
    The People of the State of New York ex rel. Thomas V. Madigan, Relator, v. Thomas Sturgis, as Fire Commissioner of the City of New York, Respondent.
    Second Department,
    December 29, 1905.
    Certiorari — review of trial of fireman dismissed on grounds of perjury— presumption of innocence — evidence insufficient to ' establish perjury.
    On certiorari to review the trial and discharge of an assistant foreman of a city fire department under the charge that he had committed perjury in a former trial which had resulted in the dismissal of another fireman, the charge being criminal, the relator is entitled to the same presumption in favor of his innocence that would exist if the charge were made in a criminal court.
    On the review of such trial; the question is whether, on the same evidence, a verdict of a jury against the relator, if rendered in a criminal trial for perjury, should be set aside as not warranted by the evidence.
    Evidence on which the dismissal was based considered in detail and held not to warrant a finding of perjury.
    Certiorari issued out of the Supreme Court and. attested on the 15th day of December, 1902, directed to Thomas Sturgis, as fire commissioner of the city of New 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 relation to the dismissal of the relator, an assistant foreman, from the fire department of the city - of New York. •
    
      luke D. Stapleton [Edward V. Farley with him on the brief]for the relator.
    
      Edward H. Wilson [James D. Bell and John J. Belany with him on the brief], for the respondent. ■
   Per Curiam :

This is a writ of certiorari to review the proceedings of the fire commissioner of the city, of- New York, on thé trial of charges preferred against the relator as assistant foreman in that department. In August, 1901, Stuart, an engineer, was tried for an assault upon ’ Grady, a foreman, and. dismissed the department. The relator Was a witness against 'Stuart. ■ Stuart did not seek a review of the proceedings. In 1902 the Legislature passed an act (Laws of 1902, chap. 554) that authorized the then commissioner in his discretion to rehear Stuart’s case and to reinstate him. The relator. was a witness on the rehearing. Stuart, was reinstated, and thereafter the relator was tried on charges that he had Sworn falsely on these trials when he testified that he witnessed the quarrelbetween Grady and' Stuart'; that Stuart -struck Grady, and that he had advised other members of the force not to appear as witnesses of the quarrel. He was found guilty and dismissed the department. ■ The principal charges against the relator involve his commission of a felony under - section 96 -of the Penal Code,. Therefore the relator is “ entitled to the saíne- presumption in his favor that would have existed if the said charge had been mide against him ifi a criminal court.” (People ex rel. Campbell v. Police Comrs., 13 App. Div. 69 ; appeal dismissed, 153 N. Y. 657.) Greenleaf on Evidence. (Vol. 1 [15th ed.], § 257) says that to sustain a Conviction'of perjury the evidence “must be at least strongly-corroborative of the testimony . of the accusing witness, or, in the quaint but • energetic language of Parker, C. J., a strong and clear evidence, and more ■ numerous -than the evidence given for the defendant.’ ” (See, too, People v. Stone, 32 Hun, 41; People v. Doody, 72 App. Div. 372, 383.) The question is whether a verdict.of a jury against the relator, rendered on his trial for perjury, upon the proof in these proceedings, would be set aside as not warranted by the evidence. (See Code Civ. Proc. § 2140.) Proof of perjury was sought to be made by the testimony of Stuart, of Garvin, a member of the force, and of two outsiders, Devlin and Murphy. Stuart may be dismissed with the comment that he'was the accusing witness, who must have admitted his own guilt, and, therefore, the truth of the relator’s • testimony, had he not testified against the relator. Garvin testifies that he looked down the stairs of the engine house and saw Stuart and Grady on the ground floor of the house, having an argument of words; ” that he watched them; that as Stuart turned away he saw Grady strike Stuart; that he did not see Stuart strike Grady, and that the relator’s testimony to the contrary was untrue. On cross-examination he admitted that his testimony on the original hearing was truthful as far as it went; ” that he withheld facts for his own safety which he disclosed on the rehearing. He also admitted that he had made and subscribed a written statement to Chief Grant, who investigated the matter, in which he said: I did not know that Stuart had been hit until foreman Grady told the doctor on the phone that Stuart" was absent, saying his jaw was broke, and to the doctor’s inquiry he says, I struck him on the jaw.’ ” When asked in the statement, Where was you % ”' he answered “I was asleep when I heard the cry turn out.” It is not disputed but that the cry to turn out was subsequent to any blow that passed between Stuart and Grady. We should not attach much credibility to the statement of a witness who admitted that he had not told the whole truth on one trial but had withheld testimony, who contra- - diets his formal written statement, and who said therein that he was asleep upstairs during the altercation and now testifies that he was an eye-witness of the quarrel. Devlin, a lad under twenty years of age,- testifies that he stood across the street, about forty feet away, and saw Stuart and Grady together in the engine house; that words passed between them, and that he saw Grady strike Stuart, but that he did not see Stuart strike Grady. The witness had been convicted of petit larceny. Murphy was a companion of Devlin. Although he testified that he saw Grady, strike Stuart, he was not asked nor does he testify that Stuart did not strike Grady or that he did not see Stuart strike Grady. He testifies that he saw the relator near the engine house about fifteen or. twenty minutes after the altercation. On cross-examination the following occurred : “ Q. You were sworn before Commissioner Tully on the 4th of Sept., ,1901? A. Yes, sir. Q.' Do you remember giving the following testimony: ‘Q. You didn’t see "or hear anything ? A-'Ho,, sir. I seen Mr. Madigan outside. That is all. Q. Yon saw him 'outside the company house? .. A. Yes, sir. Q. Was that.before you heard this loud talking? - A. Yes, sir. Both before and after.’ A. I could not swear to that. Q. Did you swear to-that before Commissioner Tully? A. Likely I did. Q. Was it true .then? A. I don’t believe so." Q. Were not the' occurrences fresh in your mind at that time? A. Hot as fresh as they were now. • Q. Was not your memory better after the thing happened than it is á year or so after? A. Ho, sir, I can remember better now. • * * * Q. What were you at that time working at ? A. In Mullen’s hotel? Q. What doing?. A. Watering horses. There was not much money in it, but T was getting all I eat. and making a dollar- or so. Q. Sweeping up the barroom? Á. YesJ-sir. "Q\ That was your business at the time ? ’ A. Yes, sir. At that time but it did not last long after this trial started. L 'got put out . of it,” It is rather significant that while these two witnesses testify in effect that the relator was not present at. the time of the quarrel, or at least they did not see him, Stuart, Garvin and Miss Smith testify that the relator was in front of. the engine house at the time. Mallon, a stationary engineer and a man of family, testifies that he was with Devlin and Murphy on this occasion,.and states in effect-that Murphy could hot have seen the occurrence which Murphy-testified to. Firemen Hunt and Dreeke were not eye-witnesses of the affair, and only gave testimony to the admission of Gra.dy that he struck Stuart; but Dreeke also testified that he heard Grady say to Stuart“'You keep your hands off me, Stuart, I don’t want you to hit me any more.” As to the charge that the relator testified as an eye-witness to what lie could not have seen,.we think that the" evidence is overwhelhiing iha-t the relator was in front of the engine, house at the time of the quarrel.-. The testimony of " Devlin and of Smith, either that they did not see him or that,.he was not seen until sometime thereafter, is entitled to little weight as proof that he- was absent, in view of the testimony of Stuart- himself, of Garvin, of Mallon and of Miss Smith. The time was a night in August, and the scene of the quarrel was the ground floor of the engine house. Stuart admits that he saw the relator sitting on a seat on the sidewalk in fxont of the ¿rouse asStuax-twentin. The quarrel followed almost immediately. While Stuart testifies that he did not see the relator at the instant of the altercation, he admits that he did not look especially to see him, and that his testimony as to where the relator was at the time of the altercation was based on the assumption that the relator did not move from the place where the witness saw him when the witness passed on and into the house. Garvin admits that the x-elator might have seen the affair from an angle, but he does not understand how he could. Stuart admits that the “ big door ” of the engine house was open at the time. Even if the relator could not view the disputants from .his seat it is perfectly clear that all he had to do was to move from his seat — a most natural action when he heard the war of words. To our mind there is not the slightest question upon the evidence that .the relator 'was in a position to see, or by moving from his seat could gain a place from wliich to obtain a view of the disputants. So far as these charges of perjuiy are concerned, the relatoi, who had won his way to an assistant foremanship by merit, appeared with an unimpeached character. Mo charge of any kind had ever been made against him. We think that in the face of the presumption of his innocence the evidence was insufficient to have warranted his conviction of perjury, when tested by the rules heretofore stated.

The other charge is that the relator urged membei’S of the department not to appear as witnesses of what took place. The specifications explain the charge. It is not that he attempted to keep the witnesses of the quarrel from the witness stand, but that he suggested that they should not remain in the vicinity of the quarrel if they did not wish to be witnesses. The language of the specifications is: Why don’t you take a walk if you don’t want to be a witness in this case,” and, “ Between the two of us we will know nothing and mind our own business.” Garvin testifies that- to a group made up, as far as he can remember, of Firemen Hunt and O’Leary and himself, the relator said words “ to the effect that the boys better take a walk or go down to the corner, something to that effect, if you don’t want to mix tip in this affair as ti witness.’ ” He testifies- that there were citizens outside at that, -time, within - hearing, although there was a distance between them and.the firemen. He is not willing to testify as to whom the words were addressed. He admits that the altercation was over' at the time,/ and that there was nothing at all important-to the investigation that he had hot already seen.. Further on he admits that he had testified at another trial before the same commissioner that the relator’s words were, “ Boys, if I were you I would walk down, not get mixed up in this; ” and he answered on -this trial, “ Those are the Avords, I believe.” . Hunt testifies that the relatof remarked, coming toward the group,- --he said if we did not want to - be witnesses in the case to take a Avalk.” . Han't admits that “ the fight and everything was-all over,” and that he had come outside for “ riot hearing any more, if there was any more to be.” O’Leary testifies that the relator did not"speak to him before lie went to the corner, and that .-the-relator did not say anything to him or to any others , in his , presence. The relator denies the utterance." When we come to analyze the evidence, we find opposed to the relator’s denial, which . is supported by the testimony of O’Leary, one of the group,, the testimony of Hunt. For the testimony of Garvin as to words of ; the specification is, first', “ Words to the effect that the boys better , take a walk or go down to the corner, "something to that effect, if you don’t Avant to mix up in this affair as a witness; ’ ” -and, second, when the specific Avords were asked for, he said he believed the • words were, Boys, if I were you I would Avalk down,' not get mixed up in this.” ■ If the relator used this language, he did not thereby . urge members “not to appear as witnesses,” unless- liis- admonition that they should “ hot get mixed, up ” in it implied that if they kept out of it they could not be witnesses. Every one admits that the immediate war of words 'and the immediate fight were over at the time, and even Hunt, who, it may be remarked, .did not attempt to quote the words used,, for he says, “ I can’t remember the exact words, Lkno-w.it Avas take_a.walk,’ * * * that is the best I can ^ give,” testifies that he liad come outside so as not to hear any more, . “ if 'there Avas any more to he.” It is difficult to see ho.w such ex post facto advice, even if it Ava.s given, could -be construed as advice “ not to appear as Avitnesses of wliat took place,” for it already had taken place. We think that even if any advice was given by the relator, in view of the time thereof, the surrounding circumstance's, the construction of the language and the practical contradiction of it by those who heard it, nothing more is shown than advice to keep away from the immediate presence of the combatants, and, as the adverse witness, Hunt, puts it, not. hearing any more, if there was any more to be.”

We think that the evidence is insufficient to sustain the charge. The determination is annulled, and the relator must be reinstated, with costs.

Hirschberg, P. J., Bartlett, Jenks, Hooker and Miller,, JJ., concurred. ' -

Determination annulled, with costs, and relator restored to his position. 
      
      
        See Queen v. Muscot (10 Mod. 194).— [Rep,
     