The judgment rendered at Special Term in this action permanently restrained the defendant police *121commissioner from continuing former Police Commissioner Enright, defendant, upon the pension roll of the police department of the city of New York with a pension of $5,000 per annum, or any other sum, and from paying any such pension to defendant Enright, and restraining him from accepting and receiving it.
The defendant Enright claims his pension rights under two statutes of different purport, both of which apparently were intended to give relief to him and others somewhat similarly situated who had formerly been members of the police force in its uniformed branch and had undertaken duties in the administrative department, as in his case, police commissioner, and in the other cases, as deputy police commissioners.
One statute under which he bases his claim is known as section 14-b of General City Law, and the other is an amendment to the Greater New York Charter numbered section 355-a.
At the end of the year 1925 or thereabouts, Commissioner Enright applied to the mayor for retirement as police commissioner of the city of New York and requested that he be placed upon the pension roll of the police department and granted an annual pension out of its funds. The mayor granted the application, reciting the existence of the conditions required by section 14-b of the General City Law, and that Enright has applied for retirement as of December 30, 1925, at midnight. This order of the mayor retired the applicant as of that date and declared the office of police commissioner vacant and granted an annual pension in the sum of $5,000 upon payment by the applicant of any proportionate amount of his former salary as police commissioner required by law.
We think it may be conceded that chapter 509 of the Laws of 1924, which is codified in section 14-b of the General City Law, is so related to a special instance and so manifestly intended to include only a certain individual, that it violates the Home Rule Amendment of 1923 to the State Constitution (Art. 12, § 2) prohibiting the Legislature from passing any law relating to the affairs of cities which shall be special or local in its terms or in its effect; and since it was not passed on a message from the Governor declaring that an emergency exists and upon the concurrent action of two-thirds of the members of the two houses of the Legislature, it cannot be sustained.
It no doubt relates to the property, affairs or government of the city of New York and must be found to be special or local both in terms and in effect, and cannot be construed as a general law which in terms and in effect applies alike to all cities.
We conclude, however, that under a liberal construction of section 355-a of the Greater New York Charter and giving heed *122to its manifest intent, the defendant Enright may be granted a pension for as much as is allowed or would be allowed to a chief inspector retiring from such department.
In a former action (Schieffelin v. Enright, 200 App. Div. 312) it was determined that the acceptance by defendant Enright of the office of police commissioner on January 24, 1918, vacated his office as a member of the police force with the rank of lieutenant theretofore held by him. Originally Enright had been granted a leave of absence as a lieutenant of police and was appointed commissioner under such leave of absence. This was in January, 1918. In May, 1918, by chapter 651 of the Laws of 1918, there was added section 355-a to the Greater New York Charter, which reads as follows: “ 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.”
Thereafter, on December 22, 1920, the mayor issued an order retiring defendant Enright as lieutenant and granting him a pension as chief inspector in the sum of $3,750 per year in accordance with this section. It was upon this order of the mayor that the plaintiff here as a taxpayer then brought the former action in which the pension payment was enjoined, holding that the police commissioner was not entitled to pay Enright a pension under said order of the mayor. Thereafter Enright continued to hold the office of police commissioner and was reappointed in January, 1923, for a term of five years, and served as such until his retirement on December 30, 1925, under his application for such retirement as police commissioner.
Before the enactment of section 355-a, section 357 of the charter provided that the police commissioner and the deputy police commissioners should not be members of the police force within the meaning of the act relating to pensions, and it further provided that they should not be entitled to any pension or allowed to share in the relief pension fund of the department. Section 355-a is evidently intended to remedy this provision with respect to police commissioners or deputy police commissioners who in the future, with respect to the enactment of the statute, shall retire as such police commissioners or deputy police commissioners from the department after having served as members of the uniformed force for the required time of twenty years, but who have lost *123the right of pension retirement in their former capacity in the uniformed department by reason of the acceptance of the office of police commissioner or deputy police commissioner. No member of the police force can under the ruling below become a police commissioner or deputy and preserve his right to a pension upon retirement, because immediately upon accepting the office of police commissioner he would lose his status as a member of the force.
It was specifically determined in Schieffelin v. Enright (supra) that the court was not called upon to prejudge as to what defendant’s rights to participate in the benefits of the police pension fund might be under a state of facts and circumstances different from those then appearing. The specific ruling there denied Enright’s right to be retired under section 355-a as lieutenant of police, which the order of the mayor retiring him declared was its effect. The mayor did not then retire the applicant as police commissioner but continued him as such while allowing him to retire as a lieutenant, a rank he had vacated when he became commissioner. As a matter of fact, he was not then a lieutenant and could not have been retired as such. Whether he could be retired as commissioner was not ruled upon in the order on the former appeal, but was excepted from the formal decision. This was all that was necessary to be decided, and this was all that was decided. This is shown by the striking from the judgment of the provision that Enright was not entitled to a pension under that statute in any circumstance. The clause struck out read: “ 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 sima of $3,750 per annum.” It was evidently the court’s intent not to rule upon his right to retire thereafter. Since defendant Enright had lost his office of lieutenant in 1918 when he accepted the office of police commissioner, he could not be retired from such position. He was then police commissioner, and when he was retired as a lieutenant or attempted to be so retired, he still held the former office. The obvious intent of the enactment of section 355-a of the charter was to correct the former provision, section 357, declaring that a commissioner was not for pension purposes a member of the police force, and to declare after its passage that a commissioner became a member of the force solely for pension purposes.
We think that the very enactment indicates that for the purposes of pension retirement a commissioner or deputy commissioner is a member of the force and is intended to be included in that general category for pension purposes. The charter section reads and has for its caption these words: “ Pension of member of force after *124service as police commissioner or deputy commissioner.” Obviously, it was not intended to have it inferred by the use of the words “ any member of the police force who shall have performed duty on such force for a period of twenty years,” that such member must return to his former membership in the uniformed force merely to be retired, or else he could be retired by the police commissioner succeeding him or the deputy in charge. The enactment requires that he be retired by the mayor. The meaning of the words (having in view the legislative intent), “Any member of the police force,” was, any person who has been a member of the police force and may include one who has become a police commissioner or a deputy thereof. The language following in the clause, “ who shall have performed duty on such force,” that is, a person who has theretofore performed duty as well as one who thereafter or in the future shall have performed duty in the position, indicates an intention to provide for any former member of the force as well as one then serving as such who might thereafter become commissioner or deputy. While expressions in the opinion in Schieffelin v. Enright (supra) lean toward a different view, they were not necessary to the decision proper and were excluded from effect by the action in striking the clause quoted from the judgment entered therein.
We think that thus the pension may be sustained at one-half of the salary of a chief inspector, or $3,750, under section 355-a of the charter, under the retirement as commissioner instead of the former retirement as a lieutenant; and that the judgment should be reversed, without costs, and a judgment awarded dismissing the complaint and vacating the injunction and restraining the payment of a pension only in excess of $3,750.
O’Malley, J., concurs.
Judgment affirmed, with costs.