This is a proceeding brought to remove Alfred F. Beiter as supervisor of the town of Amherst, Erie county, under section 36 of the Public Officers Law, the claim being, in substance, that by being elected to Congress, and by accepting the office of Congressman, he has placed himself in a position where he is practically compelled to neglect his duties as supervisor. Specifically he is charged with being absent from three meetings of the town board (on March sixth, eighteenth and twentieth, respectively) and also from three meetings of the board of supervisors (on March fourteenth, seventeenth and twenty-first, respectively), and he is also charged with having left, with his confidential clerk, checks signed in blank to be used by said clerk in paying certain bills of the town. After hearing the testimony of respondent and the witnesses for and against him, in open court, it seems that the filling out and delivering of the checks in question were intrusted to a competent person, who is an employee of the town and an officer of the bank in which the town funds are kept, and that such checks have been used to pay only bills properly audited or else regular payroll charges as they came due. And it has not been made to appear that the few absences from town and county board meetings have resulted in any inconvenience or loss t-o the municipalities concerned.
The people of his town elected the respondent to the office of supervisor and the people of his congressional district elected him to Congress. No statute and no provision of the Constitution forbids any person to hold both offices at once. No dishonesty or moral dereliction of any kind has been shown. And, while it might well be better for a person elected to so important an office as member of Congress to resign from a town office, his neglect of the duties of the office of supervisor, and the irregular issuance of the checks do not seem, thus far, to have been of so serious a character as to justify judicial determination that he has been guilty of “ misconduct, maladministration, malfeasance or malversation in office ” within the meaning of section 36 of the Public Officers Law.
*25Where, as here, a question of degree is involved it is always difficult to draw the line of differentiation. All we say, therefore, is that in our opinion the respondent’s conduct, while subject to criticism, is not such as to merit the condemnation of removal.
The proceeding should be dismissed, without costs.
All concur, except Taylor and Thompson, JJ., who dissent and vote for granting the petition in an opinion by Taylor, J.