
    The People ex rel. John F. Rouse v. Stephen B. French et al., Police Com’rs.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Municipal Corporations—Police—Removal.
    Relator was charged with being under the influence of liquor so as to render him unfit for duty. The evidence tended to support the charge, and relator admitted that he had been up all night, without sleep; had had nothing to eat, and that he took a glass of brandy, and as he was not accustomed to brandy it went to his head. Held,, that the explanation was not of such a character as 'to be conclusive, and that the finding of the commissioners would not be disturbed.
    Certiorari to review the removal of the relator.
    
      Louis J. Grant, for app’lt; John J. Delany, for resp’ts.
   Beady, J.

The charge in this case was conduct unbecoming an officer, and the specification that the relator was so much under the influence of liquor as to render him unfit for duty.

Upon the trial the relator admitted (after a statement that he had been treated for sciatic rheumatism) that he had been up all night, had no sleep and took a glass of brandy; that he had had nothing to eat; that he was not accustomed to brandy and it went to his head. This was the explanation given for his condition, which on the evidence must be regarded as one of intoxication.

The question presented is whether upon the evidence this makes out a case of voluntary intoxication; whether, in other words, a drink taken from a feeling of prostration and which results in intoxication is such a transgression as under the rules of the department justified the removal of the offender. It resembles in its features, although perhaps less censurable, the case of McAleer v. French, 119 N. Y., 504; 30 N. Y. State Rep., 72, and by which the judgment of the commissioners in removing the officer was maintained. We cannot.distinguish that case from this in its legal aspects. Assuming the power to reverse, we cannot say that there is such a preponderance of evidence against the determination made by the commissioners as to require us to set aside their judgment. The question presented was one to be disposed of on evidence which was sufficient to prove the specification and which was only answered by explanation which was not of such a character as to be conclusive. For these reasons the writ must be dismissed.

Van Beunt, P. J., and Beady, J., concur.  