In our opinion, there was substantial evidence to support the determination under review. The annulment thereof is therefore beyond the power of the court (Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327). The principal question raised in the majority opinion concerns the credibility and reliability of the testimony of the witness Armond. We find ample support in the record for the decision of the trier of the facts accepting Armond’s testimony as reliable. The psychiatrist, who had examined Armond to determine his competence, stated that, in his opinion, Armond was ‘ ‘ competent to testify; he was in good contact, his sensorium was clear, his memory showed no impairment, he spoke coherently and rationally; he was able to distinguish between right and wrong.”
In any event, it was solely within the province of the director of the Colony, who conducted the administrative hearing, to determine the credibility of the witness. We have no power to interfere with the determination by an administrative officer of the credibility of witnesses in a proceeding brought before him. Even “ [W]here the evidence is conflicting, it is for the administrative board to pass upon the credibility of witnesses ’ (Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150, 153; 1 N. Y. Jur., Administrative Law, § 199, pp. 652-653.) This is true, a fortiori, where the testimony of the witness is uncontradicted, as it is here. Even in a strictly judicial proceeding, the courts have no power to reject the uncontradicted testimony of a disinterested witness which is not inherently incredible or improbable (Hull v. Littauer, 162 N. Y. 569, 572).
Neither do we have the power to reject the inferences which the administrative officer chose to draw from the evidence.
“ [W]here from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the Board. The courts may not weigh the evidence or reject the choice made by the Board where the evidence is conflicting and reason for choice exists ” (Matter of Stork Restaurant v. Boland, 282 N. Y. 256, 267; see, also, Matter of Radigan v. O’Connell, 304 N. Y. 396).
Taking the testimony of Armond at its face value, and giving the respondent the benefit of all reasonable inferences therefrom, as we are required to do under these rules, there was ample evidence to support the finding of the petitioner’s guilt. The respondent had the right to infer that Armond, by virtue of his prior use of phenobarbital pills, had acquired sufficient *74familiarity with them to be able to identify them and, accordingly, the respondent had the right to find that the pills supplied to Armond by the petitioner were phenobarbital pills.
Armond testified that the petitioner had come into the kitchen where he was working and borrowed two dollars from him and that he asked the petitioner "about getting me some of that stuff” and “ approximately two days latter” the petitioner came in and left the envelope of pills for him on the table. Armond further testified that he had taken phenobarbital pills before; in fact, he had been taking about four a day all through the winter. He testified that he was familiar with the effect of phenobarbital pills and the pills he received from the petitioner on the occasion in question acted ‘ the same ’ ’. When asked whether he had been drinking that day, he said “ not that [day] ”.
It is noteworthy that the petitioner did not at any time during the course of the administrative proceeding deny the charge against him under oath. His answer was not sworn to and he did not take the stand in his own defense. In view of the evidence that he had given pills of some kind to the witness Armond, the petitioner was called upon to come forward with an explanation, if he claimed that the pills were not of the character attributed to them by Armond. Having declined to offer any explanation, the petitioner took the risk that the trier of the facts would draw the strongest inferences against him “ which the opposing evidence in the record ” permitted (Noce v. Kaufman, 2 N Y 2d 347, 353). The trier of the facts had the right to infer that the statements made by Armond adverse to the petitioner could not truthfully be contradicted by him (Laffin v. Ryan, 4 A D 2d 21).
It may well be that the petitioner failed to take the stand because he feared that he might incriminate himself. But, since this is a civil proceeding, the trier of the facts was entitled to draw an unfavorable inference from the petitioner’s conduct. The petitioner had the right to assert the privilege against self incrimination or to refrain from taking the stand because of the fear of self-incrimination but, if he did so, he had to run the risk, for the purpose of this civil proceeding, that an inference would be drawn that he could not truthfully contradict the testimony against him (Bradley v. O’Hare, 2 A D 2d 436; 8 Wigmore, Evidence [3d ed.], § 2272, 1957 supp., pp. 181-182; cf. Bilokumsky v. Tod, 263 U. S. 149, 153-154). Unlike a defendant in a criminal case, if the defendant in a civil proceeding refrains from taking the stand, his silence may be used against him as “ evidence of the most persuasive character ” (Bilokumsky v. Tod, supra, p. 154).
*75It is suggested in the majority opinion that the discharge of the petitioner is too severe a measure of discipline for the offense here involved in view of the petitioner’s many years of service and the absence of proof of prior misconduct (Civ. Prac. Act, § 1296, subd. 5-a). We find no abuse of discretion in the imposition of discharge as the measure of discipline. It was amply justified by the inherent nature of the offense (Matter of Stolz v. Board of Regents, 4 A D 2d 361). We give no weight to the absence of proof of prior misconduct in the record since such proof would have been inadmissible upon the hearing, which was directed to the determination of the petitioner’s guilt or innocence of the offense charged. Once the petitioner was found guilty, it was plainly the duty of the respondent to remove him from his position. An attendant at an institution for epileptics found guilty of selling or giving away habit-forming drugs to an addict certainly ought not to be allowed to continue in that position.
The determination should be confirmed.
All concur, except Bastow and Halpern, JJ., who dissent and vote for confirmation in a memorandum. Present — McCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.
Determination annulled, with $50 -costs and disbursements and petitioner reinstated.