
    In the Matter of Wilfred Tarbox, Petitioner, v Greenburgh Central School District No. 7 et al., Respondents.
   — Proceeding pursuant to CPLR article 78 inter alia to review a determination of respondent board of education, dated September 18, 1974, which, after a hearing, suspended petitioner, a tenured teacher, for a period of 20 days without pay. Determination annulled, on the law, with costs, application granted and respondents are directed to refund to petitioner the amount withheld from him under the suspension. Petitioner is a tenured physical education teacher with more than 25 years of service in the respondent school district. He was charged under section 3020-a of the Education Law with conduct unbecoming a teacher, insubordination and neglect of duty. Specifically, it was charged that petitioner struck two second grade students, that he used profane language during the incident, that he permitted one of the boys to leave class without permission and that he failed to report the incident to, amongst others, his superior. A statutory hearing was held at which four witnesses between the ages of seven and eight testified against petitioner. Only one of these witnesses was actually involved in the incident. His testimony was marked by vagueness, ambiguity and contradiction. The other witnesses were uncertain as to what they actually saw and heard. Following the hearing, petitioner was exonerated of the charge of using profane language. However, on the'remaining charges he was found guilty and was suspended for 20 days without pay. In our view petitioner, at most, stepped in to stop a fight, which was his duty. No one was injured by his intervention and we hold that, on the record before us, the school authorities failed to sustain the necessary burden of proof for a finding of guilt. Thus, the determination should be annulled and respondents should refund to petitioner the amount withheld from him under the suspension. Hopkins, Acting P. J., Martuscello, Cohalan, Christ and Munder, JJ., concur.  