On respondents' appeal: Order affirmed, without costs.
Concur: Chief Judge FULD and Judges BURKE, 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.