People ex rel. Hemmert v. York — 58 N.Y.S. 401

Majority

p. 401

PEOPLE ex rel. HEMMERT v. YORK et al.

(Supreme Court, Appellate Division, Second Department.

June 6, 1899.)

Headnote

Greater New York—Police Force—Constable op Village op Arverne by the Sea.

.On August 5, 1896, the trustees of the village of Arverne by the Sea, which is situated in a part of Queens county included in Greater New York, adopted a resolution appointing H. a police constable, without regular compensation, his term to continue during the pleasure of the board. On December 1, 1897, the trustees, by resolution, appointed H. and three others policemen for one year, but fixed no salary for him, providing that he should be paid by fees. The only payment ever made to him consisted of a single sum of four dollars. No provision was ever made for him in the tax budget. Held, that H. was not a patrolman of the village, and entitled to compensation as such, under section 280, Greater New York Charter (Laws 1897, c. 378), providing that patrolmen of the police force of any town or village in that part of Queens county included in Greater New York shall be members of the police force.

Appeal from special term, Queens county.

Mandamus by George Hemmert against Bernard J. York and others, as police commissioners of the city of New York, to compel them to recognize him as a member of the police force. From an order denying his application for a peremptory writ, he appeals.

Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, BATCH, and WOODWARD, JJ.

John J. Lenehan, for appellant.

William "J. Carr, for respondents.

On the 5th day of August,-1896, the trustees of the village of Arverne by the Sea, in Queens county, adopted a resolution appointing the relator police constable, without regular compensation, his term to continue during the pleasure of the board. On the 1st day of December, 1897, the trustees of the village adopted a series of resolutions appointing Edward Stroscheim, Michael Abert, John Henry Mills, and George Hemmert, the relator, each a policeman of the village for the term of one year thereafter. These resolutions fixed specified sums as salaries for Stroscheim, Albert, and Mills, but omitted to fix any specified sum as a salary for the relator. It is alleged in the relator’s moving affidavit, however, that the trustees fixed a compensation for him by providing that he should be paid by fees for his services, and this allegation is not denied. It appears, however, from one of the answering affidavits read in behalf of the respondents, that the only payment ever made to him, as a police officer, out of the village funds, consisted of a single sum of four dollars. No provision was made for paying him anything in the village tax budget for the fiscal year from July 1, 1897, to June 30, 1898; and it is quite evident, from all the facts in the case, that it must have been understood, both by the relator and the village authorities, that he was to be compensated for such services as he might render by the. receipt of fees such as would be payable to a constable for like services. The question which must control the

p. 402

disposition of this appeal is whether a person exercising such functions, under such an appointment, and upon such terms as have been stated,- was a patrolman of the police force of the village of Arverne by the Sea, within the meaning and intent of section 280, Greater New York-Charter (Laws 1897, c. 378). That section reads as follows : •

“The captain and each sergeant, roundsman and patrolman of the police force of the county of Richmond, or of any town or village in that part of the county of Queens included in the city of New York, as hereby constituted, shall be members of the police force specified in section two hundred and seventy-six of this act.”

Any patrolman of the police force of the village of Arverne by the Sea, who occupied that position at the time this section took effect, became entitled to its benefits, inasmuch as the village was situated in that part of Queens county which was included by consolidation in the new city of New York, and the effect of the section was to make such patrolman a member of the police force of the consolidated municipality. But was the relator a patrolman of the village police force? I think not. He was not so denominated in the minutes of the village board of trustees, he was paid no salary as such, nor does it appear that he ever received anything at all by way of compensa-tian from the village, except the small sum of four dollars, already mentioned. The fair inference, from all the facts stated in the papers, is that the relator was, to all intents and purposes, nothing more than a village constable; and it cannot have been the intention of the legislature to transfer persons holding such positions, devoting only a portion of their time to their public duties and dependent upon fees for compensation, to the permanent police force of the Greater New York.

I think that the application of the relator was properly denied, and that the order of the special term should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.