
    The People of the State of New York ex rel. John Kelly, Relator, v. William F. Baker as Police Commissioner of the City of New York, Respondent.
    Second Department,
    December 30, 1910.
    Municipal corporations —removal of - police officer, city of New York — determination of commissioner reversed.
    Certiorari to review the proceedings of the police commissioner of the city of New York resulting in the discharge of a police officer on the ground that he had assaulted two boys. Evidence examined, and lield, that the finding that the relator was guilty of the charge was against the weight of evidence and that he should be reinstated.
    Cektiobaei issued out of the Supreme. Court and attested on the loth day of April, 1910, directed to William F. Baker, as police commissioner of the police department of the city of New York, directing him to certify and return to the office of the clerk of the county of- Kings all and singular his proceedings had in relation to ' the removal of the relator from the police department of the city óf New. York.
    . William Adams Robinson, for the relator.
    
      James D. Bell [Prank Julian Price and Archibald R. Watson with him on the brief], for the respondent.
   Rich, J.:

■The relator, who has served on the police force "of the city of New York for over four years, has been found guilty of conduct unbecoming an officer, in having assaulted two boys, both under the age of twelve years, without cause, striking one three times in the face with his fist, and throwing the other violently to the ground, and dismissed from, the force. The conviction was had upon the testimony of these two boys, which is contradictory, evasive and improbable; indeed, it is so unsatisfactory that the conviction ought not to stand, and this is especially true when we take into consideration the evidence of the five disinterested citizens who were eye-witnesses, and who corroborate the testimony of the relator himself.

The testimony so clearly establishes that the findings and determination of the respondent are against the weight of the evidence that it is not necessary to consider or to express our views upon the other questions presented by the learned counsel for the relator.

As was said in People ex rel. McAleer v. French (119 N.Y. 502, 507, 508): “ It is a mistake to suppose that if there is any evidence in the record brought to the Supreme Court by certiorari sustaining the determination of the commissioners, that court has no right to interfere therewith. * '* * In all this class of cases, it is the duty of the Supreme Court not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence, and if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence.”

The determination of the commissioner must be reversed and annulled, with fifty dollars costs and disbursements, and the relator reinstated.

Jenks, Burr, Thomas and Carr, JJ., concurred.

Writ sustained, determination annulled, and relator reinstated, with fifty dollars costs and disbursements.  