
    The People ex rel. Frank C. Boekell v. Charles F. MacLean et al., Com’rs.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed January 11, 1892.)
    
    1. Municipal corporations—Police—Removal.
    The police commissioners, while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules,, and give effect to explanations which tend to mitigate or explain away the offense charged.
    2. Same.
    Relator was charged with intoxication. It was shown by the testimony of two citizens and the relator that his horse slipped and threw him to the ground, rendering him unconscious, and the citizens, to revive him, gave-him whiskey, which, by the subsequent heat of the radiators in the station house, put him in a doze. Held, that if these statements were true relator-was not guilty of voluntary intoxication, and that the commissioners. should not have disregarded the testimony of the citizens, who were disinterested and uncontradicted.
    Certiorari to review the action of the board of police commissioners in removing the relator from the police force.
    
      Louis J. Grant, for relator; William H. Glark, counsel to the-corporation, for resp’ts.
   McAdam, J.

The relator was tried by the police board on; charges preferred to said board that the relator was so much under the influence of liquor as to be unfit for duty at 1.33 P. M.. January 1, 1891, at the expiration of his tour of patrol duty.

■ The testimony offered in support of the charges would be sufficient to sustain them, were it not for the explanation offered by the relator, which seems fully sustained by the evidence on his-part. The relator went on his post on the day in question at 8-A. M., and his tour ended at 1 p. M. He completed his tour that day in full, and arrived at the station house twenty or-twenty-five-minutes after one o’clock.

The relator was one of the mounted force, and on the day in-question he answered the first call at the station house at twelve-o’clock ; and at that time his condition was all right. After that an accident happened; the horse slipped and fell, throwing the-relator to the ground, in consequence of which his head was injured, making him unconscious for about five minutes. When-he recovered sufficiently to appreciate his surroundings, he found two citizens alongside of him, and they gave him whiskey to bring him to. He walked and rode after the accident and, after completing his tour, returned and reported at the station house. When he arrived there he was able to sit in a chair, and was compelled to sit there -for about two hours. There were radiators in the room and it was quite warm. While sitting, a sort of dizzy sensation came over him, caused, as he says, by the “ hit and the accident ” and he fell asleep. It appears that the relator had been on the force between four and five years, and an officer of the same precinct for about two years, and during the whole time he was on .the force no complaint of intoxication was ever made against him.

The citizens corroborate this story of the relator; it is uncontradicted, seems probable, and we believe it to be true. The explanation takes the sting out of the charge, and shows that the conduct complained of was not a breach of discipline, but the result of an accident.

The rule undoubtedly is that the commissioners are statutory judges, and when they find on conflicting evidence their judgment should not be set aside, except in a case where the verdict of a jury would, under like circumstances, call for the exercise of the •supervisory power of the court to 'correct error and injustice. But tliere is no such conflict in the evidence here that makes the finding of the commissioners so sacred that it should not be reviewed. The relator had taken liquor, and this, combined with the accident which befel him, dazed him, and warranted the captain in making the- charge of conduct unbecoming an officer. This left it to the commissioners to determine (subject to review by the courts) whether the relator’s excuse was satisfactory or not. The power of the court at general term to review the finding of the commissioners is conceded, while the court of appeals generally accepts their finding, when approved of by the general term upon certiorari, as conclusive, People v. French, 7 St. Rep., 253; People ex rel. Hogan v. French, 119 N. Y., 493; 30 St. Rep., 67; People ex rel. McAleer v. French, 119 N. Y., 502; 30 St. Rep., 72; People ex rel. Masterson v. French, 110 N. Y., 494; 18 St. Rep., 231, and kindred cases, and yet that court, in The People v. French, 119 N. Y., 493; 30 St. Rep., 67, reversed an order of the supreme court, affirming the action of the commissioners in removing one Hogan from the force. In that case the court discriminates between a voluntary intoxication and the taking of liquor “in a sudden emergency, from a commendable motive, and with a reasonable expectation that it will sustain the failing ability to perform duty.” In such a case, the court holds “ that there is no breach of discipline, and no conduct unbecoming an officer.” Page 498. If, as is sworn to by the relator and the two citizens, the ground was “slippy,” his horse slipped and he was thrown to the ground and ¡rendered unconscious, and the citizens to revive him gave him whiskey, which, by the subsequent heat of the radiators in the station house, put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication, or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached, not even contradicted, and their story was highly probable. Lomer v. Meeker, 25 N. Y., 361; Kavanagh v. Wilson, 70 id., 179. The commissioners, while exercising quasi judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offense charged. For the failure of the commissioners to give proper effect to the explanation offered, their adjudication must be reversed and the relator restored.

Freedman and G-ildersleeve, JJ., concur.  