Schnitzler v. Casey

283 A.D. 1092 | N.Y. App. Div. | 1954

A proceeding under article 78 of the Civil Practice Act to review a determination of the New York City Transit Authority dismissing petitioner from his position as assistant foreman has been transferred to this court (Civ. Prac. Act, § 1296). Petitioner was accused of having tampered with chewing gum vending machines at a subway station on a certain day, while away from his place of duty without permission. After a trial in the Court of Special Sessions of the City of New York, he was acquitted of a charge of petit larceny and possession of burglar’s tools. Thereafter, he was given a hearing before the general superintendent of the Authority, at which a transit patrolman testified that he observed petitioner approach several gum vending machines, insert a nail file in the coin receptacle of each machine, operate the levers and take money out of each receptacle. The patrolman arrested petitioner and found more than fifty pennies on his person. About four years prior to this incident, petitioner had been disciplined as a result of a similar charge and had promised never to “go near any machine”. Determination unanimously confirmed, without costs. The rule that a charge must be proved beyond a reasonable doubt, applicable in criminal cases, does not apply to departmental hearings before administrative or executive bodies to discipline subordinates for conduct showing unfitness for place or position. (People ex rel. Cunningham V. Bingham, 134 App. Div. 602; People ex rel. Fitzpatrick v. French, 32 Hun 112; see, also, Matter of Cohen v. Board of Begents, 274 App. Div. 952, affd. 299 H. Y. 582, and Matter of Berman v. Gillroy, 198 Mise. 369, affd. 278 App. Div. 907, affd. 305 H. Y. 688.) The determination of the Authority herein is supported by competent and substantial evidence, and that is all that is required. (Matter of Humphrey v. State Ins. Fund, 298 H. Y. 327; Matter of Carroll v. Huclcle, 276 App. Div. 816.) Present — Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Murphy, JJ.