(dissenting). This statute cannot be applied literally in the present circumstances for, if it was, the pension granted the children would have to date back to the time of their father’s death and would result in double and illegal payments. Petitioner herein is asking to have the pension date back not to the date of the member’s death, but to the date of her remarriage, so that she does not apply the statute literally. It 'seems to me that the provision that “ all pensions shall be Laid *621from the date of the death of such member ” was intended to refer to action taken on the first pension application after the member’s death, and not to applications for second or subsequent pensions.
At the time this application was filed the granting of any pension was discretionary, and the exercise of that discretion may have rested on the determination to pay any further pension to the children only in the future.
Under the circumstances, this court may not exercise the discretion which is granted to the trustees under the charter, and we should, if we reverse, order the return of the matter to the police commissioner for action de novo.
I vote to affirm.
Peck, P. J., Cohn and Van Voorhis, JJ., concur with Dore, J.; Callahan, J., dissents and votes to affirm, in opinion.
Order reversed and an order is directed to be entered directing respondents to make the pension payments of $600 to appellants from September 13, 1942, to November 6, 1947, with interest only from the date of the demand and at 4% pursuant to section 3-a of the General Municipal Law. Settle order on notice. [See 281 App. Div. 812.]