Opinion
May Term, 1896.
Louis J. Grant, for the relator.
Francis M. Scott, Theodore Connoly and Terence Farley, for the respondents.
The charge against the relator was unimportant, and it was substantially unsupported by evidence. It was also overwhelmingly disproved.
The charge was that the relator "was absent from 6.20 A.M., return roll call, October 23rd, 1894, and did not report until 6 P.M. the same date." One would suppose from this specification that it was intended to charge the relator with a serious dereliction in neglecting his duty for an entire day. But it appeared without dispute that the day in question was the relator's "day off." The complaining witness, Sergeant Moynihan, testified as follows: "Q. What was his (relator's) duty after answering return roll call? A. To go where he pleased. Q. It was his day off? A. Yes."
Thus it will be seen that the specification amounted to nothing more than a charge that the relator was absent at the moment of morning roll call. Even the commission of this petty offense was originally unsupported, for Moynihan only testified that the relator failed to answer to his name when called. At the close of the case, however, and after four witnesses had testified that they saw Lang at the station house at the time in question, he did state that he was positive that Lang was not present. Whether he meant that Lang was not actually present, or that he failed to respond when his name was called, was certainly left in doubt. The fact undoubtedly was that Lang was present, although possibly he may not have heard his name called, and may not have responded at the moment. That he was present is proved by the testimony of four seemingly disinterested witnesses. They all say he was in the station house at the time of roll call, though they do not claim that Lang answered to his name. Upon the whole, the charge was so trivial and the testimony was so overwhelmingly in the relator's favor that we feel bound to reverse what was certainly a most unjust conviction. We are loath to interfere in these cases, and we realize that the discipline of the force is a paramount consideration. That discipline would surely be relaxed were the officers of the force to imagine that the judgments of their superiors failed to receive serious and respectful consideration from the courts. The rule and the practice are quite the reverse. The judgment of the commissioners is not to be, and never is, lightly interfered with. Such judgment has all the force of the verdict of a jury, and should not be disturbed unless it is so overwhelmingly against the weight of evidence as to justify the inference of passion, prejudice, partiality or clear mistake.
We think the present case comes within the latter category, and we are, therefore, constrained to annul the judgment of the board, with fifty dollars costs and disbursements of the appeal.
VAN BRUNT, P.J., O'BRIEN, RUMSEY and INGRAHAM, JJ., concurred.
Judgment annulled, with fifty dollars costs and disbursements.