
    In the Matter of the Application of Joseph Thiel, Petitioner, for an Order of Certiorari to Review Certain Acts of William J. Tiffany, M. D., Superintendent of the Pilgrim State Hospital, Department of Mental Hygiene of Brentwood, County of Suffolk, State of New York, Respondent.
   Determination annulled, certiorari proceeding sustained, and the matter remitted to the superintendent of the Pilgrim State Hospital, at Brentwood, Suffolk county, for a rehearing, without costs. Under subdivision 2 of section 34 of the Mental Hygiene Law, the superintendent is empowered “ for cause stated in writing, after an opportunity to be heard ” to “ discharge any of such employees in his discretion.” Asa World war veteran, petitioner, under subdivision 1 of section 22 of the Civil Service Law, was entitled to “ a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by writ of certiorari. * * * The burden of proving incompetency or misconduct shall be upon the person alleging the same.” The petitioner’s opportunity to make his defense, to which he was entitled as a matter of law, was not accorded him. To that end the matter should be remitted for a new hearing. Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.  