Healy v. Partridge — 78 N.Y.S. 392

Majority

p. 392

(75 App. Div. 511.)

HEALY v. PARTRIDGE, Police Com'r.

(Supreme Court, Appellate Division, First Department.

November 7, 1902.)

Headnote

1. PonicEMAN — Proceedings to Compel Reinstatement — Limitation.

Greater New York Charter, § 302, providing that proceedings to compel reinstatement of a police officer might be brought at any time within two years, was amended by Laws 1901, e. 466, so as to change the period of limitation from two years to four months; but by the express terms of chapter 466, § 1614, that chapter did not affect any right accruing prior to January 1, 1902, when the act went into effect. Hence a policeman, dropped from the rolls of the department prior to January 1, 1902, might commence proceedings for reinstatement at any time within four months after January 1, 1902, and within two years after his discharge, though more than four months thereafter.

p. 393

2. Same — Waiver of Right to Salary.

Where an applicant for mandamus to compel his reinstatement to the police force did not commence proceedings until after the passage of Laws 1901, c. 466, amending Greater New York Charter, § 302, relative to proceedings for reinstatement, he thereby forfeited his right to salary during the period between the time his name was dropped from the rolls and the commencement of proceedings for reinstatement.

Appeal from special term, New York county.

Application for mandamus by Jeremiah J. Healy against John N. Partridge, as police commissioner, to compel relator’s reinstatement on the police force. From an order denying the application, relator appeals.

Conditionally reversed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, O’BRIEN, and LAUGHLIN, JJ.

Hyacinthe Ringrose, for appellant.

Theodore Connoly, for respondent.

The appellant, a policeman of the city of New York, was on the 17th day of June, 1901, dropped from the rolls of the police department; and on the 7th of February, 1902, he sought to procure his reinstatement by applying for an alternative writ of mandamus. His application was denied, and he has appealed.

The moving papers show — and the order appealed from is based entirely upon them, no papers having been presented in opposition at the special term — that the relator, prior to the 17th of June, 1901, was a member of the police force of the city of New York; that on or about the 1st day of June of that year he “became sick and distressed in mind and body through no fault of his own, and was allowed and granted by said police department a vacation and leave of absence of and for eighteen days”; that such leave commenced on the 1st, and terminated on the 18th, day of June, and before the expiration of it the respondent’s predecessor, as police commissioner, wrongfully and illegally dropped and canceled the relator’s name from the rolls of the police department, and thereby deprived him of his office, together with the rights, privileges, and emoluments incident thereto; that he had demanded reinstatement, which had been denied. His application was denied, as appears from the opinion of the learned justice sitting at special term, upon the ground that he had not made the same within the time provided by statute; that is, within four months. Prior to the 1st of January, 1902, the time within which a proceeding of this kind could be instituted was two years. Section 302, Greater New York Charter. This section was amended by chapter 466 of the Laws of 1901, and the time was thereby changed from two years to four months; but the amendment provided that the same was not to take effect until January 1, 1902. It also provided (section 1614) that:

“Tbis act sball not affect or impair any act done, or right accruing, accrued or acquired, or penalty, forfeiture or punishment incurred prior to the time when this act takes effect, or by virtue of any laws repealed or modified by this act, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if this act had not been passed or said law had not been repealéd or modified.”

p. 394

The learned justice inadvertently overlooked the last provision of the statute quoted. The relator manifestly had the right to apply for reinstatement at any time within four months after the amendment referred to took effect, viz., four months from January i, 1902. This he did; and, no answer having been made to his application, the same should, under certain conditions, have been granted. He did not apply until the amendment took effect, and we are of the opinion that he thereby forfeited his right to salary during that time. He knew, and was bound to take notice of, the provisions of the amendment.

The order appealed from, therefore, must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, upon condition, however, that the appellant waives all claim to salary from the time he was dropped from the rolls to the date of his application for reinstatement; and, unless such waiver be given, the order appealed from is affirmed, with $10 costs and disbursements. All concur.