
    In the Matter of the Application of Adam Goettel, Petitioner, for an Order of Certiorari against Peter G. Ten Eyck, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    
    
      
       Transferred from Appellate Division, Third Department, pursuant to section 618 of the Civil Practice Act, by order entered on May 1, 1936.— [Rep.
    
   Determination annulled on the facts and petitioner reinstated and salary ordered paid in accordance with the provisions of section 23 of the Civil Service Law, as amended by chapter 734 of the Laws of 1935, with fifty dollars costs and disbursements, on the ground that there was such a preponderance of proof against the existence of the fact of incapacity charged by the respondent that the determination of incapacity was against the weight of the evidence. All concur, except Crosby, J., who dissents and votes for confirming the determination. (The order of certiorari directs the review of action of respondent in dismissing the petitioner as gardener in greenhouses on New York State Fair grounds.) Present — Sears, P. J., Taylor, Edgeomb, Crosby and Lewis, JJ.  