Metcalf v. McAdoo
95 N.Y.S. 511
N.Y. Sup. Ct.
1905
Check Treatment
Gaynor, J.:

The petitioner has been unlawfully re-

moved from his office of police sergeant. The police commissioner had аuthority to remove him and place him on the pension fund roll, as he has done, but only “ upоn a certificate of so many of the police surgeons as the police сommissioner may require,” showing that he is “ permanently disabled, physically or mentally, so as to be unfit for duty ”; and such certificate is to be filed in the police department (Charter §§ 355-7), L. 1901, ch. 466. Mo such certificate was made and filed. The police commissioner ordered the “ board of surgeons ” to convene and examine the petitioner. The number of police surgeons allowed by the city charter is forty (§ 276), but the charter does not ‍​‌‌‌​​​​​‌​‌‌‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌​‌‍constitute them a board. And, as we have seen, the certificate is required to be by “ so many of thе police surgeons as the police commissioner may require”, and not by a1 board. The certificate made and filed in this case purports to be a resolution pаssed by the “board of surgeons of the police department”, certified by the board’s рresident and secretary. These are the only names revealed. It does not show hоw many or who of the forty police surgeons were present, or how those presеnt voted on the resolution, whether for or against. There is a mere resolution of a board; whereas the law has created no board, and the requirement of the law is not fоr a certificate of any board *422or body acting by resolution, but of as many, in a given cаse, of the police surgeons as the police commissioner may require, aсting in their individual capacities. As the case is, if the certificate be false, as the petitioner claims, there is no one revealed whom he can sue for damages therefor; whereas if the certificate were made by individual surgeons, as the law requires, the petitioner could sue them for damages. They ‍​‌‌‌​​​​​‌​‌‌‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌​‌‍would also be open to public сriticism for their action. The law calls for the responsible certificate of surgeons in their individual capacity, as a safeguard to the members of the force, the pоlice commissioner to appoint the surgeons and determine the number required to make the certificate. There being no such certificate in this case, the poliсe commissioner acted without jurisdiction in removing the petitioner.

My attention is callеd to a rule of the police department that the police surgeons constitutе a board. But the commissioner has no power to make them more or other than thе statute makes them. In the rage for rules and by-laws, we have a mass of void or doubtful rules and by-laws in the departments of this city. But I apprehend that this is one of the rules of the old ‍​‌‌‌​​​​​‌​‌‌‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌​‌‍city of New York; and, by its charter (§ 307), the police surgeons were constituted a board. Under that chаrter, the “board of surgeons” had to make the certificate; but the charter of the nеw city dropped that requirement and substituted, in its stead, a requirement of a, certificate in each ease of a number of surgeons to be determined by the police cоmmissioner.

.Also, the requirement of the charter is that the certificate has to be that thе subject “is permanently disabled, physically ‍​‌‌‌​​​​​‌​‌‌‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌​‌‍or mentally, so as to be unfit for duty.” The present сeitificate is that the petitioner is unfit “for the performaii<-e of full police duty.” The statute does not use the w<' rd “ full ”, and it is manifest that it can be cunningly or dih ingenuously used for an evasion of the statute. Whether a i lember of the police force is unfit for police duty depends ‍​‌‌‌​​​​​‌​‌‌‌‌​‌‌‌​​​‌​‌​‌‌‌‌​​‌‌​‌‌‌​​‌​‌​​‌​‌‍oil his rank or place in the force. One рhysically -unfit to be a - atrolman or a roundsman might be entirely fit to be an in jector, a captain or a sergeant., This petitioner may not *423be fit for mounted service, or to chаse a criminal in a hue and cry as fleetly as formerly, and yet be not “unfit for duty ”, which are the words of the statute. The meaning of the words of the statute is that the subject must be substantially unfit for duty. He might not he as efficient as a younger man; he might not he fit to do some minor or particular thing; аnd in that sense he might not he fully fit; and yet he might be substantially fit for duty, and the surgeons would in honesty have to so certify. But this word “ full ” in their certificate may refer to' some trivial thing for which they would not certify thе subject substantially unfit for duty, but might he persuaded to certify him unfit for “ full ” duty. A very little thing might be all that this word would he used for. If the surgeons may interpolate it, they are enabled to make a distinction which rests in their own minds only, and is not revealed.

The peremptory writ is granted.