
    The People of the State of New York ex rel. Daniel P. Guiney, Relator, v. Lewis J. Valentine, as Police Commissioner of the City of New York, Respondent.
   Proceeding to review by certiorari the action of the police commissioner of the city of New York in dismissing the relator from the police department after a trial on charges of conduct unbecoming an officer and prejudicial to good order and efficiency, and intoxication. The evidence is insufficient to sustain the charges. The testimony of the relator as to what occurred at the time he questioned Autorino is not controverted and is substantially corroborated by the testimony of Autorino. Consequently the first two specifications fall for lack of evidence to support them. As to the charge of intoxication, the department surgeon who examined the relator one hour after he was taken to the station house found the relator fit for duty. In view of the fact that he was off duty at the time the affray occurred, the evidence as to intoxication fails. (People ex rel. Baran v. Waldo, 162 App. Div: 345.) The determination is annulled, the certiorari proceeding sustained, and the relator reinstated, with fifty dollars costs and disbursements. Hagarty, Johnston and Close, JJ., concur; Lazansky, P. J., and Davis, J., dissent and vote to confirm the determination and dismiss the proceeding.  