Whalen v. Monaghan

285 A.D. 884, 137 N.Y.S.2d 899, 1955 N.Y. App. Div. LEXIS 5990

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1955
• Status: Published

Opinion

While the trustees are free to determine whether a disability is service connected and in that respect need not follow the findings of the medical board, they are not free to disregard the findings of that board with respect to the nature and the extent of the disability (Matter of Bielde v. Valentine, 177 Mise. 743, affd. 262 App. Div. 832, motion for leave to appeal denied 287 H. Y. 854; Matter of City of New Torio v. Schoeclo, 294 H. Y. 559, 566). It would appear, however, that the trustees have failed to accept the medical findings of the board. The only interpretation of the trustees’ action is that they found that petitioner was not disabled by the gunshot and stab wounds. And yet the medical board has so found. That finding of the medical board touches upon the nature and extent of the disability. While the trustees may have felt that the medical board came to the wrong conclusion as to the nature of the disability as of the time of the petitioner’s retirement, that conclusion is binding upon them. The purport of the trustees’ determination is that the disability as found by the medical board was not incurred in the line of duty but there is nothing in the record to support such a finding. The action of the board of trustees must therefore be considered arbitrary and capricious and the order denying the relief sought should be reversed. Order reversed and petitioner’s motion granted, with $20 costs and disbursements to appellant. Settle order. Present — Peck, P. J., Cohn, Callahan, Bastow and Rabin, JJ.