
    John Ramsay, Respondent, v. Nicholas J. Hayes, Fire Commissioner of the City of New York, as Trustee of the New York Fire Department Relief Fund, Appellant.
    Second Department,
    April 20, 1906.
    Evidence — municipal corporations—burden on fire commissioner of city of New York assigning retired fireman less than statutory pension to show that the fund is inadequate,
    Section 790 of the charter of the city of Greater New York, which entitles a fireman retired after ten years of active and continuous service to a pension equal to one-half of his annual'compensation when retired, “or suplí less sum in proportion t<tf the number of officers and members so retired as the condition of the fund will warrant," casts the burden on a fire commissioner, who assigns to a retired fireman a pension,less than one-half of his former salary, to show that the fund does not warrant the payment of the full amount. This is so because said clause is in the nature of a proviso which the fireman is not required to- negative, and also because the matter is peculiarly within the knowledge of the fire commissioner. • - ' ,
    Hooker and Gaynor, Jj., dissented, wit! opinions.
    Appeal by the defendant, Hicholas J. Hayes, fire Commissioner of the city of Hew York, as trustee, etc., from a judgment of the Supreme Court in favor of the. plaintiff, entered i-n the office of the clerk of the county of -Kings on the 21th day of February, 1905, upon the decision of the court rendered after a-trial at the Kings County Special Term. • '
    
      James D. Bell [John J. Delany with him on the brief], for the appellant.
    
      Charles J. Ryan, for the respondent.
   Rich, J.:

This is'an appeal from a judgment in favor of the plaintiff, and the facts are as follows-: The plaintiff, who had been in the employ of the fire department of the city of Brooklyn •■and Greater Hew -York for more than ten years, was retired in March, 1903. The order retiring the plaintiff allowed him $533-.33 per annum, whereas plaintiff claims that he was entitled to one-half his.salary as pension, or $800 per annum. The plaintiff - alleged that the difference" between $533.33 and $800 was due him, and the fire commissioner claims it was not. The act set up by the fire commissioner is as follows: After ten years’ active and continuous service in the said fire department, the amount of annual pension to be allowed shall be one-lialf of the annual compensation allowed such officer of member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the condition cf the fund will warrant.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 790.) The fire commissioner claims he had a perfect right to reduce the amount payable to the plaintiff; he also claims that the burden was on the plaintiff to prove that the commissioner was not warranted in paying him the less amount. The real question here then is on whom is the burden of proof. The defendant claims that the presumption is in his favor; that his acts as an official were correctly and legally done. 1 believe that the qualifying clause in this statute is in the nature of a proviso and that the principles discussed in Harris v. White (81 N. Y. 532) and Rowell v. Janvrin (151 id. 67) do apply, and that the burden is not upon plaintiff to negative the proviso clause of the statute; that he properly pleaded that portion of the clause under which he claims to maintain his conte'ntion and that if the commissioner is acting under the proviso the burden is upon him to allege and prove that the funds were insufficient to meet the demands upon them. Again, the facts wére peculiarly within the knowledge ” of defendant, and the burden was, therefore, upon him. (1 Greenl. Ev. [15th ed.] § 79.)

The judgment must be affirmed, with costs.

Jenks and Miller, JJ., concurred; Hooker and Gaynor, JJ., dissented.

Hooker, J. (dissenting):

This case was tried without a jury, judgment was entered in favor of the plaintiff, and the defendant appeals.

The findings of fact are as follows: That, on March 14, 1903, plaintiff having served over ten years in active and continuous service, as a member of the uniformed force of the Fire Department, and being at that time an engineer of steamers in the said Fire Department, the annual salary attached to which said position was. at said date, at the rate of $1,600 per annum, was retired from .all other of further service in said Fife Department ón the certificate of ■the medical officers thereof that hé. was totally and permanently disabled for the performance of duties, and that such disability was- . not caused 'in or induced by the actual performance of the duties of his position, on a pension, as fixed by the Commissioner of the Department of Fire as Trustee of The Dew York Fire Department Belief Fund, of one-third of his pay or salary at the-time of his said retirement, to wit, at the sum of $533.33 per annum. That plaintiff!s' disability occurred after ten years’ active and continuous service in the Fire Department, and having then been, retired," he was entitled to the pension fixed by the Charter, section 790," viz., onéhalf of his compensation at the time of such retirement. That from. March 14,1903, to June 1, 1904, being for a period of one year two and one-half iponths, there was lawfully due to plaintiff -from defendant, as trustee of the'said relief fund, at the rate of $800 per annum- pension, the sum of $966.65, as stated in the com-" plaint herein, but -that the said defendant has paid to’ plaintiff -the stim of $644.45 only, leaving a balance due" to plaintiff from said defendant as'trustee, up to Junó 1, 1904, amounting to the. sum of $322.20 as -stated in the complaint.” '

Section 79Ó of the charter of the city of Dew York "(Laws of 1901, chap; 466) provides -that “ In case of total permanent disability, at any time, caused in or induced by the actual performance of the duties of his position, or-which may occur after ten years’ active and continuous service in the said lire' department, the amount' of annual pension -to be allowed shall be one-half of the* annual compensation allowed such officer or member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the> condition of the fund will warrcmtP ■ )

Do evidence was offered On th¿ part "of either party as to the condition of the pension fund, and it will be seen from the facts and from this section 790 that the sole question in this case is upon whom 'does the. burden of proof rest to show the condition of the fund. If this burden is with the plaintiff then the judgment is wrong, fof it nowhére appears that the condition of the fund" is such as to warrant the payment of the full one-half of the annual compensation he had been allowed ; on the other hand, if it lies with the defendant to show this, the judgment is right for the defendant has not shown that the. plaintiff'has been awarded by him a sum of less than half the annual compensation because of consideration of the proportion of the number of officers and members retired and the condition of the fund.

The plaintiff seeks to have us hold that the words in the statute “ or such less sum in proportion to the number of officers and members so retired- as the condition of the fund will Warrant ” form a proviso in and not an exception to the other provisions of the section. Then he would have us invoke the rule, that “ Where an exception is incorporated in the body of the clause of the statute, he who pleads the clause ought to plead the exception. But when there is a clause for the benefit of the pleader, and afterward follows a proviso which is against-him, he may plead'the clause, and leave it to his adversary to show the proviso.” (Harris v. White, 81 N. Y. 532, 546.) It is doubtless true, as he urges, that “ an exception exempts something absolutely from the operations of the statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes something out of the statute that otherwise would be part of the subject matter of it; a proviso avoids them by way of proviso or excuse.”

There is nothing, however, in the language of the statute which points to a legislative" intent to treat this clause either as an exception or proviso, and we do not believe it to be necessary to decide that it is either, and if either, which one. The clause is part of a more or less elaborate scheme in relation to many phases of the firemen’s pension fund, which have been enacted but of charitable consideration for the benefit of those who may be injured by reason of their engagement in a necessary and sometimes heroic occupation, and those who have become incapacitated after serving in that occupation for a long time, together with their dependents. The administration of the fund and management of the affairs connected therewith are vested in the fire commissioner, who also occupies the position of the actual and virtual head of the fire department of the city.

The act of the defendant fire commissioner as trustee of the pension fund must be, we think, at least until the contrary is shown, presumed to have been done with honesty and discretion when he allowed the plaintiff but one-third instead of one-half of- his former salary as a pension, and that this' act on his part was done out <of consideration of the condition of the pension fund and the number of officers and-members'retired.

It. is said in Wood v. Terry (4 Lans. 80, 84): “ The law presumes the due performance of official duty, and this presumption must be overcome before the court caii declare the proceedings void. When an officer or party is in the attitude of asserting rights founded on official acts, and when due performance is essential to the right, due performance must be proved, and cannofc .be presumed. * '* * But when a party asserts a right based on the illegality or irregularity of the proceedings of a court or public" officer, the onus is on him to prove the defects; otherwise, the presumption prevails.”

Broom, in commenting on the maxim, “Omnia prcesumuntur rite et solenniter esse acid,” says: “Again, where acts are of an official nature, Or require the concurrence of official persons, a presumption arises in favour of their due execution. * * * That a man,, in fact acting in a public capacity, was properly appointed and is duly authorised so to act; that, in the absence of proof to the con-' trary, credit should be given to public officers who have acted,pripia facie, within the limits of their 'authorityfor having done so with honesty and discretion.” (Broom Leg. Max. [7th ed.] 772.)

In Bank of the United States v. Dandridge (12 Wheat. 64, 69) it was stated that the law “ presumes that evei’y man, in his private and official character, does his,duty until the contrary is proved; it will. presume that all things are rightly done, unless the circumstances of the casé overturn this presumption, according to the maxim, omnia prcesumuntur rite,” etc.

Considerations of expediency should not entirely be disregarded. The force of firemen and officers in the city of Hew York is composed of many scores of men who are. being from time to time retired and placed upon .the pension fist. It is doubtless true that sometimes it may -be necessary to award retiring members of the force less than the limit the law would allow them if the. pension fund were in its most, flourishing condition. To adopt a rule other than that we have -announced should govern would permit suits to be brought by these retired members against the fire commissioner which would result in judgments against him for the full amount possible to be allowed by statute, unless in all of such cases he met the burden sought to be imposed upon him by the plaintiff in this case, first, of showing among other things the condition of the fund, the number of firemen, the amounts which had been and were likely to be derived from the various sources which supplied the fund; the number of men who had served for a considerable length of time, together with the exact service many of them rendered, and the number of probable retirements as near as he could estimate it within a reasonable time after the showing; and, secondly, of satisfying the court that upon all these considerations he had exercised a wise discretion, and,that the conditions of the fund did not warrant an award of the full amount which might be allowed by statute. • To impose this burden upon the trustee of this fund is more than we can believe the Legislature intended. In a case of this sort, if the plaintiff is not content with the allowance made to him, but claims the maximum which might be allowed under the statute, the burden should be upon him to show that the condition of the fund would warrant his claim.

The judgment, therefore, should be reversed and a new trial granted.

Gaynor, J. (dissenting):

Section 789 of the charter of the city of Hew York provides for a pension fund for the fire department, and prescribes the revenues from various sources which shall-feed it. It makes the fire commissioner’ the trustee of the fund, and directs him to invest and husband it. Its capacity is limited to the said revenues, and the pensions have necessarily to be scaled down to keep within it. Section 790 prescribes who are to get pensions and how the amounts thereof are to be fixed. It requires the fire commissioner to fix the amount in every case. To take the plaintiff’s case (and they are all governed in the same way), it provides that in the case of members of the department retired after ten years’ active and continuous service the amount of annual pension to be allowed shall be one-half of the annual compensation allowed such officer or member as salary at the date of his retirement from the service, or-such'less sum in proportion to the number of officers and members so retired as the condition of the fund' will'warrant.” It also gives the commissioner' ■power to-retire, any officer or member, and requires him on doing so to determine the amount of the pension.

■It seems plain from this that the retired officer. or member is not entitled to draw his pension until the commissioner has computed it and fixed it according to the condition of the fund. "If the fund warranted it in. the plaintiff’s ease, the commissioner’s duty was to fix his- pension at one-half of the salary he had been receiving from the city,'viz., at the sum of $800, but if -the fund could not pay that sum, thén he had to fix. it at the best sum the fund could pay. It follows that if he refused to fix it the plaintiff would have to compel him to perform that duty before he could' maintain an action to collect it, and if he fixed it unlawfully the plaintiff could compel him to do it lawfully, but the plaintiff could not maintain' an action to recover, a sum over and above that fixed by the commissioner, as he is toying to do here. " . .

This cause was tried .on the pleadings. They did.not show the condition.of the fund, but the complaint does allege that the commissioner fixed thb pension at $533.33 a year,, and- prays judgment for the difference between that and $800 a year. It is claimed that the burden was on the- defendant commissioner to show that he had done his official' duty properly and lawfully in fixing thé-amount of. the pension: I do not see how that can be so. If the plaintiff could maintain the action at- all, it wóuld be for him . to show that: the sum which the complaint alleges was fixed by the commissioner' was less than the sum which should have been fixed, The presumption is that the commissioner 'did his duty.

There is a very rare exception to the rule that the plaintiff must; prove the allegations of the complaint, tháf a negative has not always- to be proved by a plaintiff, as in ah action to recover a penalty for selling liquors without a license, where the burden is on the defendant to show a license; but that is because all sales' are presumptively illegal, for the reason that they are, prohibited without.a' license, and it is therefore for the defendant to justify the sale; but the exception has no application here, -The defendant was under no legal prohibition;, on the-contrary, he had to fix the amount of the pension. Nor do such cases as Harris v. White (81 N. Y. 532) apply. The principle there discussed is not involved here at all.. The exception of the affirmative being on the defendant where the evidence is “ peculiarly ” within his knowledge is only part and parcel of the exception already mentioned, and limited to, the. class of cases already referred to (1 Greenl. Ev. [15th , ed.] § 79). Moreover, the statistics with regard, to the said fund are open to every one.

The judgment should be reversed.

Judgment affirmed, with costs.  