THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN H. DOWNES, Relator, v. FRANCIS V. GREENE, as Police Commissioner of the Police Department of the City of New York, Respondent.

Trial of a member of the New York police force before the commissioner — nature of the punishment inflicted — refusal of the commissioner to grant an adjourn ment because of the sickness of a witness.

The nature and extent of the punishment which should be inflicted upon a member of the police force of the city of New York who has been found guilty, after a trial before the police commissioner upon charges preferred against him, is a matter for the police commissioner, not the court, to determine. When the refusal of the police commissioner to grant an adjournment of the hearing of the charges because of the illness of a material witness for the accused police officer does not constitute an error requiring the annulment of the commissioner's finding that the accused officer was guilty of the charges preferred against him, considered.

O'BRIEN and HATCH, JJ., dissented.

CERTIORARI issued out of the Supreme Court and attested on the 21st day of February, 1903, directed to Francis V. Greene, as police commissioner of the police department of the city of New York, directing him to certify and return to the office of the clerk of the county of New York all and singular the proceedings had by John N. Partridge, as police commissioner of the police department of the city of New York, in relation to the dismissal of the relator from the police force of the city of New York.

*The other cases of this term will be found in volume 95 App. Div.- [REP.

FIRST DEPARTMENT, JUNE, 1904.

[Vol. 96.

Henry Hill Pierce and Phonix Ingraham, for the relator.

Terence Farley, for the respondent.

MCLAUGHLIN, J.:

The relator, a member of the police force of the city of New York, was dismissed on the 14th day of November, 1902, after a trial had before the police commissioner, and has obtained a writ of certiorari to review the proceeding.

He was tried upon five charges: (1) Conduct unbecoming an officer; (2) conduct injurious to the public peace; (3) neglect and disobedience of orders and of the rules of the department; (4) making false reports; (5) aiding one Reilly in keeping a poolroom. The charges were supplemented by three specifications: (1) That from August 9 to September 2, 1902, premises 314 East Eighty-first street and 1409, 1556 and 1569 Third avenue were occupied as poolrooms, and that the relator was assigned by the captain of the precinct in which such premises were located to secure evidence of violations of law at the places named, which he failed to do, but could have done by the exercise of due diligence; (2) that on or about August twenty-seventh he was assigned to investigate alleged violations of law at No. 1569 Third avenue and reported to his superior officer that he had made such inspection but could discover no evidence of violations of law therein, and that such report was false; (3) that he, knowing the premises located at 314 East Eighty-first street were conducted as a gambling house and poolroom, aided and abetted the operation of the same by securing admission of persons thereto in order that they might gamble therein.

Copies of the charges and specifications were duly served upon the relator, together with a notice of the time and place where they would be investigated by the commissioner. At the time and place stated the relator appeared in person and by counsel and a protracted trial was had, during the course of which the charges, in so far as they related to 1409 Third avenue, were withdrawn, but at the conclusion of the trial he was found guilty of the others, except as to making a false report.

After a careful consideration of this record I am satisfied there is sufficient evidence to sustain the findings of the commissioner and, therefore, that his conclusion ought not to be disturbed. It certainly

App. Div.]

FIRST DEPARTMENT, JUNE, 1904.

cannot be said, taking all of the evidence together, that there is such a preponderance of proof against the existence of the facts found that the verdict of a jury affirming the existence thereof rendered in an action in the Supreme Court, if tried before a jury, would be set aside by the court as against the weight of evidence (Code Civ. Proc. § 2140), and if this be true then the court ought not to interfere.

The punishment seems severe, but that was a matter for the commissioner and not for this court. (People ex rel. McAleer v. French, 119 N. Y. 502; People ex rel. Eagan v. York, 53 App. Div. 336.) In a police force as large as the one in the city of New York it is of the utmost importance that discipline be maintained, and where a member thereof has been satisfactorily proven guilty of a violation of the rules of the department or of a willful neglect to perform duties assigned, the punishment to be inflicted ought to be left to the discretion of the police commissioner. Efficiency of the force, as well as respect and obedience of orders, not only require but demand it.

It would serve no useful purpose to here review the evidence bearing upon the charges of which the relator was found guilty. It is sufficient to say upon this subject that a majority of the court, after a very careful consideration of the record, have reached the conclusion that the evidence was sufficient to justify the commissioner's findings. But it is suggested that the commissioner erred because he did not adjourn the hearing to enable the relator to procure the attendance of Captain Creeden, an alleged material witness, for which reason his findings should be set aside and the relator reinstated. The fact that Captain Creeden's testimony was material to the defense of the relator was not satisfactorily established; but even assuming it was, the commissioner did not err in refusing to adjourn. The trial was begun on the fifteenth of September; and on October first, after several hearings had been had, the relator's counsel announced that all the testimony on behalf of the relator had been presented except that of Captain Creeden, who was sick, but it was believed he would be able to be present at the next hearing if an adjournment were taken. The proceeding was thereupon adjourned until October tenth, on which day Mr. Wise, associated in business with Mr. McIntyre, relator's counsel, appeared

FIRST DEPARTMENT, JUNE, 1904.

[Vol. 96. and asked for a postponement on the ground that Mr. McIntyre had that morning been compelled to go into the trial of a case in the Supreme Court which would last one week, and that Captain Creeden was still ill and unable to attend. The request to postpone was denied and the trial proceeded, Mr. Wise cross-examining on behalf of the relator the witnesses examined; and the way in which such cross-examination was conducted and objections were made to questions put indicate that he was entirely familiar with the proceeding and competent to look after the relator's interests. At the conclusion of this hearing the proceeding was adjourned to October seventeenth, when Mr. Wise again appeared for the relator and asked for a further adjournment on the ground of the continued engagement of Mr. McIntyre and the continued illness of Captain Creeden. Bearing upon the condition of Captain Creeden, a police surgeon was sworn, who testified that Captain Creeden's condition. was such that it would endanger his life to examine him either in court or at his residence, and he believed his condition was permanent and likely to grow worse. The commissioner then stated that to wait until Captain Creeden might be able to testify seemed likely to prolong the hearing indefinitely, nevertheless, he would grant the application and adjourn the proceeding until the twentyfourth of October, at which time the hearing would be closed. On the twenty-fourth of October Mr. Wise again appeared and asked for a further adjournment on the ground that Mr. McIntyre was then engaged in the trial of an action in the Supreme Court, and also on the ground that Captain Creeden was still ill and unable to be present. The commissioner denied the application, declared the hearing closed, and gave counsel a week in which to file briefs.

The foregoing facts would seem to establish quite conclusively that the commissioner did not err in refusing to grant the adjournment. Much indulgence had been shown the relator by way of adjournments, and sufficient opportunity had been given to enable him to procure the attendance of witnesses if they could be procured; but if not, that was no reason why the trial should be indefinitely postponed. The uncontradicted testimony of the police surgeon was that Captain Creeden was not only ill and his condition such that he could not be examined, but that the disease from which he was suffering was permanent and he was likely to grow

App. Div.]

FIRST DEPARTMENT, JUNE, 1904.

worse. I know of no rule applicable to the trial of either a civil or criminal case which would have made it error to refuse, under such circumstances, to adjourn; and certainly trials before a police commissioner are not more strict in methods of procedure. Whether an adjournment should have been granted or refused rested in the discretion of the commissioner, and it cannot be said that he abused it. I think the relator had a fair trial, the evidence justified the commissioner's findings of guilt, and for that reason he was properly dismissed from the force.

The writ, therefore, should be quashed and the proceedings affirmed, with fifty dollars costs.

PATTERSON and LAUGHLIN, JJ., concurred; O'BRIEN and HATCH, JJ., dissented.

Writ quashed and proceedings affirmed, with fifty dollars costs.

JOHN T. WILLETS and Others, Surviving Executors of the Last Will and Testament of SAMUEL WILLETS, Deceased, Respondents, v. FRANKLIN HAINES, Appellant, Impleaded with GERARD H. UNDERHILL.

Title of an action — omission of the word “as" after the name and before the statement of the representative capacity of the plaintiff — enforcement of a judgment recovered by executors who have been directed to turn over the assets to themselves as trustees—when they may sue as executors.

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Where the averments in a complaint are such as to affix to the plaintiff a representative character and standing in the litigation, and to show that the cause of action, if any, devolved upon him solely in that character, the omission, in the title of the action in the summons and complaint, of the word as" between the name of the plaintiff and the words descriptive of his representative capacity, does not prevent him from claiming that the action is brought and a recovery is to be had by him in the latter capacity. When executors, in obedience to a surrogate's decree rendered upon their account ing, turn over to themselves as trustees under their testator's will the balance of the estate found to be in their hands, they are discharged from liability as executors with respect to the property turned over, but continue as executors with respect to assets not turned over.

Executors who, as such, had recovered a judgment upon certain promissory notes, set forth in the account filed by them as executors the judgment and the