Third Department, November, 1920. [Vol. 194. building and on call. The 2d that he failed to keep a record in a book of all cases and legal proceedings in his department and record of services rendered by himself or other policemen chargeable to the county of Montgomery. The evidence of himself and the former commissioner of public safety shows that he rendered reports, in writing, if not in book; that he, himself, did no work chargeable to the county of Montgomery, and that the policemen rendering such services made up their bills and filed them with the proper department. The 3d that he did not keep a book containing inventory of articles taken from persons arrested, outside of dangerous weapons; there were two such occasions and his evidence shows what he did with the articles, delivered them to the proper owners and made a list of them on paper. The 4th that he neglected to deliver over to the sheriff weapons of different kinds, dangerous in character and taken from people arrested. It appeared those weapons were at the police headquarters, except two which the officers had and were using, and that without his knowledge: the balance he produced before the commissioner upon this hearing. The 5th that he did not suppress, break up and destroy all the gambling places and apparatus in the city of Amsterdam. This was a city of between 30,000 and 40,000 inhabitants. Relator swears that he investigated all complaints, and with the former commissioner made raids and smashed machines. The issue made here would present one of fact. A fair and impartial tribunal might reach the conclusion that in a city such as Amsterdam it is easier to talk reform than to actually effect reform. The 6th, 7th, 8th, 9th, 10th and 11th paragraphs all charge neglect of duty in suppressing gambling. These charges purport to carry the time down to December 30, 1919. The evidence does not sustain the charges, as a whole. The only occasions within the thirty-day limit were those inspired by complainant and his friends. Relator may not be blameless; the question is, did he have a fair trial? Is the weight so against him that his word that he did all he could would not be taken, at least as a plea in abatement, and mitigate the punishment to be dealt to him. The 12th charge is that for money he was willing policemen should give protection to picnics and fairs outside of the city limits; his explanation was that short hour men were sent or permitted to go and that they received and kept the compensation; that it was nothing to him and the practice was permitted by his superior officer. The 13th that relator, for pay, offered to furnish an applicant for examination as dairy inspector copies of the questions that would be asked of him on such examination. This was a civil service examination. Relator said he did not have a copy of the questions, could not get them if he wanted them; that the civil service commissioners were honorable men. Why were not these men called and some light thrown upon the examination in question? The 14th count, stripped of all its useless verbiage, charges relator with having committed adultery on the 22d day of April, 1918, with a woman who was not his wife, and that he did not appeal from the final decree. The righteous indignation this charge was expected to inspire in the tribunal presided over by Commissioner Riley was founded upon the fact that, if true, it violated the Penal Law of App. Div.] Third Department, November, 1920. the State of New York,* not that it was a mortal sin and violated one of God's ten commandments. We do not in any way look lightly on a moral breach of this kind, as a violation of law either biblical or profane; but, if it be true or if the evidence under this charge has any appearance of being true, we are called upon to look at it as human not divine law. The relator says, in explanation, his wife and he were childless; that she did not want to longer live with him; that her lawyer commenced this action and produced this one witness to testify to the evidence given; they, he and his wife, must be well along in life; many things may have prompted these acts of omission; they were not acts of commission. The explanation was not called for in answer to any specific charge against him; he was charged with having committed adultery at a specified time and place; this he denied and in addition swore he was at Schenectady at that time getting parts for his automobile; no effort was made to show this statement was not true. That the evidence of adultery produced on the hearing, in a prosecution against him for committing the offense, would not justify a conviction, I do not think can be contradicted. The penalty visited upon relator was severe; reduction to the ranks might have suggested itself as more fitting under other circumstances. This is not all. In People ex rel. Weston v. McClave (123 N. Y. 512) at page 516, the court says: They [speaking of police commissioners] are empowered to punish a member who is guilty of an offense against the rules they establish, or who is guilty of conduct unbecoming an officer, and the only limitations upon their disciplinary powers is the express one that a trial shall be had upon written charges, and upon a reasonable notice to the accused, and the implied ones that that trial shall be a proceeding fairly conducted; that the decision shall be based upon evidence of the truth of the charges, and that no immunity, or privilege, secured to the accused by the law of the land, shall be violated." On cross-examination of Aiken, relator's counsel asked the question: "Did you at that time swear you did not reside anywhere?" The objection was sustained. He was further asked if he did not swear upon an examination that he did not know of any corrupt conduct of the relator in the performance of his official duties and if he did not answer "no." Objected to and sustained. He was further asked if he did not say on the same occasion he knew of no gambling places in the city of Amsterdam. Objection sustained. Also if he did not say he did not know of any gambling places or houses of ill fame. Objection was sustained. Relator was asked upon the stand if he did not have a talk with Commissioner Riley as to what they intended to do, and what he, Riley, said to him. Objection was sustained. The credibility and the attitude of the complainant and commissioner were proper subjects of cross-examination, especially so in view of their previous activity and known attitude. During cross-examination of a witness relator's counsel was stopped by the commissioner saying that he did not think certain duties devolved upon the corporation counsel. After some colloquy, the commissioner said: He may go as far as he wishes. * See Penal Law, § 100 et seq.- [REP. He may submit it Third Department, November, 1920. [Vol. 194. to the street sweeper if he likes." These are some of the incidents that show this trial was had under circumstances that were not likely to give the relator the full and fair protection contemplated by law and established rules of evidence. I am constrained to reject the doctrine laid down in 55 Appellate Division, 195, as not applicable to the conditions appearing in this case. I believe that People ex rel. Miller v. Elmendorf (51 App. Div. 173) more nearly accords with substantial justice and the preservation of the rights of accused persons. (People ex rel. McMorrow v. Roosevelt, 23 App. Div. 533.) People ex rel. Tappin v. Cropsey (178 App. Div. 180) is very similar as to facts and principles here involved. It was affirmed in the Court of Appeals (224 N. Y. 564). The question of the weight of the evidence is not here considered with the purpose of making a decision resting upon that ground alone; but rather to advance the suggestion that a fair and impartial tribunal could, from the evidence, reach a different conclusion than was reached in this case. The insufficiency of the evidence, its lack of weight preponderance, have, however, furnished grounds for reversal in many of these cases. (People ex rel. Shannon v. Magee, 55 App. Div. 195; People ex rel. Eggers v. Bingham, 121 id. 593.) The findings and order of the commissioner of public safety of the city of Amsterdam should be set aside and relator restored to his position with pay since his suspension and fifty dollars costs of these proceedings. Woodward, J., concurs. JOHN MADEJ, Respondent, v. DIRECTOR-GENERAL OF RAILROADS, Appellant. Trial verdict motion to set aside evidence. Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the Schenectady county clerk's office February 19, 1920, upon the verdict of a jury for $10,000, and also from an order entered February 18, 1920, denying defendant's motion to set aside the verdict and for a new trial. Judgment and order unanimously affirmed, with costs, on the opinion of Whitmyer, J., at Trial Term. The following is the opinion of Whitmyer, J.: WHITMYER, J.: The trial of the above-entitled action resulted in a verdict for $10,000 in favor of plaintiff, and defendant has moved to set it aside on the several grounds specified in section 999 of the Code. The particular grounds are that the verdict was the result of passion or prejudice and was excessive. Plaintiff was shot on March 13, 1918, at about eight P. M., by a policeman or detective in defendant's employ. The occurrence took place at Powell's crossing, several miles westerly from the city of Schenectady. Defendant maintains a storage yard at this place. On said night, cars loaded with grain, coal and other commodities were stationed on each side, namely, easterly and westerly, of the crossing. Plaintiff lived at a point northeasterly from the crossing, namely, about 500 feet northerly from tower 9, which was a short distance easterly. It had been his custom to use a path or a way, leading from his house to the railroad at the tower. App. Div.] Third Department, November, 1920. cow. He had used the crossing only once or twice before. He started for it that night. He was accompanied by his brother and his brother-in-law, who lived on the second floor of the house in which he lived. They took one or more sacks with them. They all testified that they intended to go to Buhrmaster's by way of the crossing, to purchase middlings for plaintiff's There was some testimony to the effect that they said, after the shooting, that they were on the way to Powell's for hay. And there is testimony to the effect that about a bale and a half was found in plaintiff's barn next morning. They testified, further, that they started a little after seven P. M., taking a path, about 400 or 500 feet northerly from the railroad, through a field, to the Powell road and thence southerly down that road to the crossing. And they testified that they did not go upon the tracks at all that night, but that they turned and ran back just as they reached the crossing, because a light was flashed in their faces, and that plaintiff was shot while he was running and when he was about 40 feet from the crossing. Three detectives in defendant's employ, including the one who shot plaintiff, and another person, not in its employ, testified that plaintiff and his companions were on defendant's tracks at a point some distance westerly from the crossing, where cars loaded with grain were stationed, and that they ran from that point to the crossing, when they were discovered, and thence northerly, followed by the one who shot, and that plaintiff was shot while running at a point about 50 feet northerly from the crossing. The seals of five cars had been broken and some grain was scattered on the ground. Clearly, the questions growing out of the shooting were for the jury. The bullet entered plaintiff's body in the back, a little to the right end of his spine. It passed through his intestines and lodged immediately under the skin in the front of his body. An operation was performed that night. The operating surgeon testified that he made an incision, five or six inches long, in the abdomen, and removed the bullet. Finding twenty perforations of the small intestines, he cut off the part where they were, about ten inches long, and resected the part. The operation left a scar about six inches long. Plaintiff is twenty-eight years old and was earning about twenty-four dollars per week before he was shot. He was in the hospital about three weeks. He lost about twenty-three pounds in weight. He did not return to work until June 4, 1918. He has been working ever since, but testified that he is unable to do what he did before. And he testified that eating is always followed by great discomfort and distress and that he is constipated all of the time. An X-ray expert testified that there is an obstruction or adhesion of some kind, which does not amount to a stoppage, but retards the circulation and creates a condition of intestinal stasis, similar to chronic constipation, that he should say that it is a permanent condition, and that a cathartic might relieve it temporarily, but that it will not get better without an operation. Another surgeon testified that he examined the plaintiff before the trial and found that he was suffering from an obstruction of the small intestine, located within eight or ten inches of the opening into the large one; that he had an operation scar, about an inch wide, lined at the top and at the bottom with long adhesions; that there is a thinning, a splitting of the tissue of the Third Department, November, 1920. [Vol. 194. abdominal wall, so that, where the wound is and for the space of an inch around it, there is nothing but a small layer of scar tissue between the abdominal cavity and the outside air; that his bowel is abnormally distended; that appearances showed definite evidence of muscular action to force the food through this obstruction, producing considerable pain; that there is a tendency to abdominal hernia in the scar, and that the condition is permanent. He testified, further, that cathartics may cause a narrowing of the intestines and, in this case, will certainly aggravate the condition. These witnesses testified for the plaintiff. Defendant did not produce any on this feature. Thus, the evidence as to plaintiff's condition was practically undisputed and this court should not interfere. CHARLES J. BROWN, Respondent, v. WILSON GARDNER and Others, Appellants. Judgment unanimously affirmed, with costs. CHEMUNG CANAL TRUST COMPANY, as Substituted Trustee under Certain Trusts Created by the Last Will and Testament of Edward CumminGS, Deceased, Respondent, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY, Appellant.- Judgment and order unanimously affirmed, with costs. NELSON DAVENPORT, Appellant, v. LEWIS F. STOCKMAN, Respondent.Judgment and order unanimously affirmed, with costs. JAMES A. GOODRICH, Respondent, v. SATIE MALINOWSKI and Others, Appellants. Order reversed, with ten dollars costs, and order of reference, referee's report and judgment are set aside, and new trial granted, with costs to appellant to abide the event, upon the authority of Cronon v. Avery (42 Misc. Rep. 1); Stebbins v. Brown (65 Barb. 272) and Carroll v. Lufkins (29 Hun, 17). All concur. TRIPO KRSTOVIC, Appellant, v. CHARLES H. VAN BUREN and SAMUEL W. DAY, Copartners, Doing Business under the Name and Style of C. H. VAN BUREN & Co., Respondents.-Judgment reversed and new trial granted, with costs to the appellant to abide the event, on the ground that the evidence, including the correspondence between the defendants and Kline, presented a question for the consideration of the jury. All concur. JOHN D. LYONS, Appellant, v. ADELAIDE M. ANDERSON, Respondent.Order unanimously affirmed, with ten dollars costs and disbursements. BORDEN H. MILLS, as Trustee in Bankruptcy of the PLAYTHINGS CORPORATION, Bankrupt, Respondent, v. D. HARRY FRIEDMAN, Appellant.— Order unanimously affirmed, with costs. In the Matter of the Application and Petition of the Board of Water SUPPLY OF THE CITY OF NEW YORK, Respondent, for the Appointment of a Commission under Section 42, Chapter 724 of the Laws of 1905, as Amended by Section 9, Chapter 314 of the Laws of 1906. JAMES H. SANDS, Appellant; THE CITY OF NEW YORK, Petitioner, Respondent.Order unanimously affirmed, with costs. In the Matter of the Condemnation of Land for Street Purposes in the VILLAGE OF TUPPER LAKE, NEW YORK, Respondent. BROOKLYN COOPERAGE COMPANY, Appellant.- Order reversed and motion granted, without costs, |