The petitioner entered the service of the city of Buffalo as a patrolman in the police force on July 1, 1915, and continued in this position until January 13, 1926, when he was promoted to the position of deputy chief of police and continued in that position until January 16, 1928, when the name of his position was changed to deputy commissioner of police and he continued in the position of deputy commissioner of police until December 31, 1929, when he filed with the board of police pensions his application for retirement and pension. At the time that the petitioner entered the service of the city, the Charter of the City of Buffalo (Laws of 1914, chap. 217, § 264, subd. 3) contained a provision that “ The council shall retire and shall grant a pension to any member of the police force who, by long service and exposure while in the actual service of the department, shall have contracted without fault or misconduct on his part any disease or disability, * * *. On and after the first day of July, nineteen hundred and thirteen, upon the application of any member of the police force, of rank higher than that of sergeant, who shall have served twenty-five years in the police department, the council shall retire and shall grant a pension to said person. * * *.” The provision for twenty-five years of service as a prerequisite for a pension was continued by local law No. 8 of the Buffalo Local Laws of 1925, enacted under the provisions of the Home Rule Amendment to the Constitution of the State and the City Home Rule Law (Laws of 1924, chap. 363). The prerequisite period of service was reduced to twenty years by local law No. 8 of the Buffalo Local Laws of *261926. On July 18, 1927, however, a local law became effective which provided for a pension from the police pension fund to which the city contributed, of which the petitioner was a member upon retirement, as follows: “Any member of said fund upon his own application, after twenty years of actual service in said department or a combined service therein of not less than one-half said period in any grade or rank together with service of not less than one year in a position or office superior to the grade or rank of captain or a combined service of twenty years in the police and fire departments, shall be retired from further service.” (Buffalo Local Laws of 1927, No. 3.) The quoted section of the local law was superseded on January 1, 1928, by article 25, section 464, subdivision 3, of the Charter of the City of Buffalo, adopted by vote of the citizens under the provisions of the Home Rule Amendmént of the Constitution and the City Home Rule Law as follows: “ The board shall upon his application retire: * * * (3) Any member holding a position or office in the department at the time this act takes effect, superior to the grade or rank of captain, having a combined service in the department of not less than ten years in any grade or rank together with service of not less than one year in a position or office superior to the grade or rank of captain.” Upon such retirement and under section 466 of the charter, the granting of a pension is obligatory upon the city.
On the 18th day of July, 1927, when the local law above referred to took effect, the petitioner had to his credit more than ten years of service as a patrolman, and almost one year and six months of service as deputy chief of police, a position or office superior to the rank or grade of captain. On January 1, 1928, when the new charter went into effect, he had to his credit more than ten years of service as a patrolman and almost two years of service as deputy chief of police. Upon the denial of his application for a pension under the last quoted provision of the charter, this proceeding was instituted to compel the board of police pensions to grant the petitioner such pension. The petitioner has obtained an order of peremptory mandamus, and the appellants in this court make the contention that the local law and the provisions of the section of the present charter, in so far as they authorized the granting of a pension to petitioner, are unconstitutional under article 8, section 10, of the Constitution of the State of New York, as authorizing the gift to the petitioner of money or property of the city.
The legal justification for the establishment of a system of pensions is thus stated in Hammitt v. Gaynor (144 N. Y. Supp. 123), cited with approval in Matter of Wright v. Craig (202 App. Div. 684; affd., 234 N. Y. 548): “ In its relation to the betterment of *27the pubhc service, through the incentive offered to faithful devotion to duty, and through the retirement rather than the retention in service at full pay of those servants who have outlived their usefulness, the purpose of granting pensions is ‘ a pubhc purpose,’ and as affecting a municipality, ‘ a city purpose,’ within the definition of these terms as judicially adopted. (Dillon Mun. Corp. [5th ed.] § 430; Weismer v. Village of Douglas, 64 N. Y. 91, 99; 21 Am. Rep. 586; Sun Pub. Assn. v. Mayor, 152 N. Y. 257, 264; 46 N. E. 499; 37 L. R. A. 788.) ” A pension payable out of city moneys, which has no relation to the betterment of the service, falls within the condemnation of the Constitution. Thus a pension from a city bestowed on those no longer in the city service, is a mere gratuity. (Matter of Mahon v. Board of Education, 171 N. Y. 263.)
The short period of service made a condition for obtaining a pension by the present charter section, and the latest local law preceding the charter, and the absence of an age qualification negative the possibility of finding here a purpose to better the service by encouraging the retirement of the superannuated.
We have in this case a situation intermediate between that dealt with in Matter of Wright v. Craig (supra) and that dealt with in Matter of Mahon v. Board of Education (supra). In the first mentioned of these two cases the applicant for the pension granted by chapter 438 of the Laws of 1916 (adding to Civ. Serv. Law, § 21-a; since amd. by Laws of 1917, chap. 768; Laws of 1920, chaps. 746, 751; Laws of 1921, chap. 54, and Laws of 1923, chap. 368) did not become entitled to it until some five years of service after the law was enacted. In the latter-mentioned case the applicant was not in the pubhc service when the law establishing the pension was enacted. In the present case the petitioner was by his service entitled to the pension the moment the provisions for it in the local law and in the charter became effective. Nothing was held out to the petitioner as a reward for future service. As to him it was as though the law provided that he should have a pension upon retirement whenever that might occur. I do not see how such an act has any relation to the betterment of the service and deem it similar in that respect to the situation discussed in the case of Matter of Mahon v. Board of Education (supra).
For these reasons I favor reversal on the law, and the denial of the motion, with costs.
Taylor, J., concurs.