
    The People of the State of New York ex rel. Owen Kelly, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    March 20, 1914.
    Municipal corporation—dismissal of policeman for accepting money for services — evidence — reinstatement.
    Where, on certiorari to review the dismissal of a policeman assigned as an inspector of boilers for a violation of the rules of the police department by accepting money for a particular inspection, it appears that the proof of the offense depended upon the personal testimony of one person only, which is not corroborated in any manner, and the relator absolutely denies the receipt of the money, the determination of the police commissioner should be annulled and the relator reinstated.
    Certiorari issued out of the Supreme Court and attested on the 12th day of December, 1912, directed to Bhinelander Waldo, as police commissioner of the city of Hew 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 removing the relator from the police force of Hew York city.
    
      
      William Adams Robinson, for the relator.
    
      James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent.
   Jenks, P. J.:

The relator, a member of the police force of the city of New York, was found guilty of a violation of section 1 of rule 30 of the police department, and dismissed the force. The pertinent part of the section reads as follows: “ No member of the police force or employee of the police department shall, under any pretense whatsoever, share in, for his own benefit, any present, fee, gift or emolumenc for police services or for services of the police department or any member thereof, additional to his regular salary, pay or compensation. ” The relator, who was detailed as an inspector of boilers, is charged with receiving $10 after his inspection of boilers in the House of the Good Shepherd, from Bogle, who was the engineer. Bogle testifies that when the inspector called upon a week day for the purposes of inspection the inspection was postponed until Sunday. The proof of the offense depends upon the personal testimony of Bogle. There are no corroborative circumstances that support him. The only suggestion of reason for the payment of what Bogle admits was a voluntary gratuity is that the inspection was made on Sunday. But Bogle testifies that before the relator called on a week day for the inspection, the lieutenant of the squad had acceded to Bogle’s request that the inspection be made on Sunday; that he so informed the relator; that he gave an apparently good reason to the relator for the postponement, and that the relator thereupon acquiesced without demur or complaint, all before Bogle said he would pay him for his time. The relator denies absolutely his receipt of any money. The alleged act was a misdemeanor (Penal Law, § 855), and the relator was entitled to “the presumption that he was innocent of. the charge * * * so that even if the proof was otherwise evenly balanced, this presumption might properly prevail with the police commissioner in favor of the complainant.” (People ex rel. Callan v. Partridge, 87 App. Div. 573, 575.)

It may be asked, in weighing the probabilities, what reason moved Bogle, who so far as it appears was an entire stranger to the relator, to fabricate testimony. We are not bound either to seek out a reason or to credit his testimony if we cannot find one or suggest one. But it may be noted that Bogle testifies he had secured the $10 from his employer for the purpose of paying it to the relator.

We think that the determination should be annulled, with $50 costs and disbursements, and the relator reinstated.

Burr, Carr, Eich and Stapleton, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and relator reinstated.  