People ex rel. McClory v. Robb — 5 N.Y.S. 869

Majority

p. 869

People ex rel. McClory v. Robb et al., Park Commissioners.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. Municipal Corporations—Police.

Where, in an examination of a policeman for drunkenness before the board of parks, the evidence was conflicting, the finding of the board will not be disturbed.

3. Same.

In such case the evidence may be taken by one commissioner, but the removal must be made by the board.

Certiorari to the board of parks in the city of New York.

The people of the state of New York, on the relation of Francis P. McClory, brought certiorari against J. Hampden Robb, Waldo Hutchins, M. C. D. Borden, and Stevenson Towle, composing the board of parks in the city of New York, to review their dismissal of relator from the park police.

Argued before Van Bruñí, P. J., and Brady and Daniels, JJ.

J. F. McIntyre, for relator. Henry R. Beekman, (W. L. Turner, of counsel,) for respondents.

It is clear that this court cannot interfere with the action of the respondents. There were sharp conflicts of testimony between the doctor who examined the relator upon the evening when he is charged with being intoxicated and the relator. The relator claims that he was not intoxicated, but was suffering from an attack of rheumatism, and that his foot and ankle were swollen. The doctor testified that he examined the foot and ankle, and that there was no evidence of swelling, and a firm pressure did not cause the relator to wince, and that he was evidently under the influence of liquor. It is true that the evidence of the relator was corroborated by that of his wife, but that fact affords no reason for disturbing the conclusion of the commissioners. If the evidence of the doctor was to be believed, then the evidence of the relator and his wife was untrue. Of the credibility of the witnesses the board were the judges, and they probably reached a correct conclusion. As to the regularity of the proceedings, no valid objection has been stated. In similar proceedings it has been held that the evidence may be taken by one commissioner, although a removal must be made by the board. The writ must be dismissed, but without costs. All concur.