Opinion
May 5, 1911.
George M. Pinney, Jr., for the relator.
John F. O'Brien, for the respondent.
On December 17, 1910, the relator, who had been for nearly thirteen years assistant registrar of records of the department of health of the city of New York in and for the borough of Richmond, was served with charges involving such unprofessional conduct on his part towards his patients in his private practice as would, if true, have constituted misconduct showing him unfit to occupy any public position, and particularly one his retention in which would have furnished him with a certificate of professional character, rendering it possible for him to continue his course of taking undue and improper advantage of his private patients. Relator, being a volunteer fireman, was given the hearing to which he was entitled. (Civil Service Law [Consol. Laws, chap. 7; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) The charges related solely to his actions with patients in the practice of medicine which he was pursuing outside of his official duties. If true, they established such a disregard of morality, decency and professional ethics as constitutes convincing proof of misconduct, evidencing unfitness for the official position he occupied, or any other.
The board, by a vote of two to one, found relator guilty on four charges, involving his actions with four different women. Without going into the revolting details of the evidence, it is enough to say that there was evidence before the board sufficient to justify its members, if they gave it credit, in reaching the conclusion which they did. It is not our function to substitute our conclusions on the facts for those of the board, but only to determine if in its action the board has observed the requirements of law safeguarding relator's rights, and if it has reached a conclusion which is not against the preponderance of evidence. This we believe it has done. If it believed the evidence of the complaining witnesses, it is hard to see how it could have reached any other conclusion. That the charges referred, in part, to transactions remote in time was a consideration to be weighed by the board, and had to do with the credibility of the witnesses. But it is hard to conceive of any reason for women voluntarily subjecting themselves to the humiliation involved in such an exposure of past occurrences, unless they were telling the truth, nor is there any suggestion of a motive for their action. It may be quite true that one of the women had made known the existence of the other evidence. Assuming her testimony to be true, she had good reason for wishing to have relator punished for his unscrupulous abuse of the opportunities which the exercise of his profession had placed in his way.
It is objected that relator cannot now be punished for his assault upon Mrs. De Camera, as he was acquitted by the jury upon his trial for a rape committed upon her. But the charge preferred against him in these proceedings was that, under the pretense of treating her professionally, he grossly and indecently, by subterfuge, force and against her will, committed an outrageous assault upon her. This charge is distinct from the criminal one, upon which he was acquitted. The elements of the two are different; the amount of proof required and the rules applicable thereto are not identical. An act might be sufficient to constitute an indecent assault without constituting the statutory crime of rape (Penal Law, § 2010); and there could be no conviction of the crime without corroboration of the female defiled. (Id. § 2013.) Nor is the fact that relator was acquitted upon the criminal charge an answer to these charges. ( People ex rel. Allen v. Welles, 14 Misc. Rep. 226.) In People ex rel. Connolly v. Police Comrs. (11 Hun, 403) a police officer was held to have been properly dismissed from the force for having enticed a girl to a house of prostitution, although he had been discharged by a police magistrate after a hearing on the same charge, in criminal proceedings, and the court said: "We think it is within the power and is the duty of the board of police to take notice of the conduct of the members of the police force as well when off as when on duty, and to dismiss an officer who is guilty of criminal or immoral conduct when off duty as an unfit person to be a member of the force." In People ex rel. Fitzpatrick v. French (32 Hun, 112) the officer had been tried for larceny and acquitted after his dismissal from the police force, the ground of the charge against him being the acts constituting the alleged larceny; and the court held that the acquittal had nothing to do with any question before it, as "if it were entitled to be considered it would simply establish that the relator's misconduct for which he was removed did not amount to the crime of larceny." (Id. 115.) It was further said in the same case (p. 117): "It is not well to confuse the powers of administrative or executive bodies to remove subordinates for any conduct showing unfitness for place or position with the proceedings of courts of justice to punish crimes. They are essentially different in their objects and may and do exert and move in their respective spheres without collision or inconsistency. If it be true that a policeman guilty of felony cannot be removed by the board till after his conviction and sentence in a court of justice, because of constitutional prevention, then some astute lawyer will speedily insist that a felon cannot be removed at all for crime, because the same constitutional safeguards provide that he shall not be twice tried or punished for the same offense."
The proceedings of the board of health should, therefore, be affirmed and the writ of certiorari dismissed, with fifty dollars costs and disbursements to respondent.
INGRAHAM, P.J., and McLAUGHLIN, J., concurred; SCOTT and MILLER, JJ., dissented.