Order entered on March 28, 1961, which annulled a determination of the Police Commissioner dismissing petitioner from the police force and remanded the matter to the Police Commissioner for a reconsideration of the punishment imposed, reversed on the law and on the facts, and the petition dismissed, with $20 costs and disbursements to the appellant. Under subdivision 5-a of section 1296 of the Civil Practice Act, a court in an article 78 proceeding may determine "Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination". However, in exercising that power the court must be satisfied that the 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.'" ( Matter of Payton v. New York City Tr. Auth., 8 A.D.2d 602, affd. 8 N.Y.2d 737; Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364.) From our examination of the whole record, we do not view petitioner's dismissal, in the light of all the circumstances, as shocking to our sense of fairness; and conclude that the Police Commissioner's exercise of discretion should not be disturbed.
Concur — Botein, P.J., Breitel, Valente and Steuer, JJ.; McNally, J., dissents and votes to affirm on the ground that the punishment in the circumstances was excessive.