In the Matter of the Application of James G. Reynolds, Respondent, for a Peremptory Writ of Mandamus, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant

In the Matter of the Application of James G. Reynolds, Respondent, for a Peremptory Writ of Mandamus, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant. Second Department, May 1, 1908. Municipal corporations—pensioning policeman—city of New York — certificate of surgeons. A certificate of three police surgeons that a police officer is permanently disabled, and that the cause, nature and extent of such disability is defective vision, sufficiently states the cause of disability and authorizes the police commissioner, under sections 355 and 357 of the Greater New York charter, to place the officer on the pension roll. * Appeal by the defendant, Theodore A. Bingham, as police commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of February, 1908, granting an application for a peremptory writ of mandamus. The relator, a captain of police, was relieved and dismissed from the police force of the city of Mew York and placed on the roll of the police pension fund by the police commissioner on the following certificate of three police surgeons: “We do hereby certify, that said James Gr. Reynolds, who has performed duty on the Police Force for a period of twenty years and upwards is permanently disabled physically so as to he unfit for duty; that the cause, nature and extent of such disability is defective vision in both eyes, 15/100 in each eye. Extent complete. That such disability is permanent and is of such a character as to unfit him for the performance of police duty.” James D. Bell [Francis K. Pendleton with him on the brief], for the appellant. Bernard J. York [Frank B. York with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The learned court below decided that the certificate of the surgeons was not sufficient in substance to give the police commissioner jurisdiction to remove the relator from the police force and place him on the roll of the police pension fund. Section 355 of the city charter provides that any member of the police force who has served for twenty years (which is the case of the plaintiff) shall “ be relieved and dismissed from said force and service and placed on the roll of the police pension fund ” by the police commissioner, “ upon a certificate of so many of the police surgeons as the police commissioner may require, ’ showing that he “ is permanently disabled, physically or mentally, so as to be unfit for duty.” The certificate of the surgeons on which the relator was retired complies with thfe. But section 357 varies, and, it may be, enlarges the phraseology. It provides that no member of the force shall be granted or paid a pension, “ on account of physical or. mental disability or disease,” except on such a certificate “ which shall set forth the cause, nature and extent of the disability, disease or injury.” Even here the phraseology varies. An unscientific and bungling statute cannot be construed and interpreted by the same strict scientific rules as a consistent and scientific statute. It is claimed that the certificate does not certify the “ cause ” of the disability. It certifies in so many words that defective vision is the cause of the disability; but the argument for the relator treats the defective vision as the disability instead of the cause thereof, and then urges that the “ cause ” of the defective vision is what the statute requires, whereas the certificate does not give it. Our language is hardly flexible enough to express the whole argument on this head. The plain fact of the matter is that the certificate certifies that the relator is disabled, and that such disability is caused by defective vision. The order should be reversed and the application denied. Woodward, Hooker, Gaynor, Rich and Miller, JJ., concurred. Order reversed, without costs, and application denied, without costs.