The People of the State of New York ex rel. John J. Killilea, Relator, v. Theodore Roosevelt and Others, Police Commissioners, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents

The People of the State of New York ex rel. John J. Killilea, Relator, v. Theodore Roosevelt and Others, Police Commissioners, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents. 1Veto Fork police hom’d — when the appellate court will not inquire into the merits of a decision removing a member or the punishment —presumption that witnesses were sworn — when a further return should he demanded. Upon the return to a writ of certiorari to review the action of the police commissioners of the city-of New York in dismissing the.relator from the police force of that city, it appeared that upon the hearing of the charges and specifications upon -which -the dismissal proceeded certain witnesses testified-, -and the return did not expressly state that the witnesses w.ei-e sworn, as is required by a regulation of the police department, but it did state that ‘‘ the said charges were duly brought to a hearing and duly tried, heard, publicly examined into and investigated in the manner required by law and the rules and regulations of the board of police.” jBeld, that, as the charges which were made against the relator were sustained by some testimony, the court could not inquire into the merits of the case nor interfere with the punishment which had been imposed upon the officer; That, notwithstanding the fact that the record did not show that the witnesses were sworn, yet, as the return stated that the rules and regulations applicable to such investigations had been fully complied with, the court upon appeal must assume that the witnesses had been sworn; That if the relator desired to raise the question he should have moved for a further return calling the attention of the police commissioners to the exact point of his objection. Certiorari issued out of the Supreme Court and attested on the 10th day of January, 1896, directed to Theodore Roosevelt and others, police commissioners, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the dismissal of the relator from the police force of the city of New York. Louis J. Grant, for the appellant. Terence Farley, for the respondents. [MAJORITY — Patterson, J.:] Patterson, J.: The relator was dismissed from the police force by the respondents after a hearing upon a charge of conduct unbecoming an officer, and the specifications of the charge were that he interfered with an officer of the Society for the Prevention of Cruelty to Children while that officer was arresting a boy on a charge of vagrancy, and that he compelled that officer to go with him to the station house and acted in a boisterous manner while in the station house, and that before reaching the station house he violently pushed such officer about without any cause or provocation. There was, therefore, a specific charge made against the relator, and upon it he was accorded a hearing, witnesses were examined and the respondents found him guilty. There was conflicting evidence, and while we think that the commissioners might well have regarded- the offense as one not to be visited with the extreme penalty they have inflicted upon the relator, still we cannot, in view of the condition of the record before us, and the fact that there was testimony to sustain the charges, inquire into the merits of the case, or interfere with the punishment they have imposed upon him. (People ex rel. Hart v. Fire Comrs. of N. Y., 82 N. Y. 358; People ex rel. Masterson v. Fire Comrs. of N. Y., 96 id. 644.) It is urged by the relator as , a ground for reversing the proceedings of the respondents that the witnesses who were called to substantiate the charge against him were not sworn: It is shown that there is a regulation or rule of the police department to the effect that, except in trivial cases, evidence offered on the trial or hearing of charges against policemen before the commissioners of police must be taken on oath It is true that in the record before us of the minutes of the hearing or trial of the relator before the police commissioners, there is no- distinct statement that the witnesses called on either side were sworn, but the return of the commissioners states that “ the said charges were duly brought to a hearing and duly tried, heard, publicly examined into, and investigated in the manner required by law and the rules and regulations of the Board of Police.” This return is unchallenged and it has been frequently held that it must be accepted as stating the truth, namely, that the rules and regulations of the board of police applying to investigations of this character were fully complied with, which included the swearing of witnesses. If the relator desired to raise the question respecting the administration of an oath to the witnesses he should not have acquiesced in the return, but should' have moved the court for a further return calling the attention of the respondents to the exact matter which was the subject of his objection. (People ex rel. Press Pub. Co. v. Martin, 142 N. Y. 228.) As this return is conclusive upon us in its present form, we can do nothing but affirm the proceedings of the commissioners, and the writ of certiorari must be dismissed, with costs. Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred. Proceedings affirmed and writ dismissed, with costs.