#### People *ex rel.*Roe *v.*McLean *et al.,*Police Commissioners.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Municipal Oobpobations—Discharge of Policeman.

A patrolman charged with sitting in a restaurant during his tour of patrol duty admitted being in the restaurant, and when asked what he was doing there stated it was a chilly night, and he went in for coflee. *Field,*that his dismissal from the force would be set aside for want of proof that he was on a tour of duty at the time.

*Certiorari*to review the action of police commissioners in dismissing relator, Cornelius W. Roe, from the police force of the city of New York.

Argued before Van Brunt, P. J., and Beady and Daniels, JJ.

*J. M. Tierney,*for relator. *John J. Delany,*for respondents.

Brady, J.

The relator was charged with absence from his post during his tour of patrol duty, his absence consisting in sitting in a restaurant, but for *804what period is not stated. When the trial commenced the relator was called and examined, the first question asked, it' may be observed, relating to a subject not embraced in the charge or specification. It was, “Why were you not here this morning, as ordered?” and was followed by several questions relating to that seeming dereliction. The question finally put was this: “The charge against you is sitting in a restaurant at 10:47 p. m., October 3d, ” which was admitted to be true, the relator stating, when asked what he was doing there, that it was a chilly night, and he went in for a cup of coffee. There is, however, no evidence that he was at that time on a tour of duty as charged, no further proof of any kind having been given, and the evidence does not therefore sustain the judgment pronounced against him. The rules asserted and reasserted for our guidance by the court of last resort, in the consideration of the evidence against the members of the force who have been tried, are so strict, and there is such a marvelous limit upon our control, that it is incumbent upon us to see to it, and with some scrutiny, that the charge made is sustained not inferentially, but absolutely, upon proper proof. For this reason, namely the absence of any proof that the relator was on a tour of duty at the time he was seen in the restaurant, the judgment should be vacated, and the relator reinstated. It may be remarked here in addition that the relator’s wife, as appears by the record, made the following affidavit, to which no response was made:

> “ *City and County of New TorTc—ss.:*

> “Maggie Roe, being duly sworn, deposes and says: *1 am the wife of Cornelius W. Roe, the petitioner named in the petition hereto annexed. On or about the 21st day of November, 1889, shortly after my said husband had been dismissed from the police department, I called upon Police Commissioner John McClave, at his residence, No. 156 West 72d street, in the city of New York, in relation to my said .husband’s dismissal. I called the said commissioner’s attention to the very slight dereliction with which my said husband had been charged, and in the conversation which ensued the said commissioner stated that my said husband, Cornelius W. Roe, had been dismissed on account of his previous record, and not because of the charge on which he was last tried; that, when the case came before the full board, Police Commissioner McLean brought up the record of previous charges against my said husband, and on that account recommended dismissal, and that the other commissioners voted accordingly. Maggie Roe.’

> “Sworn to before me this 15th day of February, 1890,

> “John Mhlholland, Notary Public, (75,) N. Y. Co.”

And, further, that the relator’s record as an officer returned by the respondent, and which was doubtless used against him, was not given in evidence at the trial, or he given any opportunity to explain it. These things combined suggest elements employed in the consideration of the case which should not have been countenanced, and therefore not permitted to influence the respondents in forming their judgment. Ordered as suggested, with costs. All concur.