(dissenting). I dissent and vote to reverse the order appealed from and to dismiss the petition. I agree entirely with the view of the majority that the statute is constitutional. Furthermore, in my opinion the pension payable under subdivision f of section B18-4.0 is mandatory. The statute provides as the sole requirement for the right to receive the pension twenty years’ prior service as a police oEcer and appointment to a commissionership.
The court has no power to review the original appointments of Furey and Collins as seventh deputy police commissioners. Nor would the board of trustees of the police pension fund have power or authority to question such appointments, where they were regularly made by an oficer having authority to act. Under the circumstances, the pension awards may not be reviewed by the courts, where the recipients are qualified by reason of having rendered the required prior service and have been duly appointed to the oEce of deputy police commissioner. The action of the trustees in this case was not discretionary, as it was in Matter of Heffernan v. McGoldrick (259 App. Div. 671). Nor was there any attempt to pay in excess of the minimum pension of a chief inspector as in Matter of Kent v. Valentine (184 Misc. 94, affd. 269 App. Div. 831). Since the action by the trustees is mandatory and in accord with the statute, it would seem improper for the courts to label such action in bad faith or in fraud of the city’s rights. If there is an evil to be cor*396rected "because the statute is unwise or works a detriment to the public interest, appropriate action should be taken by the legislative branch of the Government. (Matter of Wingate v. McGoldrick, 279 N. Y. 246, 249.)
Peck, P. J., and Glennon, J., concur with Cohn, J.; Shientag, J., concurs in result, in opinion; Callahan, J., dissents and votes to reverse and dismiss the petition, in opinion.
It is hereby ordered that the order so appealed from, insofar as it declares unconstitutional the provisions of subdivision f of section B18-4.0 of the Administrative Code, is reversed, and the order is otherwise affirmed. Settle order on notice.