General
In the Matter of Stephen Mack, Respondent, against Patrick Walsh, as Commissioner and Chief of the Fire Department of the City of New York and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, et al., Appellants, et al., Defendants
268 A.D. 979·New York Supreme Court, Appellate Division·1944·NY
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Opinion
In the Matter of Stephen Mack, Respondent, against Patrick Walsh, as Commissioner and Chief of the Fire Department of the City of New York and as Chairman of the Board of Trustees of the New York Fire Department Pension Fund, et al., Appellants, et al., Defendants.
[MAJORITY]
Order appealed from modified by eliminating (1) the last decretal paragraph; (2) the words “and it is further” immediately preceding said paragraph; and (3) the provision in the sixth decretal paragraph reading “ and that he be-continued on sick leave pending determination at trial of the issues herein remaining • unsettled ”; and as so modified affirmed, without costs.
[CONCURRING-IN-PART-AND-DISSENTING-IN-PART — Untermyer, J.]
Untermyer, J.
(dissenting in part). The action of the Special Term should have been limited to directing a new examination of the respondent Mack by a special medical board in lieu of the special board in whose recommendations the physician selected by the respondent Mack is shown to have joined under a misapprehension concerning- the evidence on which he was authorized to act. Only - such previous determinations as are inconsistent with the finding of such new board should be vacated and the respondent Mack reinstated to his former position pending further action by the Board of Trustees on the findings of such new board. The order appealed from should be modified accordingly.
Martin, P. J., Townley, Glennon and Dore, JJ., concur in decision; Untermyer, J., dissents in part in memorandum.
Order appealed from modified by eliminating (1) the last decretal paragraph; (2) the words “ and it is further ” immediately preceding said paragraph; and (3) the provision in the sixth decretal paragraph reading “ and that he be continued on sick leave pending determination at trial of the issues herein remaining unsettled ”; and as so modified affirmed, without costs. No opinion. Settle order on notice.