
    In the Matter of S. John DiMase, Respondent-Appellant, v. City Manager of the City of Yonkers et al., Appellants-Respondents.
    Argued April 26, 1972;
    decided June 7, 1972.
    
      
      Eugene J. Fox, Corporation Counsel (Michael J. Trainor and Harold J. Smith of counsel), for appellants-respondents.
    
      Morton N. Wekstein for respondent-appellant.
   Concur: Chief Judge Fuld and Judges Burke, Scileppt, Bergan and Gibson. Judge Breitel dissents and votes to modify and reinstate the determination of the City Manager in the following opinion in which Judge Jasen concurs.

Breitel, J. (dissenting).

Yonkers’ City Manager dismissed petitioner DiMase, the City Sealer of Weights and Measures, upon ample evidence that he attempted to bribe a Westchester County officer (see, e.g., Penal Law, § 200.30).

Mr. Delaney, the Westchester County Sealer of Weights and Measures, testified that in the course of his official duties he found packages of Dellwood milk to be short weight and told Dellwood to check its filling machine. Shortly after, petitioner DiMase called Mr. Delaney, asked him if he had found Dell-wood milk short, and requested that he be kept informed “ as a common courtesy ”.

Eight days later, after the Dellwood problem had been resolved, Mr. Delaney was in petitioner DiMase’s office. Mr. Delaney testified: “ I was in Mr. DiMase’s office with him the two of us alone, and I asked him if I could use the men’s room. As I was getting up, he said to me, ‘ By the way, here is something for you. ’ He laid a $50.00 bill on his desk. I said, ‘ What’s that? ’ and he laughed and he said, ‘ I take care of my friends. ’ I said, 1 What do you mean? ’ He said, ‘ Dellwood.’ I felt I didn’t know what to expect, so I laughed at him and went on to the bathroom. When I came out, it was gone.” Mr. Delaney immediately reported the incident to the Sheriff’s office.

Significantly, petitioner DiMase did not contradict Mr. Delaney’s testimony, or try to explain it away. He was content to state that he did not recall the incident of offering Mr. Delaney $50. It suffices to sustain the administrative determination.

Needless to emphasize, conduct of the kind described justifies if it does not mandate the sanction of dismissal imposed by the City Manager.

Accordingly, I dissent and would modify and reinstate the determination of the Yonkers’ City Manager.

Order affirmed.

Cross appeal taken as of right by petitioner dismissed, without costs, upon the ground he is not aggrieved by the modification at the Appellate Division (CPLB 5601, subd. [a], par. [iii]); petitioner’s motion for leave to appeal granted and such appeal, already argued, is considered on the merits.  