#### The People *ex rel.*Augustus Little *v.*J. Hampden Robb *et al.,*Com’rs.

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

*Filed January 10, 1890.)*

Municipal corporations —Park police—Removal.

•The evidence showed that relator and another officer were found by the sergeant sitting in the gate box, which was full of smoke, and that the sergeant discovered a can of beer therein. *Held,*that such evidence was sufficient to establish a charge of violation of the rules of the department and neglect of duty.

Writ of *certiovrari*issued to review the decision of the commissioners dismissing the relator from the police force of the park department

*Purdy & McLaughlin,*for relator; *Sidney J. Cowen,*for resp’ts.

Daniels, J.

The relator was charged with the violation of the rules of the park department and neglect of duty. The act of which he was charged was sitting and having a can of beer in the gate box at the entrance to the park, with another policeman, and thereby violating the rules of the park police and neglecting his duty. His answer to the charge was a denial of it And a sergeant was thereupon examined as a witness, and he testified that when he reached the Eighth avenue and Fifty-ninth street entrance to the park, he failed to find any officer outside of the gate box, or in the vicinity; that he saw two men inside the gate box when, he was within fifty feet of *it;*that on his arrival at the box he *60knocked on the glass, and the relator immediately jumped up and came outside, slamming the gate box door behind him; that he thereupon asked the relator whether that was the way in which he was doing his duty, to which he made no reply. He further testified that he opened the gate box door, and there found the other officer on the floor, and ordered him to rise and return to his post; and made the same inquiry of him that he had of the relator, to which no answer was returned. The sergeant’s testimony stated the further fact that he found a can in the box filled with ale, and each of the officers denied having any claim to it.

The relator stated that he was inside the box for the purpose of heating coffee with a small alcohol stove that was used for that object; and the other officer informed the sergeant after his arrival that such was their employment, and that the sergeant then went into the box and brought out the can mentioned by him. The sergeant further stated that the beer was standing alongside of where the relator was sitting, and that the gate-box was full of smoke, and that he remarked that the two officers were smoking and drinking while the sergeants were doing the walking. This is the substance of all the evidence that was given upon the hearing of the charge. And no violence was done to this evidence in the conclusion drawn from it by the commissioners that the charge had been established. The evidence was both direct and sufficient for this purpose. And under the rules how applied to these cases this court has no authority to interfere with their conclusion as to what the facts really and truly were. *People ex rel. Bradley*v. French, 7 N. Y. State Rep., 253.

The conduct of the relator was a violation of the rules and regulations of the department, for which the commissioners had the power to dismiss him from the force. And the order made by them should be affirmed;

Yan Brunt, P. J., and Barrett, J., concur.