
    (89 Hun, 452.)
    PEOPLE ex rel. REILLY v. ANDREWS et al.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    Policemen—Retirement—Power oe Board.
    Laws 1885, c. 864, § 2, providing that, under certain circumstances, any . policeman “shall, by resolution, adopted by a majority vote” of the police board, be retired and placed on the police pension fund, does not make the retirement of the policeman a matter of right in any case, but leaves it to the discretion of the police board.
    Certiorari by William Reilly to review the findings and determination of Avery D. Andrews and others, constituting tie board of police commissioners in the city of New York, refusing to retire relator from the police force and place him on the pension roll. Dismissed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Louis J. Grant, for relator.
    Francis M. Scott and Cornelius F. Collins, for respondents.
   PARKER, J.

It is the contention of the relator that a policeman who has been on the force 20 years, and who at the time of his application for retirement has no charges pending against him, is, as a matter of right, entitled to be retired. His claim is based upon section 307 of the consolidation act, as amended by section 2 of chapter 364 of the Laws of 1885, which reads as follows:

“Any member of the police force who has, or shall have, performed duty therein for a period of twenty years or upwards, upon his own application in writing, or upon a certificate of the board of surgeons, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, or who shall have reached the age of sixty years, 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. * * * ”

In view of the decisions in People ex rel. Bolster v. French, 46 Hun, 232, and People ex rel. Brady v. Martin, 145 N. Y. 253, 39 N. E. 960, we regard this question as settled adversely to the relator. In both cases the statute upon which relator relies was considered by the court. In Bolster’s Case the court held that the statute does not entitle a policeman to be retired unless he can obtain the favorable vote of a majority of the board sustaining his application; that the law does not declare that the board shall retire him. or direct that the commissioners,. or a majority of them, shall vote in favor of his retirement; and therefore it must be construed as investing the mem: bers of the board with discretion to vote for or against the application, as the situation may seem to require. Both the decision and the reasoning of the court in Bolster’s Case were approved in Brady’s Case. In the latter case the statute was carefully considered, and the conclusion reached that “the board has been invested with authority to retire the applicant by a majority vote of the full board, but, as no- direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.” It is true that the court, in considering the facts of that particular case, used language which, if considered independently of the main argument, would tend to convey the impression that, in the absence of pending charges of misconduct, it would appear to be the duty of the board to grant such an application. But in that case charges of misconduct had been preferred against the relator at or about the time of his application for retirement, and they were acted upon, and relator dismissed from the force before his application for retirement was considered; and the discussion referred to related wholly to that situation, and followed that part of the opinion which considered and construed the statute, and which resulted in the conclusion that the members of the board were invested with the discretion to vote in favor of or against such an application. The legislative construction given by chapter 569 of the Laws of 1895, amending section 307 of the consolidation act, known as the “Bipartisan Police Bill of 1895,” is in accord with that of the decisions to which we have referred. Section 6 re-enacts the provision above quoted, authorizing the retirement of a member of the police force, who has performed duty for a period of 20 years or upwards, upon his own application, by resolution adopted by a majority vote of the full board. And it also contains the further provision:

“And any member of the police force who has, or shall have performed duty therein for a period of twenty-five years or upwards * * * upon his own application in writing, provided there are no charges against him pending, must be relieved and dismissed from said force and service by the board and placed on the roll of the police pension fund. * * *”

If it was the understanding that the statute in existence, and which the legislature re-enacted, compelled the retirement of any policeman requesting it against whom no charges were pending, after 20 years’ service, then surely the provision quoted was superfluous. It appears by the return that the relator first made application for retirement about the 13th day of December, 1894, and that later, and about, the 11th day of April, 1895, he presented a petition to the respondents, in which he said, among other things, that he had been for several years a great sufferer from inflammatory rheumatism, and that he was at the time suffering from a permanent .disability in one of his feet, by reason of which he was considerably disabled. On the day that the petition was presented to the board, action was taken thereon, by which it was referred to the board of surgeons for report. Five days later the board of surgeons made a report to the board of police commissioners, in which it was stated that the surgeons found the relator fit to perform police duty. A copy of this report was at once forwarded to the attorney for the relator, who addressed a further communication to the board of police commissioners, asking for immediate action on the application of his client. The board of police commissioners, on the 19th day of April, considered the application, and a resolution of one of the commissioners that the relator’s request be granted and he retired was decided in the negative, one commissioner voting in favor of its adoption and three against it. Apparently it was the view of a majority of the commissioners that, inasmuch as the relator was in a physical condition to render efficient service, he should not be retired on a pension, but compelled to earn the compensation which he should receive from the city. In view of the construction which has been given to the statute, it cannot be said that the commissioners committed legal error.

The writ should be dismissed, with costs. All concur.  