#### PEOPLE ex rel. MITCHELL v. MARTIN et al., Commissioners of Police.

(Supreme Court, General Term, First Department.

July 13, 1894.)

Policemen—Discharge—Excusable Absence erom Duty.

Absence of a policeman without leave while laboring under a temporary aberration of mind is not a ground of dismissal.

Certiorari by John F. Mitchell to review the proceedings of James J. Martin and others, commissioners of police, in dismissing relator from the police force.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

Edmund L. Mooney, for relator.

W. A. Sweetser, for respondents.

VAN BRUNT, P. J.

There were two charges preferred against the relator: First, absence without leave; and, second, failing to appear against a prisoner. The testimony taken in support of both charges was the same, and arose out of the same incidents. The relator admitted the absence without leave, but attempted to justify the same upon the ground that his absence was neither conscious, voluntary, nor blamable, he laboring under a temporary aberration of mind. The testimony which was offered before the police commissioners was all favorable to the claims sought to be established by the relator. Patrolmen were examined. They testified to noticing the unusual condition of the relator for some time prior to his disappearance. They also all concurred that there was no evidence of intoxication, and there is no proof whatever that +he *967relator was at all addicted to the use of intoxicating drinks. It is true that he disappeared, and was absent for eight days, and that he came home undoubtedly in a sick condition, and was attended-by his physician, who testified that he was laboring under a temporary abberration of mind. It is true that he recovered, as it is claimed upon the part of the respondents, with great rapidity; bul. it is a familiar fact, in reference to diseases of the mind that they come suddenly, and frequently disappear as suddenly. It is claimed upon the part of the respondents that the probabilities are that the absence of the relator was due to an extended spree,—to intoxication; but there is not the slightest particle of evidence to sustain any’ such proposition. And the counsel has the temerity to assert in his brief that as it is the rule, when a policeman or patrolman is absent without leave, for sickness, to send for a police surgeon, it is a suspicious circumstance, and that the relator had some motive, and acted in conjunction with his family or family physician in concealing his true condition, or his condition, whatever it might, have been, from the relator’s superior officer. This assertion is made in the face of the fact, which appears upon the record, that the sending for a police surgeon was immediately suggested by the doctor, and that on the morning of his return the wife of the relator went to the station house, and reported his condition, and that no police surgeon was sent to him because the police authorities were of the opinion that, having been absent without leave for five days, he had ceased to be a member of the force, and they had nothing further to do with him. Certainly, the family of the relator took all the means within their power to procure the attendance of a police surgeon, and to enable the authorities, at the earliest possible moment, to ascertain the condition of the relator. It is difficult to see, under such circumstances, how counsel could make the assertion that it was a suspicious circumstance that the relator did not send for a police surgeon. It is true that one of the police surgeons testified that there were certain suspicious circumstances in respect to the evidence offered in behalf of the relator, and in respect to the description of his demeanor. But it cannot be that, upon mere theory, the positive evidence tending to show an excuse for his absence of the relator can be utterly disregarded. If the police department are not in possession of the evidence of one of their own officials, who could testify, from a personal examination of this relator, as to his condition almost immediately after his return, it arises from the neglect of the department, and not from any omission upon the part of the relator. We are of the opinion that under the evidence the relator made out a case excusing his absence from duty, and that he should not have been dismissed on that account. The proceedings of the commissioners are therefore reversed, with costs, and the relator reinstated. All concur.