13 Abb. N. Cas. 413 | N.Y. Sup. Ct. | 1884
Tbe relator was a member of the police force of tbe city of New York, from October 1872, to the 10th of February, 1877. His salary was fixed by law at the sum of $1,200 a year. This was
The proceeding by mandamus, was at the time of the enactment of the provisions prescribing the times within which actions and
If it could have been prosecuted in the form of an action, the action was required by section 382, to be commenced within six
It has been urged in support of the appeal that the respondents received the money to pay the 'applicant his salary, and as they held it only for that purpose, they became to that extent trustees; and that the right to institute the proceeding should, therefore, be restricted to the statutory time after a demand of the money was made by him. But subdivision 1 of section 410 of the Code, upon which this position has been taken, does not sustain the right of the applicant to delay the application to the time when it was made by him ; for that so limits the right of a party entitled to make the demand, as to require the time to be computed from the time when he had actual knowledge of the facts upon which the right dep.ended. And it is very plain that the applicant had such knowledge when these deductions were made from the amount of his salary. He knew at what sum his salary had been fixed, and he certainly knew when deductions were made, that he did not receive the full amount to which he was nominally entitled. These deductions were not made on account of any want of funds in the hands of the board of police to- pay the salary, but they were made on account of his absence from duty ; so that the facts were all fully and clearly as well as necessarily known to him at the times when he received only the residue of his monthly pay. The provisions of the Code, prescribing the time within which the proceeding should be instituted, became applicable to his case, therefore, at once, as soon as they were enacted; and they secure him no extension of time, simply because of the circumstance that he could not
The provision contained in section 3355 of the Code, declaring that for the purpose of determining the effect of the different provisions of the act they should be deemed to have been enacted simultaneously, in no way aids the applicant’s case. If they should be considered as broadly as his counsel has insisted they should, they will still be of no service to him, for they would not then place his case within subdivision 3 of section 414 of the Code, because his proceeding was not comlnenced within two years from the 1st of September, 1880, wheú this section fully and finally went into effect for this ultimate purpose, and no preceding statute prescribed the time within which they should be taken. But even though there had been, as already observed, he would then fail hy reason of the circumstance that he had unreasonably delayed the application which he made, and that, under the preceding rule of law, would require it to be dismissed, as it was, by the court.
It is probably needless to add, although it may as well be said, that it follows, from the fact that the proceeding should have been commenced within six years, that section 388 of the Code has no application to it. The case has been very ably presented by the counsel representing the applicant, but under no view which can be adopted is this proceeding entitled to be sustained.
The order from which the appeal has been taken was right, and it should be affirmed; but as the points to a certain extent are new, it should be without costs.
Order affirmed, without costs.