Tiernan v. Walsh

Appellate Division of the Supreme Court of New York

Tiernan v. Walsh

268 A.D. 962, 51 N.Y.S.2d 528, 1944 N.Y. App. Div. LEXIS 4415

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 1, 1944

StatusPublished

Cited by4 cases

This text of 268 A.D. 962 (Tiernan v. Walsh) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tiernan v. Walsh, 268 A.D. 962, 51 N.Y.S.2d 528, 1944 N.Y. App. Div. LEXIS 4415 (N.Y. Ct. App. 1944).

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Opinion

Per Curiam.

Treating this case as if the proper procedure had been followed by Special Term referring the controversy to this court in the first instance, and disposing of the issues on the merits (Civ. Prac. Act, § 1296), it is our view that the dispute which is the basis of this controversy involves a mere difference of opinion on a medical question, and, therefore, the courts are not warranted in interfering with the order of the Fire Commissioner. (Matter of Sheridan V. McElligott, 278 N. Y. 59; Matter of Eichler v. McElligott, 259 App. [963]*963Div. 151, affd. 283 N. Y. 716; Matter of Thomasson v. Valentine, 263 App. Div. 334.) Having so decided, it becomes unnecessary to pass upon the questions raised by the appeal from the intermediate order of January 14, 1944, and that appeal is dismissed. The order of April 3, 1944, should be reversed, with costs and disbursements, and the determination of the Fire Commissioner confirmed.

Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.

Order appealed from dated April 3, 1944, and entered on or about April 4, 1944, unanimously reversed, with costs and disbursements to the appellant, and the determination of the Fire Commissioner confirmed. [181 Misc. 1070.] Appeal from the intermediate order dated January 14,» 1944, and entered on or about January 20, 1944, dismissed. Settle order on notice. [181 Misc. 424.]

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Per Curiam.

Treating this case as if the proper procedure had been followed by Special Term referring the controversy to this court in the first instance, and disposing of the issues on the merits (Civ. Prac. Act, § 1296), it is our view that the dispute which is the basis of this controversy involves a mere difference of opinion on a medical question, and, therefore, the courts are not warranted in interfering with the order of the Fire Commissioner. (Matter of Sheridan V. McElligott, 278 N. Y. 59; Matter of Eichler v. McElligott, 259 App. [963]*963Div. 151, affd. 283 N. Y. 716; Matter of Thomasson v. Valentine, 263 App. Div. 334.) Having so decided, it becomes unnecessary to pass upon the questions raised by the appeal from the intermediate order of January 14, 1944, and that appeal is dismissed. The order of April 3, 1944, should be reversed, with costs and disbursements, and the determination of the Fire Commissioner confirmed.

Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.

Order appealed from dated April 3, 1944, and entered on or about April 4, 1944, unanimously reversed, with costs and disbursements to the appellant, and the determination of the Fire Commissioner confirmed. [181 Misc. 1070.] Appeal from the intermediate order dated January 14,» 1944, and entered on or about January 20, 1944, dismissed. Settle order on notice. [181 Misc. 424.]

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268 A.D. 962, 51 N.Y.S.2d 528, 1944 N.Y. App. Div. LEXIS 4415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiernan-v-walsh-nyappdiv-1944.

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