The People of the State of New York ex rel. Edward C. Obertean, Relator, v. Arthur W. Kreinheder, Acting Mayor of the City of Buffalo, N. Y., and Another, Respondents

The People of the State of New York ex rel. Edward C. Obertean, Relator, v. Arthur W. Kreinheder, Acting Mayor of the City of Buffalo, N. Y., and Another, Respondents. Fourth Department, November 21, 1923. Public officers — certiorari to review determination of acting mayor of city of Buffalo in removing relator from police force for conduct unbecoming officer — evidence sustains findings — while punishment is harsh for first offense determination is confirmed. The determination of the acting mayor of the city of Buffalo removing the relator from the police force on the ground that he was guilty of conduct unbecoming an officer is supported by the evidence, and while the punishment imposed seems to be harsh and excessive in view of the previous excellent record of the relator, nevertheless the determination should be confirmed, as the offense was substantial and* the punishment is in the discretion of the head of the department. Certiorari issued out of the Supreme Court and attested on the 11th day of February, 1921, directed to Arthur W. Kreinheder, as acting mayor of the city of Buffalo, N. Y., and another, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had concerning the dismissal of the relator from the police force of the city of Buffalo. Harry Lipsitz [John S. Nibloe of counsel], for the relator. William S. Bann, Corporation Counsel [Frank C. Westphal, Assistant Corporation Counsel, of counsel], for the respondents. [MAJORITY — Per Curiam:] Per Curiam: The relator, a member of the police force of the city of Buffalo, on October 11, 1920, after a hearing before the acting mayor, was found guilty of certain charges of dereliction of duty and dismissed from the force. The charges were that on the 14th day of September, 1920, in the early morning hours, at a restaurant in the city of Buffalo, the relator engaged in a brawl, used coarse, loud and profane language and indulged in conduct unbecoming an officer and gentleman. The evidence at the hearing is sufficient to sustain the finding of guilt, but, considering the provocation, the character of the persons other than the relator who were involved in the transaction and the relator’s excellent record as sworn to by his superior officers, this single occurrence being the only blemish upon his record, we deem the punishment to have been both harsh and excessive. Inasmuch, however, as the offense was substantial rather than technical, and .the punishment is in the discretion of the head of the department, we feel constrained to affirm the determination. (People ex rel. Masterson v. French, 110 N. Y. 494; People ex rel. Morrissey v. Waldo, 212 id. 174.) Whatever remedy the relator may have must lie elsewhere than in an appeal to the courts. The determination of the acting mayor should be confirmed and the writ of certiorari dismissed, without costs. All concur. Determination of acting mayor of the city of Buffalo confirmed, and writ of certiorari dismissed, without costs.