People ex rel. Irving v. French — 25 N.Y. St. Rep. 570

Majority

p. 570

The People ex rel. John Irving v. Stephen B. French et al., Police Commissioners of the City of New York.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Police—Dismissal op patrolman—When decision op commissioners conclusive—Code Orv. Pro., § 2140.

On certiorari to review the action of the police commissioners in dismissing a patrolman for conduct unbecoming an officer, where there is no such preponderance of proof against the existence of the facts necessary to maintain the charge as would require a court to set aside the verdict of a jury affirming such facts (Code Oiv. Pro., § 2140), the decision of the-commissioners will not he disturbed.

Writ of certiorari to review a determination of the board of police dismissing the relator from the police force of the city of New York.

John N. Tierney, for relator; Henry B. Beekman and W. L. Turner, for resp’ts.

The relator has been dismissed from the police force for conduct unbecoming an officer, in having,, without cause or justification, engaged in a disgraceful street brawl and fight with another patrolman, whom he assaulted with his club, late in the evening of January 12, 1888. The evidence established the fact that the relator and patrolman Joseph P. McGuire became engaged in a fight in Bleecker street, between Broadway and the Bowery, between half-past ten and eleven o’clock at -night; and the principal question to which the proof was directed on the hearing was whether McGuire first assaulted Irving, or Irving first assaulted McGuire.

The testimony on tliis subject was exceedingly conflicting, and when read in the record before us we cannot say that it does not leave some doubt as to whether a correct result was reached. However, the proof is ample to sustain the finding that the relator struck the first blow, and although the evidence to this effect was contradicted, the police commissioner who heard the case and saw the witnesses, must be deemed the best judge of their credibility, and we are not disposed to interfere with his conclusion in that respect. It is true that the testimony of McGuire as-to the origin of his difficulty with Irving differed somewhat from the statement which he made to the inspector at the central office on the night of the assault and immediately after it, but we are not prepared to say that the discrepancy was such as to call upon the commissioner to discard McGuire’s evidence, especially in view of the fact

p. 571

that it was corroborated by the testimony of other witnesses On the whole case there is no such preponderance of proof against the existence of the facts necessary to maintain the charge upon which the relator was tried, as would require a court to set aside the verdict of a jury "affirming such facts (Code Civ. Pro., § 2140, subd. 5). No question of law arises in the case, and as the determination of the police board is not against the weight of evidence, it is the duty of this court to sustain it. The proceedings should be affirmed and the writ of certiorari dismissed, with costs.

Van Brunt, Oh. J., and Macomber, J., concur.