
    The People of the State of New York ex rel. Laurene Deley, App’lt, v. Stephen B. French et al., Police Commissioners, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Polios commissionees—Power to dismiss officer for misconduct—
    Hew York (city of).
    The relator was dismissed from the police force for misconduct owing: to intoxication. Evidence was produced on his part tending to show that while on duty, becoming ill, he consulted a physician who prescribed the use of stimulants, and that he did not voluntarily place himself in the condition in which the use of the stimulants placed him. Held, that the-proof-established no extenuating circumstances in mitigation of his punishment, but presented a question pertaining solely to the general government and discipline of the force, resting wholly within the discretion, of the commissioners.
    
      2. Same — When judgment set aside as against the weight of evi-
    dence.
    
      .Held, to authorize3the general term to set aside a judgment asonéagainst the weight of evidence, there must be upon all the evidence such a prepondence of proof as to the material facts that the verdict of a jury would he set aside as against the weight of evidence.
    Certiorari to review the relator’s dismissal from the police force.
    
      John M. Tierney, for the relator; Wm. L. Turner, for-resp’ts.
   Brady, J.

—The charge against the relator was neglect of duty and conduct unbecoming an officer. The specifications were that he was absent from his post in a restaurant in. this city, sitting at a table asleep with his hat and coat off, and was so much under the influence of liquor that it was necessary to take him to the Eighteenth precinct station house, which was done by a sergeant and roundsman. The evidence was abundant to establish that the relator was in a condition indicating intoxication, and it may be briefly said, establishing the charge made and the truth of the specifications stated. The answer of the relator to the charge was that whilst on duty he was suffering from diarrhoea, and so much so that he was compelled to go to the nearest drug store for relief, getting a man in the meantime to cover his post.

He met Dr. Hilton in the drug store who examined him,, and found he was suffering from cold, and who, in the exercise of his judgment, having made an examination, determined that he would be benefitted by a stimulant and narcotic. He consequently prescribed brandy and ginger, and a tincture of opium, directing the relator to take a tablespoonful of the brandy and ginger and twenty-five drops of the tincture of opium until relieved; and, if the first dose which was administered by the doctor in the drug store did not relieve him, to repeat the dose. The relator then returned to his post which he had left in charge of a person. The pain still continuing, the relator took another dose, and not having anything to measure it, drank from each of the bottles what he thought was a dose, and took, it is supposed too much of the opium, and lost consciousness. It should be marked here that there is no evidence in the case of his., having imbibed anything other than the medicine prescribed. Dr. Theodore Hilton corroborated the story told by the relator, stating that he saw him in the drug store, prescribed the-brandy and ginger and tincture of opium, and administered one dose himself. And he further said, “ I suppose he took too much of the opium on the brandy, and that produced a narcotic influence,” that, having taken it, it would take sometime to sleep it off, and that he would still smell of the brandy. The druggist, Mr. Arfort, also testified that the relator went to his store, met there Dr. Hilton, who prescribed for him, and that the doctor wrote two prescriptions which he put. up for the relator, four ounces of mixture in one bottle, and one ounce in another; and this was the case which was presented to the commissioners for their consideration. It is kindred to the case of The People ex rel. Michael Brady v. French, reported in the 11th State Reporter, at page 577. In that, case it appeared that the relator was taken sick and resorted to stimulants for relief, which was not denied, and which. the court considered in that case sufficient to account for his condition; overcoming the evidence which was offered ior the purpose of showing that he was guilty of conduct unbecoming an officer, and the proposition suggested and maintained by the court was that to determine the truth of the charge it was to be considered that he did not voluntarily place himself in the condition in which the use of the stimulant placed him, that it was his misfortune rather than Ms fault, that he was assailed by disease when it was entirely proper that something should be done for him in the way of providing a remedial agent, and that provided by Ms friend was considered to be what was required under these circumstances.

And in view of the rule that there must be upon all the evidence such a preponderance of proof as to the material facts that the verdict of a jury would be set aside as against the weight of evidence, it was suggested that the misconduct •did not tend to establish the charge made of voluntary intoxication, but proved him to have been subjected to illness requiring the aid of stimulants, resulting from no misconduct on his part, and, therefore, the judgment of the commissioners was reversed. Here that decision would be followed were it not for the recent adjudication made in the case of The People ex rel. Masterson v. French (19 N. Y. State Rep., 929), decided October 2d, 1888. That was a kindred case to this, only that the evidence was not quite iso strong to prove the immediate necessity of resort to stimulants, but there was sufficient to establish the fact that the relator took brandy and ginger for illness, and there was no evidence to the contrary. This court thought the facts and circumstances detailed in the evidence in that •proceeding to be such as to warrant the reversal of the judgment of the commissioners, but the court of appeals held, in reversing our decision, that conceding the existence of an ailment on the part of the relator it afforded no justification for his conduct. The proof, such as is given on the part of the relator, established no extenuating •circumstances in mitigation of the punishment which he had incurred by reason of his offense, and which would present a question pertaining solely to the general government and discipline of the force, and, hence, from the nature of things, rests wholly within the discretion of the •commissioners not presenting any conflict of evidence which would invoke the rule authorizing the general term to set aside the judgment as one against the weight of evidence. To this exposition of the law by the court of appeals we bow and affirm the judgment, and, as a necessary ■consequence, dismiss the writ, but without costs. •

Van Brunt, Ch. J., and Daniels, J., concur.  