People ex rel. Steele v. French — 32 N.Y. St. Rep. 444

Majority

p. 444

The People ex rel. James Steele v. Stephen B. French et al., Com’rs.

(Supreme Court, General Term, First Department

Filed June 6, 1890.

Headnote

Municipal corporations — Police—Removal. •

Relator was charged with being absent from roll call and thereafter reporting when under the influence of liquor so as to be unfit for duty. He testified that on being relieved he got on a car to go to the station, but had so severe a pain in his back that he could not leave the car and was carried to One Hundred and Twenty-fifth street, from which he walked back. A physician and the driver of the car testified that he was not under the influence of liquor, while the sergeants at the station testified that he was, and that his breath smelled strongly of liquor. He also gave a confessedly false excuse for being late at roll-call. Meld, that under the circumstances this court would not interfere with the determination of the commissioners.

Certiorari to review dismissal of relator from the police force.

Jho. M. Tierney, for relator; J. J. Delany, for resp’ts.

The charge against the relator was conduct unbecoming an officer, the specification being that he was absent from roll-call and did not report until some time thereafter, when he was so much under the influence of liquor as to be unfit for duty. That he was absent the relator admitted, and he seeks' to excuse his absence by stating that on being relieved from his post he got on board a car to return to the station house and that when the car arrived at the street in which the station house was situate he had so severe a pain in the back that he could not get off the car; that he rode to One Hundred and Twenty-fifth street, the end of the line; found that there was no car returning to One Hundredth street and was compelled to walk back the entire distance to the station house, arriving there at 1:15, when he should have been there at 12:30.

The evidence against the relator was that of two sergeants who were at the station-house when the relator came in. They stated that he was examined, and in their opinion was under the influence of liquor, and they gave reasons why they so believed, amongst which was that his breath smelt strongly of liquor.

It is true that certain evidence on the part of the relator was offered of persons who were on the car with the relator upon the night in question; one a physician, and the other the driver of the roar. The physician testified that he was going up with •him in the car, and had some talk with him in respect to his illness; and that he was not under the influence of liquor; and in this respect he was corroborated by the" driver of the car.

Here seems tó have been a conflict of testimony, which the commissioners’were called upon to decide.

It might be suggested that it is difficult to see how it was possible for this relator to have walked back, as he says he did, from One Hundred and Twenty-fifth street to the station-house if he was so ill as to be unable absolutely to leave the car when it stopped at One Hundredth street It is further to be borne in mind that the excuse which he gave for being late at roll-call was absolutely and confessedly untrue. /

p. 445

Under these circumstances we do not see that any excuse was given sufficient to account for the condition in which the relator manifestly was upon his arrival at the station-house, and to overcome the strong testimony of the sergeants who saw him upon his arrival.

The proceedings should be affirmed, and the writ dismissed.

Beady and Daniels, JJ., concur.