Reger v. Mulrooney

Finch, P. J.

(dissenting). The determinations of the police commissioner should be sustained, since the testimony, if true, upon which the commissioner acted is sufficient to affirm his findings. It is true that the record of the witness Acuna is not impeccable. But what can be expected, where the conditions involved are as unsavory and disgusting as those in the case at bar In ordinary course, men of character would not be found as witnesses of acts and facts so degrading. Normally and often the only way the lowest *47form of guilt can be uncovered and punished as in the case at bar is by means of witnesses to it, who are willing finally to tell the truth. The record of Acuna does not in itself call for the rejection of his testimony by the commissioner as a matter of law, but is merely a factor to be given consideration by the trial judge in weighing the evidence. The commissioner, from his experience, is peculiarly qualified to pass upon the weight to be given the testimony of the respective witnesses under all the circumstances of this case. Moreover, having in mind the experience of the commissioner, this court over the course of years has been very careful not to override his decision upon the facts. As was said by Judge Rich, in People ex rel. Brown v. Greene (106 App. Div. 230; affd., 184 N. Y. 565): “ The holding of the appellate courts of this State has uniformly been that the good of the service [police department] requires that a wide discretion should be vested in police commissioners, and that their judgment and determination in a given case will not be disturbed unless there is an absence of evidence to sustain it. They being the statutory judges of offenses against the discipline and efficiency of the police force under their jurisdiction, their findings and determinations on the facts, when the evidence is conflicting and contradictory, should be regarded as conclusive, when there is, as in this case, sufficient evidence, if believed, to sustain their determinations.”

Moreover, in the case at bar there is much more upon which to rest the decision of the commissioner than in the ordinary similar case. In the ordinary case the testimony of Acuna standing alone would be amply sufficient, if believed by the commissioner, to sustain his order, but in this case his testimony is strengthened by the fact that these defendants palpably committed perjury in denying that they knew Acuna when the facts were obviously otherwise. This offsets the criticism of Acuna. The commissioner had to choose between testimony none of which was free from attack upon credibility.

The orders of certiorari should be dismissed and the determinations of the police commissioner should be confirmed.

Orders of certiorari sustained, the determination of the police commissioner annulled, new trials granted to the petitioners, and, in the meantime, the petitioners reinstated as members in good standing of the police force of the city of New York, with fifty dollars costs and disbursements to the petitioners.