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38b 630 r167a121


Van Brunt, P. J., Barrett, Rumsey, Ingraham
and McLaughlin, JJ.

Henry H. Lyman, as State Commissioner of
Excise of the State of New York, Appellant,
v. Unity League, Defendant, and American
Surety Company of New York, Respondent.
- Order reversed, with ten dollars costs and
disbursements, and motion granted, with ten
dollars costs.- Appeal in this action from an
order denying plaintiff's motion for a retax-
ation of costs.-

PER CURIAM: The question presented on the
appeal from the order in this action is the
same as the question presented and deter-
mined in Lyman v. Young Men's Cosmopol-
itan Club (ante, p. 220), and for the reasons
there stated the order must be reversed and
a new taxation directed before the clerk, with
leave to either party to use upon said new
taxation such further affidavits or papers as
may be necessary and proper. The order
should be reversed, with ten dollars costs
and disbursements, and the motion granted,
Present Barrett,
with ten dollars costs.
Rumsey, Ingraham and McLaughlin, JJ.
Marshall S. Driggs, Respondent. v. Robert J.
Dean and William Wills. Appellants.-Judg-
ment affirmed, with costs.- Appeal from a
judgment entered upon the verdict of a jury
directed by the court.-


be reheard upon the amended return. The
case is now before us upon such rehearing, but
in looking into the record we find no amended
return. The case is in the same condition
as when it was previously here, with the ad-
dition of an amended petition, and what is
styled, and in fact is, an answer to such
amended petition. The original return to
the writ, and the further return which was
made in May, 1898-upon which our original
decision was made- remain as they were,
unchanged and without amendment. It fol-
lows, therefore, that the relator has not
taken advantage of the favor extended to
him, and that the case made by the record is
the same as that previously passed upon.
If, however, we should treat the answer to
the amended petition as an amended return
to the writ, we see no reason to recede from
It is true that the
our original conclusion.
respondents do not specifically deny the al-
legations of the amended petition, to the
effect that but two of the witnesses were
sworn, and that the others testified without
the sanction of an oath or affirmation. They
state, however, that they were not in office
at the time of the relator's trial, and that all
the information which they have or possess
on the subject, is derived from the records
of the department of which they are now
the head. These records show, they allege,
that Roundsman Patrick Curran and the re-
lator were sworn, but fail to disclose whether
the other witnesses were or were not sworn.
We need not consider whether this would
have been sufficient had the respondents
been required to make an amended re-
It is
upon the specific subject.
enough for our present purpose to say that
this answer discloses the actual facts, and
that these facts plainly indicate that the re-
lator was in no wise prejudiced by the fail-
ure to swear the witnesses other than
Roundsman Patrick Curran and the relator.
If such prejudice were apparent, we might
consider the propriety of again indulging
the relator and giving him a further oppor
tunity to procure an amended return to the
writ. The reverse, however, is apparent, as
a brief reference to the charges and the evi-
dence will show. The relator was charged,
first, with conduct unbecoming an officer.
The specification was that he used disre-
spectful language to his superior officer,
Roundsman Patrick Curran.
proof of this charge and specification ema-
nated from the relator himself. He teils us
just what he said in the station house in the
presence of Acting Sergeant Hayes and
Roundsman Curran. This is his own testi-
mony: "The sergeant wanted to know what
the matter was, and I said, 'Roundsman will
tell you what for:' and the roundsman said,
I have brought this man in off post because
he refused to patrol his post. I said. 'Is
that what you brought me in off post for?"
He didn't pay any attention. Iturned to the
roundsman and said, 'Roundsman, you lie;
that is not what you brought me in off post
This fully supported both charge
and specification. It is contended that the
roundsman was not the relator's superior
officer. We need not consider the rounds-
man's precise function. He certainly occu
pied a superior position to the relator, and
was his superior within the spirit of the
rule. Such language as the relator admits
that he thus used in the presence of the act
ing sergeant was enough to justify the board
in disciplining him. It was disrespectful,
and it savored of rebellion and insubordina-
tion. An officer who cannot control himself
and submit respectfully to a disagreeable ex-
ercise of lawful authority is not fit to be on

PER CURIAM: The question on this appeal
was presented to this court on the former ap-
peal (See Driggs v. Dean, 2 App. Div. 124)
and decided in favor of the respondent, where
it was held that, upon proof presented, the
plaintiff was entitled to a verdict. For the
reasons given in the prevailing opinion on
the former appeal this judgment is affirmed,
with costs. Present-Van Brunt, P. J., Bar-
rett, Rumsey. O'Brien and Ingraham, JJ.
A. & S. Henry & Company, Limited, Appellant
and Respondent, v. James Talcott. Respond-
ent and Appellant.-Order modified as di-
rected in opinion, and affirmed as modified,
without costs.-Appeal by defendant from
part of an order requiring him to serve a bill
of particulars of certain matters alleged in
counterclaim set up in amended answer.
Appeal by plaintiff from that part of the
order which denies its motion for a bill of
as specified in said
particulars, except
PER CURIAM: The order appealed from should
be modified, by adding to its first require-
ment the words: "And the specific goods
which were rejected and returned as alleged
in said counterclaim." The order as modi-
fied is affirmed, without costs.
Van Brunt, P. J., Patterson, O'Brien, Ingra-
ham and McLaughlin, JJ.
The People of the State of New York ex rel.
Walter R. Ballard, Relator, v. Frank Moss
and Others, Commissioners, Composing the
Board of Police of the Police Department of
the City of New York, Respondents.- Writ
quashed and proceedings affirmed, with
costs. Certiorari to review the action of the
board of police of the police department of
the city of New York in dismissing the re-
lator from the police force.-
BARRETT, J.: At the November term of last
year this case was argued and decided (34
App. Div. 475). It was then held that, as the
return failed affirmatively to show that the
witnesses were not sworn, the case of Kass-
chau v. Police Comrs. (155 N. Y. 40) was in-
applicable, and the presumption of legal
action on the part of public officials attached.
Subsequently the relator moved for a rehear-
ing, and upon that motion he presented facts
which induced this court to give him an
opportunity to move in the court below for an
Our direction was that,
amended return.
should the motion be granted, the case would

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App. Div.]

the force. It is apparent, therefore, that the |
relator was not prejudiced by the testimony
of Acting Sergeant Hayes. The latter was
not sworn, but his testimony was limited to
what occurred in the station house, and al-
though he varied somewhat the expression
which the relator said that he used, the sub-
The specifica-
stance of it was the same.
tion did not particularize the words used by
the relator. It simply specified "disrespect-
ful language." It was immaterial, there-
fore, whether the disrespectful language
was more or less emphasized. Disrespectful
language was used, according to the rela-
tor's own confession, and that sufficed to
convict. As to the charge of neglect of duty
At first he
the only witness for the prosecution was the
roundsman, and he was sworn.
was not sworn, but upon his cross-examina-
tion the relator's counsel asked to have
him sworn, and thereupon the oath was ad-
ministered. The witness was then asked
whether he desired to swear to everything
he had already said, and he replied that he
did, except as to the time when the relator
was off duty, which was, he added, about
twelve-twenty A. M. instead of one-twenty A.
M. All the other witnesses as to the second
charge, namely, neglect of duty, were called
by the relator, and they testified on his be-
half. He certainly cannot complain that his
own witnesses were not sworn. They re-
ceived the same consideration as if they had
It thus appears that the rela-
been sworn.
tor was, upon his own testimony, convicted
of using disrespectful language to the
roundsman in the presence of the acting ser-
geant, and, also, upon sworn testimony, con-
victed of neglect of duty. In no aspect of
the case was he prejudiced by the failure to
swear either the acting sergeant or his own
witnesses. Upon the merits of the charge
of neglecting duty, we think the judgment
of the commissioners was amply supported
by credible testimony which was fortified by
the probabilities of the case. The writ
should, therefore, be quashed and the pro-
ceedings affirmed, with costs. Van Brunt,
P. J., Rumsey, O'Brien and Ingraham, JJ.,

of Peter Otto, the plaintiff's husband and agent. From this it appears that he started work in September, 1896, and completed the cellars about the first of October; that he could not do the sidewalks because the stoops and copings were not set; that he did nothing further until the following January, when, in response to demands from McCaffrey, he did the work on the bathrooms, and that he did not even attempt to do anything further until early spring. He testifies, After the bathrooms were done and the carpenter work in there, which took about two weeks, the work stopped again; in the spring it was good weather; I went up and looked if the coping is set, and if I could not go ahead and finish this job; sometimes I go there I see other men working there. It was about the end of March or first of April that I went there; I cannot tell We think that, upon any more the date." the undisputed facts, the judgment must be reversed. Under the contract, nothing was due until both the cellars and yards Admittedly, the work on the were done. yards was never performed by the plaintiff. But it is contended that the failure to do this work was not her fault. The contract was made in August, 1896, and Otto made no effort to begin the work on the yards until the spring of the following year. There is nothing in the situation of the parties justifying such a delay. No excuse is alleged unless Otto's incidental statement that there was "no fence in the yard" be taken as such In the absence of evidence tending to show that It is true this necessarily retarded the work, no such assumption can be indulged in. that no time of performance is specified in the contract, and it may be that the plaintiff cannot be deemed in default before a demand was made that she begin the work on the yards. (Kemple v. Darrow, 7 J. & S. 447.) If so, however, we have the testimony of McCaffrey that he made such a demand in March, and that no attention whatever was paid to it. This testimony is absolutely uncontradicted and unimpeached, and must be accepted as true. (Kelly v. Burroughs, 102 N. Y. 95; Denton v. Carroll, 74 N. Y. St. Repr. 628.) McCaffrey is in no way contradicted by Otto's testimony as to the vague interest which he took in the proceedings at some indefinite time in the spring. Upon the facts as they now appear the plaintiff did not show that she was entitled to recover The judgment should under the contract. consequently be reversed and a new trial ordered, costs to appellants to abide the event. Van Brunt, P. J., Rumsey, O'Brien 38b 631 and Ingraham, JJ., concurred. r167a608 v. The President, Managers and Company of 38 Augusta G. Genet, Appellant and Respondent, the Delaware and Hudson Canal Company, Case Respondent and Appellant. Two cases. Judgment affirmed, without costs.- Appeals by both plaintiff and defendant from judgments in favor of the plaintiff, entered in $170 NY these actions upon the report of a referee.BARRETT, J.: Every question raised by the defendant on its appeals in these actions has been settled in this court. In a case between the same parties with regard to the same subject, all these questions were fully considered at the February Term, 1897, and a judgment in favor of the plaintiff affirmed (14 App. Div. 177). There is just one point of difference between the present case and that referred to which should be briefly noticed. In the former case, as in this, the defendant pleaded the law of Pennsylvania and claimed thereunder that the contract between it and the plaintiff operated as a grant or conveyance in fee of all the coal contained within


BARRETT, J.: The action is brought to fore-
close a mechanic's lien against two lots of
land on the south side of One Hundred and
Thirty-first street, between Fifth and Sixth
avenues, in the city of New York, owned by
the defendant Catherine T. McCaffrey. On
August 12, 1896, the plaintiff's agent made a
written offer to do the artificial stone work
upon the premises for $300, including the
concreting of the sidewalk, areas, yards
and cellars. This offer was accepted in writ-
ing by Mrs. McCaffrey's husband and agent,
$150 of the amount to be paid when the cel-
lars and yards were done, and the balance
when the work was completed. The com-
plaint alleges this contract, and that plain-
tiff performed all of the work except the
laying of the stone work for the sidewalk
and yards. It is alleged that plaintiff was
not allowed to perform this work, and that
its reasonable value was $50. It is also al-
leged that the plaintiff performed extra
work of the value of $70, and judgment is
demanded for $320. The decision awards
the sum of $305.80. The only evidence as to
performance is contained in the testimony


the described tract as a separate and distinct | parcel of land. Upon the trial of the former action, evidence pro and con upon this subject was taken, and the referee found, as matter of fact, that the law of Pennsylvania was not as the defendant had pleaded. In the present case the referee ruled out all evidence as to the law of Pennsylvania, and held that the facts on that head stated in the defendant's plea constituted no defense. This ruling was in our judgment entirely correct. It was in accordance with the law as laid down by our court of last resort in Genet v. D. & H. C. Co. (136 N. Y. 593). In that case the Court of Appeals construed this very contract and held that it did not operate as a conveyance of the coal veins or strata; that its subject-matter was mineral product, not land; and that it was in its nature executory. That interpretation was conclusive upon the referee, and is conclusive upon us. It follows that the judgments upon the defendant's appeals should be affirmed. The result must be the same upon the plaintiff's appeals. The findings of the learned referee as to what the plaintiff was and was not entitled to recover were amply supported by the evidence, and we concur in the reasons which he gave for his decision upon that head. The judgments upon all appeals should be affirmed, without costs to either party upon these appeals Van Brunt, P J., Rumsey, O'Brien and Ingraham, JJ., concurred.

Peter H. Daly, Appellant, v. Central Railroad of New Jersey, Respondent.-Judgment and order affirmed, with costs.- Appeal by the plaintiff from a judgment entered upon a direction by the court of a verdict for the defendant, and from an order denying his motion for a new trial upon the trial judge's


BARRETT, J.: Upon a previous trial of this case the plaintiff was nonsuited. He appealed, and upon that appeal we held that the nonsuit was erroneous, and that his testimony standing alone was sufficient to carry the case to the jury. (26 App. Div. 200.) Upon the second trial now under review the plaintiff gave substantially the same testimony as upon the first trial. We need not repeat that testimony. Its substance will be found in the report of the previous appeal. Upon the present trial, the learned trial judge, following our decision, denied the motion for a nonsuit made at the close of the plaintiff's case. The defendant then put in its evidence, which conclusively established the fact that the plaintiff was picked up at a point nearly half a mile distant from the station terminus. This point could only have been reached in the manner testified to by the defendant's witnesses. The train was backed out by its engine, and was subsequently picked up by a drill engine. It was then pulled back more than half a mile from the station, then around a switch and back again a considerable distance. It finally reached the point where, according to the uncontradicted testimony of six witnesses, the plaintiff was found. The plaintiff was called in rebuttal. but gave no testimony on this point. In his original testimony he stated that he was dragged out "on the yard" some distance; that he believed he was dragged about 200 or 300 feet; and that then his clothing, which had been caught on the step of the car, gave way, and the wheels went over his foot. Upon this latter testimony the case for the plaintiff was certainly slight and doubtful. He was entirely unsupported by any other witness. Upon the other hand, two of the defendant's witnesses testify that he was not

[Vol. 38,

dragged at all from the station terminus, but was on the steps while the car was being backed. This is strongly supported by the uncontradicted testimony of four other of the defendant's witnesses, who agree as to the precise point where he was found. The plaintiff, with all this testimony before him, entirely failed to deny that he was picked up at the point in question. Thus, what must be deemed the uncontradicted evidence of the latter fact conclusively negatives the plaintiff's story as to how the accident occurred. If he attempted to alight at the station terminus and there fell, how could he possibly have been dragged backwards and forwards to the point half a mile distant? His own story, that he was dragged some 200 or 300 feet, was sufficiently improbable, though not so impossible as, standing alone, to warrant the withdrawal of its consideration from the jury. When we find, however, that he was picked up at a point half a mile distant-a point so situated that the car could not have been pulled back to it in a direct line-the conclusion seems inevitable that he minimized the extent of the dragging because an admission that he had been dragged to the point where he was actually picked up would have been fatal. At the close of the case the learned trial judge directed a verdict for the defendant - we think, correctly. A verdict for the plaintiff could not, upon such testimony, have been sustained, and if rendered, it would have been the duty of the trial judge to set it aside. The rule is well settled that where the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would necessarily be set aside, the trial court may properly direct a verdict. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Linkhauf v. Lombard, 137 id. 426.) The case of Williams v. D., L. & W. R. R. Co. (155 N. Y. 158) does not conflict with or modify this rule. In that case the plaintiff was nonsuited because the trial court did not, for somewhat obvious reasons, credit the plaintiff's testimony. The Court of Appeals reversed the nonsuit upon the ground that it was the province of the jury, not of the court, to say whether the plaintiff's testimony was entitled to belief. This was all that the court there held. It was not a question, therefore, of the weight of evidence or of the preponderance of testimony. The rule on the latter head was not the subject of consideration, nor was there the slightest intimation that that rule was in conflict with the general rule as to the province of a jury upon a question of credibility. In the case at bar the preponderance of testimony adverse to the plaintiff's weak and improbable story was so overwhelming that it was the plain duty of the trial judge to direct, as he did, a verdict for the defendant. The judgment and order appealed from should, therefore, be affirmed, with costs. Van Brunt, P. J., Rumsey, O'Brien and Ingraham, JJ., concurred. Thomas Barry, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.- Judgment affirmed, with costs. Order affirmed, with costs. Appeal by the plaintiff from a judgment in his favor against the defendant for the sum of $1,323.72, entered upon a direc tion of the court at Trial Term; also from an order denying his motion for a new trial on the ground of newly-discovered evidence.

BARRETT, J.: On February 14, 1894, the plaintiff entered into a contract with the defendant to "regulate, grade, set curbstones, flag the sidewalks and lay crosswalks in One


App. Div.]

Hundred and Sixty-first street, from Gerard | avenue to Jerome avenue, and build culvert at Cromwell's creek." The contract provided that the work was to be done "in accordance with the plan and profile of the work approved on the 21st day of September, 1893, on file in the office of the Commissioner of Street Improvements of the Twenty-third and Twenty-fourth Wards." It further provided: "No allowance will be made for any excess above the quantities required by such plans, lines and specifications on any part of the work * 容 * no allowance beyond the present surface of the meadow will be made for any shrinkage or settlement, and the cost of replacing any material sinking or settling will be included in the price paid for filling measured as above stated." The plan, as introduced at the trial, contains a series of blue and yellow lines below the grade line of One Hundred and Sixty-first street. They were marked "mud" where they crossed the creek, and were evidently intended to represent the surface of the ground. The engineer for the commissioner of street improvements, under whose direction the plan was made, testified that the two lower lines indicated the levels of the respective sides of the street. This plan bore the inscription: "No allowance will be made for any filling below the present surface of the ground," and also, "The lower line indicates the surface to which the embankment will be measured and allowed. No allowance will be made for any fiil above this surface." The sole question is whether the plaintiff is entitled to recover for some 45,000 cubic yards of material used to fill in beneath the level indicated by blue and yellow lines on the plan. The contract, specifications and plan must be read together, and when so read are quite unambiguous. The specifications fix the limit to which allowance shall be made for filling as the "present surface of the meadow." These words seem plainly to indicate the surface of the ground at the time of the making of the contract. The argument that they mean a durable or tenable surface, capable of supporting filling, is, at the best, based upon a gratuitous assumption; and it directly conflicts with the conditions under which the language was used, for the "present surface," as the parties well knew, was most of it soft and yielding. And the meaning seems to be made entirely clear by the following provision that there shall be no allowance for "shrinkage or settlement," or for material sinking or settling." If, however, there is any ambiguity in the contract and specifications, it is resolved by the plan. On this, lines are drawn to represent the surface of the ground, and a superscription states distinctly that no allowance will be made for filling below the surface as thus indicated. None of the exceptions were well taken. Parol evidence as to the meaning of the words "present surface of the meadow" was properly excluded, for there was no ambiguity in the written agreement. It is also contended that it was error to exclude testimony as to the meaning of the lines shown on the plan. But such testimony was not excluded. Some preliminary questions and some questions calling for conclusions were excluded, but the substantial fact as to what the lines indicated was, as we have seen, allowed to be proved by the engineer. None of the other exceptions require mention. We think, therefore, that the judgment rendered at the trial was clearly right. On the motion for a new trial it was shown that the words "The lower line indicates the surface to which the embankment will be measured and allowed. No al

lowance will be made for any fill below this surface," were not upon the plan when it was signed, or on January 3 or 4, 1894, when the plaintiff's agent examined it for the purpose of preparing a bid. This is established by uncontradicted proof. There was a conflict of evidence as to whether the blue and yellow lines were also added subsequent to the examination by the plaintiff's agent, or were on the plan throughout. But we cannot say that the weight of evidence on this head supports the plaintiff's claim. On the contrary, the weight of evidence is really with the defendant. That leaves for consideration merely the effect of the uncontradicted evidence as to the absence of the superscription. We think that superscription added nothing to the force and effect of the written agreement. As already stated, the specifications, by themselves, clearly negative the plaintiff's right to recover for material used to fill in below the surface of the meadow, as that surface existed when he undertook the work. The absence of the superscription from the plan in no way affected his rights or influenced his conduct. But there is another conclusive reason why he is not entitled to a new trial. On March 20, 1894, shortly after the commencement of the work, an interview took place between the plaintiff and Commissioner Haffen, Chief Engineer Risse and Engineer Thompson. This meeting was had for the very purpose of avoiding all misunderstanding as to the work which the plaintiff was to do. Certain questions were put to him and his answers taken down by a stenographer. He was asked the following estions and gave the following answers: Ques. (by Chief Risse) One question I would like to ask, Mr. Barry, and that is, do you understand perfectly well that no allowances for filling in below the present surface, as indicated on the plan, will be allowed? Ans. (by Mr. Barry) You mean no allowance for displacement? Ans. (Chief Eng'r Risse) Yes, sir. Ques. (by Com'r Haffen) You signed the specifications, Mr. Barry, did you not? Ans. (Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) You understood what you were bidding on, did you not, Mr. Barry? Ans. (by Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) Mr. Thompson, I believe you have a question to ask, and that is, that there was no allowance to be made for filling in below the present surface line; you understood that, Mr. Barry, did you not? Ans. (by Mr. Barry) Yes, sir; I suppose the specifications stated that." We thus have the plaintiff's distinct admission that he understood and believed that he was to be paid only for filling above the actual surface of the ground, and was to receive no allowance for what sunk beneath this surface. If there was any ambiguity in the written agreement, this conclusive parol evidence of the understanding of the parties completely negatives the plaintiff's claim. The judgment and order should each be affirmed, with costs. Van Brunt, P. J., Rumsey, O'Brien and Ingraham, JJ., concurred.


The People of the State of New York ex rel. Joseph E. Brady, Relator, v. Frank Moss and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.- Proceedings annulled, with fifty dollars costs and disbursements, and the relator reinstated.Certiorari to review the action of the respondents in dismissing the relator from the police force of the police department of the city of New York.

BARRETT, J.: The charge against the relator was that, "at the Twentieth Precinct Station



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House, No. 434 West Thirty-seventh Street, at 2 P. M., February 18, 1897, (he) was so much under the influence of liquor as to be unfit for duty." He was found unconscious on this day in front of No. 219 West Fortieth street, and taken to the station house named in the charge. He remained there for nearly three hours. From the station house he was taken to the Second District Court, where he was fined one dollar. The testimony against the relator shows that he was unconscious, or partially so; that his breath smelled of liquor, and that he acted like a man who was drunk to stupefaction. On the other hand, it appears that he complained of being unwell on the morning in question, and was excused from roll call. It was his off day, and he went home. The relator and his wife both testify that she advised him to take some quinine and whisky, and that he did so. His wife was then sick in bed, and she asked him to go to a druggist's to get some medicine. He did not want to go because of his own illness, but as there was no one else to send he finally started out upon this errand. The druggist's shop was at the corner of Broadway and Forty-first street. On the way he fainted. He says that this was due to his sickness, and that he had not previously taken enough whisky to affect him. He is corroborated as to the occurrence on the street by Lemmon, to all ¡ appearances an absolutely disinterested witness. The latter says he met the relator on West Fortieth street; that he was very pale, but walked steadily and showed no sign of intoxication; that just as they passed each other the relator collapsed, and that he (Lemmon) got a tumblerful of brandy and poured it down the relator's throat. The manager of the hotel where the brandy was obtained corroborated Lemmon as to its procurement. Upon this evidence the relator fairly acquitted himself of the charge made against him. He certainly cannot be held to be in fault for the brandy which he thus swallowed while unconscious. (People ex rel. McAleer v. French, 119 N. Y. 504.) Consequently, the sole basis for the charge against him was the quinine and whisky which he took at home. But if the relator, even without a physician's direction, in good faith, took a moderate dose of quinine mixed with whisky for his ailment, he was guilty of no offense justifying his dismissal. According to his own testimony, corroborated by that of his wife, this is all that he did, and there is nothing to contradict or impeach him on that head. As to the brandy and his condition on the street, he is, as we have seen, directly corroborated by Lemmon, who says that his face was pale, instead of being flushed, and that he walked steadily. If his collapse had been due to liquor, his gait and whole demeanor on the street would have shown unmistakably the fact of his intoxication. The testimony against the relator is perfectly compatible with the evidence in his favor. Because he was unconscious or stupefied and his breath smelled of liquor, the witnesses for the respondents not unnaturally thought that it was a case of voluntary intoxication. But the uncontradicted and unimpeached evidence in his behalf shows that he fainted from sickness, and that he had not voluntarily and consciously drunk such a quantity of liquor as could intoxicate him or unfit him for duty. The defense here made is a common one in this class of cases, and invites careful scrutiny, but still it must not be disregarded when it is fully and fairly established. The proceedings before the magistrate cannot, in any way, bar or prejudice

[Vol. 38.

the relator. Whatever weight might be at-
tached to the mere fact of the fine is balanced
by evidence that the magistrate professed
himself as doubtful about the case; that he
imposed the lightest fine possible, and that
he expressed his willingness to remit it.
The proceedings should be annulled, with
fifty dollars costs and disbursements, and
the relator reinstated. Van Brunt, P. J.,
and Ingraham, J., concurred; Rumsey and
McLaughlin, JJ., dissented.
MCLAUGHLIN, J. (dissenting): The relator
was charged with conduct unbecoming an
officer. The specifications were that he, at
a time and place named, was so much under
the influence of liquor as to be unfit for
duty, and that he was arraigned before a
police magistrate charged with intoxication,
tried and convicted of that offense. Upon
this charge and these specifications the re-
lator was tried by the police commissioners,
and after such trial duly had and upon evi-
dence legally taken, he was found guilty and
dismissed from the force. The relator as-
sails the finding of the commissioners upon
the ground that there was no evidence to
support the finding and that was against
the weight of evidence. After a careful con-
sideration of the record before us, I am satis-
fied that the finding of the commissioners
was correct. Upon the hearing before them,
it appeared from the testimony offered on
the part of the respondents that the relator
was found by a police officer shortly after
eleven o'clock A. M. lying on the front stoop
of a building on Fortieth street, in an uncon-
scious or semi-unconscious condition; that
he was taken by the officer to the police sta-
tion and there examined by the police sur-
geon for the purpose of determining whether
"it was a hospital case or not; that the
police surgeon thoroughly examined the re-
lator and found that he was suffering from
intoxication and nothing else; that the re-
lator remained in the station house between
two and three hours, at the expiration of
which time he regained consciousness, and
so far recovered from his stupor that he was
arrested, taken before a magistrate, charged
with intoxication, and by the magistrate
tried, convicted and fined for that offense.
The testimony thus given by the respond-
ents tending to prove the foregoing facts,
was not disputed by the relator, but instead
he sought to establish facts which would ex-
plain his physical condition as well as his
conviction by the magistrate. From his tes-
timony (and he was corroborated in some
respects by other witnesses) it appeared that
when he left his post of duty on the morn-
ing in question he complained of not
feeling well, and in response to a sug-
gestion made by a brother officer that
he go upon the sick list, replied that he
had twenty-four hours off and thought
"he could fix it up in that time;" that
he did not report to the police surgeon
or consult a physician, but went to his home
and, at the suggestion of his wife, took some
quinine and whisky, and then, at her re-
quest, started to go to a drug store, and be-
fore reaching there collapsed in the street;
that he had no recollection of what occurred
thereafter until he came to in the station
house. It did not appear from his testi-
mony, or any offered in his behalf, how
much quinine and whisky he took, or when
he took it, or what time it was when he left
his home and started for the drug store, or
how far he had progressed on his journey
when he collapsed. Neither did it appear
where he was from the time he left his post
in the morning until he was taken by his
brother officer to the station house, further

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