
    The People of the State of New York ex rel. Patrick Kenny, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    June 12, 1908.
    Municipal corporation.— dismissal of policeman.
    Evidence taken on a proceeding resulting in the dismissal of a police officer examined, and held, that, he was improperly discharged.
    Certiorari issued out of the Supreme Court and attested on the 17th day of December, 1907, directed to Theodore A. Bingham, as police commissioner of the'city of Mew 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 removal of .the relator from the police department of the city of Mew York.
    
      
      Jacob Rouss [Louis J. Grant with him on the brief], for the relator. ...
    
      James D. Bell [Francis K. Pendleton with him on the brief], for the respondent.
   Woodward, J. :

The relator in the matter now before us was charged with disobedience of orders and with neglect of duty.- The specifications as to both charges were the same, as to the' first specification, which was thathaving been assigned by proper authority to desk duty from 1-2:01 to 8 a. m., October 15, 1907, the said Lieutenant ■ Patrick Kenny was absent from the desk at 5 :15 a. m., and when found was in the Captain’s office lying on a coiich with his coat and hat off.” The second charge*, that of neglect of "duty, had this addv. tional specification, that “ having been assigned by proper authority to; desk duty from 12:01 to 8- a. m., October. 15, 1907,' the said Lieutenant Patrick Kenny failed to make an entry in the desk blotter of the absence from patrol and presence in the station house of Sergeants James A. Dotiolme and Charles McCarthy.” The complainant in this case wa.s Inspector Patrick J. Harkins, and the. witness named in the charge was Arthur J. O’Keeffe,-first deputy. police commissioner,- who presided at the trial of these'charges and found-the relator guilty immediately on- the close of the testimony. ■

The Tin contradicted evidence, and that which is entirely reasonable, completely negatives these charges. Tire relator pleaded not guilty -to both charges. There was absolutely no evidence that the relator was assigned to desk duty from twelve-one to eight 'A. m. on the date in question* or for any other .'timé, a fact absolutely essential to the foundation of the charges. The Only thing that might suggest that the relator was on desk duty at all is his testimony that at five minutes before five o’clock in the morning of the day in question' lie fang for the doorman and asked him to,take his place át the' desk while he went to the toilet, but this falls short of showing the assignment for the hours mentioned. Passing over this, the evidence is that the relator called the doorman-at five-minutes before five-a „ - o’clock; that lie asked the doorman to take charge while he went to the toilet; that the- relator retired to the toilet room off of the captain’s Office;-that he took off his coat and vest and laid- t-hem- upon a? lounge in the captain’s office ; that he had finished his visit to the toilet and was in the act of leaning over to pick up his coat and vest from the lounge in the captain’s office at five-fifteen when the inspector came into the room and found him. The room appears to have been dark, and there is absolutely no evidence to show that the relator did not tell the exact truth about the matter. He had been absent from the desk for twenty minutes or less in response to a demand of nature; lie had been within call, and had placed the doorman at the desk for the purpose of calling him if necessary, yet he is found guilty of the charge of being found lying on the ' couch in the captain’s office, with his hat and coat off.. It appears from the undisputed evidence that Sergeant Donohue came in soon after the relator retired to the closet; that he found the doorman there and asked where the relator was, and was told; that Donohue was asked by the doorman to take the place at the desk while relator was out, and that Sergeant McCarthy came in before the relator came out from the toilet, so that he had no opportunity of knowing that these sergeants were there, or of making any memorandum about them, and that is all there is to the second specification, the relator being fully corroborated by the doorman and by Sergeant Donohue. There is no rule or regulation in the police department, so far as this re.cord shows, which forbids a man assigned to duty at the desk .to respond to a call of nature, having made reasonable provisions for caring for the office during his temporary absence, and it is little short of a farce to pretend that the relator in this case has ever had a fair trial or that he has been convicted of the charges made against him. If he is entitled to a trial at all he is entitled to a trial which is fair and impartial, and the determination must be supported- by evidence. There is no convicting evidence in this case, and the determination should be set aside, and the relator should be restored to his position.

Jenks, Hookeb, High and Milleb, JJ., concurred.

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