Ramsay v. Hayes (112 A.D. 442, 1906)

Rich, J.:

This is'an appeal from a judgment in favor of the plaintiff, and the facts are as follows-: The plaintiff, who had been in the employ of the fire department of the city of Brooklyn •■and Greater Hew -York for more than ten years, was retired in March, 1903. The order retiring the plaintiff allowed him $533-.33 per annum, whereas plaintiff claims that he was entitled to one-half his.salary as pension, or $800 per annum. The plaintiff - alleged that the difference" between $533.33 and $800 was due him, and the fire commissioner claims it was not. The act set up by the fire commissioner is as follows: “ After ten years’ active and continuous service in the said fire department, the amount of annual pension to be allowed shall be one-lialf of the annual compensation allowed such officer of member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the condition cf the fund will warrant.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 790.) The fire commissioner claims he had a perfect right to reduce the amount payable to the plaintiff; he also claims that the burden was on the plaintiff to prove that the commissioner was not warranted in paying him the less amount. The real question here then is on whom is the burden of proof. The defendant claims that the presumption is in his favor; that his acts as an official were correctly and legally done. 1 believe that the qualifying clause in this statute is in the nature of a proviso and that the principles discussed in Harris v. White (81 N. Y. 532) and Rowell v. Janvrin (151 id. 67) do apply, and that the burden is not upon plaintiff to negative the proviso clause of the statute; that he properly pleaded that portion of the clause under which he claims to maintain his conte'ntion and that if the commissioner is acting under the proviso the burden is upon him to allege and prove that the funds were insufficient to meet the demands upon them. Again, the facts wére “ peculiarly within the knowledge ” of defendant, and the burden was, therefore, upon him. (1 Greenl. Ev. [15th ed.] § 79.)

The judgment must be affirmed, with costs.

Jenks and Miller, JJ., concurred; Hooker and Gaynor, JJ., dissented.

Hooker, J. (dissenting):

This case was tried without a jury, judgment was entered in favor of the plaintiff, and the defendant appeals.

The findings of fact are as follows: “ That, on March 14, 1903, plaintiff having served over ten years in active and continuous service, as a member of the uniformed force of the Fire Department, and being at that time an engineer of steamers in the said Fire Department, the annual salary attached to which said position was. at said date, at the rate of $1,600 per annum, was retired from .all other of further service in said Fife Department ón the certificate of ■the medical officers thereof that hé. was totally and permanently disabled for the performance of duties, and that such disability was- . not caused 'in or induced by the actual performance of the duties of his position, on a pension, as fixed by the Commissioner of the Department of Fire as Trustee of The Dew York Fire Department Belief Fund, of one-third of his pay or salary at the-time of his said retirement, to wit, at the sum of $533.33 per annum. That plaintiff!s' disability occurred after ten years’ active and continuous service in the Fire Department, and having then been, retired," he was entitled to the pension fixed by the Charter, section 790," viz., onéhalf of his compensation at the time of such retirement. That from. March 14,1903, to June 1, 1904, being for a period of one year two and one-half iponths, there was lawfully due to plaintiff -from defendant, as trustee of the'said relief fund, at the rate of $800 per annum- pension, the sum of $966.65, as stated in the com-" plaint herein, but -that the said defendant has paid to’ plaintiff -the stim of $644.45 only, leaving a balance due" to plaintiff from said defendant as'trustee, up to Junó 1, 1904, amounting to the. sum of $322.20 as -stated in the complaint.” '

Section 79Ó of the charter of the city of Dew York "(Laws of 1901, chap; 466) provides -that “ In case of total permanent disability, at any time, caused in or induced by the actual performance of the duties of his position, or-which may occur after ten years’ active and continuous service in the said lire' department, the amount' of annual pension -to be allowed shall be one-half of the* annual compensation allowed such officer or member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the> condition of the fund will warrcmtP ■ )

Do evidence was offered On th¿ part "of either party as to the condition of the pension fund, and it will be seen from the facts and from this section 790 that the sole question in this case is upon whom 'does the. burden of proof rest to show the condition of the fund. If this burden is with the plaintiff then the judgment is wrong, fof it nowhére appears that the condition of the fund" is such as to warrant the payment of the full one-half of the annual compensation he had been allowed ; on the other hand, if it lies with the defendant to show this, the judgment is right for the defendant has not shown that the. plaintiff'has been awarded by him a sum of less than half the annual compensation because of consideration of the proportion of the number of officers and members retired and the condition of the fund.

The plaintiff seeks to have us hold that the words in the statute “ or such less sum in proportion to the number of officers and members so retired- as the condition of the fund will Warrant ” form a proviso in and not an exception to the other provisions of the section. Then he would have us invoke the rule, that “ Where an exception is incorporated in the body of the clause of the statute, he who pleads the clause ought to plead the exception. But when there is a clause for the benefit of the pleader, and afterward follows a proviso which is against-him, he may plead'the clause, and leave it to his adversary to show the proviso.” (Harris v. White, 81 N. Y. 532, 546.) It is doubtless true, as he urges, that “ an exception exempts something absolutely from the operations of the statute by express words in the enacting clause; a proviso defeats its operation conditionally. An exception takes something out of the statute that otherwise would be part of the subject matter of it; a proviso avoids them by way of proviso or excuse.”

There is nothing, however, in the language of the statute which points to a legislative" intent to treat this clause either as an exception or proviso, and we do not believe it to be necessary to decide that it is either, and if either, which one. The clause is part of a more or less elaborate scheme in relation to many phases of the firemen’s pension fund, which have been enacted but of charitable consideration for the benefit of those who may be injured by reason of their engagement in a necessary and sometimes heroic occupation, and those who have become incapacitated after serving in that occupation for a long time, together with their dependents. The administration of the fund and management of the affairs connected therewith are vested in the fire commissioner, who also occupies the position of the actual and virtual head of the fire department of the city.

The act of the defendant fire commissioner as trustee of the pension fund must be, we think, at least until the contrary is shown, presumed to have been done with honesty and discretion when he allowed the plaintiff but one-third instead of one-half of- his former salary as a pension, and that this' act on his part was done out