
    In the Matter of James Boddie, Appellant-Respondent, v. County of Westchester et al., Respondents-Appellants.
    Argued November 15 1973;
    decided December 27, 1973.
    
      
      John J. S. Mead, County Attorney (Alfred J. Mungo of counsel), for respondents-appellants.
    
      
      Alfred Olsen for appellant-respondent.
   On respondents’ appeal: Order affirmed, without costs.

Concur: Chief Judge Fuld and Judges Bubke, Jones and Wachtler. Judge Breitel dissents and votes to reverse in the following opinion in which Judges Jasen and Gabrielli concur.

On petitioner’s appeal: Appeal dismissed, without costs, upon the grounds that petitioner was not aggrieved by the modification at the Appellate Division (CPLR 5601, subd. [a], par. [iii]) and no substantial constitutional question is directly involved.

Breitel, J.

(dissenting in part). The finding by the commissioner, invulnerable to judicial review, that appellant Boddie waved a loaded revolver at inmates under his charge in a local jail not only merited dismissal of Boddie, but would merit complaint against the commissioner if he retained Boddie in so sensitive a position. The waving of a loaded revolver at the inmates demonstrated unfitness for the position, and the sanction imposed was therefore proper (cf. Matter of Traber v. Feinstein, 39 A D 2d 643, affd. 32 N Y 2d 860). Moreover, it is suggested that humane considerations on behalf of helpless persons in custody should outweigh sympathy for a custodian who is so insensitive to his responsibility.

Accordingly, I dissent and vote to reverse on the commissioner’s appeal and to reinstate his determination.

Order affirmed.  