
    The People of the State of New York ex rel. Jacob J. Kiebrick, Relator, v. Theodore Roosevelt and Others, Composing the Board of Police of the Police Department of the City of New York, Respondents.
    
      Municipal corporations — police commissioners of New York—cannot consider the record of a member unless it has been offered in evidence, nor act in dismissing him upon their own knowledge.
    
    The dismissal of a member of the police force of the city of New York is not justified, where it appears that the police commissioners, in reaching a determination, considered not only the testimony in the case but also the record of the member, which was not introduced in evidence upon the trial and as to which the accused had no opportunity for explanation.
    If the record of the member is to be treated as the knowledge of the commissioners, it is still improper, as they have no right, in discharging a member, to act upon their own knowledge or to supplement the evidence by such knowledge.
    Certiorari issued out of the Supreme Court and attested on the 29th day of October, 1895, directed to Theodore Roosevelt, Andrew D. Parker, Avery D. Andrews and Frederick D. Grant, as police commissioners of the city of Hew York, constituting the board of police of the police department of said city, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings'in regard to the dismissal of the relator from the police force of the police department of the city of Hew York.
    
      John If. Tierney, for the relator.
    
      Francis M. Scott, Wm. If. Rand, Jr., and Terence Farley, for the respondents.
   Barrett, J.:

The respondents, in their return, specifically state that, after the relator’s trial had ended, they considered his record upon the question of guilt. It was upon “due consideration,” so they say, of this record in connection with the testimony, that they determined that he “was guilty as charged.” This was clearly erroneous. (People ex rel. McAleer v. French, 119 N. Y. 505 ; People ex rel. Roe v. MacLean, 57 Hun, 141.) The record was not introduced upon the trial, and the accused had no opportunity of explaining it. It was read and considered in his absence, and without his knowledge ; and certainly it was highly prejudicial, for here was a close question of veracity between the relator, the relator’s witnesses and the complaining witness. It may well be that notwithstanding the numerical preponderance of testimony upon the relator’s side, this record turned the scale. If the record should be treated as the knowledge of the commissioners, in that it is part of the records of the department, still it was improperly considered, for, as was said in People ex rel. McAleer v. French (supra) : They can neither act upon their own knowledge, nor supplement the evidence by them own knowledge.”

The proceedings had should be annulled and the relator reinstated, with fifty dollars costs and disbursements.

Yan Brunt, P. J., Rumsey, Williams and Patterson, J J., concurred.

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