
    People ex rel. Deley v. French et al., Police Commissioners.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Municipal Cobeobations—Discharge of Policeman—Evidence.
    Dismissal of an officer by the police commissioners, on the ground of neglect of duty and conduct unbecoming an officer, will be affirmed on certiorari, where it appears that he was found absent from his post, sitting in a restaurant, asleep, with hat and coat off, and so much under the influence of liquor that he had to be taken to the station-house, though he testifies that he'was compelled to leave his post to go to a drug-store to obtain relief from diarrhea, and, while there, a physician examined him, and administered brandy and tincture of opium, and directed him to repeat the dose if not relieved, which the physician corroborated; that relator then returned to his post, of which he had left another person in charge, and, the pain continuing, took another dose, which caused him to lose consciousness, and there is no evidence that relator drank anything other than the medicine.
    On certiorari to review the dismissal of Lawrence Deley from the police force of the city of ÍTew York, by Stephen B. French and others, police commissioners.
    
      Argued before Van Brtjnt, P. J., and Brady and Daniels, JJ.
    
      JoTinM. Tierney, for relator. Henry li. Beehman, Corp. Counsel, (William L. Turner, of'counsel,) for respondents.
   Brady, J.

The charge against the relator was neglect of duty and conduct unbecoming an officer. The specifications were that he was absent from his post, in a restaurant in this city, sitting at a table, asleep, with his hat and coat off, and was so much under the influence of liquor that it was necessary to take him to the Eighteenth precinct station-house, which was done by a sergeant and a roundsman. The evidence was abundant to establish that the relator was in a condition indicating intoxication, and, it may be briefly said, establishing the charge made and the truth of the specifications stated. The answer of the relator to the charge was that while on duty he was suffering from diarrhea, and so much so that he was compelled to go to the nearest drug-store for relief, getting a man in the mean time to cover his post. He met Dr. Hilton in the drug-store, who examined him, and found he was suffering from cold, and who, in the exercise of his judgment, having made an examination, determined that he would be benefited by a stimulant and narcotic. He consequently prescribed brandy and ginger and a tincture of opium, directing the relator to take a tablespoonful of the brandy and ginger and 25 drops of the tincture of opium until relieved, and, if the first dose, which was administered by the doctor in the drug-store, did not relieve him, to repeat the dose. The relator then returned to his post, which he had left in charge of a person. The pain still continuing, the relator took another dose, and, not having anything to measure it, drank from each of the bottles what he thought was a dose, and took, it is supposed, too much of the opium, and lost consciousness. It should be remarked here that there is no evidence in the case of his having imbibed anything other than the medicine prescribed. Dr. Theodore Hilton corroborated the story told by the relator, stating that he saw him in the drug-store, prescribed the brandy and ginger and tincture of opium, and administered one dose himself. And he further said, “I suppose he took too much of the opium in the brandy, and that produced a narcotic influence;” that, having taken it, it would take some time, to sleep it off; and that he would still smell of the brandy. The druggist, Mr. Arfort, also testified that the relator went to his store, met there Dr. Hilton, who prescribed for him, and that the doctor wrote two prescriptions which he put up for the relator, four ounces of mixture in one bottle and one ounce-in another; and this was the ease which was presented to the commissioners for their consideration. It is kindred to the case of People v. French, reported in 11 N. Y. St. Rep. 577. In that case it appeared that the relator was taken sick and resorted to stimulants for relief, which was not denied, and which the court considered in that case sufficient to account for his condition, overcoming the evidence which was offered for the purpose of showing that he was guilty of conduct unbecoming an'officer, and the proposition suggested and maintained by the court was that to determine the truth of the charge it was to be considered that he did not voluntarily place himself in the condition in which the use of the stimulant placed him; that it was his misfortune, rather than his fault, that he was assailed by disease when it was entirely proper that something should be done for him in the way of providing a remedial agent, and that provided by his friend was considered to be what was required under these circumstances. And in view of the rule that there must be upon all the evidence such a preponderance of proof as to the material facts that the verdict of a jury would be set aside as against the weight of evidence, it was suggested that the misconduct did not tend to establish the charge made of voluntary intoxication, but proved him to have been subjected to illness, requiring the.aid of stimulants, resulting from no misconduct on his part, and therefore the judgment of the commissioners was reversed. I-Iere that decision would be followed were it not for the recent adjudication made in the case of People v. Commissioners, 18 N. E. Rep. 133, (decided October 2, 1888.) That was a kindred case to this, only that the evidence was not quite so strong to prove the immediate necessity of resort to stimulants, but there was sufficient to establish the fact that the relator took brandy and ginger for illness, and there was no evidence to the contrary. This court thought the facts and circumstances detailed in the evidence in that proceeding to be such as to warrant the reversal of the judgment of the commissioners, but the court of appeals held, in reversing our decision, that, conceding the existence of an ailment on the part of the relator, it afforded no justification for his conduct. The proof, such as is given on the part of the relator, established no extenuating circumstances in mitigation of the punishment, which he had incurred by reason of his offense, and which wrould present a question pertaining solely to the general government and discipline of the force, and hence, from the nature of things, rests wholly within the discretion of the commissioners, not presenting any conflict of evidence which would invoke the rule authorizing the general term to set aside the judgment as one against the weight of evidence. To this exposition of the law by the court of appeals we bow, and affirm the judgment, and, as a necessary consequence, dismiss the writ, but without costs. All concur.  