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People ex rel. Leonard v. Cropsey

Supreme Court of New York, Appellate Division

March 15, 1912

THE PEOPLE OF THE STATE OF NEW YORK ex rel. PATRICK W. LEONARD, Relator,
v.
JAMES C. CROPSEY, as Police Commissioner of the Police Department of the City of New York, Respondent.

CERTIORARI issued out of the Supreme Court and attested on the 6th day of December, 1910, directed to James C. Cropsey, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular the proceedings of his predecessor in relation to the dismissal of the relator from his position as a member of the police department of the city of New York.

COUNSEL

Jacob Rouss [Louis J. Grant with him on the brief], for the relator.

James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent.

HIRSCHBERG, J.:

On the 6th day of July, 1910, three charges in writing were filed by an inspector in the police department of the city of New York against the relator, a patrolman. These charges were

Page 731

(1) that the relator at about two-thirty A. M. of January 23, 1910, left his post for reasons other than the performance of police duty and entered the premises No. 2084 First avenue, in the borough of Manhattan; (2) that he violated rule 45, paragraph 14 of the rules and regulations of the police department by failing to make report of such action at the thirty-ninth precinct station house; and (3) that he failed and neglected to take proper police action upon finding one Alvina Seiler, aged fifteen years, in said premises at said time. The relator was tried on those charges before the third deputy police commissioner, and on the 3d day of August, 1910, he found the relator guilty as charged and recommended his dismissal. That finding and recommendation were approved by Police Commissioner William F. Baker on the 16th day of August, 1910, and on the same day an order dismissing the relator from the police department was signed.

It appears that some time during the evening of January 22, 1910, or the early morning of the following day, one Edward F. Downes, a patrolman attached to the same precinct as the relator, brought the girl, Alvina Seiler (with whom he had previously indulged in sexual intercourse), to the building No. 2084 First avenue, a garage then used by the board of education of the city of New York and occupied by a night watchman named James Cuffe, and left her with him. Downes was tried jointly with the relator on charges relating to his conduct with this girl and was dismissed from the department. After Downes left the garage Cuffe unsuccessfully endeavored to induce the girl to leave. Upon her refusal to leave, Cuffe states that he waited until the relator, who then was on patrol duty, came along; that he informed the relator that he did not wish the girl to remain in the garage; that the relator asked the girl her name and where she lived; that she refused to give the information, stating that it was none of his business; that relator then informed her that if she did not leave before he returned he would have to arrest her; that after relator left, the girl still refused to leave; that Cuffe again summoned the relator, who asked the girl if she had no home and what she meant to do; that she replied, 'Yes; it is none of your business; ' that the relator said, 'The best thing you can do is to go where you belong.

Page 732

* * * I will be back right away; ' that the relator left and returned in five or ten minutes and then found that the girl had departed meanwhile.

There is considerable conflict in the testimony as to whether the relator actually entered the building at the times he had these conversations with Cuffe and the girl. She claims that at the time of the first visit relator entered the building without having seen her and without having been summoned by Cuffe, and that at this time she hid from the relator before he saw her, pursuant to a direction from Cuffe, and that only after relator had entered the building did Cuffe inform him that she was in the building and request him to put her out. She also claims that when she first spoke to relator she informed him that Downes had brought her to the building after having indulged in sexual intercourse with her. Her testimony in these respects is uncorroborated and is denied by both the relator and Cuffe. Aside from these uncorroborated portions of her testimony, her account of the events in the garage is substantially the same as the stories told by Cuffe and the relator. Cuffe, on his direct examination, stated that relator entered the building to deal with the girl, and on his cross-examination denied that the relator entered the building at all. The relator claims that he remained in the street, standing at the threshold of an open door, talking to Cuffe and the girl, without entering the building. It is conceded that the relator made no report of these happenings.

The determination of the question whether the relator entered the garage was evidently deemed of great importance on the trial as bearing upon the truth of charges 1 and 2, that the relator had entered the building for other than police duty and had made no report of such desertion from his post. Much of the examination of the witnesses was devoted to an attempt to determine the truth of this matter, and the trial deputy adjourned the trial in order that he might obtain stenographic records of a previous examination of the relator in the district attorney's office on that subject. Those stenographic minutes, when produced, established that the relator had told the same story regarding that matter at the district attorney's office as he told at the trial of these charges.

Page 733

The fact that the relator did enter the building may, perhaps, be regarded as supported by sufficient evidence. We do not, however, consider that the fact of such entry, in view of the evidence in the record, sustains, or even tends to sustain, charges 1 and 2. Paragraphs 14 and 15 of rule 45 of the rules and regulations of the police department contain the provisions which, it is claimed, were violated by ...


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