People ex rel. Wasserman v. Bell

Dykman, J., (dissenting.)

This is a certiorari to review the proceedings before the defendant which'resulted in the dismissal of the relator from the police force of the city of Brooklyn. The relator, who was a policeman in that city, was charged with a violation of rule 109, which forbade him to leave his post until regularly relieved, except in discharge of police duty, and the specification charged him with leaving his post, and entering the basement of a private residence, and remaining there 42 minutes. Upon the trial of the relator it appeared that he entered the basement with the knowledge and consent of the persons in charge, to satisfy a call of necessity. That fact was established by the undisputed testimony of two witnesses besides that of the accused. No improper purpose is suggested for the entry into the basement, and no improper conduct is charged against him while there, and our conclusion is that his visit to the basement was entirely justifiable. The relator was also charged before the commissioner with conduct unbecoming an officer, and misconduct, and the specific charge was that the relator engaged in an altercation with Patrolman James H. Boyle in the station-house, during which profane and coarse language was used, and an attempt to use a pistol and club was prevented. Upon the trial of the relator it appeared without dispute that Boyle was the aggressor, and, although the conduct of the accused was not fully justified, yet he acted in the heat of passion, brought on by the severe assault of Boyle, and under such circumstances his conduct may well be excused. Our conclusion is that the decision was not justified by the testimony, and the conviction should be reversed, and the relator should be reinstated, with costs.