Hyperlawhypertext legal database People ex rel. Bliel v. Martin 32 N.Y. St. Rep. 440

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People ex rel. Bliel v. Martin

32 N.Y. St. Rep. 440 Court Supreme Court, General Term, First Department Decision date 1890-06-06 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 440
The People ex rel. Caroline E. Bliel, App’lt, v. James J. Martin et al., Police Com’rs, Resp’ts.
Supreme Court, General Term, First Department
Filed June 6, 1890.)

Headnote

Mandamus — Police pension fund.
A mandamus cannot be granted requiring the board of police commissioners to place the name of the widow of a deceased officer upon the pension fund roll. The law gives the board power to grant pensions in such cases in its discretion, but there is nothing which requires them in any case to exercise that power in favor of any applicant.
Appeal from an order denying motion for a mandamus directing the respondents to place the name of the relator upon the Police Pension Fund Boll.
George F. Langbein, for app’lt; IP". H. Clark, for resp’ts.

The relator seems to present a very meritorious case, but we do not see how this court can interfere with the absolute discretion vested by law in the respondent. The law clothes the board with power, in its discretion, to grant pensions in certain cases to widows of members of the police force.

The law does not give the widows pensions to be withheld by the commissioners in their discretion, but it clothes the commissioners with power to grant pensions in certain cases if they so please, and I know of no power which can compel them to be pleased to grant a pension.

The cases cited by the learned counsel, and which he has gathered with so much industry, do not seem to have any application to the case at bar. In the cases cited the party applying had some right to call upon the court or judge to act. He was a party to an action or proceeding and, therefore, had a right to be heard; whereas, in the case at bar a power to act is conferred, but no obligation to exercise this power is imposed. Indeed the argument that the granting of the power raises the presumption that when the conditions are fulfilled the power must be exercised, is expressly repelled by the insertion of the words “in its discretion.” "When the board think a proper case arises for a pension

p. 441
they have power to grant it, but there is nothing which requires them, in any case to exercise that power in favor of any applicant.

We think that the order appealed from should be affirmed, without costs.

Daniels and Brady, JJ., concur.