I am unable to concur in the view that this court should set aside the action of the proper police authority in dismissing this policeman after a due hearing. The trial commissioner, after seeing and hearing the witnesses, has made his decision solely upon issues of fact. To set aside the dismissal and reinstate this policeman with back pay on a mere question of credibility, substitutes the judgment of this court for that of the trial commissioner and most seriously interferes with discipline in the police department. For many years this court was without power to interfere where there was any evidence tending to support the decision. (People ex rel. Hart v. Board of Fire Comrs. of N. Y., 82 N. Y. 358.) While the Legislature subsequently conferred statutory power upon this court to weigh the evidence (Civ. Prac. Act, § 1304), yet such power always has been, and most properly, very sparingly exercised. Admittedly both the policeman and the witness Acuna were attached to the vice squad, and it was within the province of the trial commissioner to believe one or the other. If witnesses of unimpeachable character must be found before their testimony can be accepted, then it becomes more difficult than ever to uncover wrong and convict those responsible therefor.
As the main witness is dead, it seems futile to order a new trial.
The previous ruling of this court dismissing the order of certiorari should be confirmed.
Order of certiorari sustained, the determination of the police commissioner annulled, a new trial granted to petitioner, and, in the meantime, the petitioner reinstated as a member in good standing of the police force of the city of New York, with fifty dollars costs and disbursements to the petitioner. Order entered June 17, 1932, vacated.