
    The People ex rel. Edward J. Flood v. James J. Martin et al., Police Commissioners.
    New York Superior Court-General Term,
    December, 1895.)
    1: Police.— Removal of officer—Proof of intoxication.
    On the trial of a charge of intoxication against a police officer, proof; that his actions were those of g drunken man and that his breath smelled of liquor is sufficient to establish the charge.
    2. Same —Review of determination.
    The determination of police commissioners upon charges against an officer, where the evidence was conflicting, will not be disturbed unless it is cléarly against the weight of evidence or appears to have, been influenced by prejudice or mistake.
    .Certiorari io review the action of the board of police commissioners of the city of New York in removing the relator from the police force.
    
      Louis J. Grant, for relator.
    
      Francis M. Scott, Counsel to the Corporation, for respondents.
   McAdam, J.

The relator was tried on charges preferred of conduct unbecoming an officer, in that on December 17, 1893, he was brought to the station house, by Roundsman Ryan at three-fifteen p. M. in a condition unfit to' perform his tour of reserve duty.

The relator went on his post on the day in question at eight A. m. His tour extended up to one p. m., shortly after which hour he was relieved by Officer Nolan at the corner of Canal and West streets. Thereupon he started for the station house by way of Canal and Sullivan streets. At about Broome street he fell and cut his head. ■ He saw two young men passing by, and asked. them to help him up alongside of a box,- which they did. While there the roundsman came along and took him to the station house, where the sergeant in charge notified the captain of the circumstances, and, at .the request of the commanding officer, the complaint was ma-deby the sergeant.

The question is whether the unseemly condition of the officer was caused by illness or intoxication. The relator testified 'that he was not under the influence .of liquor at the time ; that - he drank nothing that day, and that the fall was occasioned by. vertigo. There is evidence in ■ the case sustaining this view, while the testimony in suppprt of the charges was equally strong the other way. Of course the witnesses would not swear positively that the relator had been drinking, for they did not see him drink; but they did testify that his actions were those of a drunken man, and that his breath smelled of liquor.

This evidence sufficiently established the charge.

It is elementary that drunkenness may be proved by observation ; expert evidence is not necessary. People v. Eastwood, 14 N. Y. 562; McCarty v. Wells, 51 Hun, 174; People ex rel. Kelly v. MacLean, 37 N. Y. St. Repr. 628 ; People ex rel. Shields v. Hayden, 7 Misc. Rep. 292.

The officer had been on the force for about ten years, and had never before been sick, nor had he asked for leave of absence; but his record shows that sixteen complaints had been made against him during that time. On three of these occasions- he had been reprimanded ; he had been fined thirteen times, the penalty in once instance being ten days’ pay. for an assault on Rosie Creci.

The primary power of passing upon the weight of conflicting evidence rests in the respondents. In support of their, determination the court will indulge the, same presumption as in the case of a .finding of a jury; and where different inferences may be properly drawn from the evidénee, such .determination will not be interfered with unless it is clearly against the weight of evidence or appears to have been influenced by prejudice or mistake.

. Tested by these rules, we find-no-error, prejudice; mistake or abuse of discretion on. the part of the commissioners, and as the proofs justify .the result arrived at the adjudication must be affirmed, with costs.

Freedman and Gildersleeve,. JJ., concur.

Adjudication affirmed,, with costs.  