Zebley v. Lubin 7 A.D.2d 965

Determination modified by annulling that part thereof discharges petitioner and matter remitted to the commissioner for reconsideration of the measure of discipline and as so modified determination confirmed, with $50 costs and disbursements to the petitioner. Memorandum: The determination of the Industrial Commissioner, insofar as it finds petitioner guilty of the violation charged, is confirmed. Upon the record, however, it appears that the petitioner entered the service of the Department of Labor as an Apprentice Training Representative in August, 1949 and that he continued to serve in that capacity until June of 1957 when he was suspended because of the charges in question. He had served 21 years in public service, 13 thereof as Deputy County Clerk of Oneida County. There has never been any other charge or complaint of any kind against him. He is a veteran of World War II with an excellent service record. In view of this and in view of the nature of the offense we find that the measure of discipline imposed is excessive and an abuse of the discretion of the commissioner (Civ. Prac. Act, § 1296, subd. 5-a). The determination is therefore modified by annulling that part thereof which discharges the petitioner and the matter is remitted to the commissioner for reconsideration of the measure of discipline, and as so modified the determination is confirmed. (See Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of Rodriguez v. Rohan, 3 A D 2d 648; Matter of Tripple Inn v. Kennedy, 3 A D 2d 907; Matter of Faulisi v. Board of Police Comrs., 1 A D 2d 762.) All eoneur. (Review of determination of respondent, removing the petitioner from his position as Apprentice Training Representative of the Department of Labor, which proceeding was transferred to the Appellate Division by order of Lewis Special Term.) Present — MeCurn, P. J., Williams, Bastow, Goldman and Halpern, JJ.