The charge against the relator was “ conduct unbecoming an officer; neglect of duty and insubordination.” The specification was that on the evening of March 18, 1910, the .relator assisted by another patrolman arrested a citizen at a subway station and took him to the sixteenth police precinct station house and arraigned him before a police lieutenant in charge of the desk; charging said prisoner with disorderly conduct; that said police lieutenant decided not to hold the person arrested as a prisoner but discharged him, and ordered relator and the other patrolman to return to their posts; that said relator did not return to his post, but remained at the corner of Third and Mercer streets, about one-half block from the station house, for a period of about five minutes.
The evidence showed that relator and his companion were seriously in doubt as to whether it was not their duty to rearrest the prisoner, notwithstanding his discharge by the police lieutenant, and that the few minutes during which they delayed their immediate return to post were consumed in a discussion as to what course they ought to pursue. We are of the opinion that the evidence fell short of establishing any willful or contumacious insubordination or violation of orders. The relator and his companion may well have hesitated as to what their duty was under the circumstances. The statutes (Greater N. Y. Charter [Laws of 1901, chap. 466], § 338; Code Grim. Proc. § 165; Penal Law, § 1844) provide that a prisoner arrested by a policeman shall be taken before a magistrate to be held or discharged as the case might require, and we find nowhere, nor have we been referred to any statute conferring the power of magistrates upon police lieutenants, or authorizing them to decide whether a prisoner should be held or discharged. It is true that the rules of the department and the necessities of proper discipline require that the members of the *252■ force shall promptly obey the lawful orders of their superior officers. But when an officer receives an order, such as the relator did in this case, which is designed to prevent his performance of what seems to be a plain statutory duty, he is not to be convicted of insubordination because he stops for a few. minutes to consider what course his duty as a policeman requires him to take. While we interfere reluctantly with the disciplinary measures óf the police department, it is our duty to do so when the only offense charged fails of support from the evidence.
The writ must be sustained, the proceedings annulled and the relator reinstated, with fifty dollars costs and disbursements.
Ingraham, P. J., Laughlin, Miller and Dowling, JJ., . concurred.
Writ sustained, proceedings annulled and relator reinstated, with fifty dollars costs and disbursements. Order to be settled on notice.