
    In the Matter of Philip A. Hines, Petitioner, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, as Trustees of the New York City Employees Retirement System, et al., Respondents.
    Supreme Court, Special Term, New York County,
    March 17, 1943.
    
      Robert J. Eager for petitioner.
    
      Thomas D. Thacher, Corporation Counsel (Jeremiah M. Evarts of counsel), for respondents.
   Miller, J.

On November 9, 1942, the date of the petitioner’s application for retirement, he was not in the city service (see Matter of Welling v. Marsh, 179 Misc. 1033, decided simultaneously herewith, in a proceeding to which petitioner became a party by stipulation). Petitioner had resigned on September 3, 1942, and had not been validly reappointed until December 14, 1942. It follows that petitioner’s application for a retirement allowance must be denied. Section B3-36.0 of the Administrative Code of the City of New York, upon which petitioner relies, requires that the application for the retirement allowance be made by a “ member in city service. ” Motion denied.  