In the Matter of the Application of Charles Graven, Appellant, for a Peremptory Mandamus Order against Harry Scott and Others, as Trustees of the New Rochelle Police Pension Fund, Respondents

In the Matter of the Application of Charles Graven, Appellant, for a Peremptory Mandamus Order against Harry Scott and Others, as Trustees of the New Rochelle Police Pension Fund, Respondents. Second Department, February 5, 1937. Anthony W. Mazzarella, for the appellant. John A. Bodmer [Aaron Simmons, Corporation Counsel, with him on the brief], for the respondents. [MAJORITY — Per Curiam.] Per Curiam. The proceeding was brought to obtain a peremptory order of mandamus directing the respondents, as trustees of the police pension fund of the city of New Rochelle, to pay to the petitioner the sum of $375, being the amount of his contributions, two per cent of his monthly salary, during the period of his service as a police officer of that city. The petitioner resigned from the police force. The statute, chapter 268 of the Laws of 1904, “ An Act to provide for a pension fund for the police force of the city of New Rochelle,” contains no provision authorizing or directing a refund to a police officer, upon his resignation, of contributions made by him during his incumbency in office; and the court is without power to read such a provision into the statute. (Pennie v. Reis, 132 U. S. 464, 471; Clarke v. Reis, 87 Cal. 543; 25 P. 759; McKuskie v. Hendrickson, 128 N. Y. 555, 558; McCluskey v. Cromwell 11 id. 593, 601; Leach v. Auwell, 154 App. Div. 170, 176.) The order should be affirmed, with costs. Present — Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ. Order denying an application for a peremptory mandamus order unanimously affirmed, with costs, as a matter of law and not in the exercise of discretion.