The sun. [volume] (New York [N.Y.]) 1833-1916, 1911-05-06
POLiCE "CLi MING" "JISTIFIED.
Man whom GaynOr ordered Tried Ucii'.
stated by Appellate Division.

Frederick C. Gerhardt Jr who was
one OF the frs, policemen to be tried at
the order Of MAYOR Gaynor on n charge
OF clubbing ci'i2cnG" and who wus dis
missed. was reipstated by the Appellate
Division of the supreme Court yestcr-
dav on the ground that the evidence
against him did not Justify his dismissal.
In his PETITION Gerhardt said that he
was put OH trial on January ~. 1910. FOR
conduct unbecnmlng an officer because
he arrested Augustus Hayes and John
! iloore and falsely charged them with
assault and also assaulted Ernest T..
Oherst without prov ocation and falsely
charged him with assault.
Cerhardt said that the charges were
preferred against him by Mayor Gaynor
after al eA parte examination at which
lac was not present and that in consequence
of the Mayors action. the Police Com
missioner neces sarily formed an opinion
as TO the guilt of your petitioner and there
by your petitioner was deprived Of the
far, impartial and just consideration OF
the testimony adduced."
The charges grew out Of an affray near
the entrance of saloon on 1hirtieth
street between seventh and Eighth ave-
nues kept by Moore. Oberst was the
| bartender, ana hayes WhS u IIIeuu Vi
Oberst They and one Mctiee. also n
friend Of Oberst. we're the witnesses
against Gerhardt.
Justice Miller. writing the Appellate
Division opinion. says that It is undis-
puted that Gerhardt arrested Oberst,
interfering with an officer and Oberst
and Hayes with assault. so the charge
of making false charge Of assault against
, Moore falls at the outset
Oherst admit ted that he struck Gerhardt
and gave him one black eye" but Hayes
; denied that he struck the policeman
Witnesses for Gerhardt said that Hayes
declared in the police station he had nc
, right to hit cop in uniform" The evi.
; dence showed that Oberst and Hayes had
neen drinking and il was undisputed that
; Gerhardt got two black eyes, cuts and
bruises on his face and neck and blow
i upon the mouth sufficient to draw blood
He was under physician care for ter
, days. IL was not pretended that any bli
Dl erst and Hayes struck him. and i,
was proper for him 10 arrest them"
ihe court said that Gcrhardt testified
he heard two pistol shots and when he
: asked Moore. who was standing in front
of the saloon where the shots came from
Moore replied. None of your damned
nl,siness." When the policeman tried 10
go into the saloon to investigate Moore
attempted 10 prevent him. Gerhardt
tried To close the door in his face. While
the two were struggling. Oherst came
from within and struck GerhArdt twice
whereupon the policeman pulled his
, baca Jack and hit Doerst Then Hayes
: ht MIN three or four times
, Justice Miller says there is nothing tc
, dIscredt Gerhardt's testimony as TO hi'
purpose in entering the saloon. The
story OF wauton and unprovoked as
sault upon the bartender il almost toe
improbable for belief. declares the court
The court says that McGees testlmon,
was iinpeached 10y his own stntenen
,, that several days after the occurrence Il,
discharge of what he considered to he hl
duty as "a citizen and without consultini
1Any one. he went to the ity Hall to la'
. the matter before the Mayor and theg,
70 his surprise found Ouerst and Moor,
on the same errand"
1T is evident that il the relator had no
, used his black jack with some effect urol
Oberst he would have been more serousl,
, injured than he was" says the court
1t il serious offence to assault al
: officer or resist him In the discharge o
!, his duty. and those who undertake i
should not be expected to he handled
tenderly. The relator was plainly jus
. titled in using the weapons at hand u
, defend himself"