People ex rel. McAleer v. French

• Decision Date: 11 March 1890
• Citation: 119 N.Y. 502,23 N.E. 1061
• Parties: PEOPLE ex rel. McALEER v. FRENCH et al., Police Commissioners.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 502

23 N.E. 1061

PEOPLE ex rel. McALEER

v.FRENCH et al., Police Commissioners.¹

Court of Appeals of New York.

March 11, 1890.

Appeal from supreme court, general term, first department.

The police commissioners of New York city dismissed the relator from the police force for intoxication. On certiorari that order was affirmed by the supreme court, general term, and relator appeals.

Edward T. Wood, for appellant.

W. H. Clark, Corp. Counsel, ( D. J. Dean, of counsel,) for respondent.

EARL, J.

The members of the police force of the city of New York have a permanent tenure of office; and they cannot be dismissed from the force, for any fault or misconduct, until after charges have been preferred against them, and such charges have been examined, heard, and investigated as provided in the statutes, and the rules adopted by the board of police commissioners. The following is one of the rules adopted by that board: ‘Any member of the police force may be punished by the board of police, in their discretion, either by reprimand, forfeiture, and withholding pay, not exceeding thirty days for any one offense, or by dismissal from the force on conviction of either of the following offenses, to-wit.’ Among the offenses specified are intoxication, neglect of duty, and conduct unbecoming an officer. We are dealing in this case with the offense of intoxication, as that was the charge made against the relator. Before a police officer can be dismissed from the force for intoxication, it must be shown that the intoxication was of such a character as to be an offense against the rules; that it was conscious, voluntary, blamable, and in some way due to his fault. In the absence of any other proof or of any explanation, the mere fact of intoxication might establish the offense, because it would have to be assumed that the officer voluntarily brought himself into that condition. But if it should appear that the officer was by force compelled to drink intoxicating liquor, or that he had taken it when it was so disguised that he did not know its character, or, in good faith, when it was prescribed by a physician for some bodily ailment, and that thus he became intoxicated, no blame would attach to him. He would be guilty of no offense, and would in no way be in fault; and then he could not be convicted or dismissed from the force on account of such intoxication. In People ex rel. Masterson v. French, 110 N. Y. 494, 18 N. E. Rep. 133, we held that, upon the undisputed evidence, the relator was guilty of the intoxication charged; that it was voluntary, and that he was in fault, and to blame for it; that the extent of the punishment for it rested in the discretion of the police commissioners; and that the supreme court had no jurisdiction to interfere with their determination as to that. We therefore reversed the decision of the supreme court in this case, and affirmed that of the commissioners. In the recent case of People ex rel. Hogan v. French, ante, 1058, we held, upon the undisputed facts, that the intoxication was occasioned under such circumstances as to show that the relator was in no sense blamable therefor; that he had committed no offense, and was not in fault, and could not, therefore, properly be convicted and dismissed from the force. And thus, while those cases are in a certain sense analogous, they are not alike, and are plainly distinguishable upon the grounds stated in the opinion of FINCH, J., in the latter case.

Here, we think there was sufficient evidence to authorize the police commissioners to find that the relator was guilty of the intoxication charged, in the sense that it was voluntary, and that he was in fault, and to blame for it. It appears that on the 13th day of October, after being on duty until 5 o'clock P. M., he went home, and then moved his household goods from the house where he was then living into the adjoining house, and that afterwards he again went on duty, and came home in the night, and settled his house, and went to bed. It does not appear at what hour he got up the next moring. But he was to go on duty at 8 o'clock; and, just before that, not having had any breakfast, his wife went to the corner grocery, and got some brandy in a tumbler, and brought it to him, and, fearing he would become sick, insisted upon his drinking it, which he did. He then went upon duty, and while at his post, between 12 and 1 o'clock, she, being still afraid he would become sick, took some more brandy to him, which he then drank; and about half after 1 he went to the station-house, and fell down on the floor and was found there intoxicated, and remained so for the better part of an hour. It does not appear that he had ever been advised by any physician to take brandy for any ailment, or that he had any physical ailment, except that he testified that he was sometimes dizzy-headed. Why, in the morning, did he take brandy, instead of food? It would appear, from the hour at which he went on duty, that there was abundant time to procure food; and there does not appear to have been any necessity for his...