Opinion
March 4, 1942.
This is a review under article 78 of the Civil Practice Act of an order by the Commissioner of Correction of the State of New York which dismissed petitioner from his position as a guard at the Wood-bourne Institution for Defective Delinquents. As an exempt volunteer fireman petitioner was accorded a formal hearing under section 22 Civ. Serv. of the Civil Service Law. He was charged (1) with having planned and connived with an inmate of the institution to obtain for himself an ordinary butcher knife, which was the property of the institution, in exchange for five packages of chewing gum; and (2) with having obtained the knife under such arrangement. A great mass of the testimony taken is entirely hearsay and much of it wholly irrelevant. The only direct evidence against petitioner was given by an inmate who is a mental defective, and characterized by the superintendent of the institution as a high grade moron; and his testimony is corroborated only indirectly by the testimony of other mental defectives. The superintendent himself said: "Such evidence, of course, is subject to considerable doubt as to its validity. * * *" We think this is not only an apt characterization of the testimony as a whole but it is in line with our view that the decision of the Commissioner is against the weight of credible evidence, especially in view of the very serious consequences which result. Determination annulled, with fifty dollars costs to the petitioner, and the matter remitted for further consideration. Hill, P.J., Bliss, Heffernan, Schenck and Foster, JJ., concur.