People ex rel. Niebuhr v. McAdoo

• Decision Date: 13 March 1906
• Citation: 184 N.Y. 304,77 N.E. 260
• Parties: PEOPLE ex rel. NIEBUHR v. McADOO, Police Commissioner.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 304

77 N.E. 260

PEOPLE ex rel. NIEBUHR

v.McADOO, Police Commissioner.

Court of Appeals of New York.

March 13, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the people, on the relation of John H. Niebuhr, against William McAdoo, police commissioner of the city of New York. From an order of the Appellate Division (95 N. Y. Supp. 1153,107 App. Div. 615), dismissing the writ and confirming the dismissal, relator appeals. Affirmed.

Louis O. Van Doren and Leonard A. Snitkin, for appellant.

John J. Delany, Corp. Counsel (Theodore Connoly and Royal E. T. Riggs, of counsel), for respondent.

WILLARD BARTLETT, J.

The only point which we deem it necessary to discuss on this appeal arises out of the inadvertent omission of the deputy police commissioner to administer the oath to one of the witnesses who testified against the relator. According to the original return this witness, where his name first appears in the record, is mentioned as being ‘recalled.’ By the additional affidavits, however, which serve the purpose of a supplemental return, it is made sufficiently clear that three charges against the relator were intermingled in the hearing conducted by the deputy police commissioner; that the witness in question had been actually sworn as to one of these charges, but that there was an omission to swear him again when he was recalled to testify in regard to the particular charge which was the basis of this proceeding. The relator, who was present, made no objection to the reception of the testimony of the witness; but it is, nevertheless, argued that its admission is fatal to the determination, inasmuch as the relator's failure to object did not constitute a waiver, under the authority of People ex rel. Kasschau v. Board Police Com'rs. N. Y., 155 N. Y. 40, 49 N. E. 257. The facts of that case were very different. It involved much more than the mere omission, by inadvertence or mistake, to administer the oath to a single witness out of a large number of persons called to the stand. There was an intentional failure to swear any of the witnesses, the manifest idea of the acting police commissioner being that he possessed the power and right to remove the officer upon wholly unverified statements, and those alone. The departure, not only from the form, but from the substance of judicial procedure, in the Kasschau Case was so glaring and willful, the removal of the relator therein being without the support of a shred of sworn evidence, that the silence of the accused officer, under the exceptional circumstances there presented, was not deemed to be a waiver.

Here, however, we have no purpose on the part of the deputy commissioner to dispense with the oath, but evidently an assumption on his part that an oath administered to a witness upon being called to testify in respect to one of the three charges intermingled in the investigation sufficed to qualify the witness to speak in reference to another charge in regard to which he was not specifically sworn. The relator appears to have joined in this assumption. He cross-examined the witness to speak in reference to another charge in regard to which he was not specifically sworn. The relator appears to have joined in this assumption. He cross-examined the witness without an intimation of any objection, although he must have known all that the deputy commissioner knew about the omission to swear him specifically as to this charge. We think a waiver may fairly be implied under the authorities.

In Lawrence v. Houghton, 5 Johns. 129, the question was whether a former judgment in a justice's court was a bar. Upon the trial the justice, who had tried the former suit, stated to the jury that there was a former suit...