Matter of Cosgrove v. Carey

New York Court of Appeals

Matter of Cosgrove v. Carey

16 N.E.2d 361, 278 N.Y. 350, 1938 N.Y. LEXIS 1308

CourtNew York Court of Appeals

DecidedJuly 7, 1938

StatusPublished

Cited by3 cases

This text of 16 N.E.2d 361 (Matter of Cosgrove v. Carey) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Cosgrove v. Carey, 16 N.E.2d 361, 278 N.Y. 350, 1938 N.Y. LEXIS 1308 (N.Y. 1938).

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Opinion

Per Curiam.

Petitioner, a fireman in the Department of Sanitation, was a member of the relief and pension fund of the former Department of Street Cleaning. He became permanently physically disabled and for that reason, upon the certificate of a majority of the medical examiners of the Department of Sanitation, he was discharged from the department. This proceeding was begun to compel payment to him of a pension of fifty dollars per month, in pursuance of former section 552 of the Greater New York Charter (L. 1901, ch. 466, as amd.), upon the theory that his disability occurred “ while in the actual performance of duty.” The Special Term denied his application, but the Appellate Division, by a divided court, reversed the order. At the time of his discharge he was suffering from “ Osteo arthritis of spine, arterio sclerosis, hypertension, senility and defective vision.” Osteo arthritis of the spine is an inflammation of the bone and joints and the evidence is that petitioner’s disabilities bear no relationship to any injuries which he sustained in line of duty and are not in any way connected with service in the department.

The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, O’Brien, Hubbs, Loughran, Finch and JRippey, JJ., concur; Crane, Ch. J., taking no part.

Ordered accordingly.

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Per Curiam.

Petitioner, a fireman in the Department of Sanitation, was a member of the relief and pension fund of the former Department of Street Cleaning. He became permanently physically disabled and for that reason, upon the certificate of a majority of the medical examiners of the Department of Sanitation, he was discharged from the department. This proceeding was begun to compel payment to him of a pension of fifty dollars per month, in pursuance of former section 552 of the Greater New York Charter (L. 1901, ch. 466, as amd.), upon the theory that his disability occurred “ while in the actual performance of duty.” The Special Term denied his application, but the Appellate Division, by a divided court, reversed the order. At the time of his discharge he was suffering from “ Osteo arthritis of spine, arterio sclerosis, hypertension, senility and defective vision.” Osteo arthritis of the spine is an inflammation of the bone and joints and the evidence is that petitioner’s disabilities bear no relationship to any injuries which he sustained in line of duty and are not in any way connected with service in the department.

The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, O’Brien, Hubbs, Loughran, Finch and JRippey, JJ., concur; Crane, Ch. J., taking no part.

Ordered accordingly.

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Bluebook (online)

16 N.E.2d 361, 278 N.Y. 350, 1938 N.Y. LEXIS 1308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-cosgrove-v-carey-ny-1938.

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