In re Fay

78 A.D. 204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinions

Hatch, J.:

The relator asks in this proceeding the same relief as was asked in Matter of Lahey v. Partridge (78 App. Div. 199), and further that, upon reinstatement as a detective sergeant, he be retired upon a pension of $1,000 per annum. So far as the relator’s right to reinstatement is concerned, it is in all respects governed by the case of Lahey, and the decision therein is conclusive of the relator’s rights.

He shows himself, however, entitled to be retired upon a pension pursuant to the provisions of section 355 of the charter. (Laws of 1897, chap. 378 as amd. by Laws of 1901, chap. 466.) The real point in the case is in what capacity he shall be retired and the amount of pension which he shall receive. The relator’s application was made at a time when he was detailed for service as a detective sergeant, but he was so detailed by virtue of the same authority which we have considered in the Lahey case. It can make no difference in his status as a patrolman whether he made his application at the time he was performing his duty as a patrolman, or whether he was upon special service. He was, nevertheless, a patrolman and his application is to be considered as such. The charter, by section 276, recognizes the office of a detective sergeant, but as we have seen the mere detail of a patrolman to perform the duties of a detective sergeant does not make him a holder or occupant of such office or position; consequently, the relator was not entitled to be retired as such, as he has never been legally appointed to such position.

It is claimed by the relator that the defendant never acted upon his application to be retired as a detective sergeant. The defendant’s failure to act could be construed as a refusal, and if the relator had shown himself entitled to be retired as a detective sergeant, he might invoke the aid of the writ to accomplish such purpose upon the present proofs. The defendant, however, states in his affidavit that he is willing to retire the relator as a patrolman, with the pension which attaches to such position. This the relator refuses to accept.

His application, therefore, is to be treated as one for a mandamus to compel the defendant to retire him upon a pension as detective sergeant. He must, therefore, fail in this application for the reasons which we have already assigned.

It follows that the order appealed from should be affirmed, with fifty dollars costs and disbursements.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; Laughlin, J., dissented.