O'BRIEN, J.:

In reviewing the three trials upon the separate charges made against the relator, the most noticeable feature is that the two deputy commissioners acted alternately as accuser, witness, prosecutor and judge, and it would seem that from the first the relator was deemed by them to be guilty of a serious offense and that they were determined upon one charge or another to ultimately secure his dismissal from the force. Thus we have Deputy Commissioner Piper making the first charge that the relator accepted money from the members of the school at the armory, which was tried before Deputy Commissioner Davis, the relator being found "not guilty as charged;" and then Deputy Commissioner Davis charging the relator practically with insubordination, which charge was tried before Deputy Commissioner Piper, who, upon the testimony of Deputy Commissioner Davis, found him guilty, and finally charges by Deputy Commissioner Piper, again with relation to the collection taken by members of the school, tried before Deputy Commissioner Davis, Deputy Commissioner Piper testifying against the relator who, upon one of the specifications, was found guilty.

The procedure followed does not commend itself, and it certainly does not tend to promote that spirit of fairness and appearance of impartiality which should characterize a court room, whether the accused be tried upon a criminal offense in a court of law or for the infraction of the rules and regulations of a large department of the city government.

Passing, however, the attending circumstances of the trial, which compelled the relator to meet upon different charges the same person acting as accuser, opposing witness and judge, and without determining to what extent the relator was prejudiced thereby, we fail to find in the record a proper basis upon which to dismiss the relator.

With respect to the first charge there was no dispute as to the facts. The relator did not, when called by the deputy commissioner to testify against himself, comply, his counsel interposing and refusing to permit him to do so. That the prosecution obtained whatever benefit could have been derived from calling the relator appears from the fact that he testified in his own behalf and was cross-examined at length. The deputy commissioner, however, complained that the relator, by disobeying the direction that he should testify for the prosecution, was guilty of a breach of discipline. We think a distinction is to be made between the position occupied by a commissioner generally and when he is presiding as a judge at a trial. At such times the accused has been suspended from the force, and the commissioner is acting not as his superior officer but as his judge upon the charges preferred. The rules governing judicial tribunals, therefore, and not the rules of the police department would seemingly apply. In People ex rel. Miller v. Elmendorf ( 42 App. Div. 309) it was said: "As the proceedings are quasi criminal in their nature, and valuable rights of the accused official are at stake as well as his good name, the same safeguards that are used to protect good name, fame, property or person in courts of justice should in substance be observed in these proceedings." We think, therefore, that the failure of the relator to be a witness against himself when called by the commissioner, his attorney having advised him not to testify, could not properly form the basis of a dismissal from the force, and more especially where as here he did thereafter take the stand and was cross-examined.

In regard to the second charge that, having knowledge that the collection had been or was being made, the relator failed to prefer charges against members who were guilty of violating the rules, it will be noticed that the deputy commissioners, by finding the relator not guilty upon the other specifications, reached the conclusion that the relator did not accept, in the armory of the Sixty-ninth Regiment, from Hickey, a member of the school, on April 3, 1903, a present of money; that he did not, while in charge of the school, permit the members to take up an unauthorized collection in the armory on or about April 3, 1903; that he did not have knowledge at that time (April third) that the collection had been or was being made, and that he was not neglectful in failing to take any action to prevent the taking of the collection. This conclusion, we think, is the one that necessarily follows from the evidence, for the relator, from the time when he was first spoken to by the deputy commissioner on April fourth, the day after the collection is said to have been made, has consistently stated that he had no knowledge of the taking of the collection, and knew nothing of it until after it had occurred, when an envelope, addressed to his wife, was left at his home, and none of the witnesses testify that he had knowledge of the collection. This, taking the view most unfavorable to the relator, leaves less than one day after the collection was made on April third for the relator to prefer charges against the members of the school who were responsible for leaving the envelope at his house directed to his wife with the slip inclosed saying that it was sent with the compliments of the class, for on April fourth the relator was called before the deputy commissioner at noontime when he stated that he did not know what to do and had done nothing, and within one hour, during which he was engaged at the school, he was suspended from the force, after which time, as the deputy commissioner conceded, he was not in a position to prefer charges. Furthermore it was not shown that the relator had any knowledge of what members were responsible for the collection and unless he had made charges against the whole class, based upon the slip contained in the envelope, it is difficult to see against whom he could have proceeded. Hickey, it is true, testified that he gave to the relator an envelope in the armory, but this testimony was discredited by the deputy commissioners, who found the relator not guilty of receiving money in the armory from Hickey, and there was no support for this testimony, Officer Schneider testifying merely that on April third he gave Hickey an envelope containing money in the street opposite the armory. Although it now appears that Schneider and Hickey were instrumental in taking up the collection, we have no credible evidence that the relator knew of their participation. We think, therefore, that the alleged neglect to prefer charges against members of the school of which the relator was found guilty, should not have been made a ground for his dismissal because, assuming that the conclusion of the deputy commissioner was right that the relator did, on April third, acquire knowledge of the collection, the fact that he was suspended on April fourth shows that he did not have the time within which he could reasonably have been expected to ascertain those who had violated the rules of the department and to prefer charges against them.

The writ should accordingly be sustained, the proceedings annulled and the relator reinstated, with fifty dollars costs and disbursements.

VAN BRUNT, P.J., McLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred.

Writ sustained, proceedings annulled and relator reinstated, with fifty dollars costs and disbursements.