
    No. 353
    STATE v. McCUNE
    Ohio Appeals, 2nd Dist., Franklin County
    No. 1087.
    Decided Feb. 14, 1924
    783. MONEY AND FUNDS — Where trustees are. given discretionary powers, a defense setting up good ground for discontinuance of award under such powers, held a good defense A defense which sets up unwarranted discrimination against one individual equally, entitled to relief fund, held insufficient.
   ALLREAD, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Dorgan brought an action in mandamus to compel the Board of Trustees of the Police Relief Fund pf the City of Columbus to issue a voucher in his favor as a retired policeman. Dorgan claimed that he had retired from the police department and had been allowed and paid to January, 1921, and that since said time the board arbitrarily refused to issue any more vouchers. The defendant’s answer contained three defenses: 1st, denial; 2nd, the forfeiture of further relief because of disreputable conduct on the part of the plaintiff, 3rd, that the funds had been exhausted in the payment of other claims in the years 1921, 1922 and 1923. A motion was filed to strike out portions of the first and second defenses and a demurrer was filed to the third defense. In overruling the motion and sustaining the demurrer, the court held:

1. As the trustees were given discretionary power to discontinue further allowances, it cannot be said that the facts stated did not constitute a good defense.

2. That a demurrer should be sustained to the third defense, as if others were ' entitled to the relief fund, Dorgan was equally entitled to the same provided his conduct had been proper with the other beneficiaries.

Attorneys — L. L. Boger and C. J. Bartlett, for State; Charles A. Leach and John L. Davies and M. B. Gessaman, for McCune.  