#### The People *ex rel.*Myron Allen *v.*James J. Martin *et al.,*Commissioners.

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

*Filed January 24, 1890.)*

1. Municipal corporations—Police—Removal.

While it is error, upon a hearing of charges against a police officer, to reject testimony to show that a witness against him was intoxicated at the time of the quarrel "between him and relator, to discredit his testimony, yet such error is not fatal where relator was contradicted and his testimony disproved by other witnesses.

2. Same.

The police commissioners of New York have ample power, under §§_ 250, 272, of the Consolidation Act, to remove an officer for quarrelling with a brother officer in the station-house.

Certiorari to review relator’s dismissal from police force of the city of Mew York.

*James M. Lyddy,*for relator; *George S. Coleman,*for resp’ts.

Tan Brunt, P. J.

The relator was dismissed from the police force upon the ground of misconduct in that he had engaged in a quarrel in the station-house with a brother officer named Weston. Weston was a witness upon the trial of the relator, and the relator desired to prove that Weston was intoxicated at the time of the .quarrel, and that, therefore, he could not be believed, and *370also, as a justification upon the part of the relator of his alleged attempt to put him under arrest. We think that the relator had the right to show Weston’s condition, and should have been permitted to do so, and if his removal depended at all upon Weston’s testimony, his conviction should be reversed.

But upon an examination of the record it appears that upon the vital point in this case which characterizes the whole affair the relator is contradicted by four witnesses beside Weston and his claim that he was attempting to arrest Weston disproved.

That the parties were engaged in a scuffle of some sort is admitted, and the relator attempts to justify his part of the transaction by claiming that Weston was drunk and abusive, and that the relator was attempting to arrest him when the scuffle took place. He says that he seized him by the body, and removed him from the office into the passage-way leading to the back room, and also leading down stairs to the prison. That at no time was he on him, and at no time was he, the relator, off his feet. The relator further says, that during this struggle something ran against Weston, and he got a black eye; he thinks it was the door post, and that after Weston became quiet, he was pretty well exhausted, he, the relator, let him go, and never attempted to make the arrest.

Officer Whitington was examined for the relator and says that he with three other officers were in the back room, and although they saw these men scuffling on the floor, they did not interfere. It does not appear that the relator called for any assistance, and that the relator had Weston on his back on the floor, the relator appeared to be standing, and the witness did not think that it was a very serious quarrel between the sergeants, as they were not striking one another. He evidently did not dream that the relator was attempting to arrest Weston.

Officers Whitbeck, Flaherty, Adams, Newham and Callahan, all testify that they saw some part of the scuffle, and that they saw the relator on the top of Weston upon the floor, and that the relator refused any interference, and by every person who saw the •occurrence, it was regarded as a quarrel between the relator and Weston. The evidence outside of Weston’s is so conclusive upon this point that no other conclusion could be arrived at than that this idea of the relator of an arrest of Weston was an afterthought

Weston probably insulted him, and they got into a fight in the station house, a breach of discipline which could not be overlooked.

The objection that the rules annexed to the return give no power to the commissioners to remove the relator, is not well taken, as they have ample power under the statute. Chapter 410, Laws 1882, §§ 250, 272, as amended by chapter 180, Laws 1884, §1, 7.

The proceedings of the respondents should be affirmed, and the twit dismissed.

Brady and Daniels, JJ., concur.