
    People ex rel. Sullivan v. French et al., Police Commissioners.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Municipal Corporations—Discharge op Policeman—Evidence.
    On certiorari to review the decision of the police commissioners of New York city in dismissing relator from the police force for drunkenness while on duty, the testimony of a roundsman was that he found relator about 9 p. M., under the influence of liquor; that he staggered, and witness took him to the station-house; and that relator was incoherent in his talk, like a man under the influence of liquor. This was corroborated by the testimony of the sergeant, who observed the candi tian of the relator after he was taken to the station-house. The relator’s testimony tended directly to exonerate him from the charge of drunkenness. Held, that the action of the commissioners in dismissing relator was proper.
    On certiorari to review the dismissal of Philip O’Sullivan from the police force of the city of New York by Stephen B. French and others, police commissioners.
    Argued before Van Brunt, P. J., and Barrett and Daniels, JJ.
    
      Louis J. Grant, for relator. Edward J. Hawke, for respondents.
   Daniels, J.

The charge made against the relator was that he had been so much under the influence of liquor during his tour of patrol duty on December 30, 1888, as to be unfit for that duty. The evidence of roundsman William Cruise, who saw him about 9 o’clock in the evening of that day, is positive and direct that the relator was then under the influence of liquor. He spoke to him concerning his condition, but received no answer, and his testimony is that he staggered, and the witness took him to the station-house, and. he thought he was drunk. He also testified that he seemed to be incoherent in his speech, like a man under the influence of liquor. This evidence tended very directly to prove the truth of the charge contained in the specification. It certainly was not diminished in its force by that of Sergeant Cornelius Weston, who inspected and observed the condition of the relator after he had been taken to the station-house. His testimony is that there was a faint odor of liquor from his breath, and he did not think he was fit to be on his post, although he could walk substantially straight, when he was called upon to make that endeavor. His opinion was that the relator was suffering from the effects of liquor at the time. The evidence of the physician did not materially change that given by these two witnesses; for he did not observe him until some hours after he had been taken to the station-house. That given by the relator himself tended directly and fully to his own exoneration, but whether it should be accepted and followed in the disposition of the charge was a question, under this state of the evidence, which was addressed wholly to the commissioners themselves. They were not legally bound to adopt or follow his statement, but they were authorized to reject it as unworthy of reliance, if they believe the evidence of the roundsman, sustained so far as it was by the further testimony which the sergeant gave; and with the view which they considered they were from the evidence required to adopt, this court, under the writ of certiorari, has no authority to interfere. As that has been declared by section 2140 of the Code of Civil Procedure, the court is only authorized to relieve the party complaining of the decision, either when it may not be sustained by competent proof, or when there may be such a preponderance of proof as will justify an order setting aside the verdict of a jury as against the weight of evidence. Neither of these conditions is presented by the proof which was taken before the commissioners, and, as the power of the court has in this manner been defined, no reason is disclosed for interfering with their determination. But under the authority of this section, as well as under the case of People v. French, 110 N. Y. 494, 18 N. E. Rep. 133, these proceedings are required to be affirmed. All concur.  