Tompkins v. Interborough Rapid Transit Co. (Sup.) .... Town of Evans, Brown v. (Sup.), Travis v. Knox Terpezone Co. (Sup.). Vogel Co., James C. McGuire & Co. v. (Sup.) .1091 Volk, McDowell v. (Sup.). 581 219 .1078 Von Bayer v. Ninigret Mills Co. (Sup.).. 291 433 ..1116 .1116 ..1116 621 538 43 Waldo, People ex rel. Blankenberg v. (Sup.) ..1103 Page Whalen v. New York (Sup.). White v. Erie R. Co. (Sup.). Page 889 .1118 Waldo, People ex rel. Brown v. (Sup.)....1103 West 184th St. and Overlook Terrace in Williams, Leavitt v. (Sup.).. ...1118 ...1118 .1089 632 667 Williams v. New York Herald Co. (Sup.).. 838 .1118 Wallach, In re (Sup.). 302 Walling v. Commercial Advertiser Ass'n (Sup.) Williams Patent Crusher &. Pulverizer Co. v. Lyth Tile Co. (Sup.). 6 ... 906 Walrath, Welch v. (Sup.). .1117 Williams, People ex rel. Buck v. (Sup.)..1103 Williams, Perley v. (Sup.).. .1106 Walter Farrington Tiling Co. v. Hazen, 24 Warden of Workhouse, Cohen v. (Sup.).. 596 .1117 Wisser, Sawey v. (Sup.). .1111 .1099 Washington Ave. in City of New York, In re, three cases (Sup.). .1117 Wasserstrom v. Cohen, Frank & Co. (Sup.) 638 Wolfe, Levy v. (Sup.).. Wax v. Woodbury G. Langdon Co. (Sup.) 351 Wolff v. Buffalo (Sup.). .....1093 ...1119 Wear v. Koehler (Sup.)..... 654 Webb, Vandyke v. (Sup.)... .1116 Weill, In re (Sup.) Wehner v. Brooklyn Wire Forming Co. (Sup.) Woodbury G. Langdon Co., Wax v. (Sup.) 351 .1105 ..1117 802 Weinberg v. Compagnie Générale Transat Woodin, Drew v. (Sup.). .1083 lantique (Sup.)... .1020 Woodruff v. Chapman (Sup.). .1119 Weiss v. Levy (Sup.). 489 Welch v. Walrath (Sup.).. .1117 Weldon, Klauder-Weldon Dyeing Mach. 273 Welsh Mach. Works, Tauber v. (Sup.).....1114 Wormser v. Marshall Field & Co. (Sup.)..1119 Woods, People ex rel. Moore v. (Sup.)....1105 ....1106 ..1088 .1073 517 908 944 .1117 Western New York & P. Traction Co., Peo- Western Transit Co., Bach v. (Sup.)....1074 Westminster Presbyterian Church of West 750 Youngquist v. Steel & Masonry Co, (Sup.)..1092. .1092 THE NEW YORK SUPPLEMENT VOLUME 150 In re BURKE. (Supreme Court, Trial and Special Term, Chemung County. November 28, 1914.) 1. MUNICIPAL CORPORATIONS (§ 185*)-REMOVAL OF POLICEMEN-CERTIORARI -ISSUANCE OF WRIT-DISCRETION OF COURT-EVIDENCE. On an application at Special Term for writ of certiorari to review an order dismissing a policeman from duty for failing to report a violation of the Liquor Tax Law, evidence taken before the commissioners, which was made a part of the application, held to authorize the issuance of the writ without an abuse of the discretion of the court. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 492-509; Dec. Dig. § 185.*] 2. WITNESSES (§ 367*)-CREDIBILITY-INTEREST-DETECTIVES. Testimony of witnesses who were employed to detect violations of the Liquor Law is not unbiased. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1184, 1185; Dec. Dig. § 367.*] 3. MUNICIPAL CORPORATIONS (§ 185*)-REMOVAL OF POLICEMEN-CERTIORARI -STAY OF EXECUTION. The court at Special Term, in granting a writ of certiorari to review a decision of the police commissioners removing a policeman for neglect of duty, will not stay the execution of the decision, the effect of which stay would be to restore the policeman to his rank with full pay, but will leave that question for the determination of the Appellate Division. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 492-509; Dec. Dig. § 185.*] Application for certiorari by John Burke against the Police Commissioners of the City of Elmira, and for a stay of execution of the decision of the Police Commissioners pending final hearing. Writ of certiorari issued, and stay denied. Mortimer L. Sullivan, of Elmira, for petitioner. Boyd McDowell, of Elmira, for respondents police commissioners of the city of Elmira. KILEY, J. John Burke, a policeman of the city of Elmira, on the 3d day of October, 1914, was suspended on a charge preferred by his chief. The substance of the charge is that Burke on August 23, 1914, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 150 N.Y.S.-1 which day was Sunday, was present at a hotel known as the Eleventh Ward Hotel in the city of Elmira, and witnessed the violation of the Liquor Tax Law, and did not report the same as required by the rules and regulations of the department. A trial was had and petitioner dismissed from the police force October 31, 1914. This application is made for a writ of certiorari, and for a stay of execution of the judgment of the board of police commissioners. Contrary to the usual course of such proceedings, the respondents were brought in upon motion as provided by section 2128 of the Code of Civil Procedure. Section 2120 of the Code of Procedure provides for the issuing of a writ. The respondents oppose the petitioner's application, not upon the ground that the court is without jurisdiction, but upon the ground that it would be an abuse of discretion to issue the writ and grant the stay asked for by petitioner. [1] The issue made by the petition and the affidavits of respondents involves an examination of the evidence taken before the commissioners, which evidence was made a part of the papers upon this motion. The questions, the determination of which the petitioner seeks to have reviewed by the Appellate Division, are provided for in subdivisions 4 and 5 of section 2140 of the Code of Civil Procedure. As this is the only way that the determination can be reviewed, it would seem that the writ ought to issue as a matter of course; but the earnestness and honesty of the respondents' counsel upon the argument that such action on the part of the court would be an abuse of discretion compels me to examine and dissect the evidence taken upon the trial. The rights here involved are vital and important, both to the petitioner and the people. If the petitioner has been wronged, and the right to review denied him, there is not anything that will compensate that wrong under the circumstances of this case. If, on the other hand, the petitioner is guilty of the offense charged and justly convicted of the same, he deserves the punishment meted out to him, and such judgment and its force and effect should not be impaired by an abuse of discretion in his favor. What does the evidence show as bearing upon the question? Who is the petitioner? One of the police force of the city of Elmira, and has been for upwards of 20 years. What is his record up to August 23, 1914? Clean, and so far as this evidence shows never charged with dereliction of duty or conduct, nor with the violation of any regulation or rule of law governing his official action. On October 7, 1914, the trial was had, completed, and evidence closed. The evidence for complainant was given by Campbell, Wheeler, Moss, and Burgett, and was to the effect that Burke was seen by them drinking at the hotel in question on August 23, 1914, between 3:30 and 4:30 p. m., and that others were drinking at the same time and place. None of these four give any evidence worthy of consideration that it occurred after that time. Burke denies that he was there at all on that day, and called eight disinterested witnesses whose evidence tended to show that he was in attendance, at work, at Recreation Park in the city of Elmira, on that day, from about 2 o'clock p. m. until about 5:30 p. m., when the game of ball there being played was finished; that this park is over a mile from the hotel, and could not be reached, even its vicinity, until 5:48 p. m. The petitioner urges that the burden of proof was upon his accusers, |