
    In the Matter of Patrick Cosgrove, Respondent, against William F. Carey, as Commissioner of Sanitation of the City of New York, Appellant.
    Argued May 17, 1938;
    decided July 7, 1938.
    
      William C. Chanler, Corporation Counsel (Paxton Blair, Henry J. Shields and Charles E. Hirsimaki of counsel), for appellant.
    
      
      Martin N. Whyman for respondent.
    Petitioner is entitled to the payment of a pension pursuant to section 552 of the former Charter of the City of New York (L. 1901, ch. 466, as amd.) (Matter of Beach v. Traveler’s Ins. Co., 263 N. Y. 676; Matter of Heitz v. Ruppert, 218 N. Y. 148; Bylow v. St. Regis Paper Co., 179 App. Div. 555.)
   Per Curiam.

Petitioner, a fireman in the Department of Sanitation, was a member of the relief and pension fund of the former Department of Street Cleaning. He became permanently physically disabled and for that reason, upon the certificate of a majority of the medical examiners of the Department of Sanitation, he was discharged from the department. This proceeding was begun to compel payment to him of a pension of fifty dollars per month, in pursuance of former section 552 of the Greater New York Charter (L. 1901, ch. 466, as amd.), upon the theory that his disability occurred while in the actual performance of duty.” The Special Term denied his application, but the Appellate Division, by a divided court, reversed the order. At the time of his discharge he was suffering from Osteo arthritis of spine, arterio sclerosis, hypertension, senility and defective vision.” Osteo arthritis of the spine is an inflammation of the bone and joints and the evidence is that petitioner’s disabilities bear no relationship to any injuries which he sustained in line of duty and are not in any way connected with service in the department.

The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, O’Brien, Hubbs, Loughran, Finch and JRippey, JJ., concur; Crane, Ch. J., taking no part.

Ordered accordingly.  