People ex rel. Kasschau v. Bd. of Police Com'rs of New York

• Decision Date: 25 January 1898
• Citation: 155 N.Y. 40,49 N.E. 257
• Parties: PEOPLE ex rel. KASSCHAU v. BOARD OF POLICE COM'RS OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 40

49 N.E. 257

PEOPLE ex rel. KASSCHAU

v.BOARD OF POLICE COM'RS OF CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 25, 1898.

Appeal from supreme court, appellate division, First department.

Proceedings on the relation of Emil Kasschau against Theodore Roosevelt and others, commissioners of police of the city of New York. From a judgment of the appellate division (42 N. Y. Supp. 1131) affirming the order of the commissioners, relator appeals. Reversed.

Gray, J., dissenting.

Roger Foster, for appellant.

Francis M. Scott and Terence Farley, for respondents.

O'BRIEN, J.

The relator was removed by the defendants from the police force upon a charge of neglect of duty, in that he was absent from special roll call at 7 o'clock in the forenoon of December 22, 1895, and failed to report until 11 of that day, when he reported sick by a messenger. This absence of four hours was, so far as appears, the sole cause for his discharge. If there is anything in the record that can be called testimony, the fact of absence from roll call was established, and it is just as clear that the reason for his absence was sickness. It may be that the commissioners were not absolutely bound to believe his statement; and if the trial was regular, and there were no other questions in the case, we would hestiate before interfering with the result in the court below. But in the return to the writ of certiorari the commissioners state affirmatively that none of the witnesses called to prove the charge were sworn; and, when we look into the record, it is found that what took place before the acting commissioner bears little, if any, resemblance to a judicial proceeding. The relator was not subject to removal except for some legal cause, to be ascertained and adjudged as matter of fact upon a hearing. This contemplates a judicial investigation, in which there must, at least, be some legal responsibility for perjury, or some protection to the accused against falsehood. The issue to be determined was one of fact. The proceeding was judicial in character, and hence the tribunal before which the investigation was had could not dispense with the usual form of procedure by acting upon statements not given under the responsibility of an oath. When the court proceeded to judgment without the observance of such an essential prerequisite to every judicial inquiry, the determination was not judicial in character, or such as the statute contemplates. While some latitude is allowed with...