People ex rel. Winchell v. MacLean — 36 N.Y. St. Rep. 998

Majority

p. 998

The People ex rel. John H. Winchell v. Charles F. MacLean et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Municipal Corporations—Police—Removal.

Relator was found off post by the sergeant, who testified that his breath smelt of liquor, his gait was unsteady, and he did not answer coherently. This was corroborated by other officers who observed him. Relator stated that he was dizzy, and took two doses of medicine at a drug store. The drug clerk testified to the ingredients of the medicine, and that it would not intoxicate unless a man had a weak stomach, and this was sustained by the police surgeon. Relator did not make such explanation when found off post, or report sick. Held, that upon this evidence the verdict of a jury would be conclusive, and that the decision of the commissioners could not be disturbed.

Writ of certiorari to review the proceedings of the police commissioners by which the relator was removed from the police force of the city of New York.

Louis J. Grant, for relator; W. Hartwell, for com’rs.

The relator was found guilty of, the charge of being absent from his post, and so much under the influence of liquor as to be unfit to properly perform police duty, during his-tour of patrol duty, on the evening of the 9th of December, 1889, and, by a vote of all the commissioners he was dismissed from the police force.

The fact was proved, and not contradicted, that he was found by Sergeant Thomas off his post, and he also testified that he then appeared to be intoxicated; that his breath had the odor of liquor, his gait was unsteady, and he did not answer coherently. He was then taken by the sergeant and Roundsman Wéstervelt, who was met on the way, to the station house, where he was also observed by other officers, including Surgeon John H. Nesbitt, who all confirmed the statement of Thomas and Westervelt that he was intoxicated.

The relator testified that he became dizzy, and went into a drug store for something to remedy that condition; that he received from the druggist a liquid, and drank it, without producing any change, when he returned and obtained another dose, which was. the cause of the condition in which he had been found.

The druggist was also a witness, and in his evidence so far confirmed that of the relator as to prove that he was in the store and

p. 999

received and drank the preparations handed to him. He also stated of what the compound consisted, and added that a child could take it, and it had no more than thirty per cent of alcohol, which would not produce intoxication unless a man had a very weak stomach. The police surgeon then added to his previous testimony that he did not think the ingredients mentioned by the druggist would produce the condition in which he found the relator. It was also proved that the relator neither made nor attempted to make any such explanation of his condition when he was found off his post, or after that when he was in the station house, and that omission as well as the evidence of the surgeon and druggist tended to discredit the evidence which the relator himself gave. So did his omission to report himself sick, or unfit for duty, or to consult the surgeon of his post, as he was directed to do whenever that might become necessary. The evidence taken together was decidedly against him. He had probably been beguiled into his condition by the unfortunate appetite which has proved a fatal snare to so many other well intentioned persons who have found employment and position in the police force of this as well as other cities.

The power of this court over the case now presented is no greater than it has over the verdict of a jury rendered on the trial of an action. Subds. 4 and 5, § 2140, Code of Civil Pro. Upon this evidence the verdict of a jury would be conclusive. The court could not set it aside. And it can therefore afford this relator no assistance. The case is notmaterially variant from others brought before the courts, and which it has been uniformly necessary to affirm. People v. French, 7 N. Y. State Rep., 253. The action of the commissioners should be affirmed, and the writ dismissed, with costs.

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