Determination of the chairman of the sanitary commission of the department of sanitation confirmed and certiorari proceeding dismissed. In our opinion the evidence before the trial commissioner was sufficient to justify the relator’s dismissal. Under rule 39 of the department, the commissioner had the right in his discretion to impose the penalties set forth in section 537 of the Greater New York Charter, which includes dismissal, and was not bound to follow the provisions of the rule providing a penalty of a fine of two days’ pay for a first offense of the character set forth in the charge against the relator. Young, Kapper, Scudder and Tompkins, JJ., concur; Lazansky, P. J., dissents on the following grounds: The dismissal of the relator was not warranted by the finding of guilt on the charge made against him. The punishment was too severe. The record indicates that the punishment was inflicted because he had committed another wrong, of which there is suspicion but no proof.