The charge preferred against petitioner and on which he was given a hearing was that he had violated rule No. 25 of the department of street cleaning in that he had accepted a gratuity of two dollars for the removal of garbage.
Rule No. 25 of the department was adopted in 1915, pursuant to the power contained in section 537 of the Greater New York charter (Laws of 1901, chap. 466), which provides as follows: “ The said commissioner of street cleaning is hereby authorized and empowered, from time to time, to make, adopt, enforce rules, orders and regulations conformable to the provisions of this act, for the government, administration, discipline and disposition of the said department and of the members thereof, and to prescribe and define the duties of each member.”
The said rule, as then adopted, and in full force and effect at the time of petitioner’s hearing, was embraced in general order No. 11, the “ Code of Discipline ” of the department, and the “ Penalty Schedule for Violation of Rules,” thereto annexed, provided among
other things:
“ Character of Offense. Maximum Penalty
D denotes dismissal. for Offense
Numerals denote number of demerits. ■ 1st 2d 3d 4th 5th
“ 25 Accepting a gratuity for work done......... 10 20 40 D ..”
This is the rule 25 referred to in the charges. Petitioner had never before been charged with any violation of rule 25. Upon conviction, therefore, he was found guilty of a first offense, for which the penalty was ten demerits. Had he pleaded guilty to this charge, or made no defense whatever, he could have received no higher punishment than that, and I cannot see why he can be punished with the severest penalty possible, dismissal, because he was found guilty after a hearing. If the commissioner desires more latitude for disciplinary measures, he should change the terms of the general order, which he has accepted and under which he expressly acted. The utmost that he could do under it for a first offense under rule 25 was to impose ten demerits on petitioner. The charge against petitioner was a violation of that rule, he was called upon to explain that charge against him, and if found guilty thereof no greater punishment could be meted out to him than the rule provided.
The order of certiorari should, therefore, be sustained and the *118determination of the commissioner, in so far as it dismissed the petitioner from the city service, annulled, with fifty dollars costs and disbursements to the petitioner, and the petitioner reinstated, but with a penalty of ten demerits against him for the offense of which he was found guilty.
Clarke, P. J., Merrell and Burr, JJ., concur; Martin, J., dissents.