
    The People of the State of New York ex rel. Hugh F. Maguire, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.
    First Department,
    January 25, 1907.
    Municipal corporations — certiorari to review dismissal of police officer — evidence insufficient to show misconduct of officer.
    When on certiorari to review the dismissal of a police officer in the city of New York for conduct unbecoming an. officer, it appears that the relator was discharged for acce.p ting-money in violation of rule22 of the Police Manual, and the only evidence in support of the charge was the fact that a, witness whose son had been arrested by the relator had threatened to get even with him, and had under an agreement with the police inspector thrust money into the relator’s hand while the latter was on duty and immediately -ran away and boarded a car, the dismissal is not warranted by the evidence and the relator is entitled to reinstatement. •
    
      Certiorari issued out of the Supreme Court and attested on the 4th day of January, 1906, directed to Theodore A. Bingham, as commissioner of police of the police department, of the city of New York, directing him to certify and return to" the office of the clerk of the.county of New York all and singular the proceedings had by his predecessor, William McAdoo, in relation to the removal of the relator from the police force of said city. " ■
    
      Jacob Iiouss, for the relator.
    
      Theodore Connoly, for the respondent.
   Lambert, J.:

The relator was charged with conduct unbecoming an officer, the specifications being as follows :

“Birst. Said Patrolman Hugh F. Maguire, of the twenty-fifth Precinct, did, at about 9.30 a. m., September 23, 1905, at the northwest corner of East Eleventh Street and Third Avenue, wilfully and wrongfully advise one Maurice McMahon, of 206 East One hundred and twenty-sixth street, to pledge a -watch which the said McMahon’s son, Maurice McMahon, Jr., had found in the public street, and to give Patrolman David Isenberg, of the Twenty-fifth Precinct, five dollars from the amount borrowed on said watch.

“Second. Said Patrolman Hugh F, Maguire, by arrangement with one Maurice McMahon, of 206 East- One hundred and twenty-sixth street, met the said McMahon at the southeast corner of Seventy-first street and First Avenue at about 8.20 p. m., September 23, 1905, and did then and there accept a five dollar bill from the said Maurice McMahon in violation of Buie 22 of the Police Manual.”

Beyond the fact that Maurice McMahon, Jr., did find a watch and a sum of money in the public street, there is not a particle of evidence in sujiport of the first specification,, and the dismissal cannot stand upon such specification., -It is needless to say that where an officer is entitled to a trial as a condition of removal, .it is necessary that there shall he some evidence in support of the findings of the commissioner. ......

■ The undisputed facts in reference to the second specification are that the relator and another officer, one Isenberg, arrestéd Maurice McMahon, Jr., on suspicion that he had been guilty of larceny. The boy was taken to'tlie station house and locked up over night, and thé following morning he was arraigned before the Children’s Court and discharged, no direct evidence being adduced against him. Maurice McMahon, the boy’s father, who had known- the relator for twenty-five years or more, and' had, up to this time, been friendly with him, met him and asked about the arrest of his son, having in the meantime retained a .lawyer in his behalf. The father testified as, follows: “ The defendant and his friend came along. T said, 1 You know my boy; you had no right to arrest-him; is there a chance of getting him out ? ’ He said, ‘ Y es.’ I said,.1 What has he done?’’ He said, ‘It doesn’t amount to anything;, he has just got a watch and some money.’ He .said there wasn’t anything to the charge, against the boy. 1 said, 11. wished I knew that for I have engaged a lawyer for $5.’ He said, ‘You did not need a lawyer; the boy will be discharged.’ . I said, ‘ I will get. even.’ When the. boy was discharged I signed a note, a receipt for a ring and $12. He gave it to me in my hand. In the meantime the . lawyer came out -and says, ‘The boy lias $12 on him; don’t I get my share?’ I said, ‘ I don’t care who gets it.’ • I said, ‘ I want the boy.’ The boy came out and I got the watch from the boy, and the boy said, ‘1 tell you wliat you can do; pawn the watch and let me have fiveA I said to .the boy, ‘ I will do that.’ > This officer had no right tb arrest my boy, and I came down and seen Mr. Brooks and tliis gentleman and told them I was goingto give Maguire $5 at' 8 o’clock and I told them where. They told' me they would be up there at 8 o’clock and- give me the $5. I went up there at 8 o’clock and got the money and he walked past me and I went after him and put the five dollars in his hand. He said, ‘ What’s this V I ’ said nothing and went over and took a car.”

It' seems from the evidence that upon the boy being discharged, > and after McMahon had threatened to get even, he inquired of the relator where he was going to be that evening and -was told that he' had an appointment with a man at Seventy-fifth street and Avenue A at eight, o’clock. With this information in his possession McMahon went to Inspector Walsh and reported that he was going • to give Maguire five dollars. The inspector' furnished -the money,; which McMahon forced into the hands of the relator and then, as he says, “ ran and took a car,” giving the relator no opportunity to refuse the money. In pursuance of the plan the inspector came upon the relator soon afterward, who at once admitted that he had the money, and explained the facts, and these are in nowise disputed; oil the contrary, are strongly corroborated. We look in vain for any evidence that the relator accepted this money; it was placed in his ■ hand by a man who had pretended to. be his friend, and who ran away without making any explanation. The relator .made no attempt to deny that he had the money. ' He has always told a straightforward story in relation to it, in entire harmony with McMahon’s own version of the occurrence. The whole transaction appears to have been worked up for the purpose of carrying out the threat of McMahon, to get even with Maguire for arresting his son. The evidence negatives the proposition that the money was received in violation of. rule 22 of the Police Manual, or of section 306 of thé Greater Hew Tork charter, and it fails to establish the second specification of the charge.

Under the conceded facts the relator did not accept the five-dollár bill; he did not take it and turn it, to his own purposes as a matter of freewill at all; it .was forced' upon him without explanation. It is not pretended that it came to him in pursuance of any previous ‘arrangement or understanding, expressed or implied, and, so far. as we know, it may have been his intention to restore the money as soon as he met McMahon. He was in the discharge of his duty at the time the money was placed in his hand ; he was at the point ■ mentioned in pursuance of an arrangement to meet a man who was to give him information in reference to a burglary, and he appears to have been' the victim of a malicious desire on the part of McMahon for revenge.- ' .

The determination of the police commissioner not'being supported by evidence, the proceedings should be annulled and the relator reinstated, with costs.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ\, concurred.

Proceedings annulled and. relator reinstated, with costs. Order filed. 
      
       Laws of 1901, chap. 466.— [Rep.
     