Opinion
Supreme Court of New York, First Department. September 4, 1952
APPEAL, in each of the above-entitled proceedings, from an order of the Supreme Court at Special Term (SAYPOL, J.), entered August 23, 1952, in New York County, which granted a motion by respondent for an order to enforce a subpena issued by respondent and served on appellant on August 14, 1952, under section 406 of the Civil Practice Act, and to direct the sheriff of the city of New York to arrest appellant and commit he should take the stand, submit to being examined and answer him to the civil jail of New York County, there to remain until specified questions in a police department trial of appellants and other police officers. In such departmental disciplinary trial, which is being conducted before respondent, appellants and other police officers are charged with misconduct and corruption in office in conspiring to aid, abet and protect book-makers in an illegal gambling enterprise. Appellants claim that respondent (a retired Surrogate of New York County, who is a beneficiary of the New York City Employees' Retirement System) was over the age of seventy-three years and was therefore disqualified to accept an appointment on April 25, 1952, as a deputy police commissioner to conduct such trial and issue such subpena (Administrative Code of City of New York, § B3-38.0); that a resolution adopted by the board of estimate of the city on May 8, 1952, retroactively approving the appointment of respondent is invalid; that respondent failed thereafter to file a new oath of office (Public Officers Law, § 10), although he had filed one on or about April 25th; that appellants cannot be compelled to testify against themselves in a departmental disciplinary trial (Civ. Prac. Act, § 355; New York City Charter, § 903); that an amendment to the police department manual of procedure, providing that 'At any stage of the proceedings, the Trial Commissioner may require the accused to take the stand and give sworn testimony', was adopted on February 7, 1952, after the commission of appellants' alleged acts of dereliction; and, finally, that a fair trial cannot be had if appellants are required to testify before other substantial proof has been offered against them.
COUNSEL
Herbert Edelhertz of counsel (Irving Mendelson, attorney), for John F. Sullivan, appellant.
Victor J. Herwitz of counsel (Seymour B. Quel and Milton Mollen with him on the brief; Denis M. Hurley, Corporation Counsel, attorney), for respondent in first proceeding.
Sydney Rosenthal of counsel (Keal Kaufman with him on the brief; Sydney Rosenthal, attorney), for Charles Goubeaud, appellant.
Seymour B. Quel of counsel (Victor J. Herwitz and Milton Mollen with him on the brief; Denis M. Hurley, Corporation Counsel, attorney), for respondent in second proceeding.
Per Curiam.
We find no disqualification of the third deputy police commissioner. The legal right to call the appellants as witnesses exists and their refusal to testify may be deemed a contempt. Both of these appellants expressly deny claiming immunity upon the ground that their testimony might tend to incriminate them, but claim that they may not be compelled to testify because their testimony might subject them to a forfeiture by virtue of section 355 of the Civil Practice Act. Section 903 of the New York City Charter provides that public officers who refuse to testify at hearings and inquiries conducted by municipal boards or officers, upon the ground that their testimony may tend to incriminate them, lose their positions, as they would by virtue of section 6 of article I of the New York State Constitution if they refused to waive immunity before a grand jury. It would nullify the purpose and policy of section 903 of the New York City Charter if such officers could retain their positions, and at the same time avoid testifying upon the basis that their testimony might subject them to a forfeiture but not to criminal charges.
We recognize, as contended by appellants' counsel, that a trial of this nature on specific charges involving elements of criminality requires a fair judicial hearing. However, the argument in respect to the requisites of a fair trial in relation to the order of proof need not and cannot be passed upon at this time.
The orders appealed from should be affirmed. Upon the request of counsel for all parties, leave to appeal to the Court of Appeals is granted.
PECK, P. J., DORE, COHN, CALLAHAN and VAN VOORHIS, JJ., concur.
Order [in each proceeding] unanimously affirmed. Leave to appeal to the Court of Appeals granted.