People ex rel. Tuck v. French — 7 N.Y. St. Rep. 422

Majority

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The People ex rel. Matthew Tuck, App’lt, v. Stephen B. French et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 31, 1887.)

Headnote

1. Police force—Retirement and pension—Consolidation act, § 307 as AMENDED BY LAWS 1885, CHAP. 364, § 2.

By Laws 1885, chapter 364, section 3, amending section 307 of the consolidation act, it is provided that any member of the police force, who has or shall have performed duty therein for a period of twenty years or upward, upon his own application * * * shall by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted to be paid from said pension fund an annual pension. * * * Held, that to place an applicant upon the pension roll required action on the part of the police board. That it was necessary that they should determine whether he was entitled to a pension and the amount of it and that for that purpose they had a reasonable time and after the lapse of that, if he was entitled thereto they must pass the resolution as provided by law.

2. Same—Continuance in service—Effect of.

Held, that after the length of service required, a member of the force had the option to make the demand or continue in the service, and that until the passage of a resolution entitling him to retirement he remained a member of the force and subject to the rules and regulations applicable to that body.

3. Same—Application fob retirement does not exempt member from OPERATION OF RULES.

Held, that a member of the force who had served the length of time requisite to entitle him to make the application for retirement and pension could not avoid the effect of a violation of duty by making such application.

Appeal from order denying relator’s motion for peremptory writ of mandamus and dismisssing the alternative writ.

Samuel Untermeyer, for relator; David J. Dean, for resp’ts.

On November 8, 1865, the relator, who is now 56 years of age, became a member of the police force, and continued to be a member of the force until October, 1886, nearly twenty-one years. On the 2d of October, 1886, the relator had been guilty of conduct unbecoming an officer, in that he had divested himself of his uniform and put on citizens clothing during his tour of duty, and had absented himself from his precinct without permission, that he went to Mount Morris Park, and was there arrested by officers of the park department, for disorderly conduct. On the next day, the 3d of October, he was suspended from duty by his captain, and informed that charges had been preferred against him, and his suspension entered on the blotter of his precinct. On the 4th of October, 1886, the relator filed an application in due form with the board of police, asking to be retired from the force, and to be placed on the pension roll, in pursuance of section 18, chapter 410,

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of the Laws of 1882, as amended. On the same day written notice was given to the relator, that charges had been preferred against him and a copy of the charges and specifications served upon him and he was notified that a public examination in relation to such charges would be made-on the 16th of October. On the day fixed for the trial before the commissioners, the relator appeared with counsel, and before any testimony was taken in support of the charges, objected to the jurisdiction of the board to try him, and demanded that the board then assemble and pass upon the application which had been filed by him for a pension. This application was refused, and testimony was thereupon introduced in support of the charges. The examination was adjourned, and upon the adjourned day the relator made the same demand, which being refused, the relator left the court room and the trial was proceeded with in his absence, resulting in a decision that the relator was guilty of the charges preferred againt him. At the time that the alternative writ of mandamus was served, the trial- was still in progress and the board refused to comply with the writ and proceeded with the trial, and on the 8tn of October, dismissed the relator from the police department. Upon the return of the alternative writ of mandamus the motion was denied, and the writ dismissed, and from the order thereupon entered this appeal is taken.

The relator claims that, from the moment that he filed his application for a pension, that he was no longer a member of the police force, nor was he any longer subject to the jurisdiction of the police commissioner, and that the only action which they could take was to pass upon his application for a pension, and that as they had no discretion in reference to that matter, they were bound to pension him, and could not discipline him for any act which had been done prior to the filing of his application. The provision upon which the relator relies is to be found in section 2, of chapter 364, of the Laws of 1885, 613, amending section 307, of the Consolidation Act, so as to read as follows:

“ Any member of the police force who has or shall have performed duty therein for a period of twenty years or upward, upon his own application in writing, * * * shall by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted to be paid from said pension fund an annual pension during his life time of a sum not less than one-half the full salary or compensation of such member so retired * * * . Pensions granted under this section shall be for the natural life of the petitioner, and shall not be revoked, repealed or diminished.”

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It is to be observed that the placing of the relator upon, the pension roll requires action upon the part of the police-board. The board had to determine the question as to whether he was éntitled to a pension under the law, and also the amount of the pension. They had a reasonable-time in which to determine these questions; and after that reasonable time had elapsed, if the relator was under the law entitled to a pension, they were bound to pass the resolution, relieving and dismissing him from the force and service. But until that was done he was a member of the-police force as much as he had ever been and subject to the rules and regulations governing that force. The relator after he had served such time and under such circumstances as entitled him to be relieved and dismissed from the force for his services, and placed on the pension roll, had the option to make the application and be relieved and dismissed or continued as -a member of the force. In the case-at the bar the relator elected to continue a member of the force, and while a member of the force, he committed a. breach of discipline which justified his dismissal. It cannot be that he can escape the effect of such breach of discipline-by simply filing his application for a pension. As long as. he elected to remain a member of the force he was amenable to the discipline of the board for dereliction of duty; and the board had the right to inflict the punishment provided for by law for such dereliction until he was removed, from his membership in the force by a resolution passed by the board.

As has been observed by the opinion of the learned justice who heard the motion in the court below, it cannot 'be that a man accused and convicted of the gravest crime known to the law, committed while a member of the-police force, is entitled to a pension irrespective of any discipline or supervision of the board merely because he has served for twenty years on the police force and has filed his application before the board has had an opportunity to act upon the charges made against him.

In view of the fact that it was optional with the person entitled to a pension to apply after he had become entitled thereto, it certainly was not the intention of the legislature to relieve him from the rights of discipline which the board-had over the members of the force. The construction contended for would virtually place every member of the police force who had served the requisite time to entitle him to a pension beyond all discipline; for all that would be necessary for such an officer to do in order to escape after having committed the most gross breach of discipline would be to file his application for a pension.

For these reasons as well as those contained in the opin

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ion of the learned judge who heard the motion below, the order should be affirmed with costs.

Brady and Daniels, JJ., concur.