(dissenting): These article 78 proceedings were commenced by the petitioners to review the action of respondent’s predecessor as Police Commissioner of the City of New York in dismissing them from their positions after a hearing. The proceedings were transferred to this court for review.
On the evening of October 13, 1954 the petitioner La Forge was serving as the operator of a Police Department radio car in the 24th Precinct in the Borough of Manhattan, City of New York, working the 4:00 p.m. to midnight tour. His partner was the petitioner ix. That night their area of patrol extended north-south from 110th Street to 98th Street, and east-west from Central Park West to Riverside Drive.
Both officers at the time had outstanding records. La Forge was the possessor of a record of performance in the Police Department which would be difficult to equal. He had been a member of the department for almost nine years. During that time he made 150 arrests and was cited by the department for acts of valor and extraordinary achievement on 19 occasions. He was the recipient of the P. B. A. medal for valor, 11 commendations, six meritorious police duty awards, an award for excellent police duty and one honorable mention award. Typical of his devotion to duty are the circumstances set forth in the citation awarding him the P. B. A. medal for valor. It reads as follows: “ Entered apartment house where three people had been shot, pursued gunman along the roof of premises where he fired a shot at the officer who returned the fire. The thug threw his revolver at the officer who held further fire, and after a fierce struggle with the man, he was subdued and arrested.”
*152Ix also had a very creditable record. He had been a member of the department for eight years. On four separate occasions he was cited by the Police Commissioner for outstanding police work, holding three commendations and a meritorious police award. Indicative of his dedication to duty is the following excerpt from his official record: “ Commendation. Located and arrested a man who had shot and wounded another, the gunman attempted to shoot the officers, but was quickly subdued and disarmed.”
Neither La Forge nor lx had any prior blemish on his departmental record.
These petitioners were accused of (1) unlawfully releasing prisoners from custody; (2) failing to report the arrest of said prisoners; (3) soliciting a sum of money from prisoners in lieu of arrest; (4) accepting a sum of money and a watch from one of their prisoners in lieu of arrest; and (5) failing to notify superior officers of their absence from their assigned sector, neglecting to obtain permission for such absence, and neglecting to make note of such absence in their memorandum books.
The complaining witnesses were Luis Pagan and Rafael Castejon. Their testimony is that they were stopped at the corner of 89th Street and Columbus Avenue, a point outside petitioners’ patrol sector, and were accused by the petitioners of throwing ‘ ‘ something ’ ’ on the sidewalk, later alleged to be narcotics. The petitioners then placed them in the rear of the patrol car and took them to 100th Street, within a few doors from the 24th Precinct station house, and threatened them with arrest and beatings unless they were paid $100. They gave the petitioners $24 and a watch and were thereafter released.
The witness Pagan had been arrested a number of times on suspicion for various crimes and at the time of the hearing a charge of burglary which had been lodg’ed against him had not been disposed of. There was evidence linking him to ambulance chasing, unethical undertakers, bail bondsmen, auto repairmen and tow truck companies. His reputation for veracity was not good. Pagan initiated and pressed the complaint against the petitioners. His clashes with the law no doubt resulted in unpleasant experiences with police attached to the 24th Precinct. In addition, Pagan testified he had heard that the officers at the said precinct “ collect money from Puerto Ricans, they force them to give money.” There is enough to indicate Pagan harbored resentment towards policemen and particularly those assigned to the 24th Precinct.
The witness Castejon at the time of the hearing was awaiting trial on a narcotics charge and had been previously found guilty of attempted grand larceny. His reputation was equally as bad.
*153Pagan variously fixed the time of the alleged events at three different times. When complaining to the First Deputy Police Commissioner the following morning, October 14,1954, he stated the incident took place at 9:30 p.m. on October 13, 1954; at the hearing he first put the time as between 8:30 and 9:00 p.m., and later as between 10:15 and 10:30 p.m. The 8:30-9:00 p.m. time was completely discredited because documentary records proved that the petitioners were at 108th Street and Broadway from 8:30 to 8:50 p.m. This location was in their assigned sector. Castejon testified that the incident took place at a fourth time, that is, 10:00 p.m.
Evidence of the physical circumstances indicates that two men could not have been placed in the rear of the patrol car by reason of the presence of a crossbar and radio equipment.
Pagan claimed that he called the F. B. I. anonymously after the event but the F. B. I. records do not reveal the receipt of any anonymous call complaining of New York City policemen on the night in question.
The arrest was made in a congested, busy area with a crowd nearby, in the vicinity of Pagan’s home. Yet no other witnesses were produced and reference was made by Pagan to only one, who was not called.
Highly incredible is the testimony that the petitioners went to the very shadow of their precinct house to “ shake them down ’ ’ and, moreover, did so openly on the street and not in the car. Pagan testified demands for money were made by petitioners as the police car proceeded to the 24th Precinct. Why, under the circumstances, one of the petitioners proceeded with Castejon to the southerly side of 100th Street, on which side "was located the precinct house, to arrange for the payment, allegedly observed by Pagan, does not appear. Moreover, since Pagan’s testimony was that he was searched by La Forge at the time of the arrest and his pay envelope containing $48 to $50 found, the record does not explain why Castejon, who also had been searched and had only $4 in his possession, was called aside to respond to an alleged demand for $100.
In a disciplinary proceeding, we have held that although the offense is established its commission by the accused is not established by substantial evidence when it appears solely from the unsupported testimony of a disreputable and discredited informer, and the record otherwise contradicts his testimony. (Matter of Phinn v. Kross, 8 A D 2d 132.) We are in agreement as to the yardstick by which the record is to be tested. If it rests on nothing more than the testimony of Pagan and Castejon, then this case is no different from Matter of Phinn *154v. Kross (supra), and the determination should be annulled. Indeed, Matter of Evans v. Monaghan (306 N. Y. 312, 319-320) precludes any other view. (See, also, Matter of Di Nardo v. Monaghan, 282 App. Div. 5.)
In the final analysis, the identification of the petitioners rests on the credibility of Pagan. The incident occurred during the night of October 13, 1954. Castejon made the alleged payment. It was he who had the best opportunity to see and observe the petitioners. Nevertheless, the following day Castejon was unable to identify the petitioner ix. Moreover, although on that day he identified petitioner La Forge as the one to whom the payment was made, Castejon contemporaneously nullified the identification by stating that he gave the money to the recorder, who was petitioner ix, and not to the operator of the radio car, who was petitioner La Forge. Castejon’s following testimony at the hearing clearly establishes that his identification of La Forge on October 14,1954 was prompted by Pagan, who had previously seen the said petitioner on said day:
“ Q. Do you remember you were asked questions down in Deputy Commissioner Kennedy’s office? A. Yes, sir.
* * *
“ Q. Do you remember how many officers were sitting in that room when you came in, how many policemen in uniform? A. Well, when I seen them on the bench, there was two cops standing there.
“ Q. What did they ask you — did they say, ‘Are these the men? ’ A. Yes, I look in the back and I identify one. I say one was driving the ear.
“ Q. How could you say that was the man that was driving the car? A. Well, because when I — the other fellow Pagan went in — when he come out, he told me he was the officer.
“ Q. What did he say to you? A. He said, ‘ There they are, those two cops. ’
“ Q. He said, ‘ There they are ’? A. Yes.
“ Q. Lots of police officers look alike? A. Please?
“ Q. I said policemen wearing a uniform have a tendency to look alike? A. I said — you see, I can’t say they are sure because after they got the uniform — after that day I went up to my house a couple of days later. I see other cops that look more than the one that arrest us that night. I can’t say he is the one.
“ Q. Do you see these two men sitting there now? Do you say those are the men that stopped you that night? A. T can’t say that.” (Emphasis supplied.)
*155Pagan’s identification of the petitioners is completely unreliable. On the morning following the incident, he informed the First Deputy Commissioner that two patrolmen assigned to a radio car of the 24th Precinct were involved and that one of them had badge No. 10726. Unfortunately, neither Pagan nor Castejon were required to identify the accused out of a group or a line-up.
Pagan, on October 14,1954, described the payment as follows:
“ Q. Did you see him hand the money to him? A. Not to the driver, to the other one.
* * *
“ Q. And, he gave it to the man on the right hand side, not the driver? A. Tes.”
(At the hearing Pagan testified the money was passed to the operator of the radio car, petitioner La Forge.)
Pagan thereafter was confronted with the petitioner La Forge and interrogated as follows :
“ Q. What shield number did you refer to this morning when you came here to make your complaint? A. #10726.
“ Q. Would you know the officer if you saw him ? A. Yes.
“ Q. Is this the officer that stopped you in the radio car last night about 9:30 p.m. and whom you allege your friend gave the sum of $24 and a watch after threatening to arrest you on a false charge? A. Yes.”
Petitioner Ix was interrogated on October 14, 1954 in the presence of Pagan as follows:
“ Will you have Patrolman Ix step in here and bring Louis Pagan in?
1 ‘ Interrogating Ptl. Ix.
“ Q. Who was your partner last night? A. Patrolman Frank La Forge, Jr.
“Q. In the radio car? A. Yes, sir.
S # *
“ Louis Pagan recalled:
“ Q. Is this the second patrolman you saw last night (Pointing to Ptl. Ix)? A. Yes, sir.”
Prior to being confronted with the petitioners, Pagan stated to the First Deputy Commissioner that the money had been paid to the recorder (Ix) and not to the operator (La Forge). Pagan’s identification of the petitioners on October 14, 1954, under the stated circumstances, is suspect when he was unable the morning after the occurrence to identify the payee and the operator of the radio car as the same person. It is to be noted that Castejon consistently, before the First Deputy Commissioner and at the hearing, asserted the payment was made to *156the recorder and not the operator. If that be so, and petitioner lx was not the one to whom payment was made, then it follows that La Forge was not the operator of the alleged radio patrol car involved.
The record establishes that Pagan harbored a deep rooted grievance towards officers attached to the 24th Precinct. If, as claimed, he had been victimized, it is doubtful that one such as Pagan would have any scruples or exercise discrimination and restraint in venting his spleen on any one identified with the said precinct.
Patrol cars are numbered and bear registration numbers which offer a more obvious and available method of identification than a badge number. For no apparent reason the attempt at identification was concentrated on petitioner La Forge whose record indicates extensive and successful activities in curbing crimes of violence. Viewed in the lig’ht of the surrounding’ circumstances, the attempt at bolstering the tenuous identification in the manner to be described is highly significant.
Pagan was recalled after the petitioners and their witnesses had testified, and testified that on the night of October 13, 1954, about one-half hour after the incident complained of, he returned to his home and in the presence of his wife noted the shield number, the time and the place of arrest on a small white cardboard pie plate. (The white cardboard pie plate was treated with as if it was in evidence and Pagan was questioned closely concerning it although it was marked for identification only.) The time noted on the exhibit was 10:15 to 10:30. Pagan then also testified that the arrest was witnessed by one Ernest Serrano. Neither Serrano nor Pagan’s wife testified. Pagan did not mention or use the said exhibit or name the said witness during his statement to the First Deputy Commissioner on the day following the incident.
In the search for the substantial evidence required to support the instant determinations, the prior consistent statement of Pagan must be put aside and only the residual competent evidence given effect. (Crawford v. Nilan, 289 N. Y. 444; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 440; Matter of Reynolds v. Triborough Bridge & Tunnel Auth., 276 App. Div. 388, 390.)
There is little to choose between evidence colored by the motive of personal gain of an informer as in Matter of Phinn (supra) and the distorted and highly emotional recollection of Pagan. Evidence from such a source does not rise to the requirement of substantial evidence in matters such as here involved.
*157The evidence in support of an administrative determination, in the light of the record as a whole, must satisfy a reasonable mind. (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of Phinn v. Kross, 8 A D 2d 132, supra.) Unlike Matter of Evans v. Monaghan (306 N. Y. 312, supra), this record does not contain evidence of circumstances which lend credence to the identification made by Pagan. Contrariwise, the judicial conscience is disturbed by the anomalies and disparities here present.
The test enunciated in Matter of Stork Restaurant v. Boland (282 N. Y. 256, 273) by the Court of Appeals has been generally applied in proceedings such as this. In the Stork case, Chief Judge Lehman said: “A finding is supported by the evidence only when the evidence is so substantial that from it an inference of the existence of the fact found may be drawn reasonably.” Appropriate also are the words of Mr. Justice Frankfurter in Universal Camera Corp. v. Labor Bd. (340 U. S. 474, 488): “ The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”
Petitioners emphatically denied the charges and denied knowledge of the complaints on or prior to October 13, 1954. The site of the alleged arrest was outside the area to which petitioners were assigned on October 13,1954, and it was a violation of Police Department rules to depart from the assigned sector. Petitioners denied having been out of their patrol area during their hours of duty, which included the various times adverted to by the complainants. Petitioners made every scheduled ring to their headquarters at 30-minute intervals. Between 8:37 and 8:47 p.m. on the night in question, one of the periods alleged by Pagan as the time of the arrest, petitioners responded to a call at 108th Street between Broadway and Amsterdam Avenue, some distance removed from the site of the arrest at 89th Street and Columbus Avenue. Petitioners’ official records are exemplary and nothing therein suggests the vile character traits implicit in the charges leveled against them.
We are of the opinion that the determinations should be annulled and the petitioners reinstated.
Babin and Valente, JJ., concur with Breitel, J. P.; McNally, J., dissents in opinion in which M. M. Frank, J., concurs.
Determinations confirmed and petitions dismissed, with $20 costs and disbursements to the respondent.