This appeal requires a construction of the language,of section 15 of title 13 of the former charter of the city of Brooklyn (Laws of 1888, chap. 583), as amended by chapter 153 of the Laws of 1889,, and a decision as to whether the word may as therein used is tantamount to must.
The relator is the widow of. John Tobin, who died 'November 1, 1895, and who, after having been for more than ten years a member of the fire department of Brooklyn, had been retired upon a pension, in accordance with the provisions of the section in question. She applied for a peremptory writ of mandamus to compel the fire commissioner to pay her the sum of- $1,350, the amount of pension alréady accrued since the death of her husband, to place her name on the list of those entitled to pensions and to pay her $300 annually until her death or remarriage.
The provision of section 15, so far as important to our discussion,, reads as follows: “ If any * * * member of the department * * * shall die after ten continuous years in the service of the department * * * or shall die after having been retired from active service, leaving a widow,'the name of such widow may be placed on such pension-roll, and there may be granted and paid to-said widow a pension of three hundred dollars per year, from said fund, so long as she remains unmarried. * * * In every case the commissioner shall determine the circumstances thereof, "* * * but nothing herein contained, shall render any payment of said pension obligatory upon the said commissioner * * * . or charge- . able as á matter of legal right upon the said Firemen’s Insurance Fund. The commissioner or commissioners of the fire department,, in his or their discretion, for proper cause and after investigation, may at any time order such pension, or any part thereof, to cease.”
By section 791 of the Greater New York charter -the relator is entitled to receive from the respondent commissioner the same amounts to which she would have been legally entitled prior to its passage from any pension or relief fund theretofore existing in the city of Brooklyn. - '
The relator contends that the word may is to be Construed as must, and calls the attention of the court to its previous decision in Matter of Tobin (53 App. Div. 453; affd., 164 N. Y. 532), in which, Mr. *381Justice Hirschbeeg- writing, it was said (p. 458) : “ It is a familiar rule that where a statute clothes a body or officer with power to do an act which concerns the public interests or the rights of individuals, though the language of the statute be permissive merely, it will be •construed as imperative, and the execution of the power may be insisted upon as a duty. In such cases the word ‘ may ’ is construed as ‘ must.’ ” (Citing cases.)
This language was used with reference to the question then before the- court, i. e., that the enforced deduction of one dollar monthly from the pay of a member-of the department entitled his widow to the pension, notwithstanding the fact that her husband, after a time, Fad refused" to submit to, and had not been compelled to pay, further monthly deduction. This related to a different part of the section from that now under consideration, and does not affect our present discussion. There are numerous decisions sustaining the doctrine stated by Mr. Justice Hirschbeeg, among them Hutson v. Mayor (9 N. Y. 163) and People ex rel. Otsego County Bank v. Supervisors of Otsego Co. (51 id. 401). But in cases where an individual is concerned it is a legal right that is referred to. In the present proceeding the question is whether the relator has an absolute legal right to the pension. If she has, the word may must be construed as meaning must. If she has no such absolute right, then the court is not bound by authority so to construe it.
Resort must be had to the language of the statute to ascertain whether a positive duty to pay the pension in question is imposed upon the commissioner. The language seems to me such that discretionary power to pass upon the right to a pension is conferred upon the commissioner. He is authorized to “ determine the circumstances thereof.” Even if it should be held that these words were not sufficient to show the conferment of discretionary power, the section goes further and expressly declares that “ nothing herein contained shall render any payment of said pension obligatory * * * or chargeable as a matter of legal right ” upon the fund. It is only When a positive duty, as distinguished from a discretionary power, is intended to be imposed that the word may is to be construed as must. (Hagadorn v. Raux, 72 N. Y. 583.)
Tnas.mueh as the statute confers upon the commissioner discretionary power, not only as to the original granting of the pension but *382also as to terminating it when circumstances render that conclusion proper, I am led to the conclusion that the relator had no absolute legal right to the pension, and consequently that may in the section referred to must be given its plain and ordinary meaning.
The petitioner, having no absolute right to the pension, was bound to prove affirmatively conditions and facts upon which, in justice and in accordance with the purpose and intent of the act, she ought to receive the pension. It appeared by the return that her husband was retired from the department in November, 1895, on account of his haviqg pMJñsis jpulmonalis ; that he died in April, 1896, and that lie received a pension from the fire department up to the timé of liis death. It ¡also appeared that the petitioner had received $lj000 out of the fire department widows and orphans’ relief fund, but it did not appear that she was in destitute circumstances or required'the pension for her support.-
It must be presumed that the commissioner, being a public officer, did not act arbitrarily in the exercise of his discretion. Every public officer is presumed to have done his duty.
I do not' mean to be understood as declaring that this court may not in a proper casé review the action of the commissioner and ascertain whether or not he has fairly exercised the discretion conferred upon him by the statute. In the present proceeding I cannot say that the commissioner, upon the facts before him, did not exercise a fair discretion and come to a just conclusion.
I think that the order should be affirmed.
Order reversed and alternative writ of mandamus ordered.