

Jerks, P. J., Burr and Carr, JJ., concurred; Thomas, J., concurred in result.

' Determination of the commissioner annulled and relator reinstated, with fifty dollars costs and disbursements.  