People ex rel. Munson v. McClave — 32 N.Y. St. Rep. 434

Majority

p. 434

The People ex rel. John J. Munson v. John McClave et al., Com’rs.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Municipal corporations — Police—Removal cannot be sustained where EVIDENCE DISPROVES CHARGE.

Relator was charged with being off post and with being seen coming out of a liquor store while on duty. The roundsman alone testified to these facts and was contradicted by defendant, the persons who kept the saloon and another person. Held, that the evidence against the fact being so overwhelming as to utterly disprove it, the removal of relator cannot be sustained.

Certiorari to review the proceedings resulting in relator’s dismissal.

L. J. Grant, for relator; John J. Helany, for resp’t.

The charge against the relator was that he was off his post and was seen coming out of the liquor store No. 241 Bleecker street at 11.52 A. M. on December 4, 1889, during his tour of patrol duty. When the case was called the charge was read and the relator at once sworn.

He denied having been in the store, maintaining that he was outside all the time he was in its vicinity and not inside. He went to it, having been informed that a man named Page wanted to see him, and he tapped upon the window from the outside. He proved also by Messrs. Codington and Page and Burns, who kept the saloon mentioned, and Mr. Lavelle, that he was not in it on the morning mentioned. All of these witnesses were contradicted, but only by Roundsman Budd, who was of course anxious to sustain the chaige which was made by him against the relator. The cases in the court of last resort adjudging the effect of conflicting evidence, have gone very far towards investing the respondents with absolute power in proceedings of this character,, but have not yet gone quite so far as to say that when the evidence against the fact urged is so overwhelming as to utterly disprove it, the judgment pronounced cannot be disturbed.

It has not yet been held even there that a conviction can be sustained without evidence. Indeed it is said the court can examine the record to ascertain whether any transgression is charged, and if yea, whether there is any evidence tending to establish it. The People ex rel. Hart v. Board of Fire Commissioners, 82 N. Y., 358 ; People ex rel. Bradley v. French, 7 N. Y. State Rep., 253. Here there is none, for its semblance has been routed and discharged, and it cannot be held to be true in any respect except that the relator was on duty, which was not denied. The dereliction stands asserted but not sustained, charged, not proven, but completely answered and dispelled. The complainant, Rounds-man Budd, is mistaken, clearly so. No doubt is entertained of his honesty of purpose, but he is mistaken.

For these reasons the judgment should be reversed and the relator reinstated. Ordered accordingly.

Yan Brunt, P. J., and Daniels, J., concur.