267 A.D. 948 | N.Y. App. Div. | 1944
Lead Opinion
Determination confirmed, with fifty dollars costs and disbursements. (See Matter of Miller v. Kling, 291 N. Y. 65; People ex rel. Guiney v. Valentine, 274 N. Y. 331, 333; People ex rel. Hogan v. French et al., 119 N. Y. 493, 496; People ex rel. Masterson v. French et al., 110 N. Y. 494, 499; People ex rel. Brown v. Greene, 106 App. Div. 230, 232, affd. 184 N. Y. 565.) Martin, P. J., Townley and Glennon, JJ., concur; Untermyer, J., concurs in separate memorandum; Dore, J., dissents in opinion.
Concurrence Opinion
(concurring). Although I agree with Justice Dore that we may consider whether the determination is against the weight of the evidence under section 1296 of the Civil Practice Act, I am nevertheless of the opinion that the determination is not so clearly against the weight of the evidence as to justify overruling the conclusion of the Commissioner. Accordingly, I vote to confirm.
Dissenting Opinion
(dissenting). Upon the record in the case at bar there was a preponderance of proof against the finding of petitioner’s guilt (Civ. Prac. Act, § 1296, subds. 6, 7; People ex rel. Gilson v. Gibbons, 231 N. Y. 171, 177; Matter of Weber v. Town of Cheektowaga, 284 N. Y. 377, 380) ; and the determination of guilt on the second charge is inconsistent with acquittal of petitioner and the other officer on the extortion charge.
Accordingly, I dissent and vote to annul and grant a new trial.
