Proceeding pursuant to article 78 of the Civil Practice Act to review the determination of respondent, the Conservation Commissioner of the State of New York, in dismissing petitioner from his position as a Game Protector. Petitioner was charged on March 2, 1957 with having been publicly intoxicated, driving while intoxicated, drawing and attempting to discharge his loaded service revolver, striking an undersheriff of Ontario County with his fist and using abusive language concerning two of his superior officers not present. On the basis of these charges and in accordance with section 22 Civ. Serv. of the Civil Service Law petitioner was suspended without pay on March 7, 1957 pending a hearing. Petitioner contends, among other things, that he was not accorded a fair hearing and that there is not substantial evidence in the record to warrant the Commissioner's determination. The record reveals that on March 26, 1957, within the 30-day period in which the department could perfect its disciplinary proceedings without having to reinstate petitioner to the payroll, petitioner's counsel requested that petitioner be granted a 30-day leave of absence without pay thus extending the suspension period to May 6, 1957. During the week of April 15, 1957 a conference was held between petitioner's attorney and officials of the Conservation Department at which time petitioner's counsel, well aware of the May 6 deadline and that the department intended to hold the hearing before that date, specifically requested the formal filing of charges be withheld at least until April 23, 1957. On April 24, 1957 the department called petitioner's attorney who again requested a delay in the filing of charges until he could call back the next day. Immediately after hearing from petitioner's counsel the department prepared the formal charges and they were served on petitioner's counsel on April 26 and on petitioner on April 27. At the hearing on May 2, 1957 in Albany petitioner's attorney requested an extension of time to prepare for the hearing and change of venue to Rochester for the convenience of witnesses. Counsel for the department was agreeable both to the adjournment and change of venue if petitioner would take an additional leave of absence to extend the time when he would have to be reinstated to the payroll. When petitioner refused to take an additional leave of absence the hearing was commenced despite the refusal of petitioner or his counsel to participate. Under these circumstances any delay in the receipt of formal charges is justly attributable to petitioner or his attorney. In view of the evidence in the record the findings and dismissal are not unwarranted. The Commissioner was justified in denying petitioner's motion to reopen the case on alleged newly discovered evidence. This evidence was produced nearly four years after the hearing and determination and was dubious in nature. Determination unanimously confirmed, without costs.