#### Daniel A. Nolan, Appellant, *v.*John E. Cole, as Commissioner of Public Safety of the City of Schenectady, New York, Respondent.

Third Department,

May 7, 1913.

Municipal corporation — dismissal of policeman—violation of rule of department — assault upon woman — Second Class Cities Law, section 137.

Appeal by a policeman from a determination of the commissioner of public safety of a city of the second class, dismissing him from the force for violating a rule of the department by leaving his post and assaulting a woman at the rear door of her place of employment. Evidence examined, and *held,*that the determination of the commissioner should be affirmed.

Such act by a policeman makes him “ guilty of some delinquency seriously affecting his general character or fitness for the office ” within .the meaning of section 137 of the Second Class Cities Law.

Appeal by the plaintiff, Daniel A. Nolan, from an order and determination of John E. Cole, as commissioner of public safety of the city of Schenectady, New York, made on the 21st day of November, 1912, convicting the plaintiff of a violation of the rules and conduct of the police department and dismissing him therefrom.

*Del B. Salmon,*for the appellant.

*Frank Cooper, Corporation Counsel,*for the respondent.

Woodward, J.:

Anna Thiel, a domestic servant employed in the city of Schenectady, filed charges against Daniel A. Nolan before the commissioner of public safety of that city, alleging that he had been guilty of “violating Rule 58, Section 8, of the Rules *45and Regulations for the government of the police department of the City of Schenectady, New York.” Rule 58 provides that “Patrolmen while on duty must not enter any house or leave their post, except in the discharge of police duty; and if required by any person under any circumstances to leave post in discharge of police duty, they shall report the same to the first sergeant whom they may meet thereafter, giving the time and circumstance of such call and the time of return to pest; they shall also make report at station house.” The complainant’s specifications to the charge were somewhat more comprehensive than the charge itself. She claimed that on the 9th day of November, 1912, at or about eleven-thirty in the evening of that day, the said Daniel A.' Nolan left his post, not in the discharge of any police duty, and followed the complainant to the rear door of her place of employment at 910 Union street in the city of Schenectady, N. Y., and then and there did interfere with, lay hands on and insult the complainant by making indecent proposals and exposing his person and otherwise acting in a manner unbecoming a police officer and prejudicial to the discipline of the department.

The appellant was served with a copy of the charge and specifications and put in a general denial of the matters charged. Upon the trial the complainant testified in some detail to the matters set forth in her specifications. She was corroborated to some extent by the testimony of the conductor on the street car upon which the complainant and.Nolan rode prior to the alleged assault. Nolan produced some witnesses who had seen him at various times during the evening of the alleged assault which tended to show that he was not at the place of the assault at eleven-thirty p. m., but none of this testimony was conclusive. Making reasonable allowances for variations in timepieces, and for the mistakes which might be made in the estimates as to the time, we cannot say that the evidence does not support the conclusion of the commissioner of public safety, who found Nolan guilty of the matters charged against him and dismissed him from the force.

It seems to us immaterial that the formal charge was that of a violation of rule 58. The specifications clearly bring the case within the provisions of section 137 of the Second Class 'x*46Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap 55), as amended by chapter 266 of the Laws of 1910, and it was held in *Horan*v. *Fleming*(143 App. Div. 131, 133) that it was entirely immaterial what name was given to the charge, so long as the specifications showed conduct to be within the scope of section 137 of the Second Class Cities Law. Clearly an unprovoked assault upon a young woman, following her upon private premises and making insulting proposals •to her, is not such conduct as we have a right to expect from a police officer, and one who is guilty of such conduct is certainly *“*guilty of some delinquency seriously affecting his general character or fitness for the office,” this being one of the provisions of the section of the statute now under consideration.

Only questions of law are reviewable upon this appeal, under the provisions of section 138 of the Second Class Cities Law (as amd. by Laws of 1910, chap. 266), and there being evidence to support the findings of the commissioner, we see no reason for granting any relief in this case.

The determination of the commissioner should be affirmed, with costs.

Determination of commissioner unanimously confirmed, with ten dollars costs and disbursements.