
    In the Matter of The People of the State of New York ex rel. William H. Hodgins, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant.
    Second Department,
    October 16, 1908.
    Municipal corporations—pensioning police officers, city of New York — surgeon’s certificate.
    The police commissioner of the city of Hew York may dismiss an officer from the force and put him on the pension roll on a surgeon’s certificate showing that he is unable to perform “ full police duty ’’ where the officer has had ten years’, but less than twenty-five years’, membership and has become superannuated by age, permanently insane or mentally incapacitated or disabled physically or mentally so as to be unable to perform full police duty. Under such circumstances a certificate that the officer is “unfit.for duly” is not necessary.
    
      Although, section 354 of the charter of the city of New York does not require a police surgeon's certificate, the provision of section 357 requiring such certificate where an officer is placed on the pension roll limits the action of the commissioner under section 354 where he not merely dismisses an officer but also places him on the pension roll,
    Appeal by the defendant, Theodore A. Bingham, as police commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on.the 18th day of March, 1908, granting the relator’s motion for an alternative writ of mandamus requiring the police commissioner of the city of New York to restore the relator to his place as captain of police, from which he was removed, on the ground that such removal was void.
    
      James D. Bell [James W. Covert and. Francis F. Pendleton with him on the brief], for the appellant.
    
      A. S. Gilbert [ Julius M. Mayer with him on the brief], for the respondent.
   Gaynor, J.:

' The relator has been dismissed from the police force and put on the roll Of the police pension fund by order of the police commissioner. The cases in which the. commissioner is empowered to do this joint act in Ms discretion, and. those in which he is required to do it, i. e., the cases in which he may and those in which he must, are prescribed by the city charter. They are as follows :

1. He may in the case of a member of the force who is 55 years old and has performed duty on such force for 20 years, on the application in writing of such member.

2. He must in the case o.f a member of any age who has served for 20 years, upon a certificate of so many police surgeons as the commissioner shall require, showing .that such member is permanently disabled, physically or mentally, so as to beunfit for duty ”.

3. He must in the case of a member who has served on the force for 25 years and is 55 years old, on the' application in writing Of such member.

■ 4. He must in the case of a member who is an honorably discharged soldier or sailor of the civil war, who is 60 years old, on his application in writing.

5. He must in the case of a member, regardless of his age, who is such soldier or sailor, and who has served on the force for 20 years, on his application in writing.

6. He may in the case of a member who is not such a soldier or sailor who is 60 years old (sec. 355).

7. He may in the case of any member who shall after 10 years of membership, but less than 25 years of membership, “ become superannuated by age, permanently insane or mentally incapacitated, or disabled physically or mentally, so as to be unfitted or unable to perform full police duty” (sec. 354, sub. 4).

The relator’s case does not fit any of these enumerated cases except the last; the limitations and restriction of each, except of the - last, exclude it.

The objection that the relator stands on is that the surgeons’ certificate on which the commissioner acted is that he is unable to perform “ full police duty ”, instead of “ unfit for duty ”. But whereas the latter certificate is required by section 355 for the. restricted cases there provided for (Matter of Metcalf v. McAdoo, 48 Misc. Rep. 420 ; 109 App. Div. 892; 184 N. Y. 268), the former is made sufficient by section 354 for the less restricted cases there provided for.

It is true that section 354 does not require any police surgeons’ certificate, or provide for the method of ascertaining the disability, which might leave the commissioner free to act arbitrarily. But as section 357 provides that no member of the force shall be put on the roll of the pension fund for disability or disease without such a certificate setting forth the nature and extent thereof, that provision applies to and limits the action of the commissioner under section 354, for it is not an act of dismissal, but a joint act of dismissal and placing on the said roll,

It is not to be denied that these two sections are very involved, crude and unscientific in their language and construction, and not to be interpreted and co-ordinated without close scrutiny and difficulty. By being re-written and reduced to one quarter of their present length they could be made clear and consistent, which is the case with the charter of the city of New York generally, as the courts are painfully aware. They would welcome a scientific arrangement and re-writing of it by the commission now sitting to. revise it, for that would do away with a mass of litigation.

The order should be reversed.

. Jenks, Hooker, Rich and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  