
    In the Matter of Margaret Simms, Individually and as Administratrix of the Estate of John J. Simms, Deceased, Petitioner, against George P. Monaghan, as Police Commissioner of the City of New York, Respondent.
   Proceeding under article 78 of the Civil Practice Act to review respondent’s determination, after a hearing, dismissing the substituted petitioner’s intestate from the position of patrolman in the police department of the city of New York because of conduct unbecoming an officer, which proceeding has been transferred to this court for disposition pursuant to section 1296 of the Civil Practice Act. Determination annulled on the law and the facts, without costs, the charge dismissed, and reinstatement of the intestate to said position as of the date of his said dismissal ordered. The trial of the intestate was had in a hospital while he was seriously ill, without counsel and with no opportunity to produce character witnesses or otherwise prepare himself to meet a very grave charge. It was necessary to administer sedatives to him during the course of the trial. Under these circumstances much incompetent and prejudicial testimony was admitted at his hearing. Additionally, we find the testimony of the sole witness offered in support of the charge to be incredible. Adel, Wenzel and Beldock, JJ., concur; Nolan, P. J., and Schmidt, J., dissent and vote to confirm the determination under review, with the following memorandum: The intestate consented that his trial should proceed under the circumstances disclosed. He had been granted one adjournment and did not demand any further delay for preparation or to obtain either counsel or character witnesses. The deputy commissioner who conducted the trial is an experienced lawyer, well able to distinguish between competent and incompetent testimony; and we may not assume that he was influenced in his decision by prejudicial evidence admitted without objection. He was the sole judge as to matters of credibility, and his determination, based on evidence which was sufficient, if believed, should not be disturbed. (People ex rel. Guiney v. Valentine, 274 N. Y. 331.)  