People ex rel. McAleer v. French — 6 N.Y.S. 213

Majority

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People ex rel. McAleer v. French et al., Police Commissioners.

(Supreme Court, General Term, First Department.

July 9 1889.)

Headnote

1. Municipal Corporations—Police.

The action of the police commissioners of New York city, in dismissing a policeman for intoxication, will not be reversed, though it appears that he has served faithfully for 18 years, and that the liquor was taken as medicine; as those circumstances are addressed only to the discretion of the commissioners, in mitigation of punishment.

2. Same.

Upon the investigation of the charge of drunkenness the officer is not denied the right to examine witnesses, if he merely inquires if he shall call certain witnesses, and is told by the commissioners, on stating what he expects to prove by the witnesses, that they will do him no good, the witnesses not being present.

Certiorari to police commissioners.

Patrick McAleer, a patrolman of the metropolitan police force, was charged with intoxication while on duty, and tried before the commissioners of police. On the trial lie asked if he should call his wife and an officer, by whom he could show his condition shortly before he was alleged to have been intoxicated. He was told that they would probably do him no good, as only his condition at the time charged was material to the inquiry. He was dismissed from the force, and brings certiorari to review the decision of the commissioners.

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

Edward T. Wood, for relator. Henry R. Beeltman and William L. Turner, for respondent.

Although the punishment which has been visited upon the relator, admitting that the proof satisfactorily established his guilt of the offense charged, seems to be utterly disproportionate to the gravity of his offense, taking into consideration the fact of 18 years’ meritorious service, we do not see, under the rules laid down by the court of appeals, that we can interfere with the finding of the commissioners. In fact, the evidence seems to show that the relator was under the influence of liquor at the time at which he was charged. The evidence in respect to the circumstances under which the liquor was drunk, namely, because of sickness, presented merely extenuating circumstances in mitigation of the punishment which the relator had

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incurred by reason of his offense. This was a question to be addressed to the discretion of the commissioners, and this discretion we cannot review.

The claim that he was deprived of his right of calling witnesses, or that there were informalities in the proceedings upon the trial, does not seem to be sustained by the record. It is true that he was examined in the first instance by the commissioners; that they had a right to do. It is also true that he suggested or asked if he should call other witnesses. But he made no proffer of such witnesses. He did not offer to have them sworn, and it does not appear that he had them present, although notified of the time and place of trial. And in this respect the case differs from the case of People v. French, 3 N. Y. Supp. 841 , where the witness was actually produced, and his testimony offered, and rejected because in the opinion of the commissioner his testimony was unreliable. Although we are of the opinion that great injustice has been done to the relator by reason of the severe punishment inflicted upon him for an offense committed under the circumstances in which the evidence shows the offense in question was committed, we cannot grant any relief, and must dismiss the writ, but without costs.

Daniels and Brady, JJ., concur, the latter in the-result.