Failure to secure evidence against a certain poolroom when detailed to do so, making a false report that he could obtain no evidence and aiding and abetting the operation of the gambling place1

Failure of a policeman who had been stationed at the door of a saloon to observe violations to obey orders to follow any person who entered the saloon2

Failure of detective sergeant to apprehend and take into custody a person charged with grand larceny, and permitting him to walk to the station house without taking him into custody3

Refusal by officer who was sleeping in the station house on

time off to obey the order of the lieutenant to come down
and be confronted by a citizen who claimed he had been
insulted+

Absence without leave; three days, thirty-seven hours
Being in house of ill fame while off duty'

Having rendered himself unfit to perform police duty by
improper and immoral conducts

Examiner in the boiler squad asked an applicant for an engineer's license certain prearranged questions so that the applicant might pass".

Conviction of a criminal offense by a court or officer of competent jurisdiction while it does not remove ipso facto, is cause for dismissal; and the commissioner is not required to prove the offense but merely the fact of conviction. The commissioner may remove for the commission of a criminal offense even though the member has previously been acquitted in a criminal trial on the same charge. Such a conviction by the commissioner may be supported by a preponderance of evidence; the rule of reasonable doubt applying only to criminal trials1o.

1 Peo. ex rel. Downes v. Greene, 96 A. D. 1 (1904)

2 Peo. ex rel. Simermeyer v. Roosevelt, 1 A. D. 434 (1896) Peo. ex rel. Burke v. Waldo, 163 A. D. 28 (1914)

4 Peo. ex rel. Gallagher v. Waldo, 144 Supp. 1138 (1913) Peo. ex rel. Taylor v. York, 58 A. D. 621 (1901)

6 Peo. ex rel. Eagan v. York, 53 A. D. 336 (1900)

7 Peo. ex rel. Gardner v. McAdoo, 113 A. D. 909 (1906) affd. 190 N. Y. 528

8 Peo. ex rel. Morgan v. Roosevelt, 5 A. D. 328 (1896)

9 Peo. ex rel. Lynch v. Waldo, 155 A. D. 134 (1913)

10 Peo, ex rel. Cunningham v. Bingham, 134 A. D. 602 (1909) But see Peo. ex rel. Campbell v. Police Commissioners, 13 A. D. 69 (1897) appeal disPeo. ex rel. Reith v. Hayes, 127 A. D. 6 (1908) affd. 193 N. Y. 607 Peo. ex rel. Madigan v. Sturgis, 110 A. D. 1 (1905)

missed 153 N. Y. 657

A member cannot be dismissed for a trivial or technical violation of a rule which is not shown to have prejudiced any right of the department'. So a patrolman who hears that his brother has been assaulted and injured cannot be dismissed for leaving post for a few minutes to notify the police inspector by telephone nor for failure to enter this absence from post when he was immediately ordered to report elsewhere as soon as he reached the station house, nor for stopping a few minutes to have a roll and glass of milk when he had eaten nothing since morning2 A patrolman was fined for violating Rule 78. He had left his post for five minutes, to notify a resident to remove an obstruction which he had left on the sidewalk, without getting permission from the lieutenant. His fine was remitted as it was held that he was absent "in the discharge of his duty".

Dismissal is not justified where the accused, while off duty, took a few glasses of beer which did not disqualify him for taking care of himself; nor for standing twenty minutes at a point where he expected trouble between taxicab drivers and cabmen who were waiting for the ending of an entertainments; nor for failure to prefer charges against members of the force for having taken up a subscription for him without his knowledge where he was ignorant of their identity and was dismissed within twentyfour hours after he learned of the subscription"; nor for failing to respond at the moment of roll call when it appeared he was there at the time or soon after7; nor for being a short distance off post where his absence was due to a natural misunderstanding of orders or to what he reasonably conceived to be in the line of his duty; nor for making immaterial erasures in the station. house blotter in good faith for the purpose of correcting inadvertent errors; nor for sitting down while on post where there was no evidence as to the length of time he had been seated10; nor for writing a letter to an association of steam engineers explaining why he was transferred from the boiler squad when the letter contained nothing hinting at disrespect or insubordination

1 Peo. ex rel. Devaney v. Greene, 89 A. D. 296, 299 (1903)

2 Peo. ex rel. Gannon v. McAdoo, 117 A. D. 438 (1907)

Peo. ex rel. Hayden v. Waldo, 158 A. D. 735 (1913)

4 Peo. ex rel. Byrne v. Baker, 140 A. D. 137 (1910)

Peo. ex rel. McAuley v. Baker, 139 A. D. 148 (1910)
Peo. ex rel. Schauwecker v. Greene, 96 A. D. 249 (1904)

Peo. ex rel. Lang v. Martin, 5 A. D. 217 (1896)

Peo. ex rel. Deloughry v. Welles, 5 A. D. 523 (1896)

Peo. ex rel. Devaney v. Greene, 89 A. D. 296 (1903)

10 Peo. ex rel. Howard v. Roosevelt, 15 A. D. 401 (1897) Matter of Koch, 91 A. D. 194 (1904)

toward the commissioner1; nor for hesitating about obeying an order of the lieutenant which seemed contrary to law where the hesitation was not contumacious2; nor for signing an application for transfer for another patrolman at his request3.

Absence to be a ground for dismissal must be voluntary and intentional. So where absence is due to temporary insanity*, illness, or improper imprisonment the dismissal is not justified. Intoxication to be a cause for dismissal must be voluntary or blameworthy, and dismissal is not justified where liquor was taken while ill upon a physician's prescription or where owing to weakened condition, it had unexpected effects.

A member cannot be dismissed for failure to be a witness against himself when called by the commissioner. This is not insubordination because the commissioner. is acting as judge rather than as superior officer'. The accused cannot, it seems, be subject to any presumption of guilt for such failure1o. The court reversed the dismissal of a telegraph superintendent for failure to produce diagrams which were not required to be made or kept by any rule". Where it is admitted that a sergeant was faithfully patrolling his beat he cannot be removed because some of the men were not found on post after he had passed12.

An officer was removed for failure to serve a bench warrant. The facts showed that he had interviewed the janitor and others at the place where the person was staying but received no information from them. He failed to interview the landlord who would have known the person. Reinstatement was ordered, the court saying that "Unless a failure to act infallibly can be pro

1 Peo. ex rel. Sesselman v. Bingham, 189 N. Y. 104 (1907)

2 Peo. ex rel. Flood v. Baker, 150 A. D. 250 (1912)

3 Peo. ex rel. Beron v. Waldo, 160 A. D. 255 (1914)

Peo. ex rel. Mitchell v. Martin, 143 N. Y. 407 (1894)

5 Peo. ex rel. McGlone v. Roosevelt, 7 A. D. 610 (1896) Matter of Elder v. Bingham, 118 A. D. 25 (1907)

Peo. ex rel. Nugent v. Police Commissioners, 114 N. Y. 245 (1889)

7 "The excuse of sickness and of brandy taken as a medicine (is) always suspicious and doubtful unless under the clearest and strongest proof. Almost invariably sickness is made the excuse for intoxication. It is right to suspect it, to challenge it severely, to reject it almost uniformly." Judge Finch in Peo. ex rel. Hogan v. French, 119 N. Y. 493 (1890)

Peo. ex rel. McAleer v. French, 119 N. Y. 502 (1890) Peo. ex rel Brady v. Moss, 38 A. D. 633 (1899) Peo. ex rel. Tucker v. Roosevelt, 19 A. D. 253 (1897) Peo. ex rel. Walters v. Lewis, 111 A. D. 375 (1906) Peo. ex rel. O'Shaughnessy v. Roosevelt, 22 A. D. 626 (1897)

Peo. ex rel. Schauwecker v. Greene, 96 A. D. 249 (1904)

10 Peo. ex rel. Devaney v. Greene, 89 A. D. 296 (1903) Peo. ex rel. Schauwecker v. Greene.

11 Peo. ex rel. Brennan v. Bingham, 130 A. D. 710 (1909)

12 Peo. ex rel. Pitts v. Waldo, 156 A. D. 244 (1913)

nounced neglect, there was nothing that warranted the drastic action of the commissioner'".

Persons may be removed for acts "tending to bring disgrace or reproach upon the services of which they are members, even if those acts are done in civil positions, social relations or private business". So an officer was removed for being grossly intoxicated, entering a house, attempting to go upstairs and drawing a revolver, even though he was off duty at the time2.

A detective was removed for violating Rule 29, paragraph 20. It appeared that he had accepted money voluntarily furnished with the understanding that another person would show but not deliver it to another and thereby procure information leading to an arrest and that he had promptly returned the money. The court held that this was not a violation of the rule and ordered reinstatement3.

3

1 Peo. ex rel. Smith v. McKay, 163 A. D. 668 (1914)

Peo. ex rel. Gesser v. French, 4 Supp. 222 (1888)

Peo. ex rel. Cohen v. Waldo, 164 A. D. 563 (1914)

CHAPTER IX

REMOVAL OF MEMBERS OF THE UNIFORMED FORCE

OF THE FIRE DEPARTMENT

NATURE OF THE PROTECTION

Section 739 of the charter provides that:

Officers and members of the uniformed force shall be removable only after written charges shall have been preferred against them, and after the charges shall have been publicly examined into, upon such reasonable notice of not less than forty-eight hours to the person charged, and in such manner of examination as the rules and regulations of the fire commissioner may prescribe."

The nature of the protection is the same as that prescribed for the police department'. The proceeding is not a common-law trial with the incidents and common-law rights pertaining thereto, nor, strictly speaking, is it a trial before a court. It is an investigation required by the statute to furnish information on which the commissioner can act in disciplining any member of the force2. It need not proceed with the same formality as a criminal prosecution3.

PERSONS PROTECTED

The uniformed force is commonly assumed to be composed of those members of the department for whom the commissioner has prescribed uniforms under section 733 of the charter, and of those alone".

The uniform, however, is perhaps not an infallible guide. If the only persons protected were those who wore uniforms, the commissioner could withdraw the protection at will simply by abolishing uniforms. Clearly this was not the intent of the

1 Peo. ex rel. Burns v. Purroy, 19 Supp. 713, 714 (1892)

2 Peo. ex rel. Keegan v. Purroy, 4 Supp. 345, 346 (1899) Peo. ex rel. Carney v. Scannell, 80 A. D. 320 (1903)

4 Peo. ex rel. Mesick v. Scannell, 63 A. D. 243 (1901) Flynn v. City of New York, 69 A. D. 433 (1902) Peo. ex rel. Smith v. Scannell, 71 A. D. 491 (1902) Peo. ex rel. Ryan v. Sturgis, 96 A. D. 620 (1904)

Peo, ex rel. Brennan v. Scannell, 62 A. D. 249 (1901) Peo. ex rel. Vineing v. Hayes, 135 A. D. 19 (1909)