On May 11, 1903, the relator, a captain on the police force of the city of New York, applied in writing to the respondent, the police commissioner of said city, to be retired from service and to be placed upon the police pension roll, with an award during life of half-pay, amounting annually to. the sum of $1,375. The application was denied by the commissioner for the reason that serious charges of neglect of duty which, if proven, might justify his dismissal from the force, had been duly preferred against the relator on'May 6, 1903, and had resulted in his lawful suspension from active service on May 7, 1903, but upon which charges he had not been tried at the time of the application. The order appealed from requires the commissioner to retire the relator in accordance with his application, and can only be supported upon affirmance of the proposition that his right to be retired upon a life pension is so absolute in its nature"that it cannot be defeated by his own misconduct.
The assertion of this unusual right is based upon a literal-reading of the statutes governing the case without giving due regard to their undoubted intent and beneficial purpose. The relator has been a policeman for thirty-six years in the borough of Brooklyn, and at the time of the consolidation of the constituent municipalities in the formation of Greater New York was entitled to be retired as a police-captain in accordance with the terms of subdivision 6 of section 42, title 11, of the Consolidation Act, relating to the city of Brooklyn. (Laws of 1888, chap. 583). .That subdivision x provides that any member of the police force who shall have performed police duty for twenty years or upward “ shall, upon his own application in writing, be retired from service and placed upon the police pension roll, and thereupon shall be awarded, granted and paid from said police pension fund by the trustees thereof an annual sum during his lifetime equal to one-half the full pay of a member of said police *591force of the rank of the member so retired.” By the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) provision is made for the pensioning of members of the consolidated police force by the terms of section 355, and the relator’s right to be retired upon a pension because of the length of the service rendered by him before consolidation is expressly preserved by. the proviso that “ no member of either of the police forces by this act consolidated, having a right to retire upon a pension at the time this act takes effect, shall be deprived of such right by reason of his remaining upon the police force, or of anything in this act contained.”
It seems to me that the object of the two statutes which I have quoted is quite apparent, and that it does not -include the creation of an indefeasible right to retirement, notwithstanding that the member seeking to be retired has been guilty of gross misconduct in office. The provision in the statute relating to the city of Brooklyn is like all pension provisions designed to encourage long and faithful service by the assurance of ultimate honor and the reward of a lifelong competency. While there is no provision in the statute to the effect that the applicant for retirement must be in good standing at the time, it must be assumed from the very nature and purpose of a pension that no successful application could be made by one who was under suspension pending the trial of charges relating to his official conduct. The pension roll is a roll of honor — a reward of merit, not a refuge from disgrace — and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior. If this view of the statute is correct, it follows that the relator’s right to retirement at the time of consolidation was subject to his continued good behavior. This right continued after consolidation, for the provision of the greater charter hereinbefore quoted is manifestly intended to give to the relator the benefit of his long service in the city of Brooklyn, and not to require him to serve anew the prescribed period in the greater city. Be that as it may, however, it cannot be said that the relator is deprived of any right by reason of his remaining upon the police force after consolidation, or by reason of anything contained in the Greater New York *592charter (supra). He is deprived of the right to retire because he has been suspended from the force until the charges pending against him have been tried, and should he be unfortunately convicted and' dismissed as a punishment, his right to retirement would be lost by his own delinquencies, and not in a legal sense by reason of his continuance in service. His suspension was authorized by section 292 of the greater charter (supra), and such suspension naturally and necessarily carried with it for the time being suspension from the enjoyment of the privileges as well as from the performance of the duties incident to the position.
The general provisions of the greater city charter relating to the police force indicate a design to form a homogeneous police system which should preserve to those who have served outside of the territory of the former city of New York such rights as are essential to the claims- of justice without sacrificing the elements of unity and equality. If an intention existed to confer upon a favored class the special privilege claimed by the relator, it should have been manifested by explicit expression. It should not be construed into the law, for its effect would be not only to work injustice upon the other members of the force, but to greatly impair the efficiency of the department as a whole; for nothing can be imagined more likely to discourage ambition, to destroy discipline or to stifle stimulus, than the creation of a privileged class- among the police who should be possessed by law of the absolute right to avoid the consequences of violation of duty by the mere voluntary adoption of an honorary retirement enriched by the enjoyment of a life annuity.
The order should be reversed and the proceedings dismissed.
Bartlett and Jenks, JL, concurred; Hooker, J., read for affirmance, with whom Goodrich, P. J., concurred.