I concur in reversing the order below as to Kennedy and Davis.
The commissioners may have power, by rules, to provide that, for reasons of their own, officers in their employ shall be deemed always on duty; but no such regulation can alter the meaning of the terms used in the statute, “ actually on duty.”
Though they may be deemed to be on duty, yet if they are not aebudlly on duty, the officers are liable to arrest and to be served with subpoenas. We must look at the object of the provision to ascertain the intent of the Legislature. That evidently was, to prevent an arrest, Ac., while the officer was actually discharging his public duties, so as to prevent the possibility of *297arresting one of these officers while actually in the public employ. But where some other officer has temporarily taken his place, it cannot be said that he is actually on duty, although for police purposes they provide that he shall be deemed to be so.
The reduction of the bail by the justice at chambers was,a matter of discretion, with which, under ordinary circumstances, we do not interfere.
Clerke, J.The judge at special term gave no effect what ever to § 60 of the general rules adopted by the commissioners, declaring that the superintendent, inspectors, captains, and sergeants shall “ be deemed always on duty.” It is emphatically denied in the opinion, delivered at the special term (14 Ante, 432), that any rule or regulation of the commissioners can interfere with the right of a court of justice to determine the fact according to the evidence. But, it was contended that from the nature and extent of the duties of the superintendent and captains, the statements in the affidavit of Kennedy must be assumed as true, “ that he has always, since his appointment as superintendent of police, been, and ever is on duty as such superintendent at all times of the day and night,” and that<c all the captains in his district are also on duty at all times, day and night, without intermission.” It was thought that this should be assumed until the contrary be shown; so that, after this positive statement, the burden of the proof should devolve on the plaintiff to show that, at the time of the arrest on civil process, the party arrested, if the superintendent or a captain, was engaged in some pursuit of business or pleasure not within the sphere of his public duties.
In the language of the opinion below, “ the patrolmen have certain intervals of remission from duty, fixed and known, during which they are not liable to duty; but this can scarcely be affirmed of the superintendent. ISTo doubt, he has certain hours for taking his meals and taking sleep; but as he has a general and unremitting supervision over the operations of the whole force, and as his directions and advice in a city like this may be necessary at any time, he is liable to be called to active duty at any hour of the day or night; so that, it is not at all unreasonable to say that he is always actually (though not actively) on duty. In such a case, to be prepared for duty is to *298be on duty. When, either in his office or in his house devising plans, and thinking of instructions for the large force under his command; when he is awaiting applications for those instructions, ready to give them during every hour of the twenty-four, if required ; and when, not thus engaged, he is visiting the numerous stations in the city,—I repeat, it is not at all unreasonable to acquiesce in his sworn statement, until the contrary be proved, that “ he is at all times actually on duty.” It would indeed be erroneous to hold that the superintendent or a captain of the police cannot, at any time, or under any circumstances, be served with a subpcena or any other process. On a careful perusal of the opinion of the judge at special term, I cannot discover that he held any such thing. But he did hold that those endeavoring to compel a superintendent or captain to appear and testify, or those, at whose suit he is arrested on civil process, should show that he was otherwise engaged than on duty at the time of the service of the process; the clear presumption being, from the nature and extent of his duties, and from his own sworn statement, that, like the sentinel in his sentry-box, he is always actually on duty.
I think, that a regard for the efficient government of the police force of this populous city, and a desire for the public safety and comfort, render it expedient to establish this presumption in favor of the superintendent and captains, particularly when we consider that it is only needed in the case of a provisional remedy; the allowance of which, in any case, rests in a great measure in the sound discretion of the judge, who may refuse it altogether, if he thinks the arrest is not necessary to cause the presence of the defendant to answer to the final judgment of the court. It is not at all probable that a public officer, holding a position, and performing duties, like those of the superintendent of police, will-not render himself amenable to any process, which may be issued to enforce any judgment that may be rendered against him.
Nevertheless, I am not in-favor of affirming the order of the special term as far as the superintendent and captain are concerned. hfo arrest of these persons was actually made; the motion was made to set aside the order of arrest, not to relieve them from arrest.
Therefore, the plaintiff had no opportunity of having them *299arrested, when not on actual duty; so that the principles on which the decision of the special term is founded, are not applicable to the present motion.
The order at special term should be reversed, so far as it vacated the order of arrest as to the defendants Kennedy and Davis; but should be affirmed as to the other defendant.