Odsen v. Valentine — 263 A.D. 978

Majority

p. 978

In the Matter of the Application of Albert Odsen, Petitioner, Respondent, for an Order of Mandamus against Lewis J. Valentine, as Police Commissioner of the City of New York, Appellant.

As petitioner denies that he attempted any fraud in his examination, the order should be modified by granting an alternative order so that the issues of fact involved may be tried, and as so modified affirmed, without costs. (See Matter of Pape v. Kern, 263 App. Div. 557 , decided simultaneously herewith.)

Dore, Cohn and Callahan, JJ., concur; Martin, P. J., and Townley, J., dissent and vote to affirm.

Order modified by granting an alternative order so that the issues of fact involved may be tried, and as so modified affirmed, without costs. Settle order on notice.