
    The People of the State of New York ex rel. Michael J. Gannon, Relator, v. William McAdoo, as Police Commissioner of the City of New York, Respondent.
    First Department,
    February 8, 1907.
    Municipal corporations — certiorari to review dismissal of .police officer —; . facts not warranting dismissal.
    Certiorari to review proceedings had on the dismissal of a police officer in the city of New York, who was charged with neglect of duty and conduct unbecoming an officer. On the charge that the officer had been absent from his post and had neglected to report his absence it appeared that he had absented himself from his post for three minutes by reason of information given to him that his brother was in a .hospital suffering from a fractured skull. It also appeared in regard to Ms failure to enter Ms absence from duty on the books at the statiop house, that as soon as he reported there he was ordered to report forthwith at another place, and that in going to his assignment he stopped for a few minutds to take food and proceeded by surface car which was delayed. On all the evidence,
    
      Held, that neither the three minutes’ absence from duty under the circumstances, nor his failure to enter Ms absence on the police records was ground for dismissal;
    That the delay in arriving at the place where he was ordered to report was excusable;
    That the fact that the officer when reporting to headquarters by telephone in respect to a crime did not state that he was a patrolman 'was not ground for dismissal, there being no rule requiring him to make that statement;
    That while the statute vests discretion in the police commissioner to determine the punishment to be inflicted on officers, the charges must he substantial and sustained by the evidence, and the extreme penalty should not he imposed for a mere technical violation of a rule whereby the rights of the department have not been prejudiced.
    Certiorari issued out of the Supreme Court and attested on the Jth day of July, 1905, directed to William McAdoo, as police commissioner of .the city of New York, commanding him to certify and return to the office of the clerk of the county of New York, all and singular his proceedings had in relation to the dismissal of the-relator from, the police force of the city of New York.
    
      Joseph 8. Frank, for the relator.
    
      Theodore Oonnoly, for the respondent.
   McLaughlin, J.:

Michael J. Gannon, the relator, who had lieen a member of the police force of the city of New York for upwards of fifteen years, was charged with neglect of duty, conduct unbecoming an .officer and violation of the rules of the police department. The specifications were, in substance, (1) that between nine-thirty and ten-thirty a. m. of March 11, 1905, the relator was absent from his post and in the hallway leading to a liquor store at No. 4154 Broadway ' during his tour of patrol duty, which was from eight A. >r. to four p. m. ; (2) that at the time of such absence the relator willfully concealed his identity as- a patrolman in a conversation over the telephone with Inspector Brooks ; (3) that between the said hours of nine-thirty and ten-thirty a. m. the relator threatened Patrolman Powers by stating to him. over the telephone, When I run across you, you can expect what you’ll. get from me; ” (4) that at the expiration of. his tour of patrol duty at four-fórty p. m. on the day named the relator neglected to report his absence from post, in violation of rule 46c ; (5) .that having been directed at the above hour to report forthwith at the office' of Inspector Cross the relator neg- " lected to report as ordered and failed to do so until six-three p. m. ; (6) that on being asked by Inspector Cross his reason for not explaining to Inspector Brooks in his conversation with him over the telephone that he was. apatrolman the relator falsely stated that he did inform Inspector Brooks of that fact. '

The relator was found guilty of the charges and of each specification after a trial before the third deputy police commissioner, who ' thereupon recommended his dismissal from the police force. The findings were approved by the police commissioner and the relator dismissed from the department. ' He instituted this proceeding by _ writ of certiorari for the purpose.of having the determination of the commissioner reviewed. '

The record is quite voluminous/and while the evidence as to what took place the day preceding the relator’s alleged breach of discipline is conflicting, there is little or no conflict except as to the third specification. On the morning of March 11, 1905, while the relator was performing his patrol duty, a boy named Cunningham informed"him that the previous afternoon he had witnessed a number of policemen indulging in target practice, the bullets from their' pistols falling in the neighborhood of certain work which Patrick J. Gannon (relator’s brother) was superintending; that when the latter requested the officers to desist, one of their • number assaulted him, fracturing his skull and breaking his nose; that the injured man was then.in the J. Hood Wright Hospital. On hearing this story, the relator went to the neárest public telephone, at H o. 4154 Broadway, and called up police headquarters, telling the operator that he was Michael J, Gannon, * . * * patrolman, attached to . the 33d Precinct,” and repeated the story told him by the boy. The operator said: Hold on, I will give you the general Inspector,” which he did, and the relator then told the story to Inspector ' Brooks, giving his name and address in 1 response to the latter’s inquiry, but not again stating that he was a patrolman. On returning to the station house, situate at One Hundred and Fifty-second street and Amsterdam avenue,, at the expiration of his-patrol duty, the relator was immediately directed to report to Inspector Cross, at the Twenty-ninth precinct station, One Hundred' and Fourth street, near Third avenue, and at'once left to obey the order — the ■time then being four-forty-six p. m. On the way he stopped for five or six minutes at a bakery to get something to eat, having been without food since seven o’clock in the morning, and arrived at the station house at twelve minutes of six, but Inspector Cross being engaged, he was unable to see him until six-three. In reply to inquiries made by Inspector Cross, the relator stated that he had conversed with Inspector Brooks over the telephone, and had informed him that he was a patrolman ; that’ he hád not at that time reported his absence from his post, but that he had intended to do so as soon as he returned to the station house, which he did at eight o’clock that evening.’

, In regard to the third specification, the relator denied having used the language complained of or having telephoned Patrolman Powers at all, while the specification is sustained by the testimony of Powers and another policeman. It is upon evidence establishing substantially the. above facts that the finding of guilty is based. A portion of the testimony taken at the trial related to what took place on the tenth of March (the day preceding the one on which compiaint was made of relator’s action). This evidence on the part of the relator tends to shew, through the testimony of the boy Cunningham, two other boys and three adult citizens, that during the afternoon of March tenth some thirty-three or forty policemen were shooting at a mark in. the neighborhood of a railroad tower house in a lot between One Hundred and Forty-seventh and One Hundred and Forty-ninth streets, .where they were accustomed to gather during the .continuance of a strike then m progress on the subway; that the laborers employed by the relator’s brother, working in that 'immediate vicinity, refused to continue their'work unless the firing ceased; that the lelatcr’n brother remonstrated with the policemen and endeavored to get them to stop firing; that in doing this he was assaulted by a patrolman named Powers, arrested, taken to the station house and subsequently admitted to bailthat of these facts the relator nad no knowledge until the following morning, when he was informed of them-by Cunningham, who had been sent by an employee of his brother’s to tell the relator. The testimony given by several policemen in behalf of the respondent was to the efEect that there was no shooting' as alleged ; that, the relator’s brother was arrested, for attempting to break through the police lines ; that he became intoxicated after he was bailed out and sustained his injuries that evening by falling down the stairs Of a "saloon, and that the relator was informed of his injuries shortly after midnight of the tenth. ;

This evidence is conflicting, but it is of no importance, because it neither tends to prove nor disprove the charges made against the relator, and of which he was found guilty.

The first specification is that the relator 'was absent from his post for some time between nine-thirty and ten-thirty o’clock on the eleventh of March. The fact is not disputed that he absented himself from his post for three minutes by reason of information given to him that his brother was in a. hospital suffering from a broken nose and fractured skull. It is true there is some evidence that he ■had been previously informed of his brother’s injury, but such evidence is unreliable and of the most uncertain character. And, besides, the relator’s action . when-informed by the boy Cunningham of the injury to his brother would seem to indicate that he did not prior thereto have such ■ in forznation. The fact, therefore, that the relator, when infoimed of the serious injuries to his brother, absented himself for three minutes from his post, by going to the nearest telephone and communicating with a superior officer, to the end that the person who had inflicted the injuries might be apprehended, is not such a violation of duty or breach'of discipline as to justify his dismissal from the force.

If a patrolman has information which he deems reliable, that a serious crime has been committed, it is his duty to apprehend the criminal, or, if he cannot do so himself, to communicate with some other officer who can. In this connection the fourth specification should be considered, and that is that the relator did not report his absence from post at the expiration of patrol duty. But at that time he was confronted with an order to present jhimself forthwith to Inspector Cross, and it might bé well to here consider the fifth specification, which is that the relator did not report lorthw-ith, as ordered, pr p,n,til gfx-.thfee. The relator is thus blamed for not having delayed in the station house to perform one duty.before carrying out another order, and at the same time criticised for having delayed at all in obedience to that order.

Eule 46c should be fairly and reasonably construed, having in . view, of course, the object sought to be accomplished by it. Can it fairly be said that á patrolman has violated that rule- because he has not entered in the proper book his absence from post when, as soon as he enters the station house, he is confronted by an order from his superior officer to forthwith report at another place ? Is it unreasonable, if an officer receiving such an order, delays making the entry required by rule 45c until he has complied with the order ? I think not. And in this connection it is to be borne in mind that rule 46c does not specify any time when the entry shall be made, though a fair construction of it doubtless requires that the patrolman shall make the entry within a reasonable time after he gets to the station house.

As to the fifth specification — that the relator did not forthwith report to Inspector Cross, as directed — the evidence shows that it took the relator a few minutes less than an hour to go from the station house at One Hundred and Fifty-second street and Amsterdam avenue to the station house at One Hundred and Fourth street and Third avenue, and that he stopped on the way for a glass of milk and a roll, having had nothing to eat since seven o’clock in the morning. But it was not unreasonable, under the circumstances, that he should stop long enough to get a glass of milk and a roll. It would be subjecting an officer to unreasonable discipline to dismiss him from the force if, under the facts here disclosed, he should drink a glass of milk and eat a roll before responding to an order similar to the one in question. It was not unreasonable, in J view of the fact that when the strike referred to commenced the relator was on the sick list, and he voluntarily asked to be put back on the force, in view of the increased demand for patrolmen, 'and that he had eaten nothing since morning. Besides, the evidence shows that he took a car immediately thereafter, and that the car was delayed on the way. That there was no great delay in the relator’s getting to the station house is evidenced by the fact that the two. officers whom Inspector Cross detailed to go over the route took twenty-five minutes in one instance and thirty-eight in another. The difference in the time required on these two occasions indicates, as clearly as anything can, the injustice of dismissing a man from the force who has satisfactorily performed his duties for fifteen years because he took nearly an hour.

As 'to the second specification — that the relator did not disclose .when talking with Inspector Brooks that he' was a' patrolman— a complete answer to this is that there was no rule 'which- required him to disclose-that, fact. But the evidence f.airly shows that he did-disclose it. It is undisputed that he stated to the telephone opera-' tor at headquarters that he was a patrolman, giving his name and address, and he had' a right "to assume, when, he had stated that fact to the operator, and the operator had announced he Would call up Inspector Brooks,.that the information which he had disclosed as to his identity had been given to Inspector Brooks, and it was unnecessary for him to repeat it. Besides, what possible motive could he have had in concealing the fact of his. connection' ytith the police force ? However, if he did so, he violated no rule of. the., department, nor has any one sustained any-injury by reason of it,

As. to the-sixth specification-^-that the relator falsely stated to' -Inspector Cross that he did tell Inspector Brooks he was a patrolman — it cannot, for the reasons already given, be considered a false statement, inasmuch as he had a right to assume that the operator had told Inspector Brooks who wanted to talk with him.

The third specification presents the only one in which there is a direct conflict in the testimony. This Charge is only sustained by the testimony of Officer Powers, corroborated in a slight, degree ■by Officer Stevens, and it must be remembered, that Powers is the officer who arrested, and it is claimed assaulted, relator’s brother, " and besides, Officer Stevens contradicts • Powers’ testimony in several material respects.. The relator denied that he used the language attributed to him, and he is corroborated by at least one witness. The evidence does not satisfactorily establish the charge, and-if it did it is too trivial in its nature to justify the severe punishment- here imposed, It is unquestionably true that the charter (Law's of 1901, chap. 466, §: 302). vests the discretion in the police com- - missioner — where a member of the force has -been found guilty of charges preferred against 'him — of determining the punishment to be inflicted, but the charge must be substantial and fairly sustained' by evidence! It cannot be that the Legislature intended, when lodging this discretion with the police commissioner, that the extreme penalty should be visited upon a police officer for what at most is a mere technical violation of a' rule which is not shown to have prejudiced any right of the department. (People ex rel. Devaney v. Greene, 89 App. Div. 296.) The facts here proved do not establish a conscious violation of any rule or the omission of any duty on the part of the relator, or any intent on his part to detieive his superior officer or any one else, and it cannot be that a conviction of neglect of duty, conduct unbecoming an officer, and violation of the rules of the department can possibly be sustained upon the evidence set out in this record without doing manifest injustice. (People ex rel. Reardon v. Partridge, 86 App. Div. 313; People ex rel. Hogan v. French, 119 N. Y. 493.)

Here, as already indicated, this officer had been a member of the police department for upwards of fifteen years. His record, so far as appears, is good, and if appeals to this court are to be anything more than a form, I do not see how it can be said, upon this record, that the dismissal of the relator'can be sustained. .

I. am of the opinion that the writ should be sustained, the proceedings annulled, and the relator reinstated, with fifty dollars costs and disbursements. ■ - ■

Patterson, P. J., Ingraham, Houghton and Lambert, JJ.? concurred.

Writ sustained, proceedings annulled and relator reinstated, with fifty dollars costs and disbursements. Order filed.  