
    Matter of the Application of Robert S. Beal, for a Peremptory Writ of Mandamus, Relator, v. Theodore H. Bingham, as Police Commissioner, Etc., Respondent.
    (Supreme Court, New York Special Term,
    October, 1908.)
    Municipal corporations — Police department — Retirement on pension.
    A member of the police force of the city of New York, who, of Ms own motion, obtains retirement after service of more than ten and less than twenty-five years, as provided in section 355 of the Greater New York Charter, is entitled to a pension of one-half of his salary on the day of his retirement; but, if removed for physical disability under section 154, he is entitled only to such pension as the police commissioner grants him, not exceeding one-half nor less than one-fourth of his rate of compensation per annum.
    Motion for a peremptory writ of mandamus.
    Grant & Rouss, for relator and motion.
    Francis K. Pendleton, Corporation Counsel (Royal E. T. Riggs, of counsel), opposed.
   Giegerich, J.

The relator, a former police officer and an honorably discharged veteran of the Civil War, seeks a mandamus to compel the police commissioner to grant him a pension of $500 per annum instead of a pension of $336 per annum now paid Mm. At the time of his retirement on or about the 1st day of April, 1907, the relator was upwards of sixty years of age, and claims that, under the provisions of section 355 of the Greater New York charter, he is entitled, as a matter of right, to a pension equal to one-half of his salary on the day of his retirement, which salary at that time amounted to $1,000 per year. ¡From the opposing affidavit it appears that he was removed from the service by the act of the police commissioner, who caused a physical examination to be made by the board of police surgeons, which board reported the relator unfit and unable to perform full police duty, because of physical incapacities specified in the report. This proceeding for the relator’s removal was taken under section 354 of the charter, subdivision 4 of which authorizes the police commissioner in his discretion to retire any member of the police force who shall, after ten years and less than twenty-five years’ membership, become, among other things, disabled physically from performing full police duty, and to grant to the member so retired a pension in an amount not to exceed one-half and not less than one-fourth of the member’s rate of compensation per annum. The respondent concedes that if the relator had of his own motion obtained retirement as provided in section 355, he would then have been entitled to a pension of $500; but that, as he did not seek such retirement himself, but left it to be brought about through the initiative of the police commissioner, under the provisions of section 354, he thereby becomes entitled only to the lesser pension provided for in that section. The language of the two sections on the point in controversy is not free from difficulty, but I am inclined to accept the interpretation urged by the respondent, which is that this difference in the amount of pension to which a member of the force would become entitled was intentionally created by the Legislature in cases like the present to encourage and reward voluntary retirement on the part of the member. The application is, therefore, derned, but without costs.

Motion denied, without costs.  