Proceeding under article 78 of the Civil Practice Act, to annul a determination of the respondent New York City Transit Authority, made March 8, 1961 after a hearing, which dismissed the petitioner from his position as a ear maintainer “ F ”, By order of the Supreme Court, Kings County, made February 20, 1962, pursuant to section 1296 of the Civil Practice Act, the proceeding has been transferred to this court for disposition. Determination modified on the facts and in the exercise of discretion, by reducing the punishment imposed from a dismissal to a suspension for the period commencing from the close of business on August 2, 1960 to the date of entry of the order hereon. As so modified, determination confirmed, without costs. We cannot say that the Authority’s *823finding of g-uilt is not supported by the evidence. It is our opinion, however, under all the circumstances presented by this record, that a dismissal is excessive punishment and that the penalty of suspension hereby imposed is adequate (Civ. Prac. Act, § 1296, subd. 5-a; cf. Matter of Mitthauer v. Patterson, 8 N Y 2d 37). Ughetta, Acting P. J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.