In re Greenebaum
| Citation | 94 N.E. 853,201 N.Y. 343 |
| Parties | In re GREENEBAUM. |
| Decision Date | 28 March 1911 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
In the matter of the application of Max A. Greenebaum for a writ of certiorari to Theodore A. Bingham, as Police Commissioner of the City of New York, to review his determination in discharging relator from his position as patrolman. From an order of the Appellate Division (137 App. Div. 925,121 N. Y. Supp. 1133) affirming the proceedings of the commissioner and dismissing the writ, relator appeals. Reversed, and proceedings remitted for new trial.A. S. Gilbert, for appellant.
Archibald R. Watson, Corp. Counsel (Theodore Connoly, of counsel), for respondent.
The relator, a member of the police force of the city of New York, was charged with violating the rules of the department and after a trial was removed by the commissioner. The rule in question provided that members of the force ‘shall not willfully maltreat nor use unnecessary violence to any person, prisoner or otherwise.’ It was alleged in the charge that the relator, a patrolman, ‘during his tour of patrol duty from 10 p. m. October 6 to 2 a. m. October 7, 1908, willfully maltreated and used unnecessary violence to Patrolman Michael J. McGrath.’ While there was ample evidence to sustain the charge, there was a sharp conflict in the versions of the witnesses.
It appeared that on the night in question Patrolman McGrath had been assigned to a duty which required him to wear citizen's clothes. Shortly after 11 o'clock, while sitting on the steps in front of a pawnbroker's office waiting for a superior officer with whom he had an appointment, he fell asleep, and was found in that condition by the relator as he was patrolling the street . The relator testified, in substance, that he did not know McGrath, and finding him dressed in an old suit of citizen's clothing asleep in the street, at that hour, with his head down and his elbows on his knees, thought he was intoxicated and a rough character. He shook him three times to wake him up, when McGrath sprang forward, seized him by the arm, and struck him with a blackjack, just grazing his face. The relator then hit McGrath Grath with his nightstick, whereupon McGrath drew a revolver and pointed it at the relator, who, in turn, drew a revolver and said, ‘Drop that, or I will shoot.’ McGrath said nothing and still held his revolver in a threatening attitude when the relator fired at his arm to make him drop his revolver. McGrath still said nothing, but apparently continued to take aim, when the relator fired again almost instantly. At that time a third officer ran up and arrested McGrath, who had two fresh bullet wounds in his arm and a contusion on the left ear.
On the other hand, McGrath testified that he had been up the night before with his sick wife, and while waiting at the time and place in question to keep his appointment with another officer fell asleep, and was awakened by a blow on the ear. He jumped up in a dazed condition, backed away, and as the relator raised his nightstick to hit him again drew a blackjack and raised it, whereupon he was shot twice by the relator in the arm . One of the wounds was serious, and for a time placed McGrath's life in peril. He denied that he was intoxicated, but said he had taken three table glasses of beer with his supper and two ponies of beer in the afternoon before supper. He also testified that at the outset as he jumped up he told the relator that he was a ‘cop,’ meaning a policeman, and that he at no time drew a revolver, although he had one on his person.
The version of each of these parties was corroborated to some extent by several witnesses, and the conflict was such that the case could have been decided either way. One Marshall, apparently disinterested, was called by the complainant, but supported the relator in nearly all the essential parts of his story. There is nothing in his evidence as printed in the record to raise any suspicion as to his truthfulness. After he had testified, one Poole was called by the relator and swore that he found McGrath asleep in ‘the door of the pawnshop,’ and shook him, but could not wake him up, and then went on about his business. He was asked by the deputy commissioner who conducted the trial and heard the evidence, ‘You tried to shake this man and could not get him up?’ The...
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