(dissenting). I cannot accept the view of the majority in this case.
Petitioner’s license has been revoked because of his violation of the provisions of section 1264 of the Education Law.
The Board of Begents found that petitioner on or about March 23, 1939, undertook and engaged to procure and to perform a criminal abortion on one Aaron and also that in the month of February, 1940, he undertook and engaged to perform a criminal abortion on one Lang and that he actually performed such abortion. It seems to me that the testimony is entirely sufficient to sustain the determination of the Board of Regents. Here as in the case of Matter of Epstein v. Board of Regents (267 App. Div. 27), decided herewith, the principal ground urged for reversal is that the witnesses for the Department of Education were paid investigators and hence that their testimony is unreliable. To my mind that criticism is frivolous. Because of the secrecy surrounding the performance of abortions it is difficult to obtain proof of the guilt of the offender. Of necessity resort must be had to paid investigators. ' There is nothing in the record in this case which justifies the conclusion that these witnesses are not worthy of belief. It would serve no useful purpose to analyse the sordid details in connection with the charges against petitioner. It is sufficient to say that the proof against him authorizes the determination under review. (Matter of Kahn v. Board of Regents, 254 App. Div. 798, affd. 281 N. Y. 684.) Then too it is very significant that petitioner did not avail himself of the opportunity to take the witness stand and deny the charges. His refusal to testify clearly shows that he was fearful of what the cross-examination would reveal. Surely an innocent man would have denied the charges.
It is also urged that because a Grand Jury failed to indict him on the evidence which is the basis of the Lang charge we ought not to sustain a revocation of his license. That point is without merit. The failure of the Grand Jury to indict is not a judgment and is not conclusive in this proceeding. (Matter of Rouss, 221 N. Y. 81; Matter of Kaufmann, 245 N. Y. 423; Schindler v. Royal Ins. Co., 258 N. Y. 310.) Likewise the failure of the Grand Jury to indict is not a bar to the institution and prosecution of disciplinary proceedings. (People ex rel. Wood v. Department of Health, 144 App. Div. 629, affd. 202 N. Y. 610.)
Petitioner also contends that the proceeding should be annulled because the committee refused to permit him to *27examine the reports of the witnesses. I think it would have been better practice if the committee had complied with petitioner’s request. However in view of the overwhelming proof as to petitioner’s guilt the error, if error there be, in the committee’s ruling is entirely harmless.
The determination should be confirmed, with fifty dollars costs and disbursements.
Hill, P. J., and Crapser, J., concur with Bliss, J.; Heffernan, J., dissents in a memorandum in which Schenck, J., concurs.
Determination and order annulled and matter remitted to the Board of Regents, with fifty dollars costs and disbursements to the petitioner against the respondents.