This case was tried without a jury, judgment was entered in favor of the plaintiff, and the defendant appeals.
The findings of fact are as follows: “ That, on March 14, 1903, plaintiff having served over ten years in active and continuous service, as a member of the uniformed force of the Fire Department, and being at that time an engineer of steamers in the said Fire Department, the annual salary attached to which said position was. *444at said date, at the rate of $1,600 per annum, was retired from .all other of further service in said Fife Department ón the certificate of ■the medical officers thereof that hé. was totally and permanently disabled for the performance of duties, and that such disability was- . not caused 'in or induced by the actual performance of the duties of his position, on a pension, as fixed by the Commissioner of the Department of Fire as Trustee of The Dew York Fire Department Belief Fund, of one-third of his pay or salary at the-time of his said retirement, to wit, at the sum of $533.33 per annum. That plaintiff!s' disability occurred after ten years’ active and continuous service in the Fire Department, and having then been, retired," he was entitled to the pension fixed by the Charter, section 790," viz., onéhalf of his compensation at the time of such retirement. That from. March 14,1903, to June 1, 1904, being for a period of one year two and one-half iponths, there was lawfully due to plaintiff -from defendant, as trustee of the'said relief fund, at the rate of $800 per annum- pension, the sum of $966.65, as stated in the com-" plaint herein, but -that the said defendant has paid to’ plaintiff -the stim of $644.45 only, leaving a balance due" to plaintiff from said defendant as'trustee, up to Junó 1, 1904, amounting to the. sum of $322.20 as -stated in the complaint.” '
Section 79Ó of the charter of the city of Dew York "(Laws of 1901, chap; 466) provides -that “ In case of total permanent disability, at any time, caused in or induced by the actual performance of the duties of his position, or-which may occur after ten years’ active and continuous service in the said lire' department, the amount' of annual pension -to be allowed shall be one-half of the* annual compensation allowed such officer or member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the> condition of the fund will warrcmtP ■ )
Do evidence was offered On th¿ part "of either party as to the condition of the pension fund, and it will be seen from the facts and from this section 790 that the sole question in this case is upon whom 'does the. burden of proof rest to show the condition of the fund. If this burden is with the plaintiff then the judgment is wrong, fof it nowhére appears that the condition of the fund" is such as to warrant the payment of the full one-half of the annual com*445pensation he had been allowed ; on the other hand, if it lies with the defendant to show this, the judgment is right for the defendant has not shown that the. plaintiff'has been awarded by him a sum of less than half the annual compensation because of consideration of the proportion of the number of officers and members retired and the condition of the fund.
The plaintiff seeks to have us hold that the words in the statute “ or such less sum in proportion to the number of officers and members so retired- as the condition of the fund will Warrant ” form a proviso in and not an exception to the other provisions of the section. Then he would have us invoke the rule, that “ Where an exception is incorporated in the body of the clause of the statute, he who pleads the clause ought to plead the exception. But when there is a clause for the benefit of the pleader, and afterward follows a proviso which is against-him, he may plead'the clause, and leave it to his adversary to show the proviso.” (Harris v. White, 81 N. Y. 532, 546.) It is doubtless true, as he urges, that “ an exception exempts something absolutely from the operations of the statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes something out of the statute that otherwise would be part of the subject matter of it; a proviso avoids them by way of proviso or excuse.”
There is nothing, however, in the language of the statute which points to a legislative" intent to treat this clause either as an exception or proviso, and we do not believe it to be necessary to decide that it is either, and if either, which one. The clause is part of a more or less elaborate scheme in relation to many phases of the firemen’s pension fund, which have been enacted but of charitable consideration for the benefit of those who may be injured by reason of their engagement in a necessary and sometimes heroic occupation, and those who have become incapacitated after serving in that occupation for a long time, together with their dependents. The administration of the fund and management of the affairs connected therewith are vested in the fire commissioner, who also occupies the position of the actual and virtual head of the fire department of the city.
The act of the defendant fire commissioner as trustee of the pension fund must be, we think, at least until the contrary is shown, *446presumed to have been done with honesty and discretion when he allowed the plaintiff but one-third instead of one-half of- his former salary as a pension, and that this' act on his part was done out <of consideration of the condition of the pension fund and the number of officers and-members'retired.
It. is said in Wood v. Terry (4 Lans. 80, 84): “ The law presumes the due performance of official duty, and this presumption must be overcome before the court caii declare the proceedings void. When an officer or party is in the attitude of asserting rights founded on official acts, and when due performance is essential to the right, due performance must be proved, and cannofc .be presumed. * '* * But when a party asserts a right based on the illegality or irregularity of the proceedings of a court or public" officer, the onus is on him to prove the defects; otherwise, the presumption prevails.”
Broom, in commenting on the maxim, “Omnia prcesumuntur rite et solenniter esse acid,” says: “Again, where acts are of an official nature, Or require the concurrence of official persons, a presumption arises in favour of their due execution. * * * That a man,, in fact acting in a public capacity, was properly appointed and is duly authorised so to act; that, in the absence of proof to the con-' trary, credit should be given to public officers who have acted,pripia facie, within the limits of their 'authorityfor having done so with honesty and discretion.” (Broom Leg. Max. [7th ed.] 772.)
In Bank of the United States v. Dandridge (12 Wheat. 64, 69) it was stated that the law “ presumes that evei’y man, in his private and official character, does his,duty until the contrary is proved; it will. presume that all things are rightly done, unless the circumstances of the casé overturn this presumption, according to the maxim, omnia prcesumuntur rite,” etc.
Considerations of expediency should not entirely be disregarded. The force of firemen and officers in the city of Hew York is composed of many scores of men who are. being from time to time retired and placed upon .the pension fist. It is doubtless true that sometimes it may -be necessary to award retiring members of the force less than the limit the law would allow them if the. pension fund were in its most, flourishing condition. To adopt a rule other than that we have -announced should govern would permit suits to be brought by these retired members against the fire commissioner *447which would result in judgments against him for the full amount possible to be allowed by statute, unless in all of such cases he met the burden sought to be imposed upon him by the plaintiff in this case, first, of showing among other things the condition of the fund, the number of firemen, the amounts which had been and were likely to be derived from the various sources which supplied the fund; the number of men who had served for a considerable length of time, together with the exact service many of them rendered, and the number of probable retirements as near as he could estimate it within a reasonable time after the showing; and, secondly, of satisfying the court that upon all these considerations he had exercised a wise discretion, and,that the conditions of the fund did not warrant an award of the full amount which might be allowed by statute. • To impose this burden upon the trustee of this fund is more than we can believe the Legislature intended. In a case of this sort, if the plaintiff is not content with the allowance made to him, but claims the maximum which might be allowed under the statute, the burden should be upon him to show that the condition of the fund would warrant his claim.
The judgment, therefore, should be reversed and a new trial granted.