People ex rel. Bliel v. Martin

New York Supreme Court

People ex rel. Bliel v. Martin

11 N.Y.S. 123, 32 N.Y. St. Rep. 440, 57 Hun 587, 1890 N.Y. Misc. LEXIS 639

DecidedJune 6, 1890

StatusPublished

This text of 11 N.Y.S. 123 (People ex rel. Bliel v. Martin) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Bliel v. Martin, 11 N.Y.S. 123, 32 N.Y. St. Rep. 440, 57 Hun 587, 1890 N.Y. Misc. LEXIS 639 (N.Y. Super. Ct. 1890).

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Opinion

Van Brunt, P. J.

The relator seems to present a very meritorious case, but we do not see how this court can interfere with the absolute discretion vested, by law in the respondent. The law clothes the board with power in its discretion to grant pensions in certain cases to widows of members of the police force. The law does-not give the widows pensions to be withheld by the commissioners in their discretion, but it clothes the commissioners with power to grant pensions in certain cases if they so please, and I know of no power which,can compel them to be pleased to grant a pension. The cases cited by the learned counsel, and which he has gathered with so much industry, do not [124]*124seem to have any application to the case at bar. In the cases cited the party applying had some right to call upon the court or judge to°act. He was á party to an action or proceeding, and therefore had a right to be heard; Whereas, in the case at bar, a power to act is conferred, but no obligation to exercise this power is imposed. Indeed, the argument that the granting of the power raises the presumption that, when the conditions are fulfilled, the power must be exercised, is expressly repelled by the insertion of the words “in its discretion.” When the board think a proper case arises for a pension, they have power to grant it; but there is nothing which requires them, in any ■case, to exercise that power in favor of any applicant. We think that the order appealed from should be affirmed, with costs. All concur.

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Van Brunt, P. J.

The relator seems to present a very meritorious case, but we do not see how this court can interfere with the absolute discretion vested, by law in the respondent. The law clothes the board with power in its discretion to grant pensions in certain cases to widows of members of the police force. The law does-not give the widows pensions to be withheld by the commissioners in their discretion, but it clothes the commissioners with power to grant pensions in certain cases if they so please, and I know of no power which,can compel them to be pleased to grant a pension. The cases cited by the learned counsel, and which he has gathered with so much industry, do not [124]*124seem to have any application to the case at bar. In the cases cited the party applying had some right to call upon the court or judge to°act. He was á party to an action or proceeding, and therefore had a right to be heard; Whereas, in the case at bar, a power to act is conferred, but no obligation to exercise this power is imposed. Indeed, the argument that the granting of the power raises the presumption that, when the conditions are fulfilled, the power must be exercised, is expressly repelled by the insertion of the words “in its discretion.” When the board think a proper case arises for a pension, they have power to grant it; but there is nothing which requires them, in any ■case, to exercise that power in favor of any applicant. We think that the order appealed from should be affirmed, with costs. All concur.

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Bluebook (online)

11 N.Y.S. 123, 32 N.Y. St. Rep. 440, 57 Hun 587, 1890 N.Y. Misc. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-bliel-v-martin-nysupct-1890.