
    The People of the State of New York ex rel. James F. Byrne, Relator, for a Writ of Certiorari against William F. Baker, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    October 7, 1910.
    Municipal corporations—proof not justifying removal of police officer.
    Certiorari to review the action of the police commissioner of the city of New York in dismissing a police officer for conduct unbecoming an officer, and for intoxication. Evidence examined, and held, insufficient to establish the charges, and that the relator should be reinstated.
    Certiorari issued out of the Supreme Court and attested on the 18th day of January, 1910,- directed to William F. Baker, 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 with reference to the dismissal of the relator from the police force of the city of New York.
    
      Edwin Welling Cady [Almon C. Kellogg with him on the brief], for the relator.
    
      James D. Bell [Jesse W. Johnson and Archibald R. Watson with him on the brief], for the respondent.
   Woodward, J. :

The relator was dismissed from his place in the police force of the city of New York, upon a charge of conduct unbecoming an officer, the specifications being that the relator had interféred with Patrolman Charles Hagedorn in the performance of his duty, by taking hold of a prisoner and attempting to pull him away from Patrolman Hagedorn, who then and there had one Duffy under arrest; that the relator, being in the patrol wagon, under arrest, then and there assaulted said Charles Hagedorn, by striking him with his clenched fist on the nose, and that relator was found to be suffering from the effects of some intoxicating agent or agents. The first specification was overthrown by the deputy commissioner who conducted the trial, and the relator was found guilty of the other two specifications, and discharged from the force.

The evidence disclosed the facts to be that the relator, who was off duty for twenty-four hours, commencing at two o’clock in the afternoon, went with a friend to visit another friend in the evening ; that the two friends were returning home about 1:30 in the morning of the following day] when they heard Patrolman Hagedorn rapping for help; that the relator ran to his assistance and threw open his coat, displaying his badge, and took hold of the prisoner to aid; that Hagedorn told him to get away or he would put him in the wagon too, and that Hagedorn did subsequently arrest the relator; that when Hagedorn had secured a patrol wagon, and had landed his prisoner, with the relator and others, in the wagon, a third officer appeared and took his place on the rear step of the wagon to aid; that on the way to the station house one of the prisoners made an effort to escape, and in the melee which ensued, Patrolman Hagedorn received a blow upon the nose, but the evidence is far from conclusive that the relator struck the blow with the intention of doing so, if, indeed, he struck at all. No one saw the relator strike Hagedorn, and the relator testifies that he did not intend to strike him, and that the first he knew of the alleged assault was when he was charged with it at the police station; the relator and the third officer agree that the relator was trying to assist in preventing the escape of one of the prisoners, and all of the facts and circumstances point quite as clearly to an accidental blow, or to the blow having been struck by some one other than the relator, as to an assault by the relator. He was arraigned in the police court on the same charge, and was acquitted, and the evidence here is not of a character which would justify a conviction for assault.

On the question of the relator being “found to be suffering from the effects of some intoxicating agent or agents,” the evidence is quite to the contrary. True, there was testimony of the relator and his friend that the relator had drunk two glasses of beer at nine in the evening, and two glasses more just before the time of the alleged interference; but the police surgeon examined him and found that he was not intoxicated in the ordinary sense of that term, and that he was prepared to take care of himself; in fact that he was practically normal. When it is remembered that the relator was off duty ; that he was not to resume his duties until two o’clock the following afternoon, it is not fair to hold him guilty of any offense against the rules and regulations of the police department because he had taken a few glasses of beer, which had not in any manner disqualified him for taking care of himself.

The only fair inference from the testimony is that the relator, out for an evening, took a few glasses of beer, and, on hearing the call of an officer for help, went to him and attempted to do his duty ; that he continued in this attitude, and helped to prevent the escape of a prisoner, notwithstanding that he was technically under arrest, believing that it would all be straightened out on arriving at the police station, and that the alleged assault upon Hagedorn was the result either of accident or of design on the part of some one other than the relator. No evidence is offered to show that the relator had any purpose of assaulting the officer, and the case is without substantial merit.

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

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

Determination of commissioner reversed and relator reinstated, with fifty dollars costs and disbursements.  