People ex rel. Moynihan v. Greene

• Decision Date: 18 October 1904
• Citation: 72 N.E. 99,179 N.Y. 253
• Parties: PEOPLE ex rel. MOYNIHAN v. GREENE, Police Com'r.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 253

72 N.E. 99

PEOPLE ex rel. MOYNIHAN

v.GREENE, Police Com'r.

Court of Appeals of New York.

Oct. 18, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the people, on the relation of Daniel C. Moynihan, against Francis V. Greene, as commissioner of police of the city of New York. From an order of the Appellate Division (87 N. Y. Supp. 1017) dismissing the writ and affirming proceedings of defendant in dismissing relator as captain of police in New York City, relator appeals. Reversed.William C. De Witt and Hersey Egginton, for appellant.

John J. Delany, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.

O'BRIEN, J.

The relator was removed from the police force of the city of New York upon charges which were in writing and appear in the record. The relator entered the army as a drummer boy in 1861, and served in the Union army during the war, and was honorably discharged as a major of his regiment. He was appointed to the police force in 1876 as a patrolman, was subsequently promoted to the grades of roundsman and sergeant, and finally, in 1896, was appointed a captain of police. During the 26 years that he served on the police force his record contains only two trivial charges against him, until the year 1902, when the present charges were made. The charge was for neglect of duty, and the alleged offense is based upon the following facts: It seems that in May preceding these charges one Beck had been detailed as a patrolman of the department at a recreation pier, and that the relator, without the consent of the police commissioner, withdrew him from duty at the pier and detailed him to perform certain repairs, or mechanical work, in or about the station house of the Twenty-Ninth Precinct. Beck was a carpenter, and the work which the relator detailed him to perform was the repairing of certain ballot boxes which were in his charge. It appears that the relator omitted to make a report of the removal of Beck from the pier to duty at the station house. This was substantially all that the charges contained, although the proof at the trial took a much wider range. There was some evidence to support the charge, and, if the trial was otherwise fair and regular, this court would perhaps feel bound by the determinationof the commissioner upon the facts, although the charge embraced an offense purely technical only, without any intent on the part of the relator to defy or disregard the rules of the department or the authority of his superiors on the force.

On the trial the relator was a witness in his own behalf, and the counsel for the prosecution was permitted, under the relator's objection, to prove a great number of facts that were entirely foreign to the issue. The evidence which the prosecution insisted upon putting into the case in this respect was...