This proceeding was commenced by the adoption of a resolution by the board of supervisors of the county of Ulster, on the 21st day of February, 1934, requesting the petitioner herein to resign as county superintendent of highways for said county.
The resolution recited that at the last regular election a total of seventeen Democratic supervisors were elected which made the board of supervisors stand seventeen Democratic supervisors and sixteen Republican supervisors and that it was the consensus of opinion of the Democratic supervisors so elected and of other persons within the county that the election of the Democratic majority was the result, at least in part, of the dissatisfaction of the taxpayers with the manner in which the highway department of said county had been conducted and that the majority of the board could best assume responsibility by appointing to the head of the department some qualified engineer against whom the taxpayers can have no criticism and asking the county superintendent to resign.
The county superintendent did not resign in response to this resolution, and on the 29th day of March, 1934, Supervisor McDowell offered a resolution preferring charges against the county superintendent of highways under section 30 of the Highway Law and subdivision 2 of section 22 of the Civil Service Law and charging that the county superintendent was guilty of inefficiency, misfeasance and malfeasance in office.
The county superintendent was charged with performing work and labor on and in the improvement of privately-owned property *333with county machinery; in constructing a bridge which served only private property; in notifying residents of certain towns that unless a Republican supervisor was elected no further money for highway construction would be available; in unlawfully constructing roads without the consent of or an appropriation therefor by the board of supervisors; in refusing to purchase materials for use in highway construction by public bid and in purchasing materials at a higher price than they could have been purchased.; in interfering with the purchase of stone by the contractor of the Napanoch bridge; in the illegal selection and employment of laborers and in directing the employment of laborers whose adherence to the Republican party was definitely known; in using his office as an instrumentality for building up a political party; in unlawfully exceeding the appropriations and in expending excessive sums for highway construction; in diverting and misappropriating county funds for the construction and maintenance of roads; in failure to compute and estimate the cost of particular highways and bridge construction; in knowingly and improperly representing to the State Highway Department that certain highways were to be or were contemplated to be constructed and that moneys had been appropriated for the same when in fact such roads had been already built; in charging and receiving payment from the county of Ulster for work done by himself for the county in addition to his salary as county superintendent of highways; in failing to have a proper system to determine the cost of each mile of highway and failing to co-operate with the committee of the board of supervisors, and in attempting to and in employing clerical aid without regard to the civil service laws or regulations.
The resolution provided that a certified copy be served upon the county superintendent and the board meet on the sixth of April for the purpose of hearing such charges and that the board take such action in respect to such charges as in its judgment may be for the best interest of the taxpayers of the county of Ulster.
On the sixth of April the petitioner appeared specially in person and by attorney and moved to dismiss the charges on the grounds that the mandate of the. resolution is not that the board hear and determine the validity of the charges, but that the board take such action with respect to such charges as in its judgment may be to the best interest of the taxpayers of the county of Ulster. Several other grounds for the dismissal of the charges were made, among them that Supervisor McDowell should be disqualified because he was sponsoring the resolution and that the board of supervisors was not a fair tribunal because of the adoption of its first resolution *334and because the charges did not constitute misfeasance or malfeasance in office. The motion to dismiss was denied by a strict party vote.
Section 30 of the Highway Law provides that the board of supervisors may appoint a county superintendent of highways and may remove such county superintendent for malfeasance or misfeasance in office upon written charges. Malfeasance involves a corrupt intent. (Stokes v. Stokes, 23 App. Div. 552.) Misfeasance is defined to be the performance of an act which may lawfully be done in an improper manner by which another person receives injury. (Burns v. Pethcal, 75 Hun, 437, 443.)
Bills of particulars were furnished the petitioner, and on April seventeenth the board convened and hearings were continued from April seventeenth to April twentieth, both inclusive. The petitioner’s defense started on the twenty-third of April and continued to and including the twenty-seventh day of April.
A motion was made at the close of all the evidence to dismiss the petitioner from the office of county superintendent, which motion was carried by a vote of seventeen to sixteen, Supervisor McDowell, the sponsor of the resolution, voting in favor of the resolution.
In ruling upon questions during the trial it was the practice to take the vote of the board after hearing counsel express their views. An examination of the record shows that the vote except in a very few instances was a strict party vote.
The principal evidence offered was in regard to charges 2 and 9. The questions to be determined are those specified in section 1304 of the Civil Practice Act.
The charge designated as No. 9 deals with the construction of a number of highways in the county system and covers the years 1930, 1931 and 1932. The work was under section 320-b of the Highway Law and required the preparation of a map showing the proposed county road system, which map was prepared and approved by the board of supervisors and by the Superintendent of Public Works of the State and filed in the proper offices. The roads to be improved were designated by project numbers and road numbers and all the roads covered by the charges were shown on the map as a part of the county road system.
A statement, as required by section 320-b of the Highway Law, was prepared by the county superintendent and approved by the board of supervisors and the State Highway Department. It was filed in the office of the board of supervisors, in the office of the State Highway Department, and in the office of the county superintendent of highways. This statement showed the selection of the proposed roads, the total mileage and portion it was proposed to *335construct or reconstruct during the year 1930 and the estimated cost. The law contained no provision for the expenditure of county road money for preliminary engineering and surveys and the county superintendent had to use such information as was available prior to the year 1933.
The statute provided that the construction of highways was to be carried out as far as practical so as to finish and complete road units or projects. The continuity of routes was an important factor. The working season was normally from May first to November fifteenth, depending upon weather conditions, and some roads could not be finished in one season and had to be carried over and finished in the following season.
All of the money for road construction was handled by the county treasurer, payments were made by warrants on the county treasurer signed by the county superintendent of highways and by the chairman of the board of supervisors. The county road fund was kept by the county treasurer’s office and the accounting was done from there. It was all kept in a single ledger account. An examination was made by the Department of Audit and Control for the year 1932; this was a statement of the actual condition of the county road funds for the three years 1930, 1931 and 1932. The State Department had an interest in the county road fund, having contributed thereto, the county through its board of supervisors and the State Department having entered into an agreement as to the roads that should be constructed and an estimate of the amounts to be expended thereon. A duplicate original of the report was filed in the office of the county superintendent of highways where it remains as a part of the records of the office. The document was of importance in reference to charges 9 and 12 and was offered in evidence, but the objection to it was sustained.
The county treasurer, under the statute (Highway Law, § 320-b, subd. 15), was required to file with the clerk of the board of supervisors a report showing the receipts and disbursements of all expenditures in the highway department and the board of supervisors was required to print the report in their annual proceedings. Such a report was made and the deputy county treasurer testified that it was a correct statement; it was offered in evidence; objection was made to it and the objection was sustained.
The report of the Department of Audit and Control and the report of the county treasurer to the board of supervisors were the only complete statements of road accounts which were the subject-matter of the complaints in charges 9 and 12. The refusal to accept these reports was error. There can be no question that both were important to the petitioner. They were admissible under *336section 367 of the Civil Practice Act. (Richards v. Robin, 178 App. Div. 535, 538; 165 N. Y. Supp. 780, 784.)
It was charged that the petitioner used his office to build up a political machine; that he told certain foremen in his employ to employ only Republicans and to send people desiring employment to Republican town committeemen to have their applications for jobs approved; with discharging a man who had a banner on his car advocating the election of candidates of the opposite political party from that of the county superintendent. Several -witnesses were sworn who worked upon the jobs and they invariably testified that they had never been spoken to about politics; these witnesses belonged to both parties. Testimony, hearsay in character, was offered to substantiate these charges and was allowed over the objection of the petitioner. The principal testimony in support of the charges was given by Edwin H. Sheeley; it was denied by the petitioner, and several witnesses were sworn who were present at the different times that the county superintendent gave Sheeley instructions who failed to substantiate Sheeley in his testimony in any particular.
All of the roads were built with the approval of the board of supervisors and the money was paid out by the county treasurer upon orders signed by the superintendent of highways and the chairman of the board of supervisors.
The claim is, however, that the county superintendent diverted money appropriated from one job to another. There were instances in the record where roads were almost completed when fall was approaching and where damage' would result unless they were finished. In these cases the county superintendent took up the matter with the State Commissioner of Highways and he received his permission to finish the jobs and to draw upon the general highway fund for money. The approval was given by the State Commissioner of Highways on the understanding that the board of supervisors at the next annual session would make an appropriation to cover the deficiency, which promise was carried out by the board of supervisors. It was an open and aboveboard proposition, and while a departure from the strict letter of the law, the departure was for the public good and convenience.
The Van Etten bridge had been a public bridge for many years and had been built by the"town and the new bridge, which the county superintendent constructed, he was ordered to construct by the board of supervisors.
The work which was done which it was claimed benefited only private property was the work on Rondout creek and the work in replacing a crib near the TerBush place. This crib had been *337constructed by the town, the shovel was up there in response to an appeal by the sheriff for help and was being directed by town officials; it was a short job. The work on Rondout creek near the Van Etten bridge was necessary. Due to flood conditions the stream had left its natural bed and damage had been done; a pier under the bridge had been partially washed out and it was necessary to use the shovel in order to make the creek flow in its natural channel again and thus prevent further damage. The county superintendents from three adjoining counties who examined it testified that this work was necessary and that it was properly done.
The petitioner is charged with refusal to purchase material for use in highway construction upon public bid when materials could have been purchased for a lesser price than that contracted for. The matter in controversy was stone for which three dollars per yard had been paid whereas it was claimed it could have been purchased for two dollars and twenty-five cents per yard. The stone purchased was proper stone which would pass approval. The evidence in regard to the stone was vague and uncertain. There was not sufficient proof to substantiate the charge.
The county superintendent wrote a letter to the contractor of the Napanock bridge asking him to purchase stone produced in the county of Ulster. The request was complied with. The contractor was at liberty to do as he pleased about it.
The petitioner was authorized by the board of supervisors to employ clerical help up to the sum of $3,000. He employed one girl who was paid $64.60 and another girl who received $306; both were employed temporarily and there was no proper civil service list.
The petitioner was charged with receiving payments from the county for work done by himself in addition to his salary. These charges refer to maps and work which he did for the district attorney upon his blue print machine used in his private business which were less than charges elsewhere for similar work. He was not restricted from doing outside work under the terms of his employment as county superintendent of highways.
The record taken as a whole fails to substantiate the charges contained in the resolution; evidence was excluded which ought to have been allowed and which worked to the prejudice of the petitioner. While there was some proof of facts necessary to be proved in order to authorize the making of the determination, yet upon all the evidence there was such a preponderance of proof against the existence of any of the facts that the verdict of a jury affirming the existence thereof would be set aside by the court as against the weight of evidence.
*338The petitioner is entitled to an annulment of the determination of the board of supervisors, and the proceeding should be dismissed, with fifty dollars costs and disbursements, and the petitioner should be reinstated and his salary paid during the period from the effective date of dismissal to the date of his reinstatement upon the ground that the evidence shows that the charges were improperly and illegally sustained by the board of supervisors and that the charges did not constitute malfeasance or misfeasance in office as required by section 30 of the Highway Law and without which the board of supervisors had no power to remove the petitioner from the position of County Superintendent of Highways.
Hill, P. J., Rhodes and Heffernan, JJ., concur; Bliss, J., dissents, with an opinion.