
    Michael Horan, Appellant, v. James J. Fleming, Commissioner of Public Safety of the City of Yonkers, Respondent.
    Second Department,
    February 17, 1911.
    Municipal corporation — commissioner of public safety — punishment of police officer — appeal—charge—jurisdiction of commissioner — section 137 of Second Class Cities Law.
    Where upon an appeal by a police officer from a determination of the commissioner of public safety of a city of the second class taken pursuant to section 138 of the Second Class Cities Law, as amended, it appears that there was sufficient evidence to require the commissioner to determine the question of fact as to whether or not the officer did the acts charged his conclusions upon conflicting evidence will not be reviewed. Under the statute questions of law only are reviewable on such an appeal.
    If the specification or affidavit of the complainant sets forth the commission of acts by a police officer which come within the fair meaning and intendment of the offenses which the statute authorizes the commissioner of public safety to punish, lie is not deprived of jurisdiction merely because in the formal charge the offense is characterized as “conduct unbecoming an officer,” which is not an offense named in sections 133 and 137 of the Second Class Cities Law from which the commissioner derives his jurisdiction.
    A police officer who makes an unprovoked assault of a serious character upon a citizen is “ derelict in the performance of his official duties,” incompetent to perform the same and guilty of a “ delinquency seriously affecting his * * * fitness for the office ” within the meaning of those terms as used in section 137 of the Second Class Cities Law.
    Appeal by the plaintiff, Michael Horan, from an order of the commissioner of public safety of the city of Yonkers bearing date the 5th day of August, 1910.
    
      F. X. Donoghue, for the appellant.
    
      Thomas F. Curran, for the respondent.
   Rich, J.:

This appeal is from an adjudication of the commissioner of public safety of the city of Yonkers adjudging the appellant, a police officer of said city, guilty of an unprovoked assaultupon one William Donnelly, and ordering him punished therefor by the withholding of twenty-five days’ pay. The appeal is taken under the provisions of section 138 of the Second' Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55), as amended by chapter 266 of the Laws of 1910, and brings before us for review questions of law only. There was sufficient evidence to require the determination by the commissioner of the question of fact, and his conclusion resting upon conflicting evidence will not be reviewed in this court.

Charges were preferred against the appellant by Donnelly of conduct unbecoming an officer, with a statement that specifications were contained in an annexed affidavit, in which Donnelly swore that at about ten o’clock p. m., on June 20,1910, he was on Saw Mill river road, near the circus ground, in an express wagon waiting for passengers coming from the circus, when the appellant took hold of his horse by the head and swung him off to one side; that he said to the appellant, “ Let go of my horse,” whereupon the latter came over to the deponent, struck him over the head with a club, then arrested him and took him to the police station, from which he was sent to St. John’s Hospital to have his head dressed; that the following morning he was arraigned in court on the charge of having been at the time of his. arrest drunk and disorderly, and was discharged. On the same day that the charge was filed with the commissioner a notice was served upon the appellant requiring him to appear and answer the same on June twenty-seventh. On the day fixed the appellant appeared before the commissioner in person and by counsel, a hearing was had and the appellant convicted. A motion was made to dismiss the complaint at the commencement of the proceeding, upon the ground that it did not allege any offense of which the commissioner had jurisdiction, and renewed at the close of the testimony. The motions were denied and exceptions taken. It is contended upon this appeal that these exceptions present reversible error, for the reason that the commissioner had no authority under the provisions of sections 133 and 137 of the Second Class Cities Law or jurisdiction to try the appellant for the offense charged. This contention rests upon the assumption that, because the charge characterized the ofíense as “ conduct unbecoming an officer,” which is not specifically named in the sections referred to, the, appellant could not be convicted of such offense. Section 133 provides for the making, adopting, promulgating and enforcing by the commissioner of public safety of rules, orders and regulations “ for the government, discipline, administration and disposition of the officers and members of the police and fire departments, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said departments for neglect of official duty or incompetency or incapacity to perform his official duties or some delinquency seriously affecting his general character or fitness for the office, and may, in his discretion, punish any such officer or member found guilty thereof by reprimand, forfeiting and withholding pay for a specified time, suspension during a fixed period or dismissal from office ; but no officer or member of said departments shall be removed or otherwise punished for any other cause,” etc. Section 137 (as amd. by Laws of 1910, chap. 266) provides: “ If a charge may be made by any person against any officer or member of the police or fire departments that he has been negligent or derelict in the performance of his official duties, or is incompetent or without capacity to perform the same or is guilty of some delinquency seriously affecting his general character or fitness for the office, the charge must be in writing, * * * and a copy thereof must be served upon the accused officer or member. The commissioner shall then proceed to hear, try and determine the charge.” The balance of the section relates to the manner of hearing, trial, punishment, reinstatement, etc.

As no complaint is made in the case at bar of any departure from the proceedings thus marked out, it is unnecessary to devote any time to their consideration. It is entirely immaterial by what name the charge designates the offense complained of. If the specification (or in this case the affidavit taking its place) sets forth the commission of acts which come within the fair meaning and intendment of the offenses which the statute authorizes the commissioner of public safety to hear, determine and punish, he is not deprived of jurisdiction by the fact that in the formal charge the offense which the acts designated constitute is characterized by a name other than that used in the statute. While in the charge under consideration the offense stated is “conduct unbecoming an officer,” the acts set forth in the affidavit as constituting such offense are clearly within the terms used in the statute. A police officer who makes an unprovoked assault of a serious character upon a citizen is “ derelict in the performance of his official duties, * * * incompetent * * * to perform the same,” and is guilty of a “ delinquency seriously affecting his * * * fitness for the office,” within the meaning of those terms as used in the statute. The commissioner of public safety had jurisdiction to hear, try and determine the charge. The record presents no reversible errors, and the determination and order must be affirmed.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Determination confirmed.  