Parker, J.
The relator, a patrolman of the police force of the city of New York, was, on the 13th day of June, 1879, arrested by his superior officer, Captain Byrnes, of the police department, and taken to a Police Court and there committed to the tombs, where he remained until the 17th day of January, 1880, on which day, after a trial under an indictment charging him with the commission of a felony, he was acquitted.
On the same day he reported for duty. Subsequently, and on the twenty-fourth day of January, he was tried before the board of police commissioners and dismissed from the force. Nugent thereupon demanded payment of his salary as patrolman, from the date of his arrest to the" time of the making of the order dismissing him from the service, and the board of 1 police commissioners refusing to comply with such demand, proceedings were instituted to compel payment, which have resulted in the issuance of a writ of
ma/ndamus,
by the Gen-
oral Term of the" Supreme Court, directing payment to be made. In
Fitzsimmons
v.
City of Brooklyn
(102 N. Y. 536) the court lays down the rule that the salary of a patrolman
“
belongs to him as an incident of his office, and so long as he holds it.” Whether or not he rendered any service during the time for which he claims compensation is unimportant. The sole question to be considered is, did the relator have title to the offiqe of patrolman during the period for which he claims, or did he not? If he had title, he was entitled to his salary, otherwise not.
' Article 7 of chapter 335 of the Laws of 1873, relates generally to the organization and discipline of the police force.
By section 41 of such article' the board of police are empowered to prescribe the government and discipline of the department, and to hear charges which have been preferred against members.
Section 47 provides, among other things, that “ unexplained absence, without leave, of any member of the police force for five days, shall be deemed and held to be a resignation of such member, and accepted as such.” While section 55 empowers the board of police, in its discretion, on conviction of a member of the force of any legal offense or neglect of duty, * * * or absence without leave, to punish the offending party.
The board of police, therefore, were invested with the authority to determine when absence without leave was explained and when not explained. They could arbitrarily accept as an explanation any excuse, however frivolous, which the ingenuity of favorite members of the force might suggest. If held to be explained, it was still an absence without leave, and on conviction the offending party could be punished by' reprimand, forfeiting pay for a specified time or dismissal from the force. The power to determine which of the methods of punishment authorized should be inflicted rested solely in the discretion of the board of police. This discretion the legislature subsequently saw fit to and did take away from the board of police by chapter 755 of the Laws of 1873, entitled “ An act supplemental to the act entitled an act to reorganize
the local government of the city of New York, passed April 30, 1873.” Section 5 of that act reads as follows: “ Any member of the police force who shall be absent from duty without leave for the term of five days shall, at the expiration of said five days, cease to be a member of the police force.”
The appellant contends that, under and by virtue of this section of the statute, the relator’s title to the office ceased on the eighteenth. He was arrested on the thirteenth day of June, and it not ajipearing that leave of absence was granted, his term of office must be deemed to have ceased, as contended for by the appellant, unless his enforced absence under the command of the law shall be held not to be within the intendment of the statute. It is both unreasonable and unjust to the citizen to hold that in any case he is subject to a penalty imposed by law for non-performance of a duty when such performance, without fault on his own part, is prevented by law. It is far more agreeable to reason to construe such a statute as containing an implied undertaking on the part of the state that performance shall not be hindered or prevented by any legal authority within the limits of the state, and, as a necessary consequence, that when thus hindered and prevented the statute shall not operate as against the citizen or officer thwarted in the attempt at performance. The principle which justifies and demands such a construction of this statute, as will relieve the relator from the penalty of enforced non-performance, by the act of the law, is sanctioned by elementary writers and in adjudged cases. “ When performance of a condition is prevented by the act of God or law, it is excused.” (Coke on Litt. 20, 6 a; 3 Kent’s Com. 471; 8 Bing. 231; Gilbert on Covenants, 472; 1 Parsons on Contracts, 524; Chitty on Contracts, 631.)
In the
People
v.
Bartlett
(3 Hill, 570) the defendant pleaded, in substance, that after entering into a recognizance for the appearance of a prisoner, such prisoner was arrested and committed to jail in another county, and there kept in confinement until convicted and sent to state prison. The plea was held to be a good answer to the action, the court, in the opinion,
saying: “ It is a general principle of law that where the performance of the conditions of a bond or recognizance has been rendered impossible by the act of God or of the law, * * * the default is excused.” This case has been cited with approval in a long line of cases in the several courts of this state.
In the case of the
Commonwealth
v.
Terry
(2 Duvall, 383), it was held that, in a proceeding against the surety upon a forfeited recognizance, it was a sufficient defense that the defendant, being a soldier in the Federal army, was refused a furlough, and by reason thereof was unable to appear in discharge of the recognizance. In the case of the
Commonwealth
v.
Webster
(1 Bush. 616), it was held that the defendant, having been arrested by a provost marshal and taken from the county where the prosecution against him was pending, the bail should not be made liable because he was deprived of the power to surrender the defendant by the United States officer. In
Commonwealth
v.
Overby
(80 Ky. 208) it was held that “ although the bail was not deprived of his right to surrender the defendant, by the commonwealth, he was effectually prevented exercising that right by the United States government, and, in our opinion, it does not make any difference whether the non-appearance of the defendant, in compliance with the bail bond, be caused by the commonwealth or the United States government, for the authority of neither can he resisted. In
People
v.
Cook
(30 How. Pr. 110) / the obligee, in a recognizance, enlisted as a soldier under a call of the president for troops and was unable to appear, the bond was declared forfeited, and judgment recovered against the surety.
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Parker, J.
The relator, a patrolman of the police force of the city of New York, was, on the 13th day of June, 1879, arrested by his superior officer, Captain Byrnes, of the police department, and taken to a Police Court and there committed to the tombs, where he remained until the 17th day of January, 1880, on which day, after a trial under an indictment charging him with the commission of a felony, he was acquitted.
On the same day he reported for duty. Subsequently, and on the twenty-fourth day of January, he was tried before the board of police commissioners and dismissed from the force. Nugent thereupon demanded payment of his salary as patrolman, from the date of his arrest to the" time of the making of the order dismissing him from the service, and the board of 1 police commissioners refusing to comply with such demand, proceedings were instituted to compel payment, which have resulted in the issuance of a writ of
ma/ndamus,
by the Gen-
oral Term of the" Supreme Court, directing payment to be made. In
Fitzsimmons
v.
City of Brooklyn
(102 N. Y. 536) the court lays down the rule that the salary of a patrolman
“
belongs to him as an incident of his office, and so long as he holds it.” Whether or not he rendered any service during the time for which he claims compensation is unimportant. The sole question to be considered is, did the relator have title to the offiqe of patrolman during the period for which he claims, or did he not? If he had title, he was entitled to his salary, otherwise not.
' Article 7 of chapter 335 of the Laws of 1873, relates generally to the organization and discipline of the police force.
By section 41 of such article' the board of police are empowered to prescribe the government and discipline of the department, and to hear charges which have been preferred against members.
Section 47 provides, among other things, that “ unexplained absence, without leave, of any member of the police force for five days, shall be deemed and held to be a resignation of such member, and accepted as such.” While section 55 empowers the board of police, in its discretion, on conviction of a member of the force of any legal offense or neglect of duty, * * * or absence without leave, to punish the offending party.
The board of police, therefore, were invested with the authority to determine when absence without leave was explained and when not explained. They could arbitrarily accept as an explanation any excuse, however frivolous, which the ingenuity of favorite members of the force might suggest. If held to be explained, it was still an absence without leave, and on conviction the offending party could be punished by' reprimand, forfeiting pay for a specified time or dismissal from the force. The power to determine which of the methods of punishment authorized should be inflicted rested solely in the discretion of the board of police. This discretion the legislature subsequently saw fit to and did take away from the board of police by chapter 755 of the Laws of 1873, entitled “ An act supplemental to the act entitled an act to reorganize
the local government of the city of New York, passed April 30, 1873.” Section 5 of that act reads as follows: “ Any member of the police force who shall be absent from duty without leave for the term of five days shall, at the expiration of said five days, cease to be a member of the police force.”
The appellant contends that, under and by virtue of this section of the statute, the relator’s title to the office ceased on the eighteenth. He was arrested on the thirteenth day of June, and it not ajipearing that leave of absence was granted, his term of office must be deemed to have ceased, as contended for by the appellant, unless his enforced absence under the command of the law shall be held not to be within the intendment of the statute. It is both unreasonable and unjust to the citizen to hold that in any case he is subject to a penalty imposed by law for non-performance of a duty when such performance, without fault on his own part, is prevented by law. It is far more agreeable to reason to construe such a statute as containing an implied undertaking on the part of the state that performance shall not be hindered or prevented by any legal authority within the limits of the state, and, as a necessary consequence, that when thus hindered and prevented the statute shall not operate as against the citizen or officer thwarted in the attempt at performance. The principle which justifies and demands such a construction of this statute, as will relieve the relator from the penalty of enforced non-performance, by the act of the law, is sanctioned by elementary writers and in adjudged cases. “ When performance of a condition is prevented by the act of God or law, it is excused.” (Coke on Litt. 20, 6 a; 3 Kent’s Com. 471; 8 Bing. 231; Gilbert on Covenants, 472; 1 Parsons on Contracts, 524; Chitty on Contracts, 631.)
In the
People
v.
Bartlett
(3 Hill, 570) the defendant pleaded, in substance, that after entering into a recognizance for the appearance of a prisoner, such prisoner was arrested and committed to jail in another county, and there kept in confinement until convicted and sent to state prison. The plea was held to be a good answer to the action, the court, in the opinion,
saying: “ It is a general principle of law that where the performance of the conditions of a bond or recognizance has been rendered impossible by the act of God or of the law, * * * the default is excused.” This case has been cited with approval in a long line of cases in the several courts of this state.
In the case of the
Commonwealth
v.
Terry
(2 Duvall, 383), it was held that, in a proceeding against the surety upon a forfeited recognizance, it was a sufficient defense that the defendant, being a soldier in the Federal army, was refused a furlough, and by reason thereof was unable to appear in discharge of the recognizance. In the case of the
Commonwealth
v.
Webster
(1 Bush. 616), it was held that the defendant, having been arrested by a provost marshal and taken from the county where the prosecution against him was pending, the bail should not be made liable because he was deprived of the power to surrender the defendant by the United States officer. In
Commonwealth
v.
Overby
(80 Ky. 208) it was held that “ although the bail was not deprived of his right to surrender the defendant, by the commonwealth, he was effectually prevented exercising that right by the United States government, and, in our opinion, it does not make any difference whether the non-appearance of the defendant, in compliance with the bail bond, be caused by the commonwealth or the United States government, for the authority of neither can he resisted. In
People
v.
Cook
(30 How. Pr. 110) / the obligee, in a recognizance, enlisted as a soldier under a call of the president for troops and was unable to appear, the bond was declared forfeited, and judgment recovered against the surety. The judgment was reversed, the court, in the opinion, saying: “The officers of the state, acting under its-authority, are thus shown by the answer to have detained the principal in the recognizance and prevented the performance of its conditions by the bail.” The cases so far cited establish the doctrine that the People cannot recover on a bail bond, because of a forfeiture caused by the act of government or the authority of law.
In
Wolfe
v.
Howes
(20 N. Y. 197) the question under consideration was, whether an employe who had failed to complete his contract could recover on showing that failure to perform was not a voluntary act, and the court said: “ The law gives a reasonable construction to all contracts. For instance, in the present case, did the parties intend that the dontract should be binding on the plaintiff’s testator in case of unavoidable sickness or death ? Or did they intend, and is it to be implied, that each should perform according to the contract, Ateo
volente?”
In
Cohen
v.
New York Mutual Life Insurance Company
(50 N. Y. 610), plaintiff, by the occurrence of war between the states, was prevented from transmitting money for- the payment of premiums due upon a policy of life insurance. At the close of the war she tendered the amount due for premiums, with the interest thereon, which the defendant refused to receive, claiming that the policies had become forfeited by non-payment. The court held that the contract was not dissolved, but suspended by the war, and, in the opinion, sai,d : “ There is a manifest distinction between mere impediments and difficulties in the way of the performance of a condition and an impossibility created by law or the act of the government.”
(Wood
v. Edwards, 19 Johns. 205 ;
People
v.
Bart
lett, 3 Hill, 570;
Wolfe
v. Howes, 20 N. Y. 197.)
The cases referred to establish the principle that, in matters of contract, a party may be relieved from the consequences of the obligation to perform when performance is prevented by the act of God, or the exercise of a superior power residing within the sovereignty of the state. The same principle has been held to relieve a party from the obligation imposed- by statute.
In
Wilckens
v.
Willet
(1 Keyes, 521), a person admitted to the liberties of the jail was taken, by a warrant of the speaker of the house of representatives, without the state to show cause why he should not be punished for contempt. The judgment-creditor brought an action against the sheriff for an escape. The statute (2 R. S. 437, § 36) provided “ that if any prisoner * * * shall go, or be at large without the boundaries of the liberties
of such jail, without the assent of the party at whose suit such prisoner was committed, the same shall be an escape of such .prisoner, and the sheriff shall be answerable, therefore, for such debt,” etc. In that case, as in this, the statute contained, in terms, no exception whatever. The statute under consideration provides that absence “ from duty without leave for five days ” forfeits the office. In the case cited, the statute provided that going or being at large without the boundaries-of the liberties of the jail
“
shall be deemed an escape,” and the sheriff shall be liable, and the court held that it was not an escape, because, while he was actually without the jail liberties, he was so without by authority of law.
Upon the same principle it has been determined that taking a prisoner away from the jail liberties on a
habeas corpus ad, testificandum
does not constitute an escape.
(Noble
v.
Smith,
5 Johns. 351;
Hassam
v.
Griffin,
18 Johns. 48;
Wattles
v.
Marsh,
5 Cowen, 176;
Martin
v.
Wood, 1
Wend. 132.) The relator was arrested by his superior officer upon a charge which the courts have determined to be unfounded, and thus precluded from discharging the duty which his office devolved upon him, and it would be a perversion of justice if the wrongful act of his superior officer should result in the forfeiture of his office.
We think that the principle deducible from the cases cited demands the holding that the unjustifiable arrest and detention of the relator (for unjustifiable such detention must be held to be upon the verdict of the jury), did not operate to divest him of his title to the office of patrolman. That his absence was in obedience to the command of the law, and not, therefore, within the intendment of the statute. It follows that the relator was entitled to his salary for the period claimed, and the defendant having refused to pay,
mandamus
was the proper remedy. The trial court erred in granting a money judgment against the defendant, and so much of the order of the General Term as affirms such judgmentehould be reversed. The order of the General Term and the writ of
mandamus
issued thereon should be further modified by striking out the •allowance for costs of the appeal to the General Term.
As thus modified, the order of the General Term should be ■affirmed,' without costs of this appeal.