#### The People of the State of New York ex rel. John L. Sullivan, Relator, *v.*Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.

Second Department,

November 28, 1913.

Municipal corporations — removal of patrolman, city of New York — accidental discharge of revolver.

Certiorari to review the action of the police commissioner of the city of New York, dismissing a patrolman for conduct unbecoming an officer. It appeared that the relator while in his own home and cleaning his revolver accidentally discharged it and killed his wife. A rule of the police department provides that extreme care should be exercised in the use of revolvers and they should not be discharged nor even drawn except in self-defense, etc. *Held,*that the rule had no application to the circumstances aforesaid and that the relator should be reinstated.

Certiorari issued, out of the Supreme Court and attested on the 4th day of March, 1913, directed to Ehinelander Waldo, as police commissioner, etc., commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

*Jacob Rouss,*for the relator.

*James D. Bell [Frank Julian Price*and *Archibald R. Watson*with him on the brief], for the respondent.

*304Carr, J.:

The relator seeks to review, by a writ of certiorari, the action, of the police commissioner of the city of New York in dismissing him from the office of patrolman on the police force of said city. On November 18, 1912, a written charge was preferred against the relator for “conduct unbecoming an officer,” with a specification as follows: “ Said Patrolman John L. Sullivan, Shield No. 5748, of the 26th Precinct, while off duty and at his residence, 1682 Bergen street, Borough of Brooklyn, did carelessly discharge his revolver, at or about 2 p. I., November 7, 1912, the bullet from same entering the upper part of the abdomen of his wife, Florence Sullivan, causing injuries from which she died on or about 4 P. M., November 11, 1912.” After a hearing on said charges the relator was found guilty thereof, and dismissed from the police force of the city of New York. One of the matters urged by the respondent to sustain his determination is an alleged violation of rule 29 of the police department, which is as follows: “ Paragraph 23. They [patrolmen] shall not wilfully maltreat nor use unnecessary violence to any person, prisoner or otherwise. The baton will not be used except when absolutely necessary. Extreme care will be exercised in the use of revolvers. They should not be discharged, nor even drawn, except in self defense, or when necessary to effect the arrest of a felon, or, in extreme cases, to call assistance.”

The proofs taken at the hearing against the relator show a most pathetic happening. He was a young married man. His wife and he had lived in domestic peace for the short period of their marriage. On November 7, 1912, while the relator was off duty and in his apartments, where he resided with his wife and his mother, he was engaged in cleaning the revolver with which he was equipped as a policeman. He cleaned and oiled it and proceeded to reload it. His wife was standing beside him helping him in his work and engaged in cleaning the holster of the revolver. It was accidentally discharged and a bullet went into the body of his wife, causing severe injuries from which she died very shortly. At the time of this happening the relator’s mother was in the room, which was the kitchen, and heard the discharge of the revolver but did not see it, as *305her back was turned to her son and his wife. Immediately the husband came to the assistance of his wife, turned her over to his mother, ran to the street and secured an ambulance. The wife was taken to a hospital, where she was interviewed by an inspector of police, and she told him the story as just detailed. In the record there is no basis for any suspicion of any willful misconduct on the part of the relator in this sad happening. Assuming that rule 29, above quoted, relates to the conduct of a policeman while he was in his own home, there was no proof whatever, except the mere discharge of the revolver itself, that he acted in any willful or wantonly careless manner. Doubtless there was some carelessness or inadvertence on his part or the revolver could not have been discharged, but whatever the inadvertence, under these circumstances it could not have amounted to the offense of *“*conduct unbecoming an officer.” It would seem to us that the misfortune that overtook the relator in this pathetic tragedy was grave enough without the making against him of such a hypercritical charge. The memory *of*this tragedy is sad enough for the relator without inflicting upon him a dismissal from the police force for what appears to have been a pure fortuity.

The determination of the police commissioner should be annulled, with fifty dollars costs and disbursements, and the relator reinstated.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Determination annulled, with fifty dollars costs and disbursements, and relator reinstated.