#### The People ex rel. Robert A. Tighe, Relator, *v.*Theodore A. Bingham, as Police Commissioner, etc., Respondent. The People ex rel. Nathaniel N. Shire, Relator, *v.*Theodore A. Bingham, as Police Commissioner, etc., Respondent.

(Supreme Court, Special Term for Motions — Kings County

.February, 1910.)

Municipal corporations — Police department — Retirement on pension.

A member of the police force of New York city who has been in the service more than twenty-five years cannot be retired under section 354 of the Greater New York charter.

It is the duty of the police hoard under section 3‘55 of the Greater New York charter to retire a member of the police force who has served more than twenty-five years upon a certificate of the police surgeons that he is disabled; and the board cannot be compelled by mandamus to reinstate such a member so retired by them on the ground that he is not in fact disabled.

Motions for writs of mandamus to compel the police commissioner to reinstate members of the force who have been retired against their will and placed on the pension roll on the certificate of police surgeons to their physical disability.

Grant & Rouss, for motion.

Francis K. Pendleton, Corporation Counsel (James D. Bell and James W. Covert), opposed.

Blackmae, J.

The case of People ex rel, Price v. Bingham, 125 App. Div. 722; alfd., 193 N. Y. 610, seems' to

me decisive authority on this application. That case is not overruled by Matter of Hodgins v. Bingham, 196 N. Y. 123. The Hodgins case holds that the authority given by section 354 of the charter to the police commissioner to retire a member of the force depends on the fact of the existence of the disability. As the power of the commis*220sioner to act depended on the existence of a fact, the court held that an alternative writ of mandamus should issue to inquire into the question of fact.

But in the case at bar the removal was not under section 354, and it could not have been, because the petitioners have been twenty-seven years and twenty-nine years in the service, respectively, and the authority to retire under section 354, subdivision 4, exists only in case of a member who has been more than ten and less than twenty-five years in the service.

The commissioner in this case acted under section 355. His power and duty to act do not depend on the existence of the disability, but upon the existence of a certificate of the police surgeons that such disability exists. As there was such a certificate in this case, the commissioner was required by law to retire the petitioners. He was therefore in the strict line of his duty in so doing. The remedy by mandamus is to compel the performance and not the violation of duty by public officers.

The counsel for petitioners claim that section 355 only applies to cases where the member is retired on his own application and not to cases where the proceedings are against his will. Section 355 is involved, inartificially expressed and, read alone, uncertain in its meaning. But, if we give it the meaning claimed by petitioners’ ’counsel, we are led to the strange conclusion that, if a member has served twenty-five years or more, he cannot be retired against his will, no matter how utterly unfitted for active duty he may become by reason of age or mental or physical disease. This flows from the fact that the power to retire conferred by section 354 exists only where the member has been more than ten and less than twenty-five years in the service, and thé power of compulsory retirement in cases not within section 354-does not exist unless found in section 355.

The limitation prescribed in section 302 does not apply to this case, and it is not necessary to decide the question of laches.

Motions denied.