Petitioner employed as an attendant at Craig Colony, a corporation established under the Mental Hygiene Law of the State of New York, seeks to review a determination of the director of Craig Colony which, after a hearing, dismissed petitioner from employment. This is the second appeal before this court in this matter, the first one having resulted in an annulment of the determination and remitted the matter to the respondent corporation and its director for further proceeding's not inconsistent with the memorandum which pointed out the defects of the original charges. Thereafter a new charge of misconduct was served containing one specification which read as follows: ‘ ‘ Through your unlawful act, Eeuben Armond received phenobarbital tablets from you, during the month of February 1957, at a time when Eeuben Armond was working in the B & B Grill in Mount Morris, New York.”
Petitioner categorically denied the charge in his answer and a brief second hearing was held which resulted in a finding of guilty and imposed the penalty of discharge.
Petitioner had been employed by the respondent, Craig Colony, for a period of approximately 20 years prior to the filing of the charge against him. The only witness whose testimony related to the charge of misconduct was one Armond who had twice been a patient at the Bochester State Hospital and who, when being qualified as to his competency as a witness in a preliminary examination by two physicians, gave as his understanding of the truth the following answer: “ Well it pays to tell the truth when you know you are going to be caught.”
The whole history of the principal witness’ past was a sad and deplorable one which included in addition to his mental instability, a bad record of habitual alcohol and drug imbibition. He was living at the County Home at the date of the hearing. At the time when the alleged misconduct occurred he was employed as a kitchen handy man in a bar and grill for which he received no compensation other than the drinking *71of all the intoxicating liquors ‘ ‘ that I could get there, I drank wherever I happened to be ” and his board and a room over the restaurant. On direct examination he testified that he had asked the petitioner ‘ about getting me some of that stuff ’ \ Two days later when Armond was washing dishes petitioner, employed in his off hours by the bar and grill, came into the kitchen and some 10 or 15 minutes after he had left Armond said that when he was cleaning off the table he found ‘ an envelope with some pills ’ ’. He was then asked:
“ Q. What sort of pills were these, sir? A. Well I can’t analyze them myself but I take them to be pheno, grain and a half.
“ Q. Phenobarbital? A. Phenobarbital.
“ Q. Mr. Armond, did you see Mr. Haywood place the pills or the package you are talking about? A. I didn’t see him place them down but I cleaned the table off and when I started to come out.”
There was no testimony as to any conversation between the two men relating to the pills although they were the only persons in the kitchen at that time. Under these circumstances it does not seem reasonable that the petitioner would have left the pills in this strange manner without some discussion with Armond. The witness did not open the envelope until that evening and said he found approximately 150 pills. He admitted taking some of them ‘‘ 'before I went to the hospital and left quite a few of them in my room and I guess my employer got them.” On cross-examination in answer to the question, “ You didn’t know what they were? ” he said, “ Not exactly, no. ”, and later testified: “ Well, I took them to be phenobarbital”. He was then asked this important question: “ To go back to my question, you don’t know of your own knowledge what these pills were, do you? ” to which he answered, “No, I can’t say”. The witness admitted that he had been drinking heavily during this period.
The record is barren of any evidence of misconduct by petitioner during his 20 years of employment and it further appears that this was the only time the witness claimed he received pills from petitioner. Although this was the second hearing, no witnesses were offered to identify the pills which the petitioner allegedly gave Armond and no evidence was presented that there were any phenobarbital pills missing from Craig Colony at the time of the alleged offense. Although the specification charged the commission of an unlawful act it was conceded on argument that while the alleged offense occurred ir» *72February, 1957, and a criminal charge was placed against petitioner, there had not yet been any prosecution of that charge.
We believe that there is a complete absence of proof that petitioner gave phenobarbital tablets to Armond who, upon cross-examination, definitely admitted that he did not know what the pills were. The quality of the proof necessary to sustain the dismissal of petitioner is set forth in Matter of Humphrey v. State Ins. Fund (298 N. Y. 327, 331-332) where the court said: “It is, of course, of no moment that not all of the evidence pointed to petitioner’s guilt or conclusively established it. In a proceeding such as this, brought under article 78 of the Civil Practice Act, the record may be examined only to ascertain whether there is 1 substantial evidence ’ to justify the administrative determination.” The same principle was followed in Matter of Leeman v. O’Connell (281 App. Div. 299, 300) where the court said: “ What we are called upon to do is to examine the record to determine whether the decision to dismiss petitioner from the service is supported by substantial evidence ’ ’.
Absent credible proof that the petitioner gave Armond phenobarbital tablets there is not only no substantial evidence but no evidence whatsoever to justify the finding of guilt. Certainly petitioner’s dismissal is not supported by “ evidence so substantial that from it an inference of the existence of the fact found may be drawn reasonably. A mere scintilla of evidence sufficient to justify a suspicion is not sufficient to support a finding upon which legal rights and obligations are based. That requires ‘ such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ (Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 229.) ” (Matter of Stork Restaurant v. Boland, 282 N. Y. 256, 273-274.)
We recognize our limitations in annulling the finding of an administrative body after a hearing has been held and a determination made upon facts, even though, such evidence would not meet the test of sufficiency in a court of law. We cannot, however, permit the petitioner to suffer the penalty of discharge after 20 years of service upon the testimony of a witness like Armond from which, even after drawing the broadest of inferences, we can find no proof to sustain the charge. Petitioner should be restored to his former position and under section 23 of the Civil Service Law, petitioner is entitled to receive his compensation from the date of removal, less the amount of compensation received from any other employment or occupation to the date of his restoration to his position with *73Craig Colony and appropriate proceedings should be had to determine the amount thereof.