#### The People of the State of New York ex rel. John M. Smith, Relator, *v.*Douglas I. McKay, as Police Commissioner of the City of New York, Respondent.

Second Department,

July 31, 1914.

Municipal corporation — city of New York — certiorari to review removal of policeman for failure to make an arrest promptly — evidence— relator reinstated.

Where upon certiorari to review the dismissal of a member of the police force of the city of New York assigned to the detective bureau upon the ground that he failed and neglected to promptly apprehend and arrest a person for forfeiture of a bail bond and grand larceny, it appeared that the relator acted in good faith and that his sole neglect of duty lay apparently in his failure to interview the landlord of the premises where the person accused was to be found, although he had interviewed the janitress and subsequently procured the arrest, the determination of the police commissioner should be annulled and the relator reinstated.

Certiorari issued out of the Supreme Court and attested on the 6th day of January, 191-1, directed to Douglas I. McKay, 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 from the police force of the city of New York.

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      *Arnon L. Squiers,*for the relator.

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

Stapleton, J.:

The relator, a patrolman on the police force of the city of New York, assigned to the detective bureau and designated a detective of the second grade, was charged with neglect of duty in that he, “sometime during the month of April, 1913, failed and neglected to promptly apprehend and arrest one Louis Kaufer for forfeiture of bail bond and Grand Larceny, he having been informed that the said Kaufer was then residing at *$*23 Avenue “B,” Borough of Manhattan, City of New York.” He was dismissed the force and he invokes the remedy of certiorari.

Kaufer had forfeited a bail bond, and the relator, in December, 1912, was given a bench warrant for his arrest. It was believed that Kaufer then resided at 303 East Houston street, but the relator could not find him, at that address and had not found him on April 15, 1913, when his official superior, Lieutenant Judge, upon information received from the office of the district attorney of Kings county, told him that Kaufer could be found at 23 Avenue B.

The relator did not know Kaufer and had not seen his photograph. The relator went to 23 Avenue B. He went there many times. He interviewed the tenants and neighbors, and quizzed the janitress, but without success. Some of them could not understand him, and those who did understand him did not know Kaufer. He reported frequently to his lieutenant. He entered into communication with the bondsman, and finally, in the middle of June, with the co-operation of the bondsman, he uncovered Kaufer and then arrested him.

The neglect of duty lay, apparently, in his failure to interview the landlord of the premises 23 Avenue B. The landlord did not live at that address. The relator did not call upon the the landlord, but he did talk with the janitress, and the janitress usually, in the words of Lieutenant Judge, “ would be the best person to get the information from.” Janitors usually let the apartments and are on more or less intimate terms with the *670tenants. In this instance the janitress rented the apartment to Kanfer, collected the rent from him, and introduced him to the landlord. It was the relator’s misfortune, however, that during the time intervening between the letting and his quest the janitress had gone to Europe and her place was taken by one who knew Kaufer only as Schmidtwick. As Schmidtwick he was known in the neighborhood, and that doubtless accounts for the relator’s inability to find him.

There was not a suggestion of evidence tending to show that the relator had not acted in the utmost good faith. He had borne a good reputation in the department. As a detective he had performed his duties properly. To most people it would seem that in this particular instance he had done his duty honestly and intelligently. It is undeniable that he performed it with ultimate success; but because he did not make the arrest with a promptness sufficient to satisfy the exacting mind of some official superior, and because, although he made diligent effort in all other respects, he failed to seek information from the one person who, unknown to him, was in a position to enlighten him, he was dismissed the service. We think he was not justly dismissed. Unless a failure to act infallibly can be pronounced neglect, there was nothing that warranted the drastic action of the commissioner. The highest standard of conduct and efficiency is exacted from police officers in the city of New York by comprehensive and sometimes complicated rules, but not until this case have the governing authorities attempted to exact infallibility.

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

Jenks, P. J., Thomas, Eioh, and Putnam, JJ., concurred.

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