
    The People of the State of New York ex rel. Peter J. McAuley, Relator, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    June 10, 1910.
    New York city — police — neglect of. duty.— evidence — failure to produce witness. . ' ,
    A policeman should not be .dismissed for neglect of duty because he stood for twenty minutes on his beat- at a point where he had reason, to anticipate trouble between hackmen and chauffeurs.
    One making a charge against a policeman in New York city must prove it by a fair preponderance of evidence on the hearing before the police commissioner.
    Where a sergeant complained that a patrolman used improper language to him, " but upon the hearing before the police commissioner failed to call a witness to' the occurrence, whom he might have produced and offered no excuse therefor, such failure may be considered-in determining whether the evidence justifies a finding, that the words were spoken.
    That a sergeant failed to find a patrolman on his beat for thirty-five minutes is not sufficient to show that he was not there, where it appears that, the beat was a long one, that- the streets were filled with people and the patrolman not only testified that he was there, but shows by a witness that he was there during a part of the time.
    Carr, J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 14th day of July, 1909, directed to William F. Baker, as police commissioner of the police 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 the proceedings had before his predecessor, Theodore A. Bingham, regarding the dismissal of the relator from the police force of the city of New York.
    
      Louis J. Grant and Jacob Rouss, for the relator.
    
      James D. Bell and Sanders Shanks [Archibald R. Watson with them on the brief], for the respondent.
   Woodward, J.:

The relator is charged with and has been convicted of neglect of duty and neglect of duty and insubordination, under two distinct charges. The first charge of neglect of duty is accompanied by specifications, which charge that “Peter J.'McAuley, assigned to patrol Night Posts Nos. 16 and 17 (5th Avenue from North Washington Square to 14th Street, including Washington Mews), did not properly patrol said post and was loitering and in conversation with a citizen in front of the Hotel Brevoort, 5th Avenue and 8th Street, from 12:15 a. m. to 12 :35 a. m., March 8th, 1909.” The evidence is furnished solely by Bufus J. Deyo, a sergeant, and is to the effect that on the night in question the relator stood in front of the Hotel Brevoort for about twenty minutes, talking to some one. The relator admits his presence at the point in question, but denies that he was in conversation witli any one, and says that he was there in the discharge of his duties, under special instructions to see that the rules of the road were observed, and that there was a club meeting at the Hotel Brevoort at that time — Sunday night — and that he remained there until nearly all the carriages had departed,' as he thought it his duty, the drivers of carriages and taxicabs usually having trouble at that point. There is practically no dispute in the testimony; there is no contradiction of the relator’s testimony that there “ is always trouble on that post with the taxicabs and the hackmen, and the Eighth Street cars are blocked there occasionally,” and there was no dispute as to. there being a club, meeting in the hotel, or that there were carriages, there at the time mentioned in. the charges.' Under the circumstances of this case, what impropriety has been shown on the part of the relator ? There certainly is no law against a policeman having the necessary conversation with a liackman to properly discharge his duties, and théré is no testimony that he had any further conversation. The relator says he had no' conversation with any one that lie- knew ; “ there is nobody there I know.” The most that can be said is that he stood out in front of a hotel, at a point where he had reason to anticipate trouble between hackmen and the drivers of taxicabs for a period of twenty minutes about midnight of a Sunday when the members of a cliib were dispersing. The point was upon 'his beat, and it . would be difficult for a. normal-minded man to suggest any good reason why the severe penalty of loss of position should be imposed,' as was done by. the order in this case. The evidence does not fairly preponderate that the relator was guilty of the act charged against him.

At the same time the relator was charged with a second neglect of duty and insubordination, and. lie was likewise removed upon this charge.' The specifications were that the relator, assigned to . the same post on the ninth of March, the day following the previous charge, “ did fail to properly patrol his post and Could not be ' found thereon from Y:18 A. m. to Y :53 a.- m.,”' and that the relator when “informed by his superior officer, Sergeant Reuben 0. Conner, at Y:55 a: m.," March 9th, 1909, that complaint would be made against him for improper patrolling, did use the. following language, in a loud and boisterous manner: ‘I don’t'care a God damn whether you do or not. .You are a big stiff, and you can go as far as you like. What do you think of that ? ’ This in front of fiSTo. Y6 Fifth Avenue.” The relator denies positively that he made use of this language, and he is criticised in the respondent’s' brief for not producing the colored man, in whose presence it is alleged the language was used.,, to disprove the allegation. The rule is, however, . that the person making the charges is bound to . prove them by a fair preponderance of evidence (People ex rel. Keane v. Dooling, 60 App. Div. 321), and, if the colored janitor was present when the language was used, it was the duty of the complainant to furnish the evidence, and the fact that he was not called is certainly not to prejudice the relator. The complainant might have produced this witness, so far as appears, and the fact that he did not call him or offer any excuses for not doing so is a fact which may fairly be taken into consideration in determining whether the evidence justified a finding that the language was used, and we are of the opinion that the burden of proving this charge was not fairly sustained.

So far as the specification in reference to the alleged fact that the relator could not be' found. on his beat from seven-eighteen a. m. to seven-fifty-three a. m. is concerned, the relator says tbit he was on his post during all' of the time, except that he stepped into a basement at 76 Fifth avenue to investigate a light which he saw in there, and in this he was corroborated by the colored janitor of the building, as the complaining witness admits. It was conceded that the relator was on his post when found by the complainant, and the only evidence of a failure to properly patrol the post was the testimony of the complainant that he was unable to find him there during a space of thirty-five minutes, a thing that might very easily occur even were both parties actually there and both acting in entire good faith. The post is Fifth avenue from North Washington Square to Fourteenth street and Washington Mews ; the hour was just after seven o’clock in the morning, when the streets are well filled with people going to their work, and the fact that the witness did not find the relator for a period of thirty-five minutes, a portion of which time is fully accounted for (though the witness claims some discrepancy in the time fixed by the colored janitor as to the visit of the relator to the basement of 76 Fifth avenue), is far from satisfying evidence that the relator was in fact absent from his post, or that lie was not in the proper discharge of his duties.

We are of the opinion that the evidence does not support the charges, and that the conviction should not be permitted to stand. The conviction and orders should be reversed and set. aside, and the relator should be restored to his position.

Hirsohbeeg, P. J., Thomas and Rich, JJ., concurred; Care, J., dissented.

Determination annulled, with costs, and relator restored to his position.  