#### The People *ex rel.*Christopher Clark *v.*Stephen B. French *et al.*

*(Supreme Court, General Term, First Department,*

*Filed February 14, 1890.)*

Municipal cobpobations—Police—Removal.

The fact that an officer is an habitual drunkard and is more or less under the influence of drink all the time so as to be unfit for duty, is snffioip.nt. to authorize his removal for conduct unbecoming an officer.

(Beady, J., dissents.)

Writ of *certiorari*to review the dismissal of the relator from the police force of the city of New York.

*Louis J. Grant,*for relator; *W. L. Turner,*for resp’ts.

*924Van Brunt, P. J.

The relator was charged with neglect of duty and conduct unbecoming an officer, the specifications being that he was under the influence of liquor, and that he left his post without being relieved.

Whether the evidence, was sufficient to establish the latter specification or not, it is not necessary to discuss, as, if the former specification was established, the judgment of the commissioners must be affirmed.

It is urged upon behalf of the relator that even if he was under the influence of liquor so that his face was red, his speech thick, his eyes inflamed, and although he had never been fully sober for several months, as was testified to by one of the witnesses, and so much under the influence of liquor at the particular time that he was accused of neglect of duty, that he was unfit for duty, yet no overt act of the relator, except the mere fact of his being under the influence of liquor being proven, the charge of conduct unbecoming an officer was not made out.

It does not seem to us that this point is well taken. The evidence tended to show that the relator was an habitual drinker; that he was more or less under the influence of drink all the time, which was a condition of things if true which should not be tolerated upon the police force.

It is true that there was evidence which tended to contradict the evidence offered in support of the charge, but this was not so convincing that it would justify this court in reversing the decision of the commissioners. Upon the contrary, the weight of evidence seems to have been to the effect that the relator was so much under the influence of liquor as to be unfit for immediate active duty.

The writ should be dismissed with costs.

Bartlett, J., concurs.

Brady, J.

(dissenting).—The charges against the relator are neglect of duty and conduct unbecoming an officer, the specifications being that he left his post without being relieved, and that he was under the influence of liquor at the time.

In respect to the first charge it appears that the relator arrived at the station house from three to five minutes before his time, his explanation being that he and another officer had been pursuing some boys who had been complained of for illegal ball playing in the street; that in so doing they were obliged to leave their beats, and at the end of the chase relator found himself near the station house and distant from his relieving point, so that it would be impossible for him to reach it in time, having seen his relief pass on his way to that post, and that he thereupon took his captured property (a base -ball bat) to the station house and reported hitnself.

This would seem, in view of the rule requiring officers to report captured property immediately at the station house, and of the fact that it was a. physical impossibility for him to reach his relieving point on time, to be a sufficient explanation of the course taken by him. His action, viewed, in the light most unfavorable *925to him, cannot be characterized as anything graver than an error of judgment, and as such was not properly a basis for' the charge of neglect of duty.

As to the second specification, viz., that charging the relator with being “under the influence of liquor,” the evidence in support of it is as vague and elusive as the nature of the charge itself. It is not claimed upon the part of the respondents that the evidence establishes that the relator was intoxicated, but that he was under the influence of liquor, how or to what extent nowhere appears. This charge rests upon the testimony of the captain and two sergeants, who in substance expressed the opinion that the .relator was under the influence of liquor. Precisely what these several witnesses meant by this it is not easy to determine, one of the sergeants definitely explaining that he considered a man who had taken but one drink to be under the influence of liquor and the other intimating that he held similar views.

On the other hand the relator adduced the testimony of several witnesses tending in my judgment strongly to show that at the time in question he was entirely sober, and while it was claimed that these witnesses did not examine the accused with reference to this particular charge, yet I do not think that fact in any way militates against the force of their testimony. They were shown to have encountered the relator under circumstances of sufficiently intimate character to enable them to pronounce intelligently upon his condition.

The conduct too of the captain and his subordinate officer (the sergeant in charge) was inconsistent with the idea that there was anything unusual in the relator’s state. He was excused for supper at the usual time, and in the usual manner, and was permitted to leave the station house and go upon the street for that purpose *in*uniform, returning at the regulation hour and going on duty precisely the same as on any other occasion; in short doing and being allowed to do exactly what he would have done under ordinary circumstances. If the “ influence ” under which he was claimed to be laboring had been sufficiently tangible to have had any effect upon his actions it is not easy to believe that such a course would have been taken or permitted.

The relator claims (and in this he is corroborated by the explicit testimony of another officer), that on being charged with intoxication he demanded in accordance with the rules of the department to be examined by the police surgeon. This is denied by the captain and his witnesses, but, however that may be, it would seem that this case was peculiarly one in which such a course would have been eminently fitting and proper. In a case so barren as this is of any overt acts upon which the charge could be based, and resting as it does entirely upon the opinion and conclusions of the witnesses, it would seem that the opinions of some one who could speak with authority as an expert would not only have been valuable, but was, indeed, indispensable. The rule requiring the surgeon to examine and pass upon such questions as the one involved here is a salutary one and the relator ought not to have been deprived of the benefit of the opinion of a prop*926érly qualified expert as to his condition. It is not easy to resist the conviction that the captain’s failure on a previous occasion to ' secure a satisfactory report from the surgeon as to a similar charge against the relator had more to do with the captain’s neglect to send for him than the fact that the question was never raised. And in this case, as already said, depending as it does wholly upon the opinion of the witnesses upon a vague and indefinite point, the procuring of the surgeon’s decision was so manifestly proper and so evidently necessary that its absence (whether demanded by the relator or not) worked injustice to him as depriving him of an authoritative opinion to which he was in fairness entitled.

On the whole case I do not think that the charge was established by such evidence as ought to be required where the consequences entailed are so grave as they are here and that the relator ought not have been dismissed.

The proceedings of the commissioners should be reversed and the relator restored.

Writ dismissed, with costs.