In the Matter of Frank J. Giaquinto, Petitioner, v. Michael J. Murphy, as Police Commissioner of the City of New York, Respondent, 20 A.D.2d 686

Determination of the Police Commissioner dated February 16, 1961 dismissing petitioner from the Police Department, unanimously modified, on the law, on the facts and in the exercise of discretion, by annulling Charge 4 in Case No. 33169 (no entry in memorandum book of absence from post) and remitting the matter to the respondent for the imposition of disciplinary measures consistent therewith, and, as so modified, confirmed, without costs. There was insufficient evidence to sustain the charge that the petitioner failed to make an entry in his memorandum book.

His obligation was to make an entry as soon as circumstances would permit. The fact is that he did make the entry shortly after he left the premises. Concur — Breitel, J. P., Rabin, McNally, Stevens and Witmer, JJ.