
    The People ex rel. Edward A. Gaus, App’lt, v. Leonard R. Welles, as Police Commissioner, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 14, 1895.)
    
    Municipal corporation — Police—Discharge.
    Evidence which, instead of proving the relator guilty beyond a reasonable doubt, preponderates strongly in his favor, is not sufficient to sustain a decision, discharging him for intoxication.
    Certiorari to review the decision of the police commissioner in removing relator from the police force.
    
      Hirsh & Rasquine, for pl’ff ; Jacob Brenner, for def’t,
   Dykman, J.

— This is a certiorari to review the proceedings of the police commissioners of the city of Brooklyn in removing the relator from the office of sergeant of police of that city. The specific charge against the relator was that on the 19th day of January, 1895, he violated section 5 of rule 24, by being under the influence of liquor, and unfit for duty, in front of the car house of the Halsey street car line, at about 12:30 o’clock in the afternoon. The relator was tried before the defendant, and two witnesses testified against him. Their testimony is neither satisfactory nor convincing. In answer to their testimony, nine witnesses testified in favor of the relator. Their opportunities for observing the relator were at least equal to those of the two witnesses who gave evidence against him, and they saw no indication that the relator was intoxicated. Some of these witnesses were with the relator during the forenoon of the day, and saw him drink nothing but coffee. There is no proof that the relator drank any spirituous liquors on the day he was sent to the station, and on which he is charged with being intoxicated. Moreover, the trial was conducted by the defendant without a proper regard to legal rules. The evidence against the relator consisted almost entirely of the opinions of the two witnesses who testified against him. The relator had been a member of the police force of the city of Brooklyn for twenty odd years, and had been promoted through the grades of roundsman, patrolman and sergeant. It is almost inconceivable that the relator, who had been free from intoxication in the past, whose character and conduct had earned him his promotion, and against whom no charge had been made in the past, should suddenly, in midday, while employed in the discharge of a dangerous duty, become intoxicated and incapable of performing his duties. It is to be observed, however, that the relator was engaged in placing men upon the cars when he was sent to the station house charged with intoxication. There is no proof that he had been absent from his post of duty to enable him to obtain liquor, and there is not the slightest proof that he did obtain any liquor that day. Instead of proving the relator guilty beyond a reasonable doubt, the evidence preponderates strongly in his favor.

In no view can the conviction of the relator be sustained, and the proceedings should be reversed, and the relator restored, with. $50 costs.  