#### PEOPLE ex rel. HENNINGER v. WALDO, Police Com’r.

(Supreme Court, Appellate Division, Second Department.

January 29, 1915.)

Municipal Corporations (§ 185*) — Policemen—Discharge—Sufficiency of Evidence.

On certiorari to review a police commissioner’s dismissal of a policeman, evidence *held*insufficient to support, by a preponderance thereof, the charges that the policeman was absent from his post without leave- and without entering the fact of his absence in his memorandum book, that he was intoxicated, and that he used vile, indecent, and abusive language to a police sergeant

[Ed. Note. — For other'cases, see Municipal Corporations, Cent. Dig. §§. 492-509; Dec. Dig. § 185.*]

Certiorari by the People, on relation of Louis J. Henninger, against Rhinelander Waldo, as Police Commissioner of the City of New York, to review a determination of such Commissioner dismissing the relator from the police force. Determination annulled, and relator reinstated.

Argued before JENKS, P. J., and BURR, THOMAS, STAPLETON, and RICH, JJ.

Jacob Rouss, of New York City, for relator.

Edward A. Freshman, of Brooklyn (Thomas F. Magner, of Brooklyn, on the brief), for respondent.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

RICH, J.

This is a writ of certiorari to review the conviction and dismissal of the relator, a patrolman, from the police department of the city of New York. He was charged with violation of the rules and conduct unbecoming an officer, with five specifications: First, that at 25 minutes past 4 a. m. on January 19, 1913, he was absent from his post and standing behind a door in the hallway of premises No. 1788-Fulton street, Brooklyn, under the influence of some intoxicating agent, to the extent that he was unsteady in his steps and speech; second, that he used vile, indecent, and abusive language to the polic sergeant who took him from such hallway to the precinct station house; third, that he -was examined at such station house at 20 minutes past 5 a. m. by a police surgeon and pronounced fit for police duty; fourth, that he did not obtain permission from the lieutenant on desk duty to leave his post at the time stated; and, fifth, that he failed to enter in his memorandum book the fact of his absence from post.

The only witness whose testimony attempts to sustain the charges is that of Sergeant Fitzgerald, the complainant, and his testimony is-wholly uncorroborated. He testified that at about 4:25 a. m. on January 19, 1913, he found the relator in a hallway on Fulton street,. Brooklyn, behind the hall door; that he spoke to him, and he seemed, to be dazed and did not answer for several seconds, and he took him to the station house; that his gait was unsteady, and on the way there he used the vile language set forth in the second specification. He charged the relator with intoxication, but said nothing about his use of the language now claimed to have been used. The lieutenant in charge of the station house, the captain, and the police surgeon, who made an examination of the relator upon his arrival, testify that the *507relator was sober and fit for duty at the time. The relator denied that he was in the hallway, and testified positively that he was not off his beat and did not use the language attributed to him. It appeared that there was not a friendly feeling between the men. '

The evidence not only fails to sustain the charges, or either of them, by a fair preponderance (People ex rel. Kelly v. Waldo, 161 App. Div. 731, 146 N. Y. Supp. 581; People ex rel. McAuley v. Baker, 139 App. Div. 148, 123 N. Y. Supp. 493; People ex rel. Dougan v. Greene, 97 App. Div. 404, 89 N. Y. Supp. 1067), but so strongly preponderates in favor of the relator’s contention as to require his reinstatement.

The determination must be annulled, with $50 costs and disbursements, and the relator reinstated. All concur; THOMAS, J., in the result.