Opinion
February, 1935.
Certiorari to review the removal of the petitioner from the office of supervisor of markets in the city of New York. Determination of the commissioner of public markets, weights and measures annulled, the charges dismissed and the petitioner reinstated in his position as supervisor of the department of public markets as of May 17, 1934, with all the rights theretofore enjoyed by him in that position, with fifty dollars costs and disbursements. The petitioner, an honorably-discharged war veteran, was charged (1) with being improperly absent from his place of employment for from ten to fifteen minutes on the afternoon of May 17, 1934; (2) with being a chronic alcoholic and, by reason thereof, physically and mentally incapable of performing the duties of his position. The petitioner furnished a good excuse for his brief absence from the market and that charge was practically abandoned on the trial. The second charge is not sustained by the record. On the contrary, the greater weight of credible evidence establishes the petitioner's physical and mental fitness for the duties of his position and that there was no dereliction of duty or violation of any rule of the said department. Lazansky, P.J., Hagarty, Scudder and Tompkins, JJ., concur; Davis, J., dissents and votes to confirm.