Healey v. Partridge

78 N.Y.S. 392 | N.Y. App. Div. | 1902

McLaughlin, J.:

The appellant, a policeman of the city of Hew York, was, on the 17th day of June, 1901, dropped from the rolls of the police department, and on the 7th of February, 1902, he sought to procure his, reinstatement by applying for an alternative writ of mandamus,. His application was denied and he has appealed.

The moving papers show, and the order appealed from is based entirely upon them — no papers having been presented in opposition at the Special Term — that the relator, prior to the 17th of June, 1901, was a member of the police force of the city of Hew York; that on or about the first day of June of that year lie became sick and distressed in body and mind, through no fault of his own, and was allowed and granted by said Police Department a vacation and leave of absence of and for eighteen days; ” that such leave commenced on the first and terminated on the eighteenth day of June, and before the expiration of it the respondent’s predecessor, as police commissioner, wrongfully and illegally dropped and canceled the relator’s name from the rolls of the police department, ■and thereby deprived him of his office, together with the rights, ..privileges and emoluments incident thereto ; that he had demanded reinstatement which had been denied.

His application was denied, as appears from the opinion of the learned justice sitting at Special Term, upon the ground that he had net made the same within the time provided by statute, that is, within four months. Prior to the 1st of January, 1902, the time within which a proceeding of this kind could be instituted was two years. (Greater Hew York Charter, Laws of 1897, chap. 378, § 302.) This section was amended by chapter 466 of the Laws of 1901, and the time was thereby changed from two years to four months, but the amendment provided that the same was not to take effect until -January 1,1902. It also provided (§ 1614) that “ This act shall not affect or impair any act done, or right accruing, accrued or acquired or penalty, forfeiture or punishment incurred prior to the time when this act takes effect, or by virtue of any laws repealed or modified by this act, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if this act had not been passed or said laws had not been repealed or modified.” The learned justice inadvertently overlooked the last provision of the statute quoted. The relator, manifestly, had the right to apply for rein-statement at any time within four months after the amendment referred to took effect, viz., four months from January 1, 1902. This lie did, and no answer having been made to his application, the same should, under certain conditions, have been granted. He ■did not apply until the amendment took effect'and we are of the •opinion that he thereby forfeited his right to salary during that time. He knew and was bound to take notice of the provisions of the amendment.

■ The order appealed from, therefore, must be reversed, with ten ■dollars costs and disbursements, and the motion granted, with ten dollars costs, upon condition, however, that the appellant waives all •claim to salary from the time he was dropped from the rolls to the date of liis application for reinstatement, and, unless such waiver be given, the order appealed from is affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon condition that appellant waives all claim to salary from the time he was dropped from the rolls to the date of his application for reinstatement; and, unless such waiver be given, order affirmed, with ten dollars costs and disbursements.