
    The People of the State of New York ex rel. John Jennings, Appellant, v. Joseph Johnson, as Fire Commissioner of the Fire Department of the City of New York, and as Trustee of the New York Fire Department Relief Fund, Respondent.
    Second Department,
    April 3, 1914.
    Mandamus — appeal from alternative writ — effect of failure to move for new trial — municipal corporations — pensions of firemen in the city of Mew York, retired for injuries suffered in course of duty — injury causing insanity—laches—reduction of pension — when peremptory writ should issue.
    Where the jury finds for the relator on the trial of an alternative writ of mandamus, but a motion for a peremptory writ is denied, the verdict cannot be reviewed upon appeal where there was no motion for a new trial.
    Where a member of the fire department of the city of New York was retired from active service and his name placed upon the pension roll because he received an injury to the skull which rendered him insane for fourteen years, when he was restored to sanity by a surgical operation, he cannot be charged with laches in subsequently delaying for two months before applying for a writ of mandamus to compel the fire commissioner to increase his pension to the amount he was lawfully entitled to receive under the statute. This is true although he received a less amount, through his guardian, during the period of his insanity. An insane person cannot be guilty of laches.
    Where the relator was retired and placed upon the pension list, pursuant to section 790 of chapter 378 of the Laws of 1897 (Greater New York charter), providing that the annual pension, in case of permanent disability caused by the actual performance of duty, shall be one-half of the annual compensation, if the condition of the pension fund warrant, and on the trial of an alternative writ the jury finds that the relator was injured in the course of his duties and was originally pensioned at one-half his annual salary and that the fund was adequate, such findings not being brought up for review, a peremptory mandamus should issue requiring the fire commissioner to restore the relator to the full pension, although the original papers fixing that pension were after-wards changed so as to reduce the amount.
    Appeal by the relator, John Jennings, 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 Queens on the 23d day of December, 1913, denying relator’s application for a peremptory writ of mandamus.
    
      Augustus L. Richards, for the appellant.
    
      Frank Julian Price [James D. Bell and Archibald R. Watson with him on the brief], for the respondent.
   Jenks, P. J.:

The relator moved for an alternative writ of mandamus. The writ was allowed, the defendant made return, the issues were tried at Trial Term, the jury returned its verdict for the relator upon all the facts contained in the writ, but a motion thereupon made for a peremptory writ at Special Term was denied, and the relator appeals from the order of denial.

The verdict of the jury is not before us for review upon the facts, inasmuch as no motion was made for a new trial, an order entered thereupon and appeal taken therefrom. (People ex rel. Berlinger v. Wells; 178 N. Y. 415.) It must, therefore, be regarded as conclusive upon the facts litigated at trial. (People ex rel. McDonald v. Clausen, 163 N. Y. 523.) Consequently the following facts were before the Special Term.

The relator, a member of the fire force ranking as an engineer, was retired from active duty and placed upon the retired list by an order of the commissioner of fire, made, entered and promulgated on June 5, 1899, to become effective at 8 A. m. of June 6, 1899. The order recited, whereas it appeared from the report of the medical officers of June 1, 1899, that the said relator was totally and permanently physically disabled for performance of duties and such disability was caused in or induced by the actual performance of his duties, that under the provisions of section 790 of chapter 378 of the Laws of 1897 (Greater New York charter) the said relator was retired at an annual pension. The amount of the pension originally named in the order was $800 per annum. On June 5, 1899, the order was entered, officially recorded and transmitted to the quarters of relator’s company about 6 P. M. of that day. After 10:20 A. M. of June 6th, erasures and substitutions were made in said order, which had been called back, and also in the records in the office of the fire commissioner, by which the figures 800 were erased and in place thereof the figures 533.33 were substituted, and a similar change was made in the paper purporting to be a copy of the order filed in the pension bureau. The said medical certificate referred to in said order was changed by inserting the word “not ” so that it appeared that the relator was not injured in the line of duty. But the order in its present form still recites the certificate of the medical examiners as showing that the relator was permanently injured in the line of his duty. The changes in the order and records were made by a clerk, who did not remember by whom he was directed and who could not remember whether it was the commissioner or the secretary. The clerk did not remember whether he had an order to make the change, but “ must have.” The said insertion of the word “ not ” was made by one of the medical examiners by way of correction to “ conform ” to the wishes of the other physicians. Whatever change was made was made in the medical office. But he who made the change did not recall any time when it was changed. He testifies that the certificate might have been sent back to him later.

In June, 1898, the relator went into the hold of a fire boat to clean out ashes from the rear of the boiler. That work required a lantern. The lantern suddenly went out and left the relator in darkness. He seized the lantern to relight it, and burned himself so that in starting back he accidentally struck his head against an iron bulkhead. In consequence of his injuries and within the next month the relator was adjudged insane, was incarcerated in two asylums and one sanitarium, and remained insane until in or about 1913. In May, 1913, he underwent a second surgical operation, requiring trephining, which restored him to sanity. The relator now remembers that he received his pension every month, and that he signed a paper of some kind. He was released from Bloomingdale Asylum and went or was taken to Ireland by his brother, who had been sent for, and when he came back he signed a number of papers; and subsequent to October, 1912, he appeared at the pension bureau and signed receipts—a part of the time before his last operation and a part of the time afterwards. But between October, 1909, and October, 1912, he received his pension through a guardian. These proceedings were begun in July, 1913.

The opinion at Special Term shows the denial was in the exercise of discretion “ upon the ground of the relator’s laches in not making his application for many years, although throughout the period he received without question the pension at the yearly rate of $533.33,” and the single authority cited is People ex rel. Miller v. Sturgis (82 App. Div. 580, 583; appeal dismissed, 178 N. Y. 632).

I think that laches cannot be attributed to the relator. A finding of fact binding upon the court is that shortly after the accident the relator became insane and remained insane until in or about the year 1913, which latter period is made more definite by the testimony of the surgeon who performed the second operation, as May, 1913. As we have seen, this proceeding was begun in July, 1913. An insane person cannot be guilty of laches. Pomeroy on Equity Jurisprudence (1 Pom. Eq. Rem. § 30) says: “Laches cannot be imputed to one of unsound mind; and this rule holds, although'the next friend who brings the suit is clearly guilty of laches.” (See, too, 18 Am. & Eng. Ency. of Law [2d ed.], 107,108.) In Cyc. (Vol. 16, p. 168) it is said: “Laches cannot be imputed to one of unsound mind, and mental affliction not wholly incapacitating plaintiff may excuse delay where defendant is not prejudiced.” (See, too, Dodge v. Cole, 97 I11. 338; Trowbridge v. Stone, 42 W. Va. 454; Kidder v. Houston, 47 Atl. Rep. 336.) In Laws of England, by Earl Halsbury (Vol. 13, p. 170), it is stated: “As regards capacity, there is no acquiescence, and laches is not imputed, while the party is under the disability of infancy or lunacy.” Further, we held in Matter of Ramsay v. Lantry (123 App. Div. 71) that the rule of laches declared by the courts in respect to applications to be reinstated in an office or place, has no application where the statute duty of the fire commissioner was to fix the pension at $800 and he had fixed it at $533.33, for the reason that a person dismissed should be prompt to seek relief, and not wait until another had become seasoned to his place, or the condition of the department has become adjusted to his absence,” but that such reason does not apply where one asked but for what he was entitled to, and the relief afforded could harm none other. And we expressly named.and thus practically distinguished the sole case cited by the learned Special Term in its opinion in this case.

Upon such procedure as was followed in this case a relator has not an absolute right to the peremptory writ. For a defendant may object to “a want of sufficient title in the relator to the relief sought, or show any other defect in substance,” though he cannot, after the return, object to defects of form. (Commercial Bank of Albany v. Canal Commissioners, 10 Wend. 25; affd. as the rule in People ex rel. Dunkirk, etc., R. R. Co. v. Batchellor, 53 N. Y. 138; People ex rel. Fogarty v. Cassidy, 118 App. Div. 695; People ex rel. Ajas v. Department of Health, 138 id. 561.) But I think in this case the relator was entitled to the writ. The order of retirement was made pursuant to section 790 of chapter 378 of the Laws of 1897 (Greater New York charter), which provides that the amount of the annual pension in case of total permanent disability caused in or induced by the actual performance of duties shall be one-half of the annual compensation if the condition of the pension fund warrant. It was established that the relator’s compensation at the time of his retirement was $1,600 per annum, and that the pension fund was adequate. The order was originally made, published, entered and transmitted in accordance with this statute, and the relator was accordingly retired. It became effective at 8 A. M. on the 6th of June. The verdict determined that the pension determined by the order when it went into effect was at the rate of $800 per annum. It does not appear that the subsequent changes were made by an attempted exercise of authority by the commissioner of fire. If it did so appear, then an interesting question would be presented, whether after the determination had been made and an order thereon had gone into effect, the commissioner could arbitrarily, without notice or further proceeding, reduce the pension by inserting a lesser sum in his order and in his official entries. For the statute provides that such pension when granted shall not be revoked, repealed or diminished. (See, also, Laws of 1901, chap. 466, § 790.)

The remedy of mandamus was sought properly. (Ramsay v. Hayes, 187 N. Y. 367; Matter of Ramsay v. Lantry, supra.)

The order is reversed, with costs, and the case remitted to the Special Term for the issuance of a peremptory mandamus.

Burr, Thomas, Carr and Putnam, JJ., concurred.

Final order reversed, with costs, and case remitted to the Special Term for the issuance of a peremptory mandamus.  