
    In the Matter of Margaret A. Mitthauer, Respondent-Appellant, against Charles L. Patterson et al., Constituting the New York City Transit Authority, Appellants-Respondents.
    Argued April 19, 1960;
    decided May 19, 1960.
    
      
      Daniel T. Scannell, Helen R. Cassidy and Edward W. Summers for appellants-respondents.
    1. The Appellate Division erred, as a matter of law, in holding* that the punishment of dismissal imposed on petitioner was excessive. (Matter of Stracquadanio v. Department of Health, 285 N. Y. 93; Matter of Fiore v. O’Connell, 297 N. Y. 260; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465; Matter of Stole v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; People v. Cox, 286 N. Y. 137; Matter of Annunziata v. Patterson, 3 A D 2d 912; Matter of Giovelli v. Patterson, 8 A D 2d 829; Matter of Schnitzler v. Casey, 283 App. Div. 1092; Matter of Lustig v. Department of Labor of State of N. Y., 283 App. Div. 690; Matter of Roge v. Valentine, 280 N. Y. 268; Matter of Schadler v. Graves, 258 App. Div..451, 282 N. Y. 716; Matter of Evans v. Monaghan, 282 App. Div. 382, 306 N. Y. 312; Matter of Douglas v. New York State Thruway Auth., 6 A D 2d 836, 6 N Y 2d 721; Matter of Park East Land Corp. v. Finkelstein, 299 N. Y. 70; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104.) II. Assuming, arguendo, that the court below properly determined that the punishment of dismissal constituted an abuse of discretion, it exceeded its powers, not only in fixing the punishment itself instead of remitting the proceeding to the Authority for such purpose, but also by reducing the punishment from dismissal to a punishment not authorized by statute. (Matter of Ray v. Board of Regents of Univ. of State of N. Y. 9 A D 2d 560; Matter of Stolz v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Matter of Faulisi v. Board of Police Comrs. of City of Corning, 1 A D 2d 763, 2 N Y 2d 812; Matter of Loewy v. Binghamton Housing Auth., 4 A D 2d 581, 5 A D 2d 916, 4 N Y 2d 1036; Matter of Bancroft v. Usher, 4 A D 2d 808; Matter of Rodriguez v. Rohan, 3 A D 2d 648; Matter of Friedman v. O’Connell, 5 A D 2d 858; Matter of McDonnell v. Kennedy, 5 A D 2d 971; Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Jones v. McCarthy, 7 A D 2d 710; Matter of Zebley v. Lubin, 7 A D 2d 965; Matter of Delventura v. Hayes, 8 A D 2d 730; Matter of Pollack v. Conway, 276 App. Div. 435, 301 N. Y. 816; Matter of Grottano v. Kennedy, 5 N Y 2d 381; Matter of Triple Inn v. Kennedy, 3 A D 2d 907; Matter of Phinn v. Kross, 8 A D 2d 132; Matter of Haywood v. Craig Colony, 5 A D 2d 958; Matter of McGinnis’ Broadway Restaurant v. Rohan, 6 A D 2d 115, 6 N Y 2d 770; Federal Power Comm. v. Idaho Power Co., 344 U. S. 17; Matter of Barsky v. Board of Regents of Univ. of State of N. Y., 305 N. Y. 89, 347 U. S. 442.)
    
      Joseph T. King for respondent-appellant,
    I, There was not the required, competent and substantial proof to sustain the finding that petitioner was guilty of collecting cash fares and retaining them for her own use. (Matter of Meyer v. Goldwater, 286 N. Y. 461, 286 N. Y. 697; Matter of Schnitzler v. Casey, 283 App. Div. 1092; Matter of Hecht v. Monaghan, 307 N. Y. 461.) II. Petitioner was denied the required judicial process at the administrative level. (Matter of Taub v. Pirnie, 3 N Y 2d 188; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Douglas v. New York State Thruway Auth., 6 A D 2d 836, 6 N Y 2d 721.) III. Assuming, without conceding, that respondents submitted some proof of a technical breach by petitioner of some rule or rules, any such breach involved mere errors of judgment and the possibility of such breach was inherent in the job .and was unaccompanied by had faith or wrongful intent. In such circumstances petitioner should not he found guilty and her discharge was harsh and unjust punishment. (Matter of Rotkiewicz v. Department of Mental Hygiene of State of N. Y., 
      283 App. Div. 458, 307 N. Y. 847; People ex rel. Rigby v. Anderson, 198 App. Div. 283; People ex rel. Long v. Whitney, 143 App. Div. 17; People ex rel. Winspear v. Kreinheder, 197 App. Div. 887; Matter of Ryan v. New York State Liq. Auth., 273 App. Div. 576.) IV. Assuming, without conceding, that there was sufficient, competent and substantial evidence to support the finding that petitioner collected cash fares and retained them for her own use, in the circumstances of this case, dismissal of petitioner from employment with respondents was unreasonable and an abuse of discretion and the Appellate Division was within its authority in reducing such punishment and in fixing a new measure of punishment, pursuant to subdivision 5-a of section 1296 of the Civil Practice Act. (People ex rel. Shires v. Magee, 57 App. Div. 281; Matter of Sunland Beverage Corp. v. Rohan, 6 A D 2d 867; Matter of Stolz v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Moebus v. Tishman, 5 N Y 2d 945; Matter of Barsky v. Board of Regents of Univ. of State of N. Y., 305 N. Y. 89.)
   Chief Judge Desmond.

Petitioner, after having been employed by respondent Transit Authority and its predecessor for more than 20 years as a station agent or ticket seller, was found guilty after a trial before the Authority on three of five charges. The specifications on which petitioner was convicted accused her of collecting fares from passengers and then directing such passengers to enter onto the station platform by using an exit gate .without causing their fares to be registered by the “ passimeter totalizer ” or turnstile. Two of these specifications charged further that petitioner failed to report these incidents and retained for her own use the fares collected from those passengers who had used the exit gate instead of the turnstile. After a hearing, at which petitioner was represented by counsel and testified on her own behalf, the hearing officer sustained the charges and recommended to the Authority that petitioner be dismissed. The Authority dismissed her from her position and she brought this proceeding which was transferred to the Appellate Division, Second Department.

The Appellate Division, by a vote of 3 to 2, confirmed the "determination of guilt but modified the Authority’s determination by reducing the punishment from dismissal to suspension for six months from November 13, 1958, that being the date on which the hearing was held and being a few days before the dismissal. Two of the Justices dissented but their disagreement was not with the confirmation of the determination of guilt but with the modification of the penalty. In other words, the two dissenters thought that the dismissal should be confirmed. Petitioner and the Authority appeal to this court. Petitioner argues that there was insufficient competent evidence to sustain the findings of guilt. ' The Authority argues that the penalty of dismissal imposed by the Authority was not excessive and should not have been reduced and, further, that under subdivision 5-a of section 1296 of the Civil Practice Act the Appellate Division, having held that the discipline imposed by the Authority was excessive, could not fix a new penalty but could do no more than remit to the Authority for imposition of lesser punishment. That question of power has not previously been passed on by this court. The Authority argues, also, that the only penalties legally available (Civil Service Law, § 75, subd. 3) in such a case are these: reprimand, fine not to exceed $100, suspension for not more than two months, demotion in grade or title, or dismissal.

We have examined the evidence and hold that it is sufficient to support the findings of guilt.

More difficult questions arise from the Appellate Division’s reduction of the sanction from dismissal to a six-month suspension. The Appellate Division made a finding that under all the circumstances the punishment imposed was excessive ”, citing subdivision 5-a of section 1296 of the Civil Practice Act (supra). Subdivision 5-a was added in 1955 to overrule the holdings (see Matter of Barsky v. Board of Regents, 305 N. Y. 89) that no judicial review was available as to the measure of punishment imposed by administrative bodies acting within their powers. The 1955 amendment accomplished this by listing an additional issue to be passed on by the courts: ‘ ‘ Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination.” The Authority argues earnestly that it was an abuse of discretion in this case for the Appellate Division to change this discipline and to hold that dismissal was excessive punishment. The Authority cites Matter of Stolz v. Board of Regents (4 A D 2d 361) where the Appellate Division, Third Department, said (p. 364) that subdivision 5-a authorises action by the court “ only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness ” -—in other words, the old “arbitrary or capricious” test in other language. This argument by the Authority is a little hard to answer. The hearing officer and the Authority, rejecting petitioner’s version, reasonably drew the inference from the testimony that petitioner stole these fares. On such a finding, dismissal would seem not to be a shocking penalty even though the amounts stolen were small. However, this woman had oyer 20 years of service with a good record and would lose many valuable rights if dismissed. With some hesitation we conclude that the Appellate Division’s reduction of this penalty was authorised by subdivision 5-a.

At this point we come to another question, a new one in this court: Does subdivision 5-a authorise a fixing by the court of a new lower penalty or must the court, finding the administrative penalty excessive, remit the case to the administrative body to fix a new punishment? We find no other reported case where the reviewing court itself fixed a lesser penalty although there are many where courts have sent such matters hack to administrative boards to fix new penalties. No definite indication is discovered as to the legislative intent in this respect but some of the material in the New York State Legislative Annual (1955, pp. 32-35) suggests that subdivision 5-a was intended to give the court, in the course of its judicial inquiry a¡s to abuse of discretion, complete power over the whole subject matter. We hold that the power exists. Otherwise, in a case like the present one, the Appellate Division, if it felt that a six-month suspension was ail that could reasonably he imposed, would have to send the ease back to the Authority to fix a penalty no greater than that. Such circumlocution should be avoided. In appropriate cases, which will probably be few, the reviewing court can order a lesser discipline, much as it does in criminal cases (Code Grim. Pro., § 543).

There is one more problem in the case. The Authority says that in any event a six-month suspension was Illegal under subdivision 3 of section 75 of the Oivil Service Law (supra). That statute says that when a civil service employee is found guilty of charges “ the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service ’ \ However, under the circumstances of this ease and in the light of subdivision 5-a of section 1296 of the Civil Practice Act {supra), we hold that the six-month period as fixed by the Appellate Division was not illegal.

The order should be affirmed, without costs.

Froessel, J. (dissenting).

All the members of the Appellate Division as well as of this court are agreed that the determination of guilt be confirmed, but there is disagreement as to the punishment. We do not see how it may reasonably be said that when a trusted employee is found guilty of stealing sums of money, though they be small in amount, as here, respondents have abused their discretion in discharging her. By the determination below, they must retain in the civil service one who has been found guilty of such criminal misconduct.

We had no hesitancy, in Matter of Douglas v. New York State Thruway Auth. (6 NY 2d 721), in affirming an order of the Appellate Division which confirmed a determination of the New York State Thruway Authority dismissing petitioner for misconduct for having misappropriated several 50-cent tolls. Yet here the majority say that similar discipline meted out by respondents is an abuse of discretion. This undermines the right of an administrative agency to discipline misconduct as authorized by law, and in our judgment will impair the high standards required of our civil servants.

Moreover, subdivision 5-a of section 1296 of the Civil Practice Act (enacted as L. 1955, ch. 661) does not authorize the Appellate Division to fix punishment even in a case where it rightly believes the punishment imposed is excessive (Matter of Stolz v. Board of Regents, 4 A D 2d 361; Matter of Leavitt v. Board of Regents, 9 A D 2d 987). In the plainest of language the statute provides that the Appellate Division may determine only “ Whether the respondent abused his discretion in imposing the measure of punishment ”. (Emphasis supplied.) It may not substitute its own judgment for that of the administrative agency in the fixation of punishment. Where appeals are taken from the determination of a trial court, the Appellate Division may well exercise many of the powers of such court, but it may not appropriate to itself the powers of an administrative agency, even with respect to the measure of punishment. It may by way of review determine only whether the agency has abused its discretion, and if it finds such an abuse it must remit the matter to the agency for its proper redetermination.

Finally, there is no warrant whatsover for the Appellate Division’s substitution of a six months’ suspension of petitioner. Our courts can have no greater power, when it comes to the question of punishment, than has the administrative agency itself. The law is clear, and they are governed by precisely the same statute. Subdivision 3 of section 75 of the Civil Service Law provides that where an “ employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars * * *, suspension without pay for a period of not exceeding two months, demotion in grade and title, or dismissal from the service ” (emphasis supplied). Suspending petitioner for six months was clearly unauthorized by any statute and has no warrant in law.

We would reverse the Appellate Division and confirm the respondents’ determination in all respects, without costs.

Judges Dye, Fuld, Van Voorhis and Burke concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion in which Judge Foster concurs.

Order affirmed.  