Opinion
December 1, 1944.
Appeal from Supreme Court, New York County.
Treating this case as if the proper procedure had been followed by Special Term referring the controversy to this court in the first instance, and disposing of the issues on the merits (Civ. Prac. Act, § 1296), it is our view that the dispute which is the basis of this controversy involves a mere difference of opinion on a medical question, and, therefore, the courts are not warranted in interfering with the order of the Fire Commissioner. ( Matter of Sheridan v. McElligott, 278 N.Y. 59; Matter of Eichler v. McElligott, 259 A D 151, affd. 283 N.Y. 716; Matter of Thomasson v. Valentine, 263 App. Div. 334.) Having so decided, it becomes unnecessary to pass upon the questions raised by the appeal from the intermediate order of January 14, 1944, and that appeal is dismissed. The order of April 3, 1944, should be reversed, with costs and disbursements, and the determination of the Fire Commissioner confirmed.
Martin, P.J., Townley, Glennon, Cohn and Callahan, JJ., concur.
Order appealed from dated April 3, 1944, and entered on or about April 4, 1944, unanimously reversed, with costs and disbursements to the appellant, and the determination of the Fire Commissioner confirmed. [ 181 Misc. 1070.] Appeal from the intermediate order dated January 14, 1944, and entered on or about January 20, 1944, dismissed. Settle order on notice. [ 181 Misc. 424.]