
    The People of the State of New York ex rel. James J. Rooney, Appellant, v. Theodore A. Bingham, as Police Commissioner of the Police Department of the City of New York, Respondent.
    Second Department,
    December 30, 1908.
    Municipal corporation — certiorari — trial of police officer, city of Mew York.
    Certiorari to review the trial of a police officer in the city of Mew York for neglect of duty. Evidence examined, and held, that a determination reducing his rank should be affirmed.
    Certiorari issued out of the Supreme Court and attested on the 4th day of August, 1908, directed to Theodore A. Bingham, as police commissioner of the police department of the city of H ew York, commanding him to certify and return to the office of the clerk of the county of Queens all and singular his proceedings had in finding the relator guilty of neglect of duty and reducing him from the rank of sergeant to that of patrolman. '
    
      Robert H. Hibbard [Albert R. Lesinsky with him on the brief], for the relator.
    
      James D. Bell [Francis K. Pendleton with him on the brief], for the respondent.
   Gaynor, J.:

The trial was before the police commissioner in person, and he found the relator, a police sergeant, guilty of neglect of duty. A deputy commissioner testified that he went into a cafe at 12:35 at night, and while passing through a room on the way to the toilet found the relator and a patrolman standing together talking. A woman was leaning over the banister of a stairway in front of them. He asked the patrolman why he was there, and was answered by him that he had been to the toilet. He asked the relator why he was there, and he said he came in to look for the patrolman. To a question of the deputy commissioner why he came in lie answered because he did not find the patrolman in front; and to repeated questions why he came into that particular place, and why he expected the patrolman to be in front of that particular place rather than any other place, he remained silent, and when told by the deputy commissioner to go out, fainted away. The relator testified that as he came along a man in front of the place told him the patrolman had gone in there to the toilet. The patrolman testified for the relator that he went in to the toilet, and asked a cabman before going in to tell the sergeant if he should come along where he, the patrolman, was. The cabman corroborated this. The sergeant testified that he told the deputy commissioner he came in for the patrolman because he did not find him outside, “ and I think I said that I was told he was in here ”. The patrolman testified he was in the closet 7 or 8 minutes He does not say the sergeant said to the deputy commissioner a man outside told him the patrolman was inside. His post was about nine blocks long. A rule forbids a patrolman to leave his post without first notifying his station house by the telephone. The police commissioner was not obliged to believe the testimony for the relator; indeed, many, including those under him, would think him very credulous, and probably laugh at him, if he did.

The order should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Determination confirmed, with fifty dollars costs and disbursements.  