The relator, a patrolman, was dismissed from the force on January 27, 1897, on charges of using insolent and indecent language to Roundsman William A. Bailey, and of loitering on post. The only witness in support of the charges was this roundsman. Bailey testified that on November 6,1896, the relator lingered on the southwest *184corner of Rector street and Trinity place from eleven-thirty-one to el even-forty-five p. m., in conx^ersation with two citizens; that just before the expiration of this period a glass was -brought him from a saloon near by, from which he drank, and that thereupon he moved on. Upon this, to use the roundsman’s own words, “ I called him back and asked him if that was the way he was doing his duty, loitering there 14 minutes in conversation with two citizens, and having a drink brought, out to him. He looks at me, and he says: ‘You accuse me •of drinking rum?’ I says, Ho; .1 don’t accuse you of drinking rum; you look as if you have been drinking; I tell you now that I think you are drunk, and I order you to. report to the station house forth-with.’ ” On the way to the station house, he noxv says, the relator used the vile and insulting language set forth in the specifications. At the station house, however, his charge was of intoxication, and thereupon the sergeant made the relator walk the floor. The relator then walked perfectly' straight, as the roundsman admits; and the surgeon, who came later, pronounced him sober. The roundsman did not learn this latter fact until the next day, when he at once made the present charges.
Certainly this testimony has unsatisfactory features. The circumstances attending - the first charge are such that controlling weight ought not to be given to the roundsman’s subsequent statements, when such statements are unsupported, and are denied by several unimpeaclied witnesses. To charge a. police officer with intoxication, while upon duty, is a sufficiently serious matter/ Yet the roundsman made this charge; and he made it without the slightest foundation or justification. He takes pains to state..that he based it upon his own observation of the relator’s condition. He accused him thus: “ You look as if youhaye been drinking; I tell you now that I think you are drunk.” And he follows this up by stating that, on the xvay to the station house, the relator “ was able to .stand and able to walk, but not steady.” Yet the station house xvas •only two blocks and a half away, and there the relator walked straight enough to satisfy the critical eye of the sergeant; “ perfectly straight,” as the roundsman himself admits.
It is quite clear that Bailey jumped at the conclusion that the relator had been drinking intoxicating liquor, from the fact that something in a glass was brought out to him. This fact was, *185undoubtedly, the key to the roundsman’s conduct throughout. He is careful to deny 'that he charged the relator with drinking rum ; but the latter and the two persons with whom he was conversing .assert the contrary; and all the probabilities favor their testimony. In fact, the truth is easily gathered from the roundsman’s own testimony. . He says that he asked the relator what he meant by “ having a drink brought out to him.” Surely he did not mean a drink, -of water. And, if he did not make the charge of drinking rum, why should the relator have appealed to the men with him, as the roundsman admits he did ? We thus have the roundsman making this serious charge upon mere suspicion, for he is forced to admit that he could not see the contents of the glass; and then, when he ■saw its futility, denying that he ever made it. His manner of treating the charge is equally noteworthy. He admits that the relator ■ajipealed to those who were with him, and asked that the matter be looked into at once; and that he refused. He testified : “ Didn’t he ■(the relator) ask you to make an investigation then and there as to what he had? A. He did. Q. Did you do it? A. Ho, sir.” Instead of making the desired investigation, he prepared to follow the dictates of his own suspicions, and, relying upon them alone — in tire face of evidence that they were unfounded — to drag the relator off to the station house, and make a charge against him • which would be a blot upon his record.
As to the alleged offenses for which the relator has been dismissed, ■this hasty roundsman deemed them of so little importance that he never even mentioned them until his first charge had fallen through. It is impossible, under such circumstances, not to look upon the roundsman’s testimony, in support of these subsidiary charges, with grave suspicion. These charges certainly look, like an afterthought. His testimony in support of them has no inherent weight, and it •cannot bring conviction, as against the opposing testimony of three unimpeached witnesses, completely negativing the accusation of loitering and of using indecent language. These three witnesses . testify that all the way to the station house they were within hearing distance of what passed between the roundsman and the relator, and they fully corroborate the latter’s denial of the use of any bad .language. There is complete unanimity in their statements, with*186out any such concurrence in 'mvnutim as would lead to the inference that they had been coached. Two of them were casual acquaintances of the relator, not friends, as claimed, and their testimony is in nowise impeached. Their presence upon the occasion in question - is not doubted, and it could not well have been prearranged.
The other witness (Mnlvey) was an absolute stranger to the-relator. He, too, went to the station house, and was near enough to' hear all that passed. And he also states positively that'the relator did not use any of the language ascribed to him. The roundsman says that he did not see Mulvey, but does not attempt to deny that, he was present. This witness, in appearing and testifying as he did,, could have been actuated only by' a sense of duty; either that, or his' testimony was wholly fabricated — an assumption which is, entirely gratuitous.
Hnless these trials' are to be treated as mere idle formalties, we, are unable to see how the present proceedings can stand. It would be impossible to uphold the verdict of a jury upon the unsupported testimony of a, withess whose credibility is thus shaken and who is, combated by the credible testimony. of three unimpeached and-apparently disinterested witnesses. If ever we are to exercise the, function conferred upon us by the statute, of reversing a conviction as against the- weight and preponderance of evidence, we think it. should he done in this case.
■ The proceedings must be annulled and the relator reinstated, with - costs.
Van Brunt, P. J., and O’Brien, J., concurred; Rúmsey and Patterson, JJ., dissented.