New York County NyArchives Court.....Deley, Lawrence Vs. Stephen French 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. LAWRENCE DELEY, Appellant, v. 
STEPHEN B. FRENCH and Others, as Police Commissioners, Respondents.

Dismissal from the New York police force — intoxication, induced by medicine 
prescribed for sickness, not an excuse.

On the return to a writ of certiorari issued to review the action of the New 
York police board, in the matter of the relator's dismissal from the New York 
police force, it appeared that he was absent from his post sitting at a table in 
a restaurant asleep, with his hat and coat off, under the influence of liquor; 
that this condition was induced by his having taken brandy and ginger and a 
tincture of opium, by direction of a physician, to relieve him from a cold from 
which he was suffering, and his having, subsequently to the taking of the first 
dose, not feeling well, drank from each of two bottles, containing such 
remedies, what he supposed to be a proper dose, and his having, in fact, taken 
an amount which produced unconsciousness:

Held, that, assuming the existence of an ailment on the part of the relator, it 
afforded no justification for his conduct.

That the facts presented a question, the decision of which rested wholly with 
the police commissioners, and that the General Term was not authorized, under 
the circumstances, to set aside the decision of the commissioners as being 
against the weight of evidence.

People ex rel. Michael Brady v. French (11 St. Rep., 577) not followed; People 
ex rel. Masterson v. French (110 N. Y. 645) followed.

Certiorari to review the relator's dismissal from the police force issued under 
an order of the New York Special Term of the Supreme Court of June 15, 1888.

John M. Tierney, for the relator.

William L. Turner, for the respondents.

Brady, J.:

The charge against the relator was neglect of duty and conduct unbecoming an 
officer. The specifications were that he was absent from his post in a 
restaurant in this city, sitting at a table asleep, with his hat and coat off, 
and was so much under the influence of liquor that it was necessary to take him 
to the eighteenth precinct station house, which was done by a sergeant and a 
roundsman. The evidence was abundant to establish that the relator was in a 
condition indicating intoxication, and, it may be briefly said, establishing the 
charge made and the truth of the specifications stated. The answer of the 
relator to the charge was that whilst on duty he was suffering from dirarrhea, 
and so much so that he was compelled to go to the nearest drug store for relief, 
getting a man in the meantime to cover his post. He met Dr. Hilton in the drug 
store, who examined him, and found he was suffering from cold, and who, in the 
exercise of his judgment, having made an examination, determined that he would 
be benefited by a stimulant and narcotic. He consequently prescribed brandy and 
ginger and a tincture of opium, directing the relator to take a tablespoonful of 
the brandy and ginger and twenty-five drops of the tincture of opium until 
relieved, and if the first dose, which was administered by the doctor in the 
drug store, did not relieve him, to repeat the dose. The relator then returned 
to his post which he had left in charge of a person. The pain still continuing 
the relator took another dose, and not having anything to measure it drank from 
each of the bottles what he thought was a dose, and took, it is supposed, too 
much of the opium and lost consciousness. It should be remarked here that there 
is no evidence in the case of his having imbibed anything other than the 
medicine prescribed. Dr. Theodore Hilton corroborated the story told by the 
relator, stating that he saw him in the drug store, prescribed the brandy and 
ginger and tincture of opium, and administered one dose himself. And he further 
said, "I suppose he took too much of the opium or the brandy and that produced a 
narcotic influence;" that, having taken it, it would take some time to sleep it 
off, and that he would still smell of the brandy. The druggist, Mr. Arfort, also 
testified that the relator went to his store, met there Dr. Hilton, who 
prescribed for him, and that the doctor wrote two prescriptions, which he put up 
for the relator—four ounces of mixture in one bottle and one ounce in another; 
and this was the case which was presented to the commissioners for their 
consideration. It is kindred to the case of the People ex rel. Michael Brady v. 
French (reported in 11 State Reporter, 577). In that case it appeared that the 
relator was taken sick and resorted to stimulants for relief, which was not 
denied, and which the court considered, in that case, sufficient to account for 
his condition, overcoming the evidence which was offered for the purpose of 
showing that he was guilty of conduct unbecoming an officer; and the proposition 
suggested and maintained by the court was that, to determine the truth of the 
charge, it was to be considered that he did not voluntarily place himself in the 
condition in which the use of the stimulant placed him; that it was his 
misfortune, rather than his fault; that he was assailed by disease, when it was 
entirely proper that something should be done for him in the way of providing a 
remedial agent, and that provided by his friend was considered to be what was 
required under these circumstances. And in view of the rule that there must be, 
upon all the evidence, such a preponderance of proof as to the material facts 
that the verdict of a jury would be set aside as against the weight of evidence, 
it was suggested that the misconduct did not tend to establish the charge made 
of voluntary intoxication, but proved him to have been subjected to illness 
requiring the aid of stimulants, resulting from no misconduct on his part, and, 
therefore, the judgment of the commissioners was reversed. Here that decision 
would be followed were it not for the recent adjudication made in the case of 
the People ex rel. Masterson v. French (decided October 2,1888.*) That was a 
kindred case to this, only that the evidence was not quite so strong to prove 
the immediate necessity of resort to stimulants; but there was sufficient to 
establish the fact that the relator took brandy and ginger for illness, and 
there was no evidence to the contrary. This court thought the facts and 
circumstances detailed in the evidence in that proceeding to be such as to 
warrant the reversal of the judgment of the commissioners; but the Court of 
Appeals held, in reversing our decision, that, conceding the existence of an 
ailment on the part of the relator, it afforded no justification for his 
conduct. The proof, such as is given on the part of the relator, established no 
extenuating circumstances in mitigation of the punishment which he had incurred 
by reason of his offense, and which would present a question pertaining solely 
to the general government and discipline of the force; and hence, from the 
nature of things, rests wholly within the discretion of the commissioners, not 
presenting any conflict of evidence which would invoke the rule authorizing the 
General Term to set aside the judgment as one against the weight of evidence.

*110 N. Y., 645.—[Rep.

To this exposition of the law by the Court of Appeals we bow and affirm the 
judgment, and, as a necessary consequence, dismiss the writ, but without costs.

Van Brunt, P. J., and Daniels, J., concurred.

Judgment affirmed and writ dismissed, without costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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