Citation Numbers: 95 A.D. 426, 88 N.Y.S. 722
Judges: Ingraham
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
It appears that some time in the year 1899 a voluntary association composed of the sergeants of police of the city of New York was organized, of which the defendant was president. A constitution was adopted which provided that the object of the society was to secure to its members the benefit- of an endowment and benefit fund to be applied according to the provisions of the constitution and by-laws, and to take such action as might be deemed necessary to promote the interests of the members of the society as individuals and as officers ; that sergeants of police of the city of New York were eligible to initiation and to retain active membership; that upon the dismissal from the police force of any member of the society who was in good standing with the society at the time of such dismissal, he should within thirty days receive from the treasurer of the society the sum of $250; that within ten days after receipt of official notice of the death of a member of the society who shall have been at the time of his death in good standing with the society, the treasurer of the society shall pay to such person as said member may have designated as his beneficiary the sum of $250. By a resolution, dated December 11, 1900, the amount payable upon a dismissal from the force, or the death of a member, was raised from $250 to $350, and no payment was to be made upon the retirement of a member of the society as a police officer. The constitution further provided that the initiation fee should be $1 and the dues should be $6 a year, payable monthly in advance at the regular monthly meetings ; that “ Any member of the society who is in arrears as to payments of dues for three months is not in good
It appeared that the plaintiff became a member of this society in the year 1899, and paid his dues up to the month of June, 1902; that in October, 1902, he received notice that he had been dropped from the society for non-payment of dues, whereupon he sent to the financial secretary $2, which was returned to him upon the ground that he had ceased to be a member of the society. The plaintiff testified that he asked the president of the society whether, if he paid $25 under protest, he would be admitted as a- member of the organization, but was informed that it would do no good, as he would have to be three months in good standing. On the 25th day of November, 1902, the plaintiff was dismissed from the police department upon charges, and subsequently demanded from the defendant payment of the sum of $350 that he claimed to be entitled to receive under the constitution, which was refused, whereupon he brought this action to recover that amount.
IJpdn the trial in the Municipal Oourt, at the close of the plaintiff’s case, the complaint was dismissed upon the ground that this provision of the constitution by which a member of the police force was to receive a gratuity upon his dismissal from the police force for a violation of his duty was against public policy as a premium for an indemnity to the officer for a failure to perform his duties as a police officer; and from the judgment dismissing the ' complaint the plaintiff appealed to the Appellate Term, where the judgment was affirmed, and then, with leave of the Appellate Term, plaintiff appealed to this court.
It. was conceded that the plaintiff was a member of this society prior' to June, 1902; that in October,. 1902, he received notice that he had been dropped from the society for non-payment of dues, but the plaintiff claims that such dismissal was illegal and'unauthorized by the constitution. There was no proof that the provisions of this article of the constitution as to notice to a member whose dues
The case was disposed of, however, by the Municipal Court upon the ground that this provision of the constitution would not be enforced as it was against public policy; and as we agree with the Municipal Court, it is not necessary to determine whether the plaintiff was a member of the association at the time of his dismissal. As originally organized.the association undertook to pay to each of its members a sum of money upon the happening of one of three events — his dismissal from the force, his retirement, or his death. There could be no objection to an association organized to pay to its members a sum of money upon their retirement from the police force, or upon the death of a member of the association. By the amendment the- association undertook to pay to each member an increased sum of money upon the dismissal of a member from the police force, or upon his death.
The police commissioner’s power to dismiss a member of the uniformed force is provided by the revised charter (Laws of 1901, chap. 466). Section 300 of that charter provides as follows: “ The police commissioner is authorized and empowered to make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and police force and the members thereof. He shall have power and is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against any member or members of the said police force, but no member or members of the police force except as otherwise provided in this chapter shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until
Section 302 of the revised charter gives the commissioner power, in his discretion, on conviction by him, or by any court or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline, to punish the offending party by dismissal from the force.
The statute confers upon police officers a permanent position, subject to removal only in case of conviction for a crime, or for a violation of police duty which renders the officer unfit to be on the force, except in the case of an officer becoming insane, and thus incompetent to perform police duty. While possibly it is not correct to say that no officer can be removed except upon his conviction upon a criminal charge, yet before an officer can be dismissed from the force he must have been convicted of such a breach of discipline or such immoral conduct as to indicate a disregard of the obligations assumed upon his joining the force, -and that the officer thus convicted is an improper person to be continued upon the force. ..This policy has been adopted as an incentive to those appointed to honestly perform the duties of their position without fear or favor, they being secure in their position so long as they retain a good character and properly perform their police duties. And to prevent an unjust conviction by the police commissioner the officer dismissed is given the right of appeal to the courts to review the action of the police com. missioner in his dismissal. Considering this motive in .securing to a police officer the . retention of his position, any arrangement or agreement between the officers of the force which would tend
It follows that the judgment appealed from must be affirmed, with costs.
Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment affirmed, with costs.