Citation Numbers: 35 N.Y.S. 311, 89 Hun 452, 96 N.Y. Sup. Ct. 452, 69 N.Y. St. Rep. 755
Judges: Parker
Filed Date: 10/18/1895
Status: Precedential
Modified Date: 1/13/2023
It is the contention of the relator that a policeman who has been on the force 20 years, and who at the time of his application for retirement has no charges pending against him, is, as a matter of right, entitled to be retired. His claim is based upon section 307 of the consolidation act, as amended by section 2 of chapter 364 of the Laws of 1885, which reads as follows:
“Any member of the police force who has, or shall have, performed duty therein for a period of twenty years or upwards, upon his own application in writing, or upon a certificate of the board of surgeons, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, or who shall have reached the age of sixty years, shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund. * * * ”
In view of the decisions in People ex rel. Bolster v. French, 46 Hun, 232, and People ex rel. Brady v. Martin, 145 N. Y. 253, 39 N. E. 960, we regard this question as settled adversely to the relator. In both cases the statute upon which relator relies was considered by the court. In Bolster’s Case the court held that the statute does not entitle a policeman to be retired unless he can obtain the favorable vote of a majority of the board sustaining his application; that the law does not declare that the board shall retire him. or direct that
“And any member of the police force who has, or shall have performed duty therein for a period of twenty-five years or upwards * * * 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 board and placed on the roll of the police pension fund. * * *”
If it was the understanding that the statute in existence, and which the legislature re-enacted, compelled the retirement of any policeman requesting it against whom no charges were pending, after 20 years’ service, then surely the provision quoted was superfluous. It appears by the return that the relator first made application for retirement about the 13th day of December, 1894, and that later, and about, the 11th day of April, 1895, he presented a petition to the respondents, in which he said, among other things, that he had been for several years a great sufferer from inflammatory rheumatism, and that he was at the time suffering from a permanent .disability in one of his feet, by reason of which he was considerably disabled. On the day that the petition was presented to the board, action was taken thereon, by which it was referred to the board of surgeons for report. Five days later the board of surgeons made a report to the
The writ should be dismissed, with costs. All concur.