Kenny v. Valentine , 295 N.Y.S. 359 ( 1937 )

This is an action brought by a retired police sergeant to recover as for payments from the police pension fund at the rate of $614 per annum which were discontinued when the plaintiff accepted employment in the city service as superintendent of sewers at a salary of $5,250 per annum. Plaintiff has recovered judgment in the Trial Term. Judgment reversed on the law, with costs, and judgment directed for defendant dismissing the complaint on the merits, with costs. The plaintiff’s service in the police department was for a period' of fourteen years, and hence the annual award of $614, which was paid to him for many years, was purely a grant subject to cease at the discretion of the police commissioner. (Greater New York Charter, §§ 354, 356.) In our opinion the proof fails to establish that the discontinuance was not as a result of a proper exercise of discretion. While the file of the department shows that the pension was apparently suspended under the mandatory provisions of section 1560 of the charter, under the doctrine that public officers are presumed to act properly, the presumption is that the commissioner revoked the pension in the exercise of discretion under section 354, and the proof has not overcome that presumption. Lazansky, P. J., Johnston, Adel and Taylor, JJ., concur; Hagarty, J., dissents and votes to affirm on the ground that the pension did not “ cease ” nor was it “ diminished,” pursuant to section 356, but was “ suspended ” pursuant to section 1560, and specific reference was made to action under the latter section.