
    In the Matter of Stephen Mack, Respondent, against Patrick Walsh, as Fire 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, Appellant, et al., Defendants.
    Argued April 18, 1945;
    decided July 19, 1945.
    
      
      Ignatius M. Wilkinson, Corporation Counsel (Morris Shapiro of counsel), for appellant.
    Since the medical boards determined that Mack had a non-service-incurred permanent disability, he should have been retired. (Matter of Thomasson v. Valentine, 263 App. Div. 334; Matter of Eichler v. McElligott, 283 N. Y. 716; Matter of Sheridan v. McElligott, 278 N. Y. 59.)
    
      David A. Ferdinand and Harold L. Strauss for respondent.
    I. The suspension of Mack by the fire chief was without legal basis. (Matter of Clancy v. Halleran, 263 N. Y. 258; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Bemis v. Board of Education, Ilion, 171 Misc. 957.) II. The patent misconduct of the medical boards and the deception practiced on petitioner’s representative at the special medical board, warranted the vacation of the medical determinations. (Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.)
   Per Curiam.

The finding of Special Term that the rights of the petitioner-respondent Mack 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 determinations of June 25, 1943, and October 1, 1943, made by the Medical Boards appointed by the Fire Commissioner, and directing the appellant Fire Commissioner to order a re-examination of petitioner-respondent Mack before a special medical board, and, as so modified, affirmed, with costs to petitioner-respondent.

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

Ordered accordingly.  