
    In the Matter of the Application of Jerome J. S. Higgins, Petitioner, against Lewis J. Valentine, as Police Commissioner of the Police Department of the City of New York, Respondent.
    First Department,
    April 21, 1939.
    
      Julian V. Caraiba, for the petitioner.
    
      Edward J. McGratty, Jr., of counsel [Henry J. Shields with him on the brief; William C. Chanler, Corporation Counsel], for the respondent.
   Per Curiam.

The evidence fully justified the commissioner in finding the petitioner guilty of signing the name of one Graham to an application for a New York city license as stationary engineer and falsely testifying before the commissioner of accounts that he did not know Raymond D. Malarkey or Brian R. O’Reilly. The petitioner’s acquittal on charges contained in the first, second, fourth and sixth specifications does not necessarily imply that he was not guilty of these. It only decides that, as to these, his guilt was not established to the satisfaction of the commissioner.

The determination should be confirmed, with fifty dollars costs and disbursements to the respondent.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.; Dore, J., dissents.

Dore, J.

(dissenting). On the basic charges the petitioner was found not guilty. It is difficult to understand, if he was not guilty of these charges, why he should have signed Graham’s name or deliberately denied knowing the other two men in question. When he denied knowing them, he had not been confronted by them. In view of the conceded proof, that he was not the one who had aided Collins or been paid by him in obtaining the license, it appears there was no motive for testifying falsely. A consideration of the entire record indicates that there was no such preponderance of credible testimony in support of the charges as would sustain a jury’s verdict. (Civ. Prac. Act, § 1296, subd. 7.)

The determination of the commissioner, therefore, should be annulled and the petitioner reinstated, with fifty dollars costs and disbursements to the petitioner.

Determination confirmed, with fifty dollars costs and disbursements. Settle order on notice.  