
    The People ex rel. Cornelius W. Roe v. Charles F. MacLean et al., Com’rs.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    1. Municipal corporations — Police—Removal.
    Relator was charged with absence from his post, sitting in a restaurant, during his tour of patrol duty. He admitted being in the restaurant, but there was no proof that he was on a tour of duty at the time. Held, that there was a failure of proof to sustain the charge, and that his removal should be vacated.
    2. Same.
    It appeared that the commissioner afterwards stated that relator was dismissed on account of his previous record, and not because of the charge-tried. Such record was not given in evidence on the trial, or relator given an opportunity to explain it. Held, that the commissioners erred in considering this record.
    Certiorari to inquire into cause of relator’s removal.
    
      J. M. Tierney, for relator; John J. Delaney, for resp’t.
   Brady, J.

The relator was charged with absence from his post during his tour of patrol duty, his absence consisting in sitting in a restaurant, but for what period is not stated. When the trial commenced the relator was called and examined, the first question asked, it may be observed, relating to a subject not embraced in the charge or specification. It was “ Why were you not here this morning as ordered," and was followed by several questions relating to that seeming dereliction. The question finally put was this: “ The charge against you is sitting in a restaurant at 10:47 p. ir. October 3d,” which was admitted tobe true, the relator stating, when asked what he was doing there, that it was a chilly night and he went in for a cup of coffee. There is, however, no evidence that he was at that time on a tour of duty, as charged, no further proof of any kind having been given, and the evidence does not, therefore, sustain the judgment pronounced against him. The rules asserted and reasserted for our guidance by the court of last resort in the consideration of the evidence against the members of the force who have been tried are so strict, and there is such a marvelous limit upon our control, that it is incumbent upon us to sec to it, and with some scrutiny, that the charge made is sustained, not inferentially but absolutely upon proper proof For this reason, namely, the absence of any proof that the relator was ■on a tour of duty at the time he was seen in the restaurant, the judgment should be vacated and the relator reinstated.

It may he remarked here, in addition, that the relator’s wife, .as appears by the record, made the following affidavit, to which no response was made:

City and County of New York, ss. :

Maggie Eoe, being duly sworn, deposes and says: I am the wife of Cornelius W. Eoe, the petitioner named in the petition hereto annexed. On or about the 21st day of November, 1889, shortly after my said husband had been dismissed from the police department, I called upon Police Commissioner John Mc-Clave at his residence, No. 156 West Seventy-second street, in the city of New York, in relation to my husband’s dismissal. I called the said commissioner’s attention to the very slight dereliction with which my said husband had been charged, and in the conversation which ensued the said commissioner stated that my said husband, Cornelius W. Eoe, had been dismissed on account of his previous record, and not because of the charge on which he was last tried. That when the case came before the full board, Police Commissioner MacLean brought up the record of previous ' charges against my said husband, and on that action recommended dismissal, and that the other commissioners voted accordingly.

Maggie Eoe.

.Sworn to before me this 15th ) day of February, 1890. j

John Mulholland,

Notary Public (75),

NY. Go.

And further, that the relator’s record as an officer returned by the respondents, and which was doubtless used against him, was not given in evidence at the trial, or he given any opportunity to explain it. °

These things combined suggest elements employed in the consideration of the case which should not have been countenanced, and, therefore, not permitted to influence the respondents in forming their judgment.

Judgment vacated and relator reinstated.

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