Majority
Determination annulled, certiorari proceeding sustained, and the matter remitted to the superintendent of the Pilgrim State Hospital, at Brentwood, Suffolk county, for a rehearing, without costs. Under subdivision 2 of section 34 of the Mental Hygiene Law, the superintendent is empowered “ for cause stated in writing, after an opportunity to be heard ” to “ discharge any of such employees in his discretion.” Asa World war veteran, petitioner, under subdivision 1 of section 22 of the Civil Service Law, was entitled to “ a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by writ of certiorari. * * * The burden of proving incompetency or misconduct shall be upon the person alleging the same.” The petitioner’s opportunity to make his defense, to which he was entitled as a matter of law, was not accorded him. To that end the matter should be remitted for a new hearing. Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.