However unfortunate may be the inability of the Board of Trustees to act on account of a division of opinion among its members, the court had no power to make a decision which, by the Administrative Code of the City of New York (§ B19-2.0) may only be made by a seven-twelfths vote of the Board. Tile remedy, if there be any, is by legislative action.
The appellant Schoeck not having been charged with any dereliction of duty and not having been lawfully retired could not be suspended from duty by the Fire Commissioner and should be reinstated.
The order appealed from should be reversed, with twenty dollars costs and disbursements, and petitioner’s application denied.
Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ., concur.
Order unanimously reversed, with twenty dollars costs and disbursements, and petitioner’s application denied. Settle order on notice.