People ex rel. Moynihan v. Greene

(dissenting):

I dissent upon the ground that the charges and specifications of the charges were insufficient to embrace the assignment of Beck to perform private work on the relator’s premises, and that the reception of the evidence on that point was prejudicial error; for, in my opinion, it is utterly improbable that the relator would have been convicted and discharged but for this evidence, which was not within the issues.

Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements.

The relator, a police captain assigned to duty in the Twenty-ninth Precinct in the city of New York, was on the 10th of September, 1902, charged by an inspector of police with neglect of duty and violation of the rules of the police department. The specifications of the charges were three in number and were, in substance: (1) That the relator, notwithstanding he had knowledge that the police *288commissioner had detailed a member of the police force — one Beck — for duty at the recreation pier at the foot of East One Hundred and Twelfth street — nevertheless withdrew him without permission of the police commissioner on certain days specified; (2) that in violation of rule 5, subdivision H, the relator assigned Beck, after he had withdrawn him from the pier, to make repairs about the station house, and do “ work other than police duty; ” and (3) that he did not carefully examine the books and records required to be kept in the station house of the precinct over which he had charge and see that entries were properly made therein as he was required to do by rule 5, subdivision A, and that on certain days specified no record whatever was made in the book as to the whereabouts of Beck after he was withdrawn from the pier.

Copies of the charges and specifications were served upon the relator, and thereafter, at a trial had before the police commissioner, he was found guilty and dismissed from the force. He thereupon obtained a writ of certiorari for the purpose of having the proceedings which resulted in his dismissal reviewed by this court.

I think the relator was properly dismissed. In fact, I do not understand that it is seriously questioned but what he was guilty of the charges specified and it could not well be in view of the facts appearing in the record. It is claimed, however, that the acts of the relator constituted but technical violations of the rules, for which reason the punishment inflicted was too severe, and that the relator was prejudiced upon the trial by the admission of evidence not covered by the specifications.

First. The facts proved the relator guilty of something more than a technical violation of the rules, as even a casual examination of this record will show. He knew that Beck had been detailed by the police commissioner to perform duty at the recreation pier and that he had no right to detail him to do other service, except with the permission of the commissioner. He not only disregarded the order of the commissioner in detailing Beck, but in effect countermanded that order. When an inferior officer knowingly disregards and sets at naught the order of his superior, his conduct constitutes something more than a technical violation and well deserves — if discipline is to be maintained in the department — severe punishment. He not only disregarded the order of the com*289missioner, but also knowingly violated rule 5, H, in detailing Beck, after he had withdrawn him from the pier, to do certain repairs in the station house. This rule provides that “ No officer or patrolman, other than doorman, shall be detailed or assigned to perform any repairs or mechanical work of any kind or description in or about a station house * * Beck was not a doorman, and, therefore, the relator had no right to detail him to do work in the station house. The fact that he did work there for several days by direction of the relator is not disputed, nor is any satisfactory excuse offered by the relator for his act in thus violating this rule.

It is the duty of the desk sergeant to enter in the station-house blotter entries of all the duties of the various officers attached to the precinct to which he is assigned. No entries were made in the station-house blotter as to Officer Beck after he had been withdrawn from the pier and while he was detailed to do work in the station house. The relator testified it was the duty of the sergeant to make the entries ; “ it was their duty to do it on the blotter; it is their duty to make those entries without my direction ; the rules specifically call for it.” ' (See rule 6, ¶ B.) But rule 5, A, provides that: “ Captains shall carefully examine daily all books of record required to be kept in their respective station houses in conformity to the rules of the Department and see that the- entries are properly made.” This rule the relator also violated. He discovered, according to his own testimony, on August fifteenth — several days after Beck had" been withdrawn from the pier and been at work in the station house ■— that no entries had been made in the blotter as to what he was doing, nor were any entries made in it from that time until the second of September following. It was his duty to see that these entries were made, and he cannot shield himself behind an assertion that he told .a sergeant tó make them. The rules made it the duty of the sergeant to make the entries, and they also made it the reía-. tor’s duty to see that the entries were made. A failure in this respect was not a technical violation of a rule of the department, but a willful and flagrant neglect of duty, and nothing else. It is entirely immaterial whether this was the result of carelessness or of some sinister motive.

We have, therefore, a case in which a police officer has not only *290failed to do his duty, but has knowingly violated the rules of the department, and having been found guilty of such offenses, after a trial duly had and fairly conducted, the commissioner had the power to dismiss him from the force. Under section 300 of the revised charter (Laws of 1901, chap. 466) the police commissioner is authorized and empowered to make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and police force and the members thereof, and by section 302 he is-specifically authorized, upon a conviction by him of any member of the force of “ neglect of duty, violation of rules, "" * * to punish the offending party by ” — among other things “ dismissal from the force.” The guilt of the relator having been established, what punishment should be inflicted rested entirely with the commissioner, and his act in this respect is not subject to review in this court. (People ex rel. McAleer v. French,, 119 N. Y. 502; People ex rel. Eagam, v. York, 53 App. Div. 336.)

Second. But it is said that the relator was prejudiced upon the trial by the erroneous admission of certain testimony. During the course of the trial testimony was offered to the effect that the relator detailed Beck to do certain work for him upon some houses which he owned. The fact that Beck did certain work on such, houses is not denied, though the relator did deny that' he told him to do it. I think the specifications were broad enough to admit proof of this character. The charge fairly apprised the relator of what was claimed and the specifications informed him in a general way of the nature of his alleged wrongful acts. If the specification that he had assigned Beck to do “ other than police duty ” was so indefinite that he did not fully understand what was meant and for that reason could not properly defend himself without further information, he .should have applied, either prior to or at the trial, for a more specific statement. He made no such application and, therefore, must be deemed to have waived his right thereto. (People ex rel. Powley v. Roosevelt, 23 App. Div. 578; People ex rel. Carney v. Scannell, 80 id. 320.)

Exceptions were also taken to the admission of other testimony, but an examination of them fails to disclose any error in respect to them.

*291It follows that the writ should be dismissed and proceedings affirmed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Laughlin, J., dissented.