88 N.Y.S. 601 | N.Y. App. Div. | 1904
The relator, Daniel F. Donoher, is a member of the police force of the city of New York, and has been for a number of years past. On the 15th day of July, 1901, he was assigned to the “ Brooklyn Borough Headquarters Squad” for the performance of detective duty, and has been continuously attached to said squad from that time to the time of filing his petition, which bears date the 7th day May, 1903, and during this period-.he was required to and has performed detective duty therein. On the 28th day of April, 1903, the relator made demand upon the defendant, the police commissioner, that he be recognized as a detective sergeant on the police force of the police department, and be accorded all the rights, privileges and emoluments belonging to such rank and grade, which demand the police commissioner denied, and upon such refusal this proceeding was instituted, which asks for a peremptory writ of mandamus commanding the defendant herein to forthwith grade and recognize the relator as a detective sergeant on- the police force of the police department of the city of New York, and to accord to him all the rights and privileges thereunto appertaining. The court made an order requiring the defendant to grade and recognize the relator as a detective sergeant of police of the police department of the city of New York, and forthwith to grant him all the rights, privileges and emoluments belonging to the rank of a detective ser
The contention that the provisions of section 290 of the revised charter of the city of New York (Laws of 1901, chap. 466) apply only to the headquarters squad in the borough of Manhattan cannot be sustained, This court, in People ex rel. Finn v. Greene (87 App. Div. 346), held that the provisions of this section of the revised charter apply equally to assignments of patrolmen to perform duty in the headquarters squad in the borough of Brooklyn as to an assignment to the headquarters squadin the borough of Manhattan. Such assignment carried with it and entitled the relator to receive all of the benefits for which the act provided. In many essential matters this case is like the Finn case. It differs from it, however, in a single controlling feature. Therein the relator was detached from the Brooklyn borough headquarters squad on the 25th day of April, 1902, and brought his proceeding on the 8th day of May, 1903, after he had ceased to perform duty ás a detective sergeant, and this court held that he had been guilty of such laches in instituting his proceeding for reinstatement as defeated the application. In the present case the averment of’ the petition is that the relator was assigned to duty as a detective sergeant on the 15th day of July, 1901, has been continuously attached to such squad since that date, and is now performing detective duty in such squad. This averment is not put in issue by the return to the writ. Therein the date of the assignment is admitted, and connected with it is the further statement that the relator’s “ assignment was changed from that office to duty in connection with the Bertillon system in the Borough of Brooklyn.” We understand from the language of the return that the duty which the relator is performing in connection with the Bertillon system (so called) is within the line of duties assigned to and performed by detective sergeants connected with the headquarters squad. It is a mere detail in the performance of duty as a detective sergeant; consequently the return does not put in issue the facts as averred in' the petition. It necessarily follows upon this state of facts that the question of laches is not involved in the present proceeding. The relator cannot be held guilty of laches in failing to move for a reinstatement to his assignment as detective sergeant because he has not been removed therefrom and is now acting in
It is. said-, however, that he is now estopped from "claiming that he isa detective sergeant for the reason that since January 1, 1902, when the revised charter of the city of Kew York went into effect, be has received, accepted and receipted for his salary as a patrolman, and by reason of such acts has waived any rights of which he was possessed. This is certainly a novel claim upon which to rest' an estoppel. If the relator by his assignment secured the status of .a detective sergeant in the police force of the city of Kew York, and he still remains therein performing duties as such, it is clear that he is entitled to the pay attached to such, grade. The fact' that, prior to the time when he made his demand to be recognized and graded as such and that he be given the emoluments inuring to such position, he had not received them, cannot be held as operating to create an estoppel-which forever deprived him of his right thereto. It may be that by accepting, receiving and receipting for his pay prior to that time he has estopped himself from demanding that he be paid a greater sum for that period of service, but with that question we are not now concerned. The problem we are now dealing with is, what is his present right and to what he is now entitled ? And the fact that heretofore he has taken a less sum than that to which his position entitled him cannot in the nature of things affect such question. That relates to the past. We are now only concerned with the future, and no matter fdr what reason he has hitherto failed to receive that to which he is entitled does not estop or bar him in any way from asserting his present right.
It is said, however, that if he have' & remedy, it is not by mandamus, but by action quo warranto. In support of this claim the learned corporation counsel relies upon People ex rel. McLaughlin v. Police Comrs. (174 N. Y. 450). That case is without application to the present. Therein the board of police commissioners of the city of Yonkers placed a captain of police upon the retired list, passed a resolution that he be relieved from duty, retired him
It is further said, however, that plaintiff’s remedy is not by mandamus, but by an action against the city to recover his salary. So far as this question is concerned, we might easily dispose of it by saying that no such question was raised below by the-learned corporation counsel nor upon the oral- argument in this court or in the briefs submitted with the case. It is-raised here for - the first time by independent suggestion; but however raised, we are of opinion that it is not available to defeat the present application. In order to entitle the relator to a mandamus he. is required to show-himself legally and equitably entitled to some right properly the subject of
In McCullough v. Mayor, etc., of Brooklyn (23 Wend. 458) it was said by Mr. Justice Bronson : “ Although as a general rule a mandamus will not lie where the party has another remedy, it is not universally true in relation to corporations and ministerial officers. Notwithstanding they may be liable in an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions according to law.” And this doctrine: has received uniform approval. (People v. Mead, 24 N. Y. 114; People ex rel. Ryan v. Green, 58 id. 295.) In the. latter case the court said, speaking through Judge Folger : “ Where there is a remedy by action an application for a mandamus will be denied ; with the limitation that an action against a public officer for a neglect to perform his duty will not be held to be such a remedy by action as will prevent the allowance of a mandamus.” To the same effect are People v. Supervisors of Chenango Co. (11 N. Y. 563); Buck v. City of Lockport (6 Lans. 251); Spell. Ext. Rel. (§ 1572 et seq.).
It is manifest that it was incumbent upon defendant to properly grade and recognize the status of the relator when demand was made upon him so to do, and' as he has failed in so doing and the relator has the legal right to have such act performed, it is clear, within the authorities cited, that a writ of mandamus will issue to compel its performance when that is denied.
It follows that the order granting the writ was correct. It should, therefore, be affirmed, with costs.
O’Brien, J., concurred; Laughlin, J., concurred in result; Ingraham and McLaughlin, JJ., dissented.
Order affirmed, with costs.