#### The People *ex rel.*David O’Callahan *v.*Stephen B. French *et al.,*Comrs.

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

*Filed January 24, 1890.)*

1. Municipal cobpobations—Police—Removal.

Where the evidence on a trial before the commissioners is such that if given on a trial by jury in a court of law the court would have no power to set aside the verdict as against the weight of evidence, the decision of the commissioners cannot be set aside on that ground.

2. Same.

There was evidence that relator was absent from his post, sitting in a store and apparently asleep and drunk, and on coming out gave a false-reason for being there. Relator testified that he was sick and sat near the door, but had not been drinking. *Meld,*that his testimony was not controlling over the case.

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

*Lewis J. Grant,*for relator; *Edward H. HawTc, Jr.,*for resp’t

Daniels, J.

In the charge made against the relator, it was-stated that he had neglected his duty as a patrolman of. the fifth precinct, and the specification accompanying the-charge was that he was absent from his post, sitting down asleep-in a chair in a shoe store at No. 202 Church street, at 11:50 in the forenoon, on the 26th of September, 1888. It was further' specified that he was absent from his post and came out of the store during his tour of patrol duty. And this charge embodied, such an offense as to render him liable to be removed from his position as a member of the police force, upon proof being given which reasonably and fairly sustains it For by rule 193, relating" to the police force, any member of it may be punished by the-board in their discretion, either by retirement, forfeiture, and withholding pay not exceeding thirty days for any one offense,, or by dismissal from the force, and it is declared to be an offense-, for which a dismissal may be ordered, for the officer to be guilty of neglect of duty.

These specifications were served upon the relator, and a hearing afterwards took place before Commissioner French, and upon that hearing the witness A. J. Bates testified that he saw the relator at his place of business, which was 202 Church street; that he was sitting in a chair and partly lying on the counter, and seemed to be asleep. His testimony was further to the effect that the officer was in his uniform, and that this occurred during his-tour of patrol. Another witness, who was a member of the force, testified that he saw the relator coming out of the store, and asked him what he was doing there, and that he replied “ nothing ” at first, and then afterwards stated that some one was sick in the store.

At this time he says that Mr. Bates was in the door, and he-asked him if any one was sick there, -and he informed him that, there was not, and he stated further that the relator seemed to be-dazed and under the influence of liquor. This evidence directly *305tended to prove the commission of the offense charged in the specifications against the relator. He was then sworn and examined in his own behalf, and testified that he was on post and felt a dizziness, or weakness, and went in and sat down; that he sat near the door, and did not know what was the matter with himself, but denied having been drinking. The testimony obtained from the relator in this manner was by no means controlling over the case. It was still one to be considered and decided by the commissioners, and the evidence was reported to them by Commissioner French for that object, and upon its consideration they concluded the relator to have been proven guilty of the charge, and for that reason directed his dismissal from the force.

The state of the evidence was such that if it had been given upon a trial in a court of law, and a jury had found the fact as the commissioners did, that the misconduct charged had been proved, the court would have no power to set aside their verdict as against the weight of evidence. And not having the power under the provisions of the law to interfere in a case tried in that manner, the court is not at liberty to exercise any greater authority over the decision and determination of the commissioners made upon the effect of this evidence. *People, etc.,*v. *French,*110 N. Y., 494; 18 N. Y. State Rep., 231; *People ex rel. McAleer*v. *French,*25 id., 536.

The officer had been a member of the force for nineteen years, and his dismissal from the service may seem to be harsh under the evidence given to support this charge. But that was a matter that addressed itself exclusively to the commissioners before whom the case was heard and decided.

The decision made by them should [be affirmed and the writ dismissed.

Van Brunt, P. J., and Brady, J., concur.