
    (November 28, 1941.)
    In the Matter of the Application of Victor Balacek, Petitioner, Respondent, for an Order Pursuant to Article 78 of the Civil Practice Act, against The Board of Trustees of the Fire Department Pension Fund & Related Funds and John J. McElligott, as Fire Commissioner of the City of New York, Appellants.
   Per Curiam.

Petitioner’s claim that neither the medical board nor the special medical board found him totally unfit for any duty in the fire department cannot be sustained. While there may have been some ambiguity in the earlier reports of the medical board as to the extent of petitioner’s incapacity, this was entirely removed by the final certificate of the special medical board. This final certificate was given in reply to the request of the board of trustees of the fire department pension fund. On May 13, 1940, the board of trustees expressly referred the matter back to the special medical board with instructions “ to file a proper certificate with this Board, stating clearly and definitely whether this man has a total permanent disability or a partial permanent disability.” This action was taken so that the board might be “ in a position to determine whether the man is to be retired or continued on light duty.” In response to this inquiry, the special medical board reported that the petitioner was “ found totally, physically unfit for any duty in the department.” This certificate was based on all the records of prior physical examinations of the petitioner made over a period of more than six months by some eleven physicians. This finding of the special medical board was amply supported by the records in the case: The board of trustees of the fire department pension fund was fully justified in retiring petitioner as unable to perform any service in the department.

The order appealed from should be reversed, with twenty dollars costs and disbursements, and the petition dismissed.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the petition dismissed.  