
    First Department,
    November Term, 1896.
    The People of the State of New York ex rel. Edward J. Barrett, Relator, v. Theodore Roosevelt and Others, Police Commissioners, etc., Respondents.
    Proceedings affirmed and writ dismissed.
   Per Curiam:

The only question is as to whether or not the evidence is sufficient to justify the finding of the commissioners that the relator, on the night of the 31st day of October, 1895, left his post and went into a saloon. That fact is sworn to positively by Mr. Cooper, the complainant. It is denied by the officer, and thus there is a sharp conflict of evidence. The relator called several witnesses to corroborate his story. Cooper, the complainant, swears that ho saw the relator go into the saloon between five minutes of ten and fifteen minutes after ten. McLaughlin swears that he saw the relator between Eighth and Ninth avenues between half-past nine and fifteen minutes after ten; that about fifteen minutes before ten he saw him go towards Tenth avenue, but did not see him again. This is not at all inconsistent with the complainant’s testimony. The relator also called two men who were in this saloon on the night in question, both of whom swore that they did not see the police officer in the saloon. A significant fact, however, appears in relation to the testimony of one ot these persons, Peter E. Boer, who swore that on that night some time after eleven o’clock the relator came to the saloon and sent for this witness. The relator told the witness that he (the relator) had been accused by a certain person of running away, and he asked the witness how long he (the witness) had been in there. The witness said that he had been in all the evening. “He (the relator) said he would have a complaint probably. He asked me to come down and testify in his behalf.” It nowhere appears that Cooper told the officer what his complaint against him was. It only appears that Cooper had told the officer that he had run away from him, and had concealed his number and refused to give his name; and yet, immediately after such charge was made, the relator goes to this saloon to engage the witness to go and testify in his behalf. It is a little difficult to see how the officer could have known that Cooper was to charge him with being in the saloon, in the absence of any statement by Cooper to him unless he had been there. On the whole case we think a question was presented for the commissioners to determine, and that we would not be justified in reversing such determination. The proceedings or the commissioners are, therefore, affirmed, and the writ dismissed. Present—Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.  