People ex rel. Foley v. French — 20 N.Y. St. Rep. 913

Majority

p. 913

The People of the State of New York ex rel. Hugh J. Foley, App’lt, v. Stephen B. French et al., Police Commissioners, Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

■Certiorari — Decision oe police commissioners—Code Civil Pro., § 2140.

Where the relator was removed "by the police commissioners from the office of patrolman for intoxication, Held, that there must be a preponderance of evidence in favor of the relator to justify the court in ini erf ering with the determination of the police commissioners and that as the evidence adduced before them was direct and positive, they were justified in dismissing him from the force.

Appeal from the determination of the police commission;ers of the city of New York, removing the relator from the •office of patrolman in the police force.

John M. Tierney, for app’lt; Henry B. Beekmctn, corporation counsel, and Wm. S. Turner, for resp’ts.

The relator was accused in properly pre-pared charges and specifications of conduct unbecoming an •officer and a patrolman, in that he was unfit to perform patrol duty on the 20th day of January, 1888, by reason of intoxication.

The evidence against the relator was direct, positiv.e and unequivocal.

The witnesses, Captain Peter Yule and Sergeant. James J Norton, spoke from actual observation and conversation ■with the accused, and both unhesitatingly pronounced him unfit for patrol duty at that time.

The evidence in favor of the relator is of a general and inconclusive character, except his own, which is to the effect that he had drunk only two glasses of beer, or about a pint, after two o’clock in the afternoon of the day in question. Seven other patrolmen, who were present at roll call, at the station house, also testified that in their opinion the accused was not intoxicated, but each of them admitted, substantially, that his attention was not particularly attracted to the relator, nor did they or any of them examine him in respect to his condition.

Section 2140 of the Code of Civil Procedure, enables the court to review the evidence in proceedings of this character .and to set aside the decision of the police commissioners in

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the same cases where a court would be justified in setting aside the verdict of a jury, as being against the weight of evidence; but we do not find in the case that preponderance of evidence in favor of the relator which would justify us in interfering with the conclusion reached by the police commissioners.

The learned counsel for the appellant argues that it was not possible for the relator to have been under the influence of liquor, for, as some of the witnesses stated, he had walked a mile and a half in twenty-six minutes after drinking the beer, but this circumstance, even if abundantly proved, would by no means show that the determination of the commissioners was erroneous.

The form of intoxication which was described by the sergeant did not relate to the power of locomotion of the patrolman, for the sergeant testifies that the relator had borne successfully the ordeal of walking the crack, hut rather to the condition of his head. He says: “his head was more affected than his feet. I thought he didn’t have sense enough to perform patrol duty.” It might well he that the patrolman could walk the distance mentioned, and undergo the test above mentioned, and yet have his brain clouded by beer.

The police commissioners exacted no more than that this patrolman, when offering himself for duty, should have a head clear- enough to be able to discharge the functions of his post intelligently and discreetly. The evidence adduced before them being direct and positive, they were justified in dismissing the relator from the force.

The' order appealed from is affirmed, with ten dollars costs, and disbursements.

Van Brunt, P. J., and Brady, J., concur.