
    In the Matter of Patrick J. Sullivan, Respondent, against Arthur Moynihan, Appellant.
   Appeal by a member of the police department of the City of Yonkers from an order of the commissioner of public safety of said city, adjudging appellant guilty of violations of stated rules of the rules and regulations of the said department and dismissing him from the office of sergeant. The appeal is authorized by section 138 of the Second Class Cities Law, and the parties have stipulated that, in addition, this court review the matter as a proceeding pursuant to article 78 of the Civil Practice Act. Order annulled, without costs, and matter remitted to the commissioner of public safety for further proceedings not inconsistent with the views herein below stated. The report of the deputy commissioner of public safety who' acted as trial commissioner found appellant guilty of all the charges made against him and recommended his removal from office. The evidence is insufficient to support such findings except as to the infraction of rules 98 and 268. In view of the gravity of some of the charges which we find were not sustained and the testimony of deputy commissioner Comey as to appellant’s physical condition at the time appellant appeared before him for questioning, we are unable to determine whether the commissioner would have imposed the same punishment on a finding that appellant had violated only the rules above referred to. The matter is remitted for such disciplinary action as the commissioner may consider proper. Nolan, P. J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.  