
    The People of the State of New York ex rel. John Gesser, v Stephen B. French et al., Police Commissioners.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Police commissioners—When rinding conclusive.
    This court will not interfere with the finding of the police commissioners in a case where upon conflicting proof there is sufficient evidence to sustain the conclusion which they reached.
    2. Same—Jurisdiction in certain cases.
    The hoard of police have- jurisdiction to entertain a charge against an officer, notwithstanding the alleged misconduct is committed while th& officer is not on duty.
    Writ of certiorari to review a determination of the board of police of the police department of the city of New York, dismissing the relator from the police force,
    
      John M. Tierney, for relator; William L. Turner, for respt’s.
   Bartlett, J.

The relator, who was a patrolman in the police force, was charged with conduct unbecoming an officer, in being grossly intoxicated at about one o’clock in the afternoon of the 12th day of March, 1888, and in hay ing while in that condition entered the house of Lauretz Jorgenson, at 92 Third avenue,. in the city of New York, where he attempted to go up stairs, and furthermore drew his revolver, which was taken from him by said Jorgenson.

The complainant, Jorgenson, was a manufacturer of cigars, whose house, 92 Third avenue, was partly a cigar store and partly a dwelling. He testified that on March 12, 1888, he was told by his daughter that a man was coming into the house; that thereupon he went out into the hall and found the relator, of whom he inquired where he wanted to go; that the relator who was grossly intoxicated, said he wanted to see Lizzie; that the witness told him there was no such person in the house, and that he could go out. The complainant continued “my wife told me to go back in the room, and she would try and get the man out. She' could not get him to go, and I came back and saw that he had his revolver in his hand. I took it and handed it to another man. I took him out and I locked the door.’' At the time of this occurrence, it cannot have been far from one o’clock. ■The relator was not on duty, and was clad in civilian costume, with the exception of his trousers which belonged to his uniform. He came into the Fourteenth precinct station house at about half-past five o’clock, the same afternoon. Meantime inspector Williams had obtained the revolver which the relator left at 92 Third avenue, and upon the arrival of the officer at the police station, the inspector asked him if he had his pistol about him. He answered no, that it was up stairs in his closet, but upon being sent for it, was unable to find it there. He then admitted that he did not know where his revolver was, and did not know who had it; but he identified the weapon as his own when the inspector showed it to him.

The relator himself denied that he had taken more than four drinks on the day of his visit to the complainant’s house. He had been on duty the night before until six o’clock in the morning. He appears to have remained at home until noon, when he had dinner, and went out up Fourth avenue. He says he did not feel well, and on the way up had several drinks. According to his account, when he came to Jorgenson’s place, he inquired for a friend whom he thought probably lived in that house; but he made a mistake. He said that he pulled out his handkerchief, and his handkerchief caught^ on his revolver, and pulled that out also. He admitted that it was on. account of the drinks he had taken, that he did not know what house he was in.

The principal excuse offered for this conduct on the part of the officer is the fact that March 12, 1888, was the day of the great storm commonly known as the “blizzard,” and that the weather was so severe that it was necessary for the preservation of the health and life of the relator to drink the liquor which he did.

This excuse, however, has its foundation in the ingenious imagination of counsel rather than in the facts of the case. The officer says little or nothing about the storm which was prevailing at the time he became intoxicated, but refers, rather, to the inclement weather of the night before, when he was on duty as his reason for drinking on the following day. It is true he declares that he felt very chilly, in «consequence of which he drank, but it cannot be inferred from this statement that his life or even his health was in any such peril as to justify, excuse or palliate his conduct in getting into such a condition as' he was when discovered upon the premises of the complainant. The only important testimony tending to conti oveit the charge that he was then very much intoxicated, was the evidence of Inspector Williams, that when he saw him at half-past five at the station house, the relator was apparently sober, and that no odor of liquor could then be detected about his person. But we_ cannot interfere with the finding of the police commissioners upon conflicting proofs, so long as there is sufficient evidence to sustain the conclusion which they reached; and here the evidence of the relator’s intoxication is ample.

The board or police had jurisdiction to entertain the charge against the relator, notwithstanding that the alleged misconduct was committed at a time when the officer was not on duty. This is settled by authority so far as relates to the police force of New York and Brooklyn. People ex rel. Connolly v. Police Commissioners, 11 Hun, 403; People ex rel. Hayes v. Carroll, 6 N. Y. State Rep., 63.

The power of the police commissioners in such cases is. analogous to the jurisdiction of courts martial, which embraces acts on the part of military or naval officers tending to bring disgrace and reproach upon the services of which they _ are members, even if those acts are done in civil positions, social relations, or private business. Smith v. Whitney, 116 U. S., 167, 183.

No argument is required to' show that a police officer who gets so drunk as to enter the house of a stranger without knowing where he is, who loses his revolver, there and who is unable to remember four hpurs afterwards what has become of the weapon, is to be deemed guilty of an act. tending to bring reproach upon the police force and to impair the respect which it ought to command from the community.

The proceedings should be affirmed, with costs.

Van Brunt, Ch. J., concurs.

Daniels, J.

I agree to affirmance on what Justice Bartlett very appropriately says upon this case, and also on the recent decision of People v. French (18 N. Y. State Rep., 231), which appears to be controlling, holding that-the sufficiency of the excuse is for the commissioners, and. not for the court.  