
    The People ex rel. Denis J. Mahoney v. Charles F. MacLean et al., Com’rs.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Municipal corporations—Police—Removal.
    The captain and sergeants of police testified that relator staggered, was unsteady and uneasy in the ranks, and that his breath smelt of liquor. Relator testified that he had taken five five-grain quinine pills for pain in his head, and was corroborated by a brother officer as to Ins complaints of sickness, who stated that relator refused to report sick because he was a new man and did not want to puf his mother to trouble; and by a physician as to the effect of such a quantity of quinine on the appearance of the person taking it. Held, that there was no such preponderance of evidence in relator’s favor as to permit a verdict against him to be set aside, and that the question was one for the commissioners to decide.
    (Brady, J., dissents.)
    Certiorari to review the relator’s dismissal from the police force.
    
      John M. Tierney, for relator; John J. Delany, for resp’t.
   Brady, J.

(dissenting).—The relator, who was a patrolman attached to the Twelfth precinct, was dismissed upon a charge of conduct unbecoming an officer, the specification being that at six o’clock, P. M., roll-call, he was so much under the influence of liquor as to be unfit for patrol duty. The testimony in support of the charge was by captain and sergeants, who testified that when the relator went into the station-house, a few minutes before roll-call, he staggered; and when he subsequently walked out with other officers in the ranks, he was uneasy and unsteady, and that his breath smelt of liquor.

It must be noted that no police surgeon was called, and that the charge rests upon the statement of these officers.

About the time of this occurrence the relator stated that he took quinine pills as a reason for his condition, whatever it may have been, and exhibited the box containing what was left of them which he got at a drug store on Grand street; and it appears that at nine o’clock he was sent out on duty and. performed his tour. It also appears that when he was charged by his captain with being under the influence of liquor, he said he had not drank anything. He proved also by a brother officer, who saw him coming out of the drug store and asked him what was the matter with him, that his answer was that he was suffering from pains in the chest, back and head and had a heavy cold.

The relator’s story was that after coming out of the drug store he went to his home, took five five-grain pills taking three first and two afterwards, ate a light supper and went to the station house to turn out on patrol duty; that he met the officer who had previously seen him coming from the drug store, and on being asked by him if he felt any better, replied that he was much worse and suffering very much from pain in the head and dizziness. The officer asked him why he did not report sick and he answered that "being a new man in the house, and having a brother on the sick list, and having buried his father a short time before, he did not like to put his mother to any further trouble, as she was an old woman and he thought he could fight the disease off. This was about a quarter to six o’clock, and it thus appears that according to his own statement he went to the station house though feeling worse rather than return home, and in the belief that the captain would see his condition and send for a surgeon. •

There is a conflict as to his appearance of drunkenness, and evidence of a physician of this city that the quantity of quinine which the relator took would account for his appearance when he was charged with being under the influence of liquor; that the effect would be to make him look sleepy, dazed, and that' he might stagger; and further that the same effect might be produced with less than that amount of quinine taken by the relator; that he had seen persons show symptoms of vertigo after taking ten grains. The relator testified he had taken no liquor of any kind, and the case therefore is destitute of any other evidence than the impressions created upon the witnesses called to prove the charge by his appearance and by his staggering, which was accounted for by the testimony of the physician already mentioned'and by his own statement, in the absence of any proof existing in the case that he had drank any spirituous liquor.

If the rule which was declared by the court of appeals in earlier cases still prevailed it would be our duty to affirm the judgment of the commissioners. But in the recent case of McAleer v. French, 119 N. Y., 502; 30 N. Y. State Rep., 72, the court of last resort has decided that under the provisions of the Code of Civil Procedure, § 2140, in regard to questions to be determined upon» the hearing on the return of a certiorari where that writ is issued to review the determination of the police commissioners, the supreme court may inquire not only whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination, but it must also look into the evidence, and if it finds that there is a preponderance against the determination of the commissioners it has the same jurisdiction to reverse the determination that it now has to set aside the verdict of a jury as against the weight of evidence.

An examination of the record in this case shows a preponderance of proof in favor of the statement of the relator that his supposed inebriety was the result of illness and the quinine which he took to overcome it. His failure to report himself sick is also explained by him satisfactorily. Being a new man, he said, his brother being on the sick list and his father having recently died, he did not want to cause any distress to his mother. There is absolutely no evidence in the case against his statement, except the impressions which his conduct made upon the captain and sergeants and others who testified as to his condition. But these impressions are overcome by the facts united to the impressions of the other witnesses who saw him about the time he reported for duty.

Applying the principles of the case decided id the court of appeals, the judgment of the commissioners should be reversed and the relator restored to duty. Ordered accordingly.

Van Brent, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice Brady. A jury would have been justified in finding that the relator was under the influence of liquor. There is no evidence to show that even twenty-five grains of quinine will make a man’s breath smell of liquor. Either the officers examined or witnesses testified falsely, or the relator, and this was a question to be determined by the commissioners. The writ should be dismissed.

Daniels, J.

There was evidence from which the commissioners could reasonably conclude that the relator was intoxicated. And the propriety of that conclusion has not been overcome by the evidence on the part of the relator. It was for the commissioners to decide whether the charge was sustained by the evidence. There was no such preponderance in favor of the relator as would permit a verdict against him to be set aside.' I therefore agree that the determination should be affirmed.

Proceedings affirmed and writ dismissed.  