
    In the Matter of the Application of James Hart, Appellant, against George V. McLaughlin, as Police Commissioner of the City of New York, Respondent.
    (Argued May 31, 1926;
    decided July 9, 1926.)
    
      New York city ■— police •— compulsory retirement of lieutenant of police on arrival at sixty years of age — motion for mandamus on ground that retirement was arbitrary exercise of discretionary power denied.
    
    
      Matter of Hart v. McLaughlin, 216 App. Div. 741, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1926, which unanimously affirmed an order of Special Term denying a motion for an order of mandamus to compel restoration of petitioner to the position of lieutenant of police in the police department of the city of New York. Petitioner had been retired from the force and awarded a pension upon the sole ground that he had reached the age of sixty years, under section 355 of the charter which provided: “ * * * the said commissioner may in like manner relieve and dismiss from the service and place on the roll of the police pension fund, and grant and award a pension to any member of said force other than an honorably discharged soldier or sailor of the Mexican or late Civil War who shall have reached the age of sixty years.” It was shown that petitioner was capable and fit for service and that many members of the police force over sixty years of age were retained in service and argued that his retirement was an arbitrary' exercise of a discretionary power.
    
      Order affirmed, with costs;
    
      Leonard M. Wallstein and Ralph M. Frink for appellant.
    
      George P. Nicholson, Corporation Counsel {John F. O’Brien, Fllliot S. Benedict and Arthur Sweeney of counsel), for respondent.
   no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.  