
    In the Matter of Joseph Tessier, Appellant, v. Board of Education of Union Free School District No. 5, Town of Hempstead, Respondent.
    Argued January 9, 1967;
    decided February 21, 1967.
    
      
      ‘Ernest Fleischman for appellant.
    
      Le Boy Van Nostrand, Jr., for respondent.
   Order of Appellate Division reversed and determination of the Board of Education annulled, without costs, upon the dissenting opinion at the Appellate Division and matter .remitted to the board for further proceedings in accordance with that opinion.

Concur: Chief Judge Fuld and Judges Yaw Yoorhis, Bergaw and Keatiwg. Judge Breitel dissents and votes to affirm in the following opinion in which Judges Burke and Scileppi concur.

Breitel, J.

(dissenting). Absent the power constitutionally

to review the weight of evidence, this court should affirm the order of the Appellate Division. That court, although referring expressly to the questionable testimony in the case, recognized the limitations on its power of review and concluded that it could not ignore a finding supported by substantial evidence. Obviously, the substantial evidence test is a less rigorous one than that required to sustain a jury verdict against a direction for a new trial and certainly does not require that a reviewing court be convinced by the evidence (see, e.g., Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327, 331-332; Matter of Miller v. Kling, 291 N. Y. 65, 68-69). In any event, the unshaken testimony of the two girls in this case, supported in some important matters by immediate or early complaint to their mothers and friends and as to details of time and place by admission, is certainly substantial evidence. Evidence not much better from much worse sources has sufficed to satisfy the reasonable doubt standard in criminal cases.

The order of the Appellate Division should be affirmed.

Order reversed, etc.  