McCormick v. McCarton

95 A.D. 426, 88 N.Y.S. 722

Opinion

Ingraham, J.:

It appears that some time in the year 1899 a voluntary association composed of the sergeants of police of the city of New York was organized, of which the defendant was president. A constitution was adopted which provided that the object of the society was to secure to its members the benefit- of an endowment and benefit fund to be applied according to the provisions of the constitution and by-laws, and to take such action as might be deemed necessary to promote the interests of the members of the society as individuals and as officers ; that sergeants of police of the city of New York were eligible to initiation and to retain active membership; that upon the dismissal from the police force of any member of the society who was in good standing with the society at the time of such dismissal, he should within thirty days receive from the treasurer of the society the sum of $250; that within ten days after receipt of official notice of the death of a member of the society who shall have been at the time of his death in good standing with the society, the treasurer of the society shall pay to such person as said member may have designated as his beneficiary the sum of $250. By a resolution, dated December 11, 1900, the amount payable upon a dismissal from the force, or the death of a member, was raised from $250 to $350, and no payment was to be made upon the retirement of a member of the society as a police officer. The constitution further provided that the initiation fee should be $1 and the dues should be $6 a year, payable monthly in advance at the regular monthly meetings ; that “ Any member of the society who is in arrears as to payments of dues for three months is not in good standing. Whenever any member of the society may become two months in arrears in payment of his dues the financial secretary will send such member a written notification of his indebtedness, and if such member does not pay his dues on or before the regular monthly meeting subsequent to notification by the financial secretary, . he shall cease to be a member of the society, and liis name shall, be dropped from the rolls.”

It appeared that the plaintiff became a member of this society in the year 1899, and paid his dues up to the month of June, 1902; that in October, 1902, he received notice that he had been dropped from the society for non-payment of dues, whereupon he sent to the financial secretary $2, which was returned to him upon the ground that he had ceased to be a member of the society. The plaintiff testified that he asked the president of the society whether, if he paid $25 under protest, he would be admitted as a- member of the organization, but was informed that it would do no good, as he would have to be three months in good standing. On the 25th day of November, 1902, the plaintiff was dismissed from the police department upon charges, and subsequently demanded from the defendant payment of the sum of $350 that he claimed to be entitled to receive under the constitution, which was refused, whereupon he brought this action to recover that amount.

IJpdn the trial in the Municipal Oourt, at the close of the plaintiff’s case, the complaint was dismissed upon the ground that this provision of the constitution by which a member of the police force was to receive a gratuity upon his dismissal from the police force for a violation of his duty was against public policy as a premium for an indemnity to the officer for a failure to perform his duties as a police officer; and from the judgment dismissing the ' complaint the plaintiff appealed to the Appellate Term, where the judgment was affirmed, and then, with leave of the Appellate Term, plaintiff appealed to this court.

It. was conceded that the plaintiff was a member of this society prior' to June, 1902; that in October,. 1902, he received notice that he had been dropped from the society for non-payment of dues, but the plaintiff claims that such dismissal was illegal and'unauthorized by the constitution. There was no proof that the provisions of this article of the constitution as to notice to a member whose dues were two months in arrears were complied with. To entitle a member dismissed from the force to a payment under this provision of the constitution of the association, he must be a member of the association “ in good standing with the society at the time of such dismissal; ” and the same constitution provides that “ any member of the society who is in arrears as to payments of dues for three months is not in good standing.” It is not disputed but that at the time of his dismissal plaintiff' was in arrears for three months, and it is not at all clear that the plaintiff was still a member of the society entitled under the constitution to the money.

The case was disposed of, however, by the Municipal Court upon the ground that this provision of the constitution would not be enforced as it was against public policy; and as we agree with the Municipal Court, it is not necessary to determine whether the plaintiff was a member of the association at the time of his dismissal. As originally organized.the association undertook to pay to each of its members a sum of money upon the happening of one of three events — his dismissal from the force, his retirement, or his death. There could be no objection to an association organized to pay to its members a sum of money upon their retirement from the police force, or upon the death of a member of the association. By the amendment the- association undertook to pay to each member an increased sum of money upon the dismissal of a member from the police force, or upon his death.

The police commissioner’s power to dismiss a member of the uniformed force is provided by the revised charter (Laws of 1901, chap. 466). Section 300 of that charter provides as follows: “ The police commissioner is authorized and empowered to make, adopt and enforce rules, orders and regulations for the government, discipline, administration and disposition of the police department and police force and the members thereof. He shall have power and is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges made or preferred against any member or members of the said police force, but no member or members of the police force except as otherwise provided in this chapter shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before the police commissioner or one'of his deputies, upon such reasonable notice to the member or members charged, and in such manner. of procedure, practice, examination and investigation as the . said commissioner may, by rules and regulations, from time to time • prescribe. * * ■ * Any member of the police force who may hereafter become insane or of unsound mind, so as to be unable or unfit to perform full police service or duty, may be removed and dismissed, from the police force by the commissioner.”

Section 302 of the revised charter gives the commissioner power, in his discretion, on conviction by him, or by any court or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline, to punish the offending party by dismissal from the force.

The statute confers upon police officers a permanent position, subject to removal only in case of conviction for a crime, or for a violation of police duty which renders the officer unfit to be on the force, except in the case of an officer becoming insane, and thus incompetent to perform police duty. While possibly it is not correct to say that no officer can be removed except upon his conviction upon a criminal charge, yet before an officer can be dismissed from the force he must have been convicted of such a breach of discipline or such immoral conduct as to indicate a disregard of the obligations assumed upon his joining the force, -and that the officer thus convicted is an improper person to be continued upon the force. ..This policy has been adopted as an incentive to those appointed to honestly perform the duties of their position without fear or favor, they being secure in their position so long as they retain a good character and properly perform their police duties. And to prevent an unjust conviction by the police commissioner the officer dismissed is given the right of appeal to the courts to review the action of the police com. missioner in his dismissal. Considering this motive in .securing to a police officer the . retention of his position, any arrangement or agreement between the officers of the force which would tend to nullify the effect of this legislation and to indemnify the officer for a breach of his police duty, would be void as contravening this policy adopted by the State and tending, to render it ineffectual. If all police officers agreed to give to one who had been dismissed for a violation of police duty a part of the salary that they received for performing such duty, such an agreement would be void as tending to nullify the object of the statute which secured a distinct benefit to an officer performing his duty, but provided for dismissal from the force as a penalty upon an officer who violated his duty. The agreement sought to be enforced in this action is one among officers of the force holding the position of sergeant, by which they agree to pay to one of their number upon his dismissal from the force a sum of money. The direct result of that agreement is to minimize the punishment inflicted upon an officer for a violation of his duty as such, and thus, to some extent at least, impair the effect of the. law that imposes a penalty upon a member of the force. for a violation of his police duty. The money that the plaintiff seeks to recover is money contributed by police sergeants who are members of this association, and it was to be paid to an officer who has been dismissed, as indemnity for the penalty imposed for a violation of his police duty, when such a violation results in his dismissal from the force. That such an agreement among public . officers is against public policy would seem to be clear from a mere statement of the case; that it is so is sustained by the authorities cited by the justice of the Municipal Court upon whose opinion the Appellate Term affirmed his judgment. The fact that the amount to be paid to police sergeants who are dismissed from the force is comparatively small does not at all affect the question as to whether any agreement among police officers which would provide an indemnity for the effect of a violation of the police rules and regulations of duty, or would tend to réduce the punishment inflicted upon an officer by his dismissal, would in its nature be opposed to the public policy by which police officers are encouraged in the performance of their duties by making their position on the force permanent,- and allowing their dismissal only upon a conviction for an offense. which involves a violation of. police duty. The public welfare requires that all contracts of this character should be condemned as opposed to the policy of the State, and the courts should unhesitatingly. refuse to enforce them.

It follows that the judgment appealed from must be affirmed, with costs.

Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs.