#### The People of the State of New York ex rel. James J. Burke, Relator, *v.*Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.

Second Department,

June 5, 1914.

Municipal corporations — certiorari — discharge of police officer, city of New York — failure to take person charged with crime into custody — evidence — when court should follow conclusion of commissioner.

Certiorari to review the proceedings of the police commissioner of the city of New York in removing a detective sergeant for neglect of duty, in that he permitted a person charged with grand larceny to walk to the station house, without taking him into custody. *Held,*upon the conflicting evidence, that the determination Of the commissioner should be confirmed.

Where there is any evidence of the offense charged, or the facts admit any inference of guilt, the court should follow the conclusion of the commissioner, in view of his peculiar responsibilities, and his greater opportunity of arriving accurately at the truth.

Certiorari issued out of the Supreme Court and attested oil the 28th day of February, 1912, directed to Rhinelander Waldo, as police commissioner of the city of New York, 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, a detective sergeant, from the police force *29of the city of New York, upon charges of neglect of duty and conduct unbecoming an officer.

*Harry Crone [James M. Donohue*with him on the brief], for the relator.

*James D. Bell [Frank Julian Price*and *Frank L. Polk*with him on the brief], for the respondent.

Rich, J.:

The charge and specifications, so far as material to this review, are that on Sunday, May 21, 1911, the relator failed to apprehend and take into custody (at his residence, 297 Avenue B, Manhattan) one John Horay, charged with the crime of grand larceny, and permitted him to walk to the station house without taking him into custody.

The conviction of the relator rests upon conflicting and irreconcilable testimony, involving in its determination the credibility of the several witnesses and the weight to be given their testimony. Either the relator, or the witnesses testifying against him, committed perjury in giving their testimony upon the hearing.

The rule which in my judgment applies to the disposition of this writ is stated in *People ex rel. Hogan*v. *French*(119 N. Y. 493), and is that where there is any evidence of the offense charged, or the facts admit any inference of guilt, the courts should follow the conclusion of the commissioner in view of his peculiar responsibilities and his greater opportunity of arriving accurately at the truth. The evidence in the case at bar is sufficient to sustain a finding for or against the relator, as the evidence for or against him is believed and determined to be the truth of the transaction. While the punishment inflicted seems to be very harsh and unnecessarily severe, in view of the fact that the person whom the relator is charged with not having arrested went voluntarily to the police station, where he was arrested, tried, convicted and punished, as I understand the law the extent of punishment rested entirely in the discretion of the commissioner, and this court has no jurisdiction to interfere therewith. *(People ex rel. McAleer*v. *French,*119 N. Y. 502, 507.)

Because of the severity of the punishment inflicted and the *30character of the witnesses testifying for the prosecution, I have made a careful study of the record to see if a conclusion that the conviction was against the weight of the evidence could not be sustained. If nothing appeared challenging the veracity of the relator, or warranting the commissioner or his trial deputy in discrediting his testimony, I should feel inclined to recommend a reversal and reinstatement upon this ground; but it is the undisputed fact, admitted by him when testifying upon the hearing (while he had sworn that on Sunday morning, May 21, 1911, preceding the arrest, he went to Moray’s house, presumably for the purpose of arresting him, and was informed by Mrs. Moray that her husband had gone to the station house, where he testified he followed and arrested him), that he did not in his testimony at the General Sessions, or in his statement made to a deputy police commissioner investigating the matter, make any mention of his having made such a visit; in addition to which he told the deputy, who was endeavoring to learn the facts, that he knew nothing of the case, that another officer (O’Brien) had it.

I recommend that the determination of the commissioner be confirmed and the writ quashed, without costs in this court to either party as against the other.

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

Determination confirmed and writ quashed, without costs in this court to either party as against the other.