
    The People of the State of New York ex rel. William A. Young, Respondent, v. Thomas Sturgis, as Fire Commissioner of the City of New York, and Richard H. Laimbeer, Jr., as Deputy Fire Commissioner of the City of New York, for the Borough of Brooklyn, Appellants.
    
      Right of a member of the uniformed force of the New TorhfU'e department, injured while in the active discharge óf his duties, to -be employed in some inactive service at the same salary—notice to him of a hearing before dismissal.
    
    The fire commissioner of- the city of New York directed two surgeons attached to that department to examine a member of the uniformed force of the department who had been injured while discharging his duty at a fire on a steam, .ship. These surgeons reported that the fireman “is permanently disabled from performing any duty ás a fireman. January 15, 1902, he fell in -hold of a vessel, fracturing the brim of his pelvis. He is now1 permanently lame; one leg, owing to contraction, is three-quarters of an inch shorter than the other. He also suffers from continual neuralgia.”
    
      
      Meld, that the words “duty as a fireman” should be interpreted as meaning “ active duty in the uniformed force; ”
    That if the injured fireman, although permanently disabled from performing active duty in the uniformed force of .the department, was still able to perform certain! other special services in the department which did not require active service a si a fireman, he came within the clause of section 790 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which provides: “But should permanent disability caused by injuries received in the active discharge of his duties disqualify him only from performing active duty in the uniformed force, he shall be employed at the salary received when such disability occurred in some position in the department not requiring active service as a fireman; ’’
    That the clause of section 790, providing that in every case the fire commissioner shall determine the circumstances of disqualification, was qualified by the clause quoted and was subordinate thereto;
    That the weight to be given to the determination of the commissioner in a particular case would be weakened, if not destroyed, if it appeared that the fireman affected by the determination was not given notice or an opportunity fo be heard.
    Appeal by the defendants, Thomas Sturgis, as fire commissioner of the city of New York, and another, 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, 1903, granting the relator’s motion for a peremptory writ of mandamus requiring the defendants to employ the relator in some position in the fire department of the city of New York, not requiring active service as a fireman, at the same salary he received before he became disqualified from performing active duty by reason of an injury received in the performance of his duties.
    
      James McKeen [P. E. Calahan with him on the brief], for the appellants.
    
      Joseph A. Burr, for the respondent.
   Goodrich, P. J.:

This appeal is from an order of the Special Term granting a peremptory writ of mandamus requiring the defendants forthwith to “ employ the said William A. Young in some position in the Department in the City of New York, not requiring active service as a fireman, at the same salary he received when he became disqualified from performing active duty in the uniformed force while in the active discharge of his duties as such fireman at a fire in the City of Hew York, and to return to him his shield, buttons and other insignia of office, and permit him to perform the duties of such position.”

The relator was appointed a member of the volunteer fire, department of the former town of Gravesend in March, 1892, and served until December, 1895, when the department was disbanded by reason of the consolidation of the town of Gravesend with the city of Brooklyn on May 3,1894 (Laws of 1894, chap. 449), pursuant to which act the relator became a member of the Brooklyn fire department. He continued as such until the creation of the city of Hew York under the Greater Hew York charter (Laws of 1897, chap. 378) on January 1, 189.8, and after that time continued to perform active duties as a fireman until January 16, 1902, when he was seriously injured in the discharge of active duty while attending a fire on a steamship and became permanently disabled for the performance of active duty in the department. He was, however, able to perform such services in the department as do not require active service as a fireman. There are other members of the department, of the same grade as the relator, who are able to perform active duty as firemen and who are detailed to perform special duty which the relator is able and- qualified to perform, although he is unable to perform active service as a fireman.

Until September 1, 1902, the relator was carried on the payrolls of the deparment as a person absent on sick leave. On August 27, 1902, he received a notice that he had been retired as of September 1,1902, on a pension equal to one-half his salary, and he was ordered to, and did, return the insignia of his office to- the deputy fire commissioner in the borough of Brooklyn. He received no notice of any hearing to determine the extent or cause of his disability, and . the next day he requested an assignment to some position in the department not requiring active service as a fireman, and was informed by the commissioner that he would withdraw the notice retiring him on a pension-, and the commissioner took such notice back from him. Since that time he has several times renewed his application.

In July, 1902, the fire commissioner asked two of the surgeons of the department for an opinion as to the relator’s physical and mental fitness for service, and they reported that he “ is permanently disabled from performing any duty as a fireman. January 15,1902, he fell in hold of a vessel, fracturing the brim of his pelvis. He is now permanently lame; one leg, owing to contraction, is three-quarters of an inch shorter than the other. He also suffers from continual neuralgia.” On September 5,-1-90-3,—ihe relator was informed by the acting chief of the department in Manhattan that he would be detailed to duty at the Catholic Protectory institution in Westchester, a position which he is qualified to fill, and he was ordered to call at the office of the deputy fire commissioner in Brooklyn and receive his insignia. This order he obeyed, but he did not receive the insignia, and since that time has received neither pay nor pension.

The Greater New York charter (§ 790, as amd. by Laws of 1901, chap. 466) provides with minuteness for all cases of partial or total permanent disability. It is only necessary to refer to that part of the section which clearly and explicitly relates to the condition of the relator: “But should permanent disability caused by injuries received in the active discharge of his duties disqualify him only from performing active duty in the uniformed force, he shall be employed at the salary received when such disability occurred in some position in the department not requiring active service as a fireman.” ■

The defendants’ only answer is that in July, 1902, they ordered an 'examination of the relator by the surgeons who reported as above. They do not allege that the relator was permanently or totally disqualified for service other than “ duty as a fireman,” which is to be interpreted as meaning “active duty in the uniformed force,” referred to in section 790. If the relator was not permanently disqualified for all kinds of duty which the uniformed force are performing, the commissioner had no power to retire him on pension but should have employed him in some position not requiring active service or, as it is defined in another part of the section, “ light ■duties.” The evident intention of this provision of the charter is to encourage brave and faithful discharge of an active fireman’s •dangerous duties, and if, in the discharge of such duties, he receives injuries which do not totally and permanently disqualify him from all duties in the department, he shall be employed in “ light duties ” and his salary shall be- continued.

The appellants contend that the section provides that in every case the fire commissioner is to determine, the circumstances of disqualification. This, however, is qualified by the portion of the section above quoted and is subordinate thereto. Besides, his determination in this case is weakened, if not destroyed, by the fact that the relator had no notice or opportunity to be heard.

The order should be affirmed, with ten dollars costs and disbursements.

Bartlett, Hírschberg, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  