
    The People of the State of New York ex rel. Frederick Goetzger, Relator, v. Theodore Roosevelt and Others, as Police Commissioners, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.
    
      Police of New York—specifications of a charge against a patrolman too indefinite— record, of patrolman competent only upon the question of punishment.
    
    Frederick Goetzger, a patrolman, was dismissed from the police force of the city of New York for alleged neglect of duty. The specifications of the charge stated that he brought to the station house the hody of a deceased person, and that while searching the hody in the station house he took from it some money which he placed in a handkerchief and failed to deliver it promptly to the sergeant at the desk, and that subsequently, when the doorman discovered the handkerchief on a table in the rear of the station house office and brought it to the desk, it was discovered that the money was gone, and that the patrolman failed to give any account of the money or how it was lost.
    
      Held, that if the neglect of duty consisted in failing to deliver promptly to the sergeant at the desk the effects of the deceased, the charge was not sustained in the absence of proof that the rules of the department required the relator to take such articles and leave them at the desk;
    That the past record of the patrolman could not he considered uppn the question of his guilt, and the court must assume, in the absence of all proof as to the use made of it, that it was considered only on the decision of the question as to the punishment to he inflicted, after the commissioners had concluded that the patrolman was guilty;
    That if it was to he assumed that the patrolman was charged with the theft of the money, there was no evidence which established the truth of the charge.
    Certiorari issued out of the Supreme Court and attested ou the 31st day of December, 1895, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.
    Sergeant Near presented the following charge and specifications:
    “I hereby charge Patrolman Frederick Goetzger of the 20th precinct with neglect of duty.
    
      “In this', to wit: ■ “Specifications,.
    “ Said patx’olman, Frederick Gqetzger, at 5 :45 a. m., October 1st, 1895, bx’ought to the 20th pi’ecinct station house the body of Félix IP Connell, age 50 years, of 433 West 33d street, who had died suddenly at 10th avenue and 28th street. The said officer while searching the body in the sitting-room of the station house took from the pockets of the deceased, $6 in bills; borne-small.change, and other ai-ticles, which he placed in a handkerchief and which he failed to deliver promptly to the sergeant, at the desk. Subsequently Door-man Thomas Golden discovered said handkerchief With articles on a table in the rear of the station house office, and brought the same to the desk when it was discovered that $6 of said articles was missing, and Patrolman Frederick Goetzger failed to- give an account-of said $6 or how it was lost.” ■
    
      Louis J. Grant, for the relator.
    
      Theodore Connoly, for the respondents.
   O’Brien, J.:

The charge is neglect of duty, and from the specifications it is difficult to determine whether- such neglect consisted of a failure to deliver promptly to the sergeant at the desk a handkerchief into which the effects taken from the dead man had been placed, or tire taking of six dollars in bills, or failing to account for the same after . the relator’had .put them in the handkerchief. If the. former, it was not shown that any rule of the depai-tment required the. x-elator to take the articles immediately to the desk, and as there was no dii-ect accusation that he took the money, -so there was no proof ;, and alL that is left of the specifications is the • failure of the- relator’ to account for the money after he had placed it with the other articles in- a handkerchief on a table whex-e they were found by the doorman. The judgment of dismissal is equally indefinite. And it Cannot be..known from this record upon.what ground the commission-ex-s placed their decision.

If we examine the testimony in the same gen eral-way. that it was given, we ax-e equally at a loss to determine upon what evidence the. dismissal of the relator can be justified. It is true, his past record was before the commissioners, but as this could not be considered upon the question of His guilt, we must assume, in the absence of proof, that it was properly confined to the question of the punishment after the commissioners had concluded that he was guilty.

There is no dispute but that relator took the body of aman who had died suddenly in the street to the station house. It was his duty to search the pockets of the deceased, which he proceeded to do in the presence of two other officers and the doorman.

Among other articles were some silver and six dollars in bills. The former the relator gave to one of the other officers to count, and proceeded to count the bills himself. There was no secrecy in doing this, as it was done openly in the presence of at least three persons who. saw the silver and bills, and who saw the relator place them in a pocket handkerchief belonging to the deceased spread on a chair. There the articles remained, the relator going out, leaving the articles and other persons in the room; and on returning an order was given to take the dead man into the corridor, and in this relator assisted. He returned again, and, taking up the handkerchief, started for the front room wherein was the sergeant’s desk.

At this point the only conflict in the testimony begins. Relator testified that as he reached the front room he saw the wife of the dead man in hysterics. He thereupon put the handkerchief on a table and went to help the woman up; that he returned to the back room to have the dirt removed from his uniform, and there received an order from the sergeant, who directed him to make out a memorandum- or list of articles. The doorman, who found the handkerchief with the articles therein on the table, carried it to the desk, and, upon examination, it was found that the bills were gone, having disappeared in the confusion. The sergeant and the doorman both called relator’s attention to the disappearance of the bills, and he admitted he had placed them in the handkerchief, but was unable to say who had taken them.

It was also sought to be shown that relator did not assist the wife in hysterics, but the extent to which any witness would go when pressed on the point was that he did not see him. but would not swear he was not there at that time.

As stated it is not charged that relator took the money himself, and all • the probabilities are against it. If he would rob the dead his opportunity was present before he brought, the body into the station horise, and it is past belief that after openly exhibiting the bills and placing them in the handkerchief he would hazard his position by purloining six dollars which so many knew all about. While the handkerchief lay on the table twenty persons, at least, were in the front roonp against any one of whom the charge of taking the bills was equally strong — or, to speak of it more accurately,, eqrrally weak.

We think, too, that the relator is; supported not only by other evidence, but the probabilities, in his version that it was the presence of the wife in hysterics that led him to deposit the handkerchief on the table and run to her assistance, and that caused the. delay in reporting the articles to the sergeant at-the desk. There is no suggestion of any other reason, and yet it does appear that in passing from the back room to the front with the handkerchief something occurred to causé the relator to place the hankerchief on the table and intercept his r eporting-to the sergeant at the desk. We think we have sufficiently pointed out that as relator was not charged or tried for theft, but only with having. failed to report at once to the deskj which failure resulted in th'eloss. of the six dollars, that this failure was satisfactorily explained by a clear preponderance of the evidence and the probabilities, and it was error ón such a charge, as so explained, to dismiss relator from the force.

The action of the commissioners should be accordingly reversed, with costs,.and the relator restored.to'his position.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Proceedings annulled and relator reinstated, with costs..  