People ex rel. Rafferty v. French — 37 N.Y. St. Rep. 55

Majority

p. 55

The People ex rel. Michael Rafferty v. Stephen B. French et al., Com’rs.

(Supreme Court, General Term, First Department,

Filed February 13, 1891.)

Headnote

Municipal corporations—Police—Removal.

Relator was removed for intoxication. The officers who saw him at the time testified that he was intoxicated, and the police surgeon stated that he examined him and that he was under the influence of liquor to the extent of requiring some few hours sleep to work it off. Relator denied that he was intoxicated and said that he drank only a preparation for malaria received from a physician. The physician testified that the preparation, properly taken, would not produce that result, but too much of it would make him a little stupid. Three witnesses testified that they did not consider relator intoxicated. Held, that there was no such preponderance of evidence in favor of relator as to call for a reversal of the commissioners’ decision.

Writ of certiorari to review the action and decision of the police commissioners, by which the relator was removed from the police force.

Albert S. Warner, for relator; John J. Delaney and Cornelius F. Collins, for com’rs.

The charge against the relator is the one so commonly made and proved, in these cases, that he was so much under the influence of liquor as to be unfit for police duty. It was made on his appearance, and conduct at the station house, when he returned from his patrol duty. His conduct when he went to the desk in the office was such as to arrest the attention of the sergeant in charge, and that led to a further investigation bf his condition.■ This officer testified that he could not answer

p. 56

the questions intelligently which he asked him, and staggered some in walking up and down the floor. And upon his cross-examination he answered further that he had no doubt but that the relator was then under the influence of liquor, and that he was unfit for duty.

The police surgeon also testified that he had examined the relator and “ from the odor of liquor on his breath and skin, the character of his pulse and some uncertainty in his actions,” he judged, “ that he was under the influence of liquor to the extent of requiring some few hours sleep to work it off; he was in that stage of the influence of liquor.” Sergeant Herlihy testified that, he also examined him and concluded him to be under the influence of liquor, and that this conc’usion was found from “his personal appearance, his thick speech, his manner of walking and the smell I got from his breath.” And he added that he considered him so much under the influence of liquor as to be unfit for duty. Roundsman McGree gave substantially the same evidence, and so did Roundsman Londrigan, who added, “he was drunk.”

The relator positively denied his intoxication and stated that he had drank only a preparation received from a physician for malaria. And the physician testified that he had supplied that preparation, but that properly taken it would not produce a dazed condition, but too much of it would make him a little stupid. Patrolmen Kelz, Sullivan and Kelcher observed the relator near tlie time mentioned in the charge, but did not consider him intoxicated, or under the influence of liquor, while McDermot and Farley did not notice him particularly, or devote much attention to him. It is quite clear that the evidence producéd to support the charge consisted of much more than suspicions and opinions. It was direct proof of the fact, fortified by circumstances which ordinarily indicate the existence of intoxication. That of the surgeon, and of Herlihy and McGree, was specially direct as wc 11 as cogent. And it was not overcome by the relator’s denial, and the evidence given by the other witnesses in his behalf. The effect was to create a question of fact for the decision of the commissioners, against which there certainly was no preponderance in favor of the relator. And under the rule sanctioned, not only by the statute, but also by the authorities, their decision is required to be sustained. People v. French, 110 N. Y., 494 ; 18 N. Y. State Rep., 231; People v. French, 119 N. Y., 493 ; 30 N. Y. State Rep., 67.

The determination of the commissioners should be affirmed, and the writ dismissed.

Van Brunt, P. J., and O’Brien, J., concur.