The opinion
Peck, P. J.
(dissenting) There being no finding that petitioner is unfit for the light duty on which he was placed under paragraph 2 of subdivision a, I am of the opinion that he is entitled to maintain his status under that subdivision and may not be retired under subdivision b. In other words, subdivision b does not require the retirement thereunder of a member of the department who has been placed on light duty under subdivision a, so long as he is fit for that duty, merely because he has performed twenty years’ service. If subdivision b had that effect it might produce the incongruous result of forcing a retirement on less favorable terms (half pay) than the member is entitled to by voluntary retirement (three quarters pay) under subdivision a. While petitioner has been granted three-quarters pay, that seems to be a matter of grace rather than right, and in construing the statute we should consider rights. Accordingly, I dissent and vote to affirm.
Dobs and Callahan, JJ., concur with Cohn, J., Peck, P. J., dissents in opinion in which Van Voobhis, J., concurs.
Order reversed and the petition dismissed, without costs. Settle order on notice.