#### The People of the State of New York ex rel. Edward A. Gaus *v.*Leonard R. Welles, as Commissioner of Police and Excise of the City of Brooklyn.

*Oertiorkri*— removal *of a police officer*— *evidence insufficient to justify Ms disahwi'ge.*

Upon a hearing had upon the return to a writ of certiorari issued to review the proceedings of a police commissioner in removing the relator from the office of police sergeant upon the specified charge that on a certain day he was under the influence of liquor and unfit for duty, two witnesses testified against the relator, and nine witnesses, whose opportunities for observing the relator were at least equal to those of the witnesses who gave evidence against him, testified that they saw no indication that the relator was intoxicated on such day. The evidence against him consisted almost entirely of the opinions of the two first-mentioned witnesses.

*191At the time in question the relator was engaged in the performance of his duty until he was sent to the station house charged with intoxication, and there was no proof that he had drunk any spirituous liquors or had been absent from his post of duty to obtain liquor.

It also appeared that the relator had been a member of the police force for twenty odd years and had been promoted through the grades of roundsman and patrolman to that of sergeant.

*Held,*that the preponderance of evidence was in favor of the relator and that the conviction would not be sustained.

Certiorari issued out of tlie Supreme Court and attested on tbe 26th day of February, 1895, directed to Leonard B. Welles, as commissioner of police and excise of tbe city of Brooklyn, commanding bim to certify and return to tbe office of tbe clerk of tbe county of Kings all bis proceedings concerning tbe trial, conviction, dismissal and removal from office of tbe relator as policeman and sergeant, together with tbe charges and specifications, testimony and decision in relation to such removal.

*Hugo*Hirsh, for tbe relator.

*Jaoob*Brenner, for tbe respondent.

DyKmaN, J.:

This is a certiorari to revieiv tbe proceedings of the police commissioner of tbe city of Brooklyn in removing the relator from the office of sergeant of police of that city.

The specific charge against the relator was that on the 19th day of January, 1895, he violated section 5 of rule 24 of the rules and regulations of the department, by being under the influence of liquor and unfit for duty, in front of the car house of the Halsey street car line at about twelve-thirty o’clock in the afternoon. ■

The relator was tried before the defendant, and two witnesses testified against him. Tlieir testimony is neither satisfactory nor convincing.

In answer to their testimony nine witnesses testified in favor of tbe relator.

Their opportunities for observing tbe relator were at least equal to those of the two witnesses who gave evidence against him, and they saw no indication that the relator was intoxicated.

Some of these witnesses were .with the relator duiing the fore*192noon of the day, and saw him drink nothing bnt coffee. There is no proof that the relator drank any spirituous liquors on the day he was sent to the station and on which he is charged with being intoxicated.

Moreover, the trial was conducted by the defendant without a proper regard to legal rules. The evidence against the relator consisted almost entirely or the opinion of the two witnesses who testified against him.

The relator had been a member of the police force of the city of Brooklyn for twenty odd years, and had been promoted through the grades of roundsman and patrolman to that of sergeant. It is almost inconceivable that the relator, who had been free from intoxication in the past, whose character and conduct had earned him his promotion, and against whom no charge had been made before, should suddenly in midday, while employed in the discharge of a dangerous duty, become intoxicated and incapable of performing his duties.

It is to be observed also that the relator was engaged in placing-men upon the cars when he was sent to the station house charged with intoxication.

There is no proof that he had been absent from his post of duty to enable him to obtain liquor, and there is not the slightest proof that he did obtain any liquor that day.

Instead of proving the relator guilty beyond a reasonable doubt, the evidence prepon derates strongly in his favor.

In no view can the conviction of the relator be justly sustained, and the proceedings should be reversed and the relator restored, with fifty dollars costs.

PRAtt, J., concurred; BrowN, P. J"., not sitting.

Proceedings reversed and relator restored, with fifty dollars costs.