Section 789 of the charter of the city of Hew York provides for a pension fund for the fire department, and prescribes the revenues from various sources which shall-feed it. It makes the fire commissioner’ the trustee of the fund, and directs him to invest and husband it. Its capacity is limited to the said revenues, and the pensions have necessarily to be scaled down to keep within it. Section 790 prescribes who are to get pensions and how the amounts thereof are to be fixed. It requires the fire commissioner to fix the amount in every case. To take the plaintiff’s case (and they are all governed in the same way), it provides that in the case of members of the department retired after ten years’ active and continuous service “ 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 *448condition of the fund' will'warrant.” It also gives the commissioner' ■power to-retire, any officer or member, and requires him on doing so to determine the amount of the pension.
■It seems plain from this that the retired officer. or member is not entitled to draw his pension until the commissioner has computed it and fixed it according to the condition of the fund. "If the fund warranted it in. the plaintiff’s ease, the commissioner’s duty was to fix his- pension at one-half of the salary he had been receiving from the city,'viz., at the sum of $800, but if -the fund could not pay that sum, thén he had to fix. it at the best sum the fund could pay. It follows that if he refused to fix it the plaintiff would have to compel him to perform that duty before he could' maintain an action to collect it, and if he fixed it unlawfully the plaintiff could compel him to do it lawfully, but the plaintiff could not maintain' an action to recover, a sum over and above that fixed by the commissioner, as he is toying to do here. " . .
This cause was tried .on the pleadings. They did.not show the condition.of the fund, but the complaint does allege that the commissioner fixed thb pension at $533.33 a year,, and- prays judgment for the difference between that and $800 a year. It is claimed that the burden was on the- defendant commissioner to show that he had done his official' duty properly and lawfully in fixing thé-amount of. the pension: I do not see how that can be so. If the plaintiff could maintain the action at- all, it wóuld be for him . to show that: the sum which the complaint alleges was fixed by the commissioner' was less than the sum which should have been fixed, The presumption is that the commissioner 'did his duty.
There is a very rare exception to the rule that the plaintiff must; prove the allegations of the complaint, tháf a negative has not always- to be proved by a plaintiff, as in ah action to recover a penalty for selling liquors without a license, where the burden is on the defendant to show a license; but that is because all sales' are presumptively illegal, for the reason that they are, prohibited without.a' license, and it is therefore for the defendant to justify the sale; but the exception has no application here, -The defendant was under no legal prohibition;, on the-contrary, he had to fix the amount of the pension. Nor do such cases as Harris v. White (81 N. Y. 532) apply. The principle there discussed is not involved *449here at all.. The exception of the affirmative being on the defendant where the evidence is “ peculiarly ” within his knowledge is only part and parcel of the exception already mentioned, and limited to, the. class of cases already referred to (1 Greenl. Ev. [15th , ed.] § 79). Moreover, the statistics with regard, to the said fund are open to every one.
The judgment should be reversed.
Judgment affirmed, with costs.