People ex rel. Peabody v. Woods , 157 N.Y.S. 606 ( 1916 )


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  • Per Curiam:

    The evidence snows that the relator did not enter his signature in the blotter in chronological order, and that he did not prefer charges against Lieutenant Adams for making the premature sketch of the entries. It is incredible that the acting commissioner, who in the awkward situation of determining a question of veracity or recollection between his highest superior and the relator conducted the proceeding fairly, could have dismissed the relator from the force on account of the first two charges. Indeed, he referred to the third charge as the serious one. While the relator may have been negligent in failing to discover the subsequent entries, even in the probable mental disturbance caused by the sudden appearance of, and abrupt rebuke by, the commissioner, and while the acting commissioner was authorized to find that the relator did use *685the words, “I don’t remember,” the evidence does not sufficiently show that the relator was guilty of conscious false statement to the inspector. He should be convicted only by clear proof of the offense. The words, “ I don’t remember,” if given their usual meaning, would have indicated mere flippancy— which is not ascribed to him. The evidence fairly shows that he also said, “I don’t know whether it was there or not.” That is an understandable statement. What the relator said as the commissioner, declining to hear explanation, was about to depart, should be considered in connection with the information that Lieutenant Adams had given the relator regarding the entries. Viewed in such light, it has not the significance that must have been given it by the trial officer. Relator’s statement, “I am positive there was,” meaning a blotter over the lower part of the page, is entirely consistent with his earlier statement, ‘ ‘ I saw nothing there at all at the time. It seems impossible for me to do it, but I did it.” Evidently upon reflection, especially after the suggestion made by his lieutenant, he had, when he testified later, come to the certain conclusion that the blotter must have been there, and so then said: “I am positive there was.” It was his reasonable inference, not an assertion that he remembered actually seeing the blotter upon the page. The interrogation does not seem to have pinned the relator down to such exact inquiry as this: “Do you remember that you actually saw the blotter on the page ? ” We consider that the relator came in the end to the belief that there was an interposed piece of blotting paper, as a rational inference from the fact that he did sign his name without noticing the entries below, and the later advice by the lieutenant, as to the blotter; and, further, that such inference was, under the circumstances, not unreasonable for him to draw and should have been accepted by the commissioner as representing the truth.

    It is concluded that the writ should be sustained, the determination of the acting commissioner annulled, and the relator restored to his position, with fifty dollars costs and disbursements.

    Thomas, Stapleton and Mills, JJ., concurred; Putnam, J., read for confirmation of determination, with whom Jenks, P. J., concurred.

Document Info

Citation Numbers: 171 A.D. 684, 157 N.Y.S. 606, 1916 N.Y. App. Div. LEXIS 5318

Judges: Putnam

Filed Date: 2/28/1916

Precedential Status: Precedential

Modified Date: 11/12/2024