
    In the Matter of the Application of Agnes Phelan, as Administratrix de Bonis Non, etc., of George A. Walsh, Deceased, Petitioner, to Review a Determination of William Fellowes Morgan, Jr., as Commissioner of Department of Public Markets, Weights and Measures of the City of New York, Respondent.
    First Department,
    January 20, 1939.
    
      William Mottur of counsel [Harry Silver with him on the brief], for the petitioner.
    
      Henry J. Shields of counsel [Paxton Blair with him on the brief; William C. Chanler, Corporation Counsel], for the respondent.
   Per Curiam.

In our opinion, upon the record before us, the discharged employee showed that his leaving his post and remaining away was justified upon the grounds of “ Assigned lunch hour ” and Personal necessity,” both of which justify leaving and absence without authorization from the acting chief inspector or other superior departmental official under the rules of the department of markets itself.

The commissioner, therefore, did not sustain the burden of proving the employee’s misconduct, which burden was imposed upon him by the provisions of section 22 of the Civil Service Law.

It follows, therefore, that the petition should be sustained, the determination of the commissioner annulled and the employee held to have been entitled to reinstatement as of February 11, 1938, with the full rights of his position, with fifty dollars costs and disbursements to the substituted petitioner.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Determination unanimously annulled, with fifty dollars costs and disbursements to the substituted petitioner, and the employee held to have been entitled to reinstatement as of February 11, 1938, with the full rights of his position. Settle order on notice.  