#### PEOPLE ex rel. SMITH v. McKAY, Police Com’r.

(Supreme Court, Appellate Division, Second Department.

July 31, 1914.)

Municipal Corporations (§ 185*)—Police Force—Neglect of Duty—Infallibility.

Relator, a patrolman and detective, was given a bench warrant in December, 1912, for- the arrest of K. It was then believed that K. resided at a certain street number; but he was not found there, and he was not found on April 15, 1913, when relator’s superior informed him that K. could be found at 23 Avenue B. Relator went to such address many times, and interviewed the tenants and janitress without success. He reported frequently to his lieutenant, but failed to interview the landlord of the premises. He communicated with K.’s bondsmen, and finally, in the middle of June, found K. at the address given; his failure to find him before being due to the fact that K. had changed his name and was known there and in the neighborhood by his alias. *Held,*that relator’s failure to interview the landlord and to more promptly arrest K. was not such neglect of duty as justified his dismissal from the force.

[Ed. Note.—For other cases, seé Municipal Corporations, Cent. Dig. §§ 429-509; Dec. Dig. § 185.*]

Certiorari by the People, on relation of John M. Smith, against Douglas I. McKay, as Police Commissioner, to review respondent’s determination dismissing relator from the police force of the city of New York.

Writ granted, and determination annulled.

Argued before JENKS, P. J., and THOMAS, RICH, STAPLETON, and PUTNAM, JJ.

Arnon L. Squiers, of New York City, for relator.

Frank Julian Price, of Brooklyn (James D. Bell, of Brooklyn, on the brief), for respondent.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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, “some time 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 No. 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. Pie *963entered 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 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 tenants. In this instance the janitress rented the apartment to Kaufer, 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 $50 costs and disbursements. All concur.