Schieffelin v. Warren

Martin, J.

Richard E. Enright was appointed a patrolman in the uniformed police force of the city of New York on November 2, 1896. Thereafter he was made roundsman, sergeant and lieutenant, and served continuously in the various positions mentioned from November 2, 1896, to January 23, 1918. During this period he made full contribution to the police pension fund.

On January 22, 1918, the mayor of the city of New York granted him a leave of absence as lieutenant and on the following day appointed him acting police commissioner and on January 24,1918, police commissioner of the city of New York. From that date Enright continuously held and occupied the office of police commissioner until January 22, 1923, when he tendered his resignation to take effect at midnight, January 23, 1923. On January 24, 1923, he was appointed to the samé office which he held continuously until twelve o’clock midnight, December 30, 1925.

On December 22, 1920, the then mayor of the city of New York issued an order retiring him as lieutenant of the police and granting him a pension as chief inspector of police, but the payment of said pension was enjoined in a taxpayer’s action brought by this same plaintiff; and final judgment was entered on or about May 19, 1921. In said judgment it was provided: “1. That Chapter 651 of the Laws of 1918 is not applicable to defendant, Richard E. Enright, and does not authorize the award of a pension to him in the sum. of $3,750 per annum.”

That judgment was modified on appeal by striking out said paragraph One and as so modified was affirmed (200 App. Div. 312).

After the enactment of chapter 509 of the Laws of 1924 and prior to December 30, 1925, Enright paid into the police pension fund the full amount of the deductions from his salary as police commissioner from the date of his appointment in 1918 to December 31, 1925, as contribution of the proportionate amount of his salary as police commissioner to the police pension fund together with interest on the several annual installments so paid in.

On December 30, 1925, the mayor of the city of New York, acting upon application of said Enright, issued an order wherein it was stated that in pursuance of law he retired Enright as police commissioner of the city of New York as of midnight, December 30, 1925, and granted him an annual pension fixed at $5,000 per annum.

Prior to this date it had been the established practice not to grant a pension to any member of the police force in excess of one-half of his compensation at retirement. At the time of the retirement of Enright as police commissioner on December 30, 1925, the salary of the chief inspector of the police department was $7,500 a year.

The appellant Warren contends that the judgment should be reversed on the ground that Enright is entitled to a pension as a chief inspector under the provisions of section 355-a of the Greater New York Charter at the rate of $3,750 per annum, which is half of the salary of a chief inspector at the time of his retirement. Enright contends that the order of retirement is valid and that the judgment should be reversed and the complaint dismissed on the merits or that it should be modified so as to restrain the payment of the pension only so far as it exceeds $3,750.

Section 14-b of the General City Law (as added by Laws of 1924, chap. 509) provides as follows:

“ Notwithstanding the provisions of any city charter, or of any law general or special, any person, including a police commissioner or a deputy police commissioner, who has performed or who shall have performed duty in the uniformed police force of any city for a period of twenty years and upwards and who has served as police commissioner or as deputy police commissioner for a period of three years, and who is now serving as such, may, upon payment by him to the police pension fund, if contributions thereto be required by law, of the proper proportionate amount of the salary of police commissioner or deputy police commissioner, as the case may be, from the date of his appointment as such to the day of his retirement, be retired by the mayor or other duly authorized appointing authority of such city, and placed upon the pension roll of the police department and granted an annual pension equal in amount to one-half the salary of police commissioner or deputy police commissioner, as the case may be, at the time of such retirement.”

The respondent rightly asserts that this law is local and special in terms and, therefore, void since it relates to the property, affairs or government of cities and was passed without an emergency message from the Governor.

This statute could not very well apply to any but Enright. It was a deliberate attempt to enact special legislation of the kind which has frequently been condemned by the courts.

In Matter of Mayor, etc., of New York (Elm Street) (246 N. Y. 72, 77) the court said: “ We close our eyes to realities if we do not see in this act the marks of legislation that is special and local in terms and in effect. This group of conditions so unusual and particular is precisely fitted to the claimant’s case, and only by a most singular coincidence could be fitted to any other. If we may not say of such a coincidence that it is literally impossible, at least we may say that one would be surprising, and several would be marvelous. An act is not general when the class established by its provisions is at once so narrow and so arbitrary that duplication of its content is to be ranked as an unexpected freak of chance, a turn of the wheel of fortune defying probabilities^ Even before the Home Rule Amendment, the framers of a statute did not save it from being local by making it apply to two or three cities instead of one (People ex rel. Clauson v. Newburgh, etc., Plank Rd. Co., 86 N. Y. 1, 7)."

It is argued that in any event the appellant Enright should be given a pension equal to one-half that which may be given to the chief inspector. Aside from the fact that this court has already decided that proposition, the fact is that Enright by resigning from the police force while he was still a lieutenant lost all right to any pension. Moreover, he never held a position which entitles him, to claim any such pension.

The respondent argues that the defendant Enright is not entitled to receive a pension as a chief inspector under section 355-a of the charter because he had ceased to be a member of the police force before the pension was granted and, therefore, that statute does not apply to him.

Section 355-a of the Greater New York Charter (Laws of 1901, chap. 466, as added by Laws of 1918, chap. 651) provides: “ Service as police commissioner or deputy police commissioner by a member of the police force shall be deemed the performance of duty on such force. Any member of the police force who shall have performed duty on such force for a period of twenty years, and for at least six months as police commissioner or deputy police commissioner, may be retired by the mayor and placed upon the pension roll of the police department and granted the pension allowed to a chief inspector in such department.”

In Schieffelin v. Enright (200 App. Div. 312) the court by Mr. Justice Greenbaum in a very clear and convincing opinion said: “ Involved in the interpretation of section 355-a just quoted is the determination of the issues whether a police commissioner, as such, is a member of the police force and whether on December 22, 1920, when the mayor issued an order dismissing and relieving the defendant, as lieutenant, from the police force and granting him a pension, he was in fact a member of that force. Retirement from office is a prerequisite to the granting of a pension. If, as police commissioner, defendant retained his membership on the police force as he contends, then assuredly as long as he continues in that office he cannot be entitled to a pension. If on the other hand, it be assumed that defendant as police commissioner is not a member of the police force, but that service as such police commissioner for a period of at least six months shall be deemed the performance of duty on such force for the purpose of entitling him to retire as a member of the police force and to receive a pension, then the question arises was defendant, as lieutenant on leave of absence, a member of the police force until December 22, 1920, when the mayor ordered his retirement from the force.

“ Section 357 of the Greater New York Charter (Laws of 1901, chap. 466) provides inter alia: ‘ Neither the police commissioner nor either deputy police commissioner shall be members of the police force within the meaning of the provisions of this act relating to pensions, nor be entitled to any pension, nor share in the relief pension fund of the police department.’ * * *

“ Moreover we are of opinion that when the mayor undertook on January 22, 1918, to grant the defendant as lieutenant a leave of absence, he had no power to do so. Section 292 of the Greater New York Charter (as amd. by Laws of 1917, chap. 257) provides that the ‘ police commissioner may grant leaves of absence to members of the force.’ And even if the mayor had such power it seems to us that such action was ineffective in view of the provisions of section 303 of the Greater New York Charter which provides: ‘ Absence, without leave, of any member of the police force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of said period cease to be a member of the police force and be dismissed therefrom without notice. No leave'of absence exceeding twenty days in any one year shall hereafter be granted or allowed to any member of the police force, except upon the condition that such member shall waive and release not less than one-half of all salary, pay or compensation and claim thereto during such absence.’ On January 22, 1918, when leave of absence was granted to defendant, the charter provided not exceeding twenty days’ leave of absence upon the condition set forth. Chapter 824 of the Laws of 1920, on May 18, 1920, changed this limit to thirty days’, by amending section 303 of the charter.”

We concur fully in that opinion. When Enright accepted the position of commissioner and was retired as a lieutenant, he could no longer claim membership in the police force.

The plight of the appellant is the result of an attempt to juggle the pension law, and he has himself to blame for his present position. There have been too many such attempts in recent years. Even the case of Schieffelin v. Lahey (243 N. Y. 102), which is referred to as an authority, is not very convincing and may easily be distinguished. The court there divided four to three, and as indicated by the opinion, the special circumstances there presented were given great weight.

This effort to retire from the police force and at the same time retain the- benefits flowing from membership therein, should not receive judicial support. Such attempted special legislation does not tend to encourage efficient work on the part of the members of the police department, to say nothing of the bad effect on the pension system, to which the city is compelled to contribute about $3,000,000 a year.

The judgment should, therefore, be affirmed, with costs.

Dowling, P. J., and Merrell, J., concur; McAvoy and O’Malley, JJ., dissent.