Kullmann v. Walsh — 294 N.Y. 557

Majority

p. 557

In the Matter of Oscar Kullmann, Respondent, against Patrick Walsh, as Commissioner of the Fire Department of the City of New York, Appellant.

Argued April 18, 1945;

decided July 19, 1945.

p. 559

Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for appellant.

Paxton Blair and Edward M. Edenbaum for respondent.

The finding of Special Term that the rights of the petitioner-respondent Kullmann were not properly safeguarded upon the examination by the Special Medical Board, is supported by some evidence. Upon that finding a new examination should be ordered before a special medical board, in accordance with the provisions of section B19-4.0, subdivision d, of the Administrative Code of the City of New York.

The order of the Appellate Division should be modified to the extent of reinstating the determination of December 10, 1943, made by the Medical Board appointed by the Fire Commissioner, and directing the appellant Fire Commissioner to order a re-examination of petitioner-respondent Kullmann before a special medical board, and, as so modified, affirmed, with costs to petitioner-respondent.

Lehman, Ch. J., Loughran, Lewis, Comway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.