Eichler v. McElligott

259 A.D. 151, 18 N.Y.S.2d 508, 1940 N.Y. App. Div. LEXIS 6076

Opinions

Cohn, J.

After an examination formally conducted by the medical officers of the fire department, petitioner was found by ‘them to be physically disqualified for the performance of any duty; they also found that such disqualification was not caused or induced in the discharge of duty. The fire commissioner was accordingly empowered by statute upon the basis of such findings to retire petitioner from all service in the department and to retire him on half pay. (Greater New York Charter, § 790; Matter of Phillips v. McElligott, 279 N. Y. 792.) In view of the proof adduced upon the trial which established that there was evidence to sustain the departmental order retiring petitioner, and in the absence of any showing of fraud, accident or mistake, there was no justification for the peremptory order of the Trial Term entered upon the verdict of the jury reinstating petitioner with full pay. (Matter of Sullivan v. Board of Estimate, 281 N. Y. 766; Matter of Rosenberg v. Board of Estimate, Id. 835; Matter of Doherty v. McElligott, 258 App. Div. 257; Matter of Nilsson v. La Guardia, 259 id. 145.) A mere difference of medical opinion of physicians produced by petitioner and those of the statutory medical board, as to the nature and cause of petitioner’s disability, does not justify a finding that the determination made by the fire commissioner acting on the advice of such statutory medical board was arbitrary or capricious. (Matter of Strauss v. Hannig, 256 App. Div. 662, 664; affd., 281 N. Y. 612; Matter of Schwab v. McElligott, 282 id. 182.) The petition should have been dismissed after trial upon the merits.

The order should be reversed and the petition dismissed, with costs and disbursements to the appellant.

Martin, P. J., Townley and Callaban, JJ., concur; O’Malley, J., dissents and votes to affirm.