#### The People of the State of New York ex rel. Reuben R. Huntington, Relator, *v.*Rhinelander Waldo, as Police Commissioner of the Police Department of the City of New York, Respondent.

First Department,

December 31, 1913.

Municipal corporations — certiorari to review proceedings of police commissioner of the city of New York, removing patrolman — evidence insufficient to sustain charge.

Certiorari to review the proceedings of the police commissioner of the city of New York in removing a patrolman on a charge of having assisted in feloniously obtaining money.

Evidence examined, and *held,*insufficient to sustain the charge, and that the proceedings should be annulled and the relator reinstated. .

Certiorari issued out of the Supreme Court and attested on the 5th day of January, 1912, directed to Rhinelander Waldo, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in dismissing the relator, a patrolman, from the police department of the city of New York.

*857
      *William E.*Murphy, for the relator.

*Harry Crone,*for the respondent.

Dowling, J.:

The relator had been a member of the police department in the city of New York for nearly twenty years, when he was placed on trial on a charge of having on May Í4,1911, at about three-thirty P. m., entered the “ apartments on the third floor of a six-story tenement house No. 297 Avenue B, occupied by one John Horay, and while therein, did, in concert with said John Horay and two other unknown men, feloniously obtain from one John Krondrachuick, of No. 49 Avenue B, who was present, the sum of three hundred and four ($304) dollars. This during his tour of reserve duty, from 2 p. M. to 8 p. M., May 14th, 1911, at the 17th Precinct Station House.”

The witness Ivan Kodreduk being the party referred to in the specifications against the relator, testified that he was taken by two Russian friends to the house in question for the purpose of obtaining work from some unnamed union, when he met a man calling himself a “foreman,” who dropped some bills on the floor, and who, when he picked them up, claimed that a twenty-dollar bill was missing therefrom. A demand was then made that all the parties present be searched, when the person referred to as the “superintendent ” agreed to be searched first. After considerable discussion a demand was made that the witness be searched, to which he refused to consent, whereupon the “superintendent” went out to get a police officer and returned with one in about an hour or hour and a half, who promptly demanded what the trouble was and demanded that the ‘witness show him the money he had in his possession, which, becoming alarmed, he finally did, handing it to the officer in the shape of a roll containing $305. The officer then turned this money over to the “ superintendent,” who returned it after a minute or so to the officer, who put it in the witness’ pocket and told him to count it at the station house, where he was going to take him. The witness was then pulled downstairs, as he says, and after being taken around the block was returned to the house in question, and when the officer went upstairs the witness put his hand in his *858pocket and found that his roll of bills had been changed to a roll of newspaper surrounded by a one-dollar bill. The witness was .a Russian, who spoke no English. He had come from the west only the day before this experience. For sometime he endeavored to get redress and was finally referred by a lawyer to a police court, whence he claims to have been sent to a station house, where his complaint was taken by detectives. The witness had mistaken the number of the house and had given *“*298,” when in reality it was *“*297,” which delayed the investigation of the facts for a day, but he finally got the correct number of the house where he had been swindled, and going there found Horay, whose arrest he obtained on Sunday, the twenty-first. While in court on that day, testifying against Horay, he made the first mention of any policeman in connection with the crime against him, this being a week after the occurrences in question. He-says he did not remember to say anything about the policeman earlier. Upon Horay’s examination, the witness gave the number of the policeman’s helmet as 3370. As a result thereof, the relator, whose helmet bore that number, was directed to report in the twelfth precinct station house and there, attired in full uniform and wearing his helmet bearing the number which Kodreduk had already testified to be the one displayed by the policeman who was a party to the offense, stood in line with other patrolmen, and was identified as the person who had been present at the time of the occurrences in Horay’s house. Kodreduk.claimed to have recognized Huntington by his face, not by his number. The witness was positive in fixing the time when the officer was present and took his money, as has been described, as being after two o’clock, and between three and four o’clock, or after four o’clock, but his impression seems to have been that it was between three and four, and that is a fair construction to be given to his entire testimony on the subject.

As against this testimony the relator has produced witnesses upon whose credibility no attack has been made, and who must be deemed to have deliberately perjured themselves, before the findings of the commissioner can be sustained. It is established by the testimony of Captain McDermott, a witness for the *859complainant, that the relator, who is a tall man, and one of the largest in the seventeenth precinct station house, answered the roll call on the evening of May fourteenth at eight p. M. It is established by the testimony of Lieutenant Robert E. Mills, of the same precinct, also a witness for the complainant, that the relator answered reserve roll call at two-twenty p.m. on the same day. The testimony of these two witnesses demonstrates the practical impossibility of any officer leaving the station house in question without being seen by the lieutenant in charge at the desk. Huntington was not seen leaving the station house between the hours of two and eight P. m. Not only that, but it affirmatively appears that he was seen, between the horns in question, by fellow-officers in the seventeenth precinct station house, and his presence therein is accounted for during the entire time of the perpetration of the fraud upon the complainant. Thus, Sergeant George H. Merritt saw the relator between three and three-thirty by the bootblack chair as the witness passed into the toilet, and heard him joking with Officer Byrne and others regarding some event in connection with the police parade, which had occurred the day preceding. He did not see him go out until he went to supper. Officer Paul J. Byrne was at the bootblack chair with relator when Sergeant Merritt passed, and they went upstairs to the dormitory to bed between three-fifteen and three-twenty. When they arrived in the dormitory Officers Sauer and Haggerty were there, the latter being asleep; also an officer named Murphy. This witness saw Huntington undress and go to bed. Officer William H. Conklin went to supper with the relator about seven o’clock; he had last seen him about half-past two. Officer Max Labell saw Huntington by the bootblack chair and saw him going upstairs to the dormitory between three and three-thirty P. M. Officer James B. Haggerty saw the relator after the roll call at two o’clock, and arose from bed at the same time as he did, at about six-thirty, to go out to supper. He saw Huntington dressing at the same time as he did. Officer Charles A. Sauer saw the relator in conversation with Officers Slattery and Byrne by the bootblack stand; saw him retire to his bed at about three-thirty p. M. , and saw him arise and dressing at six-thirty p. m. , when he had just arisen from his bed. He saw *860Huntington and the others retire about three-thirty p. m., at the same time that he did. Officer Michael F. Slattery saw relator at reserve roll call at two p. m. and at the bootblack stand at about three. He also saw relator going to bed after three o’clock. Officer William P. Hogan testified that the cellar door, through which there was some suggestion that the relator in some undisclosed manner might have managed to pass, after having found his way thereto unperceived, was locked, and that when he went, on the evening of May fourteenth, to put out the ash cans, the key to this door had to be obtained from behind the lieutenant’s desk, where it was kept. George Schulties, Antone Maximozich and Francesca Maximozich swore that no police officer whatever was present while the complainant was with Horay at which time they also claim to have been present. The relator absolutely denied his presence at the scene of the crime, and his testimony as to his whereabouts on the afternoon of the day in question in all respects coincided with that of the witnesses produced on his behalf.

While disposed to rely in the fullest degree upon the judgment of the commissioner in determining the weight to be given to conflicting testimony, we are of the opinion that the preponderance of evidence is overwhelmingly in favor of relator herein, and that he has satisfactorily demonstrated that he was in the station house at the time of the occurrences complained of, and was nowhere near the scene of their commission. Ho one seems to have called at the station house to see him or with any letter for him, nor did he receive any telephone calls, and there is no suggestion as to how he could have obtained the message inviting him to play his part in the robbery of the complainant. The complainant’s own story shows that if any one dressed in police uniform came into the premises in which he was detained, that person had been brought there for the very purpose of assisting in the successful completion of the swindle upon him. Whoever that person may have been, we are well convinced upon the record that it was not the relator, who was then either about to retire or actually in bed in the station house, where he was entitled to be on his reserve duty.

It follows, therefore, that the writ should be sustained and *861the proceedings annulled, and the relator reinstated to his position in the police department, with costs and disbursements.

Ingraham, P. J., McLaughlin, Laughun and Hotchkiss, JJ., concurred.

Writ sustained, proceedings annulled, and relator reinstated, with costs and disbursements. Order to be settled on notice.