People ex rel. Brooks v. MacLean — 33 N.Y. St. Rep. 861

Majority

p. 861

The People ex rel. Daniel Brooks v. Charles F. MacLean et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Municipal cobfobations—Police—Removal.

Where, upon the whole evidence, a jury might well come to the conclusion that relator was under the influence of liquor, the finding of the commissioners that such was the fact is final, and cannot he disturbed.

Certiorari to review judgment of the police commissioners removing the relator from the police force.

Louis J. Grant, for app’lt; J. J. Delany, for resp’ts.

There is no ground shown by this record for interfering with the determination of the respondents. The officer was charged with conduct unbecoming an officer, being intoxicated. Various witnesses were examined to sustain the charge, a sergeant, several roundsmen and a police surgeon, all of whom saw the relator and were of the opinion .that the relator was under the influence of liquor and unfit for duty.

For the relator, his family physician, some patrolmen and a citizen were examined, and their evidence tended to show that he was subject to fits and that his condition may have been caused by an attack .of the disease to which he was subject.

This testimony was strengthened by the fact that but one of the witnesses who had testified that he was intoxicated thought that he smelled any liquor upon his breath. But this fact did not overthrow their testimony. In fact, notwithstanding this fact, upon the whole evidence a jury might very well have come to the conclusion that the relator was under the influence of liquor.

Under these circumstances, the finding of the police commissioners is final and cannot be disturbed.

The judgment should be affirmed and the writ dismissed, with, costs.

Daniels and Brady, JJ., concur.