#### The People *ex rel.*Robert J. Robinson *v.*James D. Bell, Comr. of Police, etc., of Brooklyn.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

Municipal corporations—Police—Removal.

The proof showed that relator failed to arrest a man who committed an assault in his presence and allowed him to escape. *Reid,*that this sustained a charge of neglect of duty, although he was “off duty ” at the time, and that his removal therefor, although a severe punishment for the offense, would not he interfered with.

Certiorari to review proceedings removing relator from the police force. The offense charged against relator was neglect of duty and misconduct, the specification of which was that the relator had about 9.30 a. m. on the 26th day of April, 1889, entered the cigar store kept by Mrs. Louisa Anderson, at MlA Fifth avenue, in the said city of Brooklyn, with an unknown man, and that, said Robinson and the unknown man forced their way into the private apartments of the said Mrs. Anderson, and the said patrolman stood by and saw the unknown man attempt to take improper liberties with the said Mrs. Anderson, and that when the brother of said Mrs. Anderson came to her assistance in response to her cries for help, the said patrolman refused and neglected to interfere and prevent an assault made by the said unknown man on said brother of Mrs. Anderson, and refused to protect them both on being asked to do so. The unknown man was identified as one Skelly. Relator claims that he was off duty at the time.

*Wm. J.*Oaynor, for relator; *Frank F.*O'Reilly, for resp’t.

Pratt, J.

There was a failure to prove the principal charge against the relator, but the proof that he failed to arrest one Skelly and allowed him to escape, who committed an assault in relator’s presence, was clear and uncontradicted.

This evidence sustained the charge of neglect of duty and justified the defendant in finding Robinson guilty.

While we think, under all the circumstances, that the punishment was severe, yet that was a matter resting in the discretion of the defendant.

The authorities are abundant that where punishment is discretionary, the determination of the court that fixes it is not the subject of review.

The defendant was vested by statute with power to punish by ■dismissal, and, having properly found relator guilty, the power was vested in the defendant to inflict the exact punishment that he did inflict.

USTo error seems to have been committed in the conduct of the trial, and the only points raised are that the evidence fails to make out a case, and that the relator being off duty was under no obligation to arrest Skelly.

But the evidence was sufficient to sustain the charge of neglect of duty, unless the fact that relator was *“*off duty,” excused him from making the arrest. We think that the fact that he was *552“ off duty ” furnishes no excuse. Taking off his uniform did not divest him of his powers as a police officer.

While we think the punishment was undue, it was clearly in the discretion of the commissioner, and this court is not at liberty to interfere.

The judgment must be affirmed.

Barnard, P. J., and Dykman, J., concur.