Stein v. Corsi , 54 N.Y.S.2d 227 ( 1945 )

Per Curiam.

The record contains no evidence that the petitioner received the commissions or “kickback” with the receipt of which he was charged. Such evidence as the record contains is to the contrary.

The testimony before the Moreland Commission was not offered in evidence or considered in the present proceedings and was only referred to as the basis for the charges against the petitioner. It was expressly stated by the Deputy Industrial Commissioner of the Department of Labor that “ I am not using as evidence any testimony or anything in the way of evidence of any other record beside my own. Any action that I take is predicated on evidence in my own proceeding.” The record contains other statements and rulings to the same effect.

Since the evidence before the Deputy Industrial Commissioner on which the. Industrial Commissioner sustained the charges fails to establish the guilt of the petitioner, the action of the Industrial Commissioner must be annulled.

The petitioner’s motion to strike from the answer and return the transcript of testimony before the Moreland Commission should be denied upon the ground that such testimony is referred to as the basis of the charges against the petitioner. It should, therefore, remain in the record for that purpose only.

The determination of the Industrial Commissioner should be annulled, with $50 costs and disbursements to the petitioner.

Untermyer, Cohn and Callahan, JJ., concur; Martin, P. J., concurs in result; Dore, J., dissents.

Petitioner’s motion to strike from the answer and return the transcript of testimony before the Moreland Commission denied. Determination of the Industrial Commissioner annulled, with $50 costs and disbursements to the petitioner. Settle order on notice. [See post, p. 835.]