
    In the Matter of the Application of Joseph H. Friel, Appellant, for a Peremptory, Writ of Mandamus against William McAdoo, as Police Commissioner of the Police Department of the City of New York, Respondent.
    
      Bight of retirement after twenty years’ s&'vice of a member of the New York city police force, transferred from, the city of Brooklyn, before twenty years’ service in that city — the exercise of a discretionary power not compelled by mandamus.
    
    Sections 41 to 43, inclusive, of title 11 of the charter of the former city of Brooklyn (Laws , of 1888, chap. 583), creating a police pension fund for disabled and retired policemen in the city of Brooklyn, subdivision 6 of section 43 of title 11 of which entitled a member of such “police forcé who had served twenty years to be retired on his own application, was merged in section 355 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), creating a pension fund for the police force of the consolidated city.
    “Consequently, a member of the police force of the city óf Brooklyn who, at the time he-was transferred to the police force of the consolidated city had not served twenty years, is not, upon completing his twenty-year term of service, entitled, as a matter of right, to demand his retirement on a pension, as section 355 of the Greater New York "charter confers no such right upon him, but simply gives, to the police commissioner the power, in his discretion, to retire him.
    ‘The exercise of such power cannot be compelled by mandamus.
    
      Appeal by the petitioner, Joseph H. Friel, from an order of the Supreme ■ Court, made at the Kings County Special Term and-entered in the office of the dlerk of the county of Kings on the 5th day of October19047 denying the petitioner’s motion for a peremptory writ of mandamus. ' ■ .
    
      Jacob Rouss [Louis J. Grant with him on the brief]; for the appellant.
    
      James D. Bell [John J. Delany with him on the brief], for the respondent.
   Woodward, J. :

The relator was appointed to the police force of the city of Brooklyn on or about the TOth'day of January, 1884, and became a 'member of the police force of the.city of Kew York by virtue of the provisions of chapter 378 of the Laws of 1897, and has since continued to be a member of such force. On or about the 15th day of March, 1904, he caused a demand to be made upon the police commissioner that lie be retired upon a pension, as provided by law, because appellant had served in the police department for upwards of twenty years. . This demand was denied, and the relator, has -sought by a peremptory writ of mandamus to compel the police commissioner to retire him. , The application for such writ was denied,by the learned court at Special Term,'the relator appealing from the order denying-the relief.

The charter of the former city of Brooklyn (Laws of 1888, chap. 583,' tit. 11,' §§ 41-43)'provided for the creation of a police pension "fund for disabled' and retired policemen in .the city of Brooklyn, ■ and subdivision 6 of .section 42 of title 11 of such charter provided.: “Any. such member of the-police, force or attache of said police department'who' has or'shall have performed police duty for a period, of twenty years or upwards, shall, upon his own application in writing, be retired from service and placed upon the pplice pension roll, and thereupon shall' be awarded,- granted arid paid from .said police’ pension fund by the trustees thereof, an annual sum during his life-time'equal to' one-half the full pay of a member of sáid police force of the rank of the member so retired.” The. question presented on this appeal is whether this provision of law survived the act of 1897, under section 1 of which the city of Brooklyn was merged in and consolidated with the city of ¡New York, the charter of which latter city provides a different scheme of police pensioning. Wé are of opinion that it did not, and that the relator’s rights must be determined by the provisions of law as they now exist.

Section 355 of chapter 378 of the Laws of 1897, being the Greater '¡New York charter, as amendéd by and re-enacted in section 355 of •chapter 466 of the Laws of 1901, provides, in so far as- it has any bearing upon'the question here at issue, as follows: “Any member of the police force being of the age of fifty-five years who has or shall have performed duty on such police force as aforesaid for. a period of twenty years or upwards, upon his own application in writing, may, or upon a certificate of so many of the police surgeons as the police commissioner may require, showing (that) a member of whatever age who has served twenty years is permanently disabled, physically or mentally so as to be .unfit for duty, shall, by order of the police commissioner, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted, to be paid from said pension fund, an annual pension during his lifetime ‘ of a sum not less than one-half of the full salary or compensation of such member so retired; and any member of the police force who has, or shall have-performed duty on any such force aforesaid, for a period of twenty-five years or upwards, being of the age of fifty-five years, * * •* 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 department and placed on the roll of the police pensidn fund, and awarded and granted, to be paid from said pension fund, an annual pension during his. lifetime of the sum not less than one-half of the full salary or compensation of such member so retired; * * * provided, however, that no member of either of the police forces by this act consolidated, having a right to retire upon a pension at the time this act takes effect, shall be deprived of such right by reason of. his remaining upon the police force, or of anything in this act contained.” That is, any one who had acquired the right to retirement under the provision's of the act relating to the Brooklyn police pension fund, at the time that this act went into effect, was not to lose this right by retaining his. place upon the active police force of the city of 'Greater New York, but as to those who had not gained the right to retirement on a pension a new rule was established, and the section last above cited provided that in determining the terms of- service of any member of the police force,, service in the municipal and metropolitan, force; and subsequently in the police force of The City of New York, as heretofore constituted-, or in any police force within the limits of The City of New York as hereby constituted, arid thereafter in' the police force created by this act, shall be counted and held- to be service in the police force of The City of New York for all the purposes of this, chapter.’’ - '■

There, can be no mistaking .the .purpose of this, legislationit.co.ntemplated the abolition of the special acts in reference to the police pension fund of the city -of Brooklyn, preserving the rights which had become fixed under those statutes at the time óf the Greater New York charter going into effect,, and establishing a new pension fund to be applied on terms of equality to all of the members of the police force of the consolidated city, but permitting all police officers of the various municipalities to be credited with the length of time which they had been in the public service. The relator had no vested right in an act of the Legislature; the State, in the exercise of its sovereign authority, .might have repealed absolutely the statute of 1888 under which he- claims,, and it might have abolished the office of policeman in the city of Brooklyn, orhave destroyed absolutely the municipal corporation, and the relator would have had'no legal right to complain., (See Pennie v. Reis, 132 U. S. 464, 470, 471.), The

Legislature has, however, contented itself with what amounts to an amendment -of subdivision 6 of section 42 of title 11 of chapter 583 of the Laws of 1888,.-and- has givén the police -commissioner the power to retire’ the relator after serving twenty years, if lie is at that time fifty-five years of age. This is, however, a discretionary power, and one which cannot be-compelled by mandamus. "When the relator has served twenty-five years, computing the time from his original appointment to the police force of the city of Brooklyn, if he is then' fifty-five years of age, and- there are no charges pending against him, he will be entitled to retirement; but up to that time the law. simply gives permission for his. retirement at the discretion of the police commissioner, and as this court is with.out power to control the discretion which the law has placed in the police commissioner, it follows that the relator cannot gain lipón this appeal the relief which he seeks.

The order appealed from should be affirmed, with costs.

Hirschberg, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  