People ex rel. Metcalf v. McAdoo

109 A.D. 892, 96 N.Y.S. 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Rich, J.:

On February 21, 1905, the appellant ordered the board of surgeons of the police department of the city of Hew York to convene •on the following day for the purpose of examining such members of the police force as he might designate and send before them, with reference to their physical condition and ability to perform police ■duty, and at the conclusion of such examination to certify “ through its President and Secretary whether or not, in the case of each ■officer, he is permanently disabled, physically or mentally, so as to be unfit for .duty.” Among the officers designated for examination was the relator, who appeared before the board on February twenty-second and was examined by Drs. Sullivan, Ostler and De Forest. On the same day the board made its report to the appellant in the following language:

• “Police Department of the Oitt of Hew York.

“ Hew York, February 22,1905.

“ William MoAdoo, Police Commissioner :

“Dear Sib.— At a meeting "of the Board of Surgeons held this day, Sergeant Henry Metcalf, of the Eighty-second Precinct was examined with the following result:

“Age sixty-one years, height 5 feet 8, weight 222 pounds, girth of waist 48* chest measurement 41-42J. G-eneral appearance of obese. Urine 5 pegr-1032-amber, acid, no albumen, no sugar. Serviceable teeth, fatty tumor (small) at umbilicus, no hermorhoids,

* no varicose veins, no hernia, pulse at rest 76, irregular, no impulse at apex, lungs normal, too fat to palpate abdomen. Vision without glasses good in each eye. Hearing good. Agility and endurance poor. Strength fair.

“As a result of such examination, it was moved, resolved, that we find Sergeant Henry Metcalf unlit for the performance of full police duty by reason of obesity, fatty heart and poor circulation.

“ Respectfully submitted,

“S. Q. COOK, M. D.,

“ Dan H. Smith, President.

“ Secretary

Accompanying this report was the following paper:

“ Certificate.

“ Board of Surgeons. ■

“ Police Department of the City ofHew York,

“ Hew York, February 22, 19.05.

“ Dear Sir;— At a meeting of the Board of Surgeons, held on the-22d day of February, 1905, it was

“Resolved, That the following certificate in relation to the physical disability of Sergeant Henry Metcalf of the Eighty-second Precinct, be and is hereby adopted,' to wit:

“ The Board of Surgeons of'tile Police Department of the City ofHew York do hereby certify that Sergeant Henry Metcalf, of the Eighty-second Precinct, is permanently disabled sb- as to be unfit for police duty; that the cause, of such "disability is obesity, fatty heart, poor circulation; that the nature of such disability is permanent; that the extent: of such disability is such as to Unfit him for the performance of full police duty; that the said disability was ncurred or sustained by the said Sergeant Henry Metcalf whilst in the actual performáñce of police duty, and by reason of the performance of such' duty arid without fault or misconduct on his part..

“ S. G. .COOK* M. D., •

“ Dan H. Smith, ■ President.

“Secretary.” ' "

On or about May ninth the appellant caused the following notice to be served on the relator : ,

“Police Department oP The City,of Hew York.

“ Hew York, May 9, 1905.

“ Henry Metcalf, Esq.:

“ Sir.— The Police Commissioner has directed me to notify you of the following proceedings, held May 9, 1905. It appearing that Henry Metcalf, of the 82nd Precinct, is a Sergeant of the Police Force'of the Police Department of The City of Hew York ; that he has been a member of the said Police Force for period of over thirty-eight years, and that the Board of Surgeons lias certified that he is permanently disabled so as, to be Unfit for police ■ duty; Therefore,

“ Ordered, that in pursuance of the statutes in such case made and provided Sergeant Henry Metcalf,-of the 82nd Precinct, be and is hereby relieved and dismissed from said, force and service* and placed on the roll of the Police Pension Fund, and awarded and granted to be paid from said Pension Fund an annual pension of one thousand ($1,000.00) dollars.

“Very respectfully, ‘ '

■ “ GEORGE B. STONE,

“%nd Peg). Chief Clerk.”

The next day the relator delivered to the appellant a written protest, as follows:

“New Yobk, May 10,1905.

“ William McAdoo, Esq.,

“ Police Commissioner :

“Sib.—I herewith desire to enter a protest against my being retired and dismissed from the police force by you on May 9, 1905. I am in good health and have not lost one day by sickness during the last fifteen (15) years, and I draw your attention to the fact that I am competent to attend to the duties of sergeant of police. I will further state that I am a veteran of the Civil War, and I, therefore, deny your right to summarily deprive my family of the necessaries of life.

“ Most respectfully,

“(Signed) HENRY METCALF,

“ Late Sergeant 82d Precinct,

“ Residence, 436 St. Marks Avenue, Borough of Brooklyn, N. Y.”

Since the service of said notice the relator has not been permitted to discharge the duties of his office or receive the emoluments thereof. On November 2, 1905, the relator applied, upon notice, to the Supreme Court at Special Term for a peremptory mandamus directing the appellant to reinstate him as'a sergeant of police and accord him all the rights, privileges' and emoluments of such office, as of May 9, 1905. The application was granted and an order entered accordingly, and from that order this appeal is taken.

The question presented involves an inquiry into the power and jurisdiction of the appellant to compulsorily retire the relator upon a pension, which requires a construction of sections 354 and 355 of the charter of the city of. New York (Laws of 1901, chap. 466), It appears from an affidavit of the appellant, used in'opposition to the relator’s motion for the issuance of the writ, "that in maldng thé order retiring the relator he acted under the provisions of section 355, and his counsel concedes that the ease :at bar does not come within the provisions of section 354. Section 355- provides for the exercise by the appellant of the power of retirement with a pension,. in six separate classes of cases: ' . ' . .

First, of a member of the'age of fifty-five years, who has performed. duty On the police, force for a period of twenty years or •upwards, upon his own application in. writing. The exercise of power in this class of cases is discretionary...'

■Second, of a member of any age, who has served twenty years and is shown by a certificate of so many of the police surgeons as the police commissioner may require to be permanently disabled, physically or mentally, so as to be unfit for duty.. The exercise of power in this class of cases is mandatory.

'Third, of a member of the age of fifty-five years, who has performed duty for twenty-five years of upwards,' upon his • o.wn application in writing, provided there are no charges pending against him. The exercise of power in this class, of cases is mandatory.

Fourth, of a member who is an honorably discharged soldier or sailor from the army or navy of the United'States in the late Civil war, who has reached the age of sixty years, upon his own application in writing, against whom no charges are pending. . The exercise of power in this class is mandatory. ;

■ Fifth, óf a member who is such an honorably discharged soldier or sailor, who has performed duty for a period of twenty years,, upon his own application, provided no charges are pending. The exercise ■of power in this class is mandatory.. ...

Sixth, of- a member, not ah honorably discharged soldier or sailor of tlié Mexican or late Civil war, who shall have reached the.age of sixty years. The exercise Of power in this class is discretionary., ■

The relator at..the time of his retirement was .sixty-one years of age, an honorably. discharged soldier of thé Civil war, -who had' served as a police officer of the city of Hew York continuously for thirty-nine years. He was filling- tile office of sergeant of police ' (to which he was promoted on December 27, 1876) at the time of' his retirement.

Ho "power to-summarily retire-him'is found in-this section óf the charter unless his case comes within the- purview of the second class stated which is ;the contention of-the appellant., ■ •'

A necessary basis for jurisdiction in this class of cases, without which the commissioner cannot legally act, is. the certificate “ of so many of the police surgeons as the police commissioner may require,” that the officer examined “is permanently disabled, physically or mentally, so as to be unfit for duty.”

Mo such certificate was made or filed. The paper relied on, and upon which the appellant acted, which must be read and considered as- a whole, fails in two jurisdictional prerequisites, first, it is not made by the persons authorized to make it, but by a board not created or empowered by law to act or certify, and, second, it does not certify such a physical condition of the relator as permitted or justified the action taken. It is not in form or execution such an instrument as the statute contemplates. Neither the president nor secretary who signed it is shown to have personally taken any part in the examination; neither of the surgeons who made such examination personally certify to anything, and are not shown to have been present when the resolution (urged as a certificate) was adopted, or, if present, to have voted in the affirmative on the question of its adoption. The provisions of the statute do not warrant a construction sustaining this resolution as a certificate authorizing the commissioner to retire the relator from the police force. Their plain intent is that the commissioner shall designate the number of police surgeons he requires to make the, examination and unite in a certificate-either generally, leaving to the board the selection and designation of .the particular surgeons to examine and certify in" each case, or by direction to the particular surgeons he desires to act, stating the number lie requires to unite in the certificate, which must be signed by at least the required number of those who actually made the examination, and they must certify, as the result of their personal examination, that the officer examined is permanently disabled, physically or mentally, so as to be unfit for duty. This certificate is returned to the commissioner.- Before he can retire, the officer so certified upon a pension, a certificate of such police surgeons, setting forth the cause, nature and extent of the.disability, disease or injury of such officer, must be filed in the police department as required by section 357. Then and not until then is the commissioner vested with jurisdiction to compulsorily retire an officer, whose cáse comes within the provisions of the second class, upon -a pension. The unfitness for duty required by the statute as a condition precedent for retirement in the class of cases under consideration, must be substantial and connected with the position occupied on the force by the officer whose condition is being ascertained. If, as in'the case at bar, such officer is a sergeant, whose duties did not require' patrol (there being no post at his station), and are practically limited to desk work, he cannot be required to meet the physical standard and possess the physical qualifications'required of a rounds-man or patrolman. The test is not whether he is physically and mentally perfect and capable of. efficiently .performing every act that may properly be required of a police officer in all branches and departments of the service, but whether he possesses the physical and mental qualifications efficiently to perform the duties of the position he is filling. While: the relator may not have possessed the qualifications for duties specially requiring youth and activity, or be as efficient in their performance as a younger and more active man, if ' lie. was qualified to discharge the duties of the position or office he was filling efficiently, he was not “ unfit for duty ” within the meaning of the statute, nor could he be required to possess the qualifications necessary for “ full police duty ” as a Condition of retaining his position on" the force. He must have been "found substantially unfit, by-reason of. his physical or mental condition, to discharge the duties limited to and necessarily required in the office of sergeant of police in an acceptable and efficient manner. The relator’s physical and mental condition,' as disclosed by the report of his examination and the manner of performance of liis duty, established his. fitness and ability properly tó .discharge the duties devolving' upon and required of him in the position he occupied at the station he was assigned to, For fifteen consecutive years he had lost no time On account of sickness; he had discharged ¿11 the duties pertaining to liis office without complaint of any kind from,the public or his superior officers; his lungs, kidneys,teeth, vision and. hearing were found to be good, and his strength fair. The only detrimental conditions shown by the report were obesity, poor agility and endurance. While these conditions may have unfitted • him for the performance of full police duty, they do not establish that he was unfit for duty to such an extent as to warrant the examining surgeons in making a certificate of that character. Their certificate that he was unfit for full police duty was as broad as they were warranted in making as conclusions justified by their examination as disclosed by their report.

It is argued that because the resolution of the board first states that the relator “ is permanently disabled so as to be unfit for police duty,” which, standing alone, would meet the requirements of the statute, that its subsequent statement that “ the nature of such disability is permanent; that the extent of such disability is such as to unfit him for the performance of full police duty ” must be held superfluous and stated only to meet the requirement of section 357 relating to the granting of pensions, and did not limit or control the power of the commissioner to act under the first statement.

We do not agree with counsel in this contention. The certificate must be read and considered as a whole, and the effect of the later statement was to qualify, control and limit the general language first used. As a whole it was a certification only of the conclusion reached (and the only one warranted by the examination) that the relator’s physical condition was such as to incapacitate him from the performance of full police duty which was not sufficient to warrant or justify the order made and. action taken by the appellant.

The order must be affirmed, with costs.

Bartlett, Jenks, Hooker and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

m.