
    The People of the State of New York ex rel. Frederick C. Gerhardt, Jr., Relator, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.
    First Department,
    May 5, 1911.
    Mew York city—dismissal of policeman on charges — certiorari— • reinstatement. ,
    On certiorari to review the action of the police commissioner of Few York ' city in dismissing a policeman, the question presented is not merely as to whether there is any competent evidence to support the commissioner’s determination, but also as to whether upon all the evidence there was such a preponderance of proof against the existence of the facts found by the commissioner that the verdict of a jury affirming their existence would be set aside.
    Evidence examined, and held, that the relator was not guilty of the . charges; that the determination of the commissioner dismissing him from the force should be reversed and the relator reinstated.
    Certiorari issued out of the Supreme Court and attested on the 31st day of May, 1910, directed to William F. Baker, commissioner of police of the police department of' the city of ¡New York, commanding him to certify and return to the office of the clerk of the county of Yew York all and singular his proceedings had in dismissing the relator from the police force of the city of Yew York.
    
      Louis J. Grant of counsel [ Jacob Rouss with him on the brief], Grant & Rouss, attorneys, for the relator. .. .
    
      Harry Crone of counsel [Archibald R. Watson, Corporation Counsel], for the respondent.
   Miller, J.:

The relator was charged with conduct unbecoming an officer, the specific charges being: 1,' that at or about twelve-ten a. m., on January 1, 1910, he assaulted one Ernest E. Oberst without cause or provocation by striking him on the head with a black jack; 2, that at that time he arrested said Oberst, falsely charging him with an assault; 3, that at. the same time he arrested one John T. Moore, falsely charging Him with an assault; 4, that at the same time he arrested one Augustus Hayes, falsely charging him with an assault. He was found guilty of all the charges.

The respondent seeks to sustain his determination upon the ' ground that there is some evidence to support it.. The question, however, is not merely whether there was any competent proof of the facts necessary to authorize the determination, but also whether, upon all the evidence, there was such a preponderance of proof against the existence of such facts that the verdict of a jury affirming the existence thereof would be set aside as contraiy to the evidence. (Code Civ. Proc. § 2140.)

The charges grew out of an affray at about the time stated ■at or near the entrance to a, saloon on Thirtieth street, between Seventh and Eighth avenues, kept by said Mooie. The said Oberst was Moore’s bartender, and Hayes was a crony of Oberst’s and an habitue of the saloon. They and one'McGee, also a crony of Oberst’s and an habitue of the saloon, were the witnesses against the relator. It is undisputed that the relator arrested Oberst, Moore and Hayes, and charged Moore with interfering with an officer, Oberst and Hayes with'assault. So the charge of making a false charge ■. of assault against Moore falls at the outset. Oherst admitted that he struck the relator at least once and “gave him one black eye.” Hayes denied that he struck the relator at all and asserted that he did not become involved until after the trouble was over, when he asked Oberst a question; whereupon the relator, without cause, arrested him. Oberst admitted that Hayes “ got in the mix-up,” and an. officer who came to the relator’s assistance, and the lieutenant in' charge of the desk at the police station, both testified that Hayes said at the station, “We had no right to hit the cop in uniform,” or substantially that. Hayes would not deny that -he was drunk and the evidence plainly shows that both he and Oberst were considerably under the influence of liquor, the latter being so boisterous that he had to be confined in a separate room at the station while the lieutenant was getting an account of - the occurrence. It is undisputed that the relator received two black eyes, cuts and bruises on his face and neck, and a blow upon the mouth sufficient to draw blood, and that at eight o’clock in the morning, when he was examined by a surgeon, both eyes were swollen nearly shut. He was on sick-leave and under the care of a physician for ten days. It is not pretended that any but Oberst and Hayes struck him. Indeed there is no' denial that his injuries were caused by them but for the testimony of Hayes above mentioned. All but the first charge then were plainly disproved.

'The relator testified that when near the said saloon, at about midnight on the date in question, he heard two pistol shots a.nd saw Moore in front of the saloon; that he inquired of the latter if he fired the shots, to which he replied that it was none of his [the relator’s] “damned business;” that he then undertook to enter the saloon, informing Moore that he was going in to investigate, but Moore- said that he could not go in and tried to prevent his doing so; that he then informed Moore that he was -under arrest, whereupon Moore tried to get in the 'saloon and close the door in .his face; that a scuffle ensued, Moore being within the saloon and the relator apparently about, on the threshold; that while he and Moore were struggling in the doorway Oberst approached from within the saloon and struck him twice and 'thereupon he pulled his “black jack” and'struck Oberst on the head, just as the latter was making a \ third attempt to strike him; that then Hayes came up and struck him three or four times, when he hacked up against the door and drew his pistol; and that he was struggling with Moore and Hayes for the possession of it when another officer arrived. The said officer testified that when he arrived the relator was hacked up against a door or window holding Oberst with one hand and that both he and Moore had hold of the pistol, and that Hayes was nearby.

There is nothing to discredit the relator’s testimony as to his purpose in seeking entrance to the saloon. Moore admitted that the relator approached him with the question or a statement as to his firing the pistol, but denied making the reply stated or that he opposed the relator’s entrance into the saloon; on the contrary, he says that he backed directly into the saloon and up against the bar, the relator following and having-hold of his coat' collar. Oberst corroborated him in that and they both testified , that thereupon Oberst came from behind the bar and asked what the trouble was; whereupon the relator suddenly, without warning and without provocation, struck Oberst on the head with the black jack. McGee corroborated Moore and Oberst as to the unprovoked assault upon the latter, but said that the whole occurrence took place within two feet or two and one-half feet of the door, thus corroborating in a measure, unwittingly no doubt, the relator’s testimony that his effort to enter was opposed. That testimony is also corroborated by an apparently disinterested witness, who testified that he saw from the street the men struggling in the doorway.

The story of the wanton and unprovoked assault upon Oberst is almost too improbable for belief, even if it did not bear upon its face evidence of its own untruth. Oberst did not have to come from behind the bar to ask what the trouble was and his purpose in doing that is too obvious to require comment. The condition of the relator when the affray was over is the best evidence of how that purpose was executed. Moore and McGee both testified that the relator struck Oberst but once with a black jack. On cross-examination Oberst was led- into making a very significant statement. I quote: “ Q. You think if you had struck him the second time, you would have given him another black eye? A. If I had a chance, I would have done it, too. Q. You would have given him another hlack eye? A. I certainly would, yes, sir. Q.' And the reason. now that you think you did not hit him twice was, because he had only one black .eye; is that it? A. No, because he hauled off with the jack and hit-me again. ” Oberst was a larger,, heavier man than the relator, and it is quite evident that the blow on the head was sufficient to quiet him until the other officer came, when the relator was still holding him with one hand.

During the examination of each witness the others were excluded from the room. The alleged unprovoked assault upon Oberst is about the only thing upon which the stories of the ■ witnesses against the relator agree. As already stated, Hayes does hot claim to have seen that. It would unduly extend this opinion to call attention to all of the variances and discrepancies in the said testimony.. The testimony of McGee was impeached by his' statement, insisted upon, that several days after the occurrence, in. discharge of what he considered his duty as a citizen and without being requested to do so, and without consulting any one, he went to the City Hall to lay the matter before the mayor, and' there to his surprise found Oberst ■ and Moore on the same errand. The trial deputy had the advantage of seeing the witnesses, but the well-known character of the neighborhood in which the occurrence took place is not to be overlooked.

On hearing the pistol shots it was the relator’s duty to investigate, apd in the discharge of that duty he had the right to enter the saloon. The credible evidence and all the surrounding circumstances show that at the outset Moore resisted him in the effort to discharge that duty. That justified Moore’s arrest, and naturally strengthened the relator’s belief that something was wrong within the saloon. The relator’s story of what occurred within the saloon is probable and borne out by all the surrounding circumstances. The other story, though related by more witnesses, is grossly improbable and the testimony in. support of it is. impeached in many ways. ' It is evident that if the relator had not used his black jack with some effect on Oberst and if the other officer had not. come to his assistance when he did, the relator would have been more seriously injured than he was. It is a serious offense to assault an officer or resist him in the discharge of' his duty and those who undertake to do it should not expect to be handled tenderly. The relator was plainly justified in using the weapons at hand to defend himself.

The determination of the commissioner on a disputed question of fact is not to be lightly set aside; but, in the view we take of the evidence, ofir duty under the statute is plain. The determination should be reversed, with fifty dollars costs and disbursements, and the relator reinstated.

■ Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. •

Writ sustained, proceedings reversed, and relator reinstated, with fifty dollars costs and disbursements.  