
    The People ex rel. Patrick Bohan, App’lt, v. Charles F. MacLean et al., Com’rs, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891)
    Municipal corporations—Police—Removal
    Relator was charged with intoxication. It was shown that, having fallen in pursuit of an offender-and soiled his clothes, he entered a saloon tó clean them, but it was not shown that he drank anything there. He appeared excited, and on arriving at the station house the officers state he was so much intoxicated as to be unfit for duty. Other witnesses testified that he was not intoxicated. Relator testified that he had not eaten anything that day, and had taken medicine given him by a doctor, who swore that it was composed of alcoholic extracts. Held, that there was sufficient in the evidence to justify the conclusion that he had added to the effect of the medicine by the use of liquor, and that the decision of the commissioners would not be disturbed.
    (Brady, J., dissents.)
    Certiorari to review the removal of the relator.
    
      Louis J. Grant, for app’lt; Wm. H. Olark, for resp’ts.
   Brady, J.

(dissenting).—The evidence seems to be sufficient to establish prima facie the charge of intoxication, but the response is satisfactory and presents a preponderance of proof in favor of the relator. He was not examined by any physician, or by any expert, unless members of the force can be so regarded. It appears from the record that he was in pursuit of an offender who ran into and through a car. In the pursuit he fell and soiled his clothing, to clean which he was invited by a saloon keeper into his saloon, accepted the invitation and did the cleaning. There is no proof that he drank anything there, although the saloon keeper was examined as a witness. He was much excited, partly from his exertions in pursuit of the offender and the fall, and partly from other causes which will be discussed below, and he seemed to his brother officers to be under the influence of liquor.

His statement was that he had not drunk any liquor in two ' years and none upon the day of the occurrence, that he had been ill and sought the attendance of a Dr. Both, who prescribed for him, that on the day charged he had not eaten anything, that he had taken the capsules prescribed by the physician and was suffering from a pain in his head. It also appeared from the testimony of Dr. Both that he had been ill and that the medicine given him was composed mostly of alcoholic extracts, and would, taken by a person who had not eaten for some hours, produce a ■condition like that of intoxication. Some of the citizens who saw him would not say he was drunk and others said he was not.

The apparent inebriety seems to have been accounted for and explained ; the result of the whole evidence leads to no other controlling conclusion than that the relator was under great excitement, the primary cause of which was the medicine he had taken, which was increased by the chase in which he was engaged in pursuit of an offender actual or fancied. The power to reverse under such circumstances is two-fold, the condition being explained and there being a decided preponderance of proof in favor ■of the relator. See People ex rel. Hogan v. French et al., 119 N. Y., 496, 497; 30 N. Y. State Rep., 67; People ex rel. McAleer v. French et al., 119 N. Y., 507; 30 N. Y. State Rep., 72.

Judgment reversed and relator restored.

Daniels, J.

The evidence of the persons who observed the relator as he was taken to, and after his arrival at the station house was that he was so much intoxicated as to be unfit for duty. He did not at the station attempt to excuse himself on account of the effect upon him of the medicine he had been taking, and that tended to subject his evidence to discredit. The fact that other witnesses did not consider him intoxicated did not avoid the effect of the evidence of these officers. Their evidence tended to prove that he had not been affected by any stimulant whatever, which was opposed to that given by himself and Dr. Both. The verdict of a jury would not be set aside on these conflicting statements. While it is true that he obtained and used the medicine as it is stated he did, it is not probable that it would produce the condition in which the officers found him. But he probably added to the effect by the use of intoxicating liquors. There was sufficient in the evidence to justify that conclusion. And when that may be the fact, the case of People v. French, 119 N. Y., 493; 30 N. Y. State Rep., 67, does'not support a reversal of the proceedings. But upon the evidence adduced, they should be affirmed in this case.

Van Brunt, P. J., concurs.  