Bennett v. City of New York

The question presented by this appeal is solved by a determination as to whether a member of the park police force, transferred into the consolidated force of Greater New York, is upon the instant placed in the first grade if he has served five years .upon the police force from which he is transferred into the new force, or whether the grade which he is to occupy in the new force is determined by the amount of salary which lie was receiving at the time of such transfer.

By the provisions of section 299 of the charter the compensation of the officers and members of the police force is established, as are also the respective grades into which the members of such force are divided. After providing for these matters and others relating te the time of payment of the compensation, déduction on account of loss of time or sickness and other matters, the section provides: “ Nothing in this section contained shall be construed to change in any way the salaries or grading, present or prospective, of the patrolmen or policemen who are or become members of the New York police force prior to January first, eighteen hundred and ninety-eight.” The last-named date was the time when the police forces-existing in Greater New York were consolidated into one body. The above provision evidently relates to those policemen who were members of the police force of the city of New York prior to the consolidation, and as to them this saving clause was introduced to prevent any change in salary or grading to which they were at that time entitled. Then follows the provision: All other patrolmen or policemen of the various police forces consolidated into a single force by the provisions of this act shall belong, so-far as pay or compensation is concerned, to the grade indicated by *9the pay or compensation which they are respectively receiving on January first, eighteen hundred and ninety-eight. But nothing in this section contained shall be construed to affect in any other way the rights and privileges secured under the provisions of this act to the members of the various police forces consolidated into a single force by this act.” This paragraph of section 299 relates in terms to all of the other members of the police force in the various departments who had not theretofore been members of the police force of the city of New York, and in terms it fixed their status as to grade, based upon the compensation which they were then receiving. The language is so clear in this respect as not to require construction. It did more. By the saving clause there was reserved to such patrolmen or policemen all of the rights and privileges which they enjoyed prior to the transfer. As the salary, grade and rights of the police force of the city of New York prior to consolidation were saved and continued so, likewise, the rights and privileges of the transferred policemen were also saved and continued. They; however, had no right as to grade in the new force, and while saving their rights and privileges the section also fixed the grade by making it dependent upon the salary which they were receiving at that time. The language used in the section : “ All such members who are patrolmen and who shall have served five years or upwards on said force shall be members of the first grade,” in view of the specific provision with respect to the policemen or patrolmen transferred, must be held to have relation solely to the members of the police force of the city of New York who were such prior to consolidation and did not embrace those transferred, otherwise the two provisions would be inconsistent, Being so qualified and limited, the whole section may be harmoniously construed.

Nor was the decedent’s status as to grade qualified by the paragraph following that which made the grade dependent upon the pay or compensation received. Such paragraph does not assume to fix the grades or regulate them; it relates solely to the advancement of the patrolman to the next grade when he shall have become a member of the new force and after his grade therein is fixed and established. Nor is this construction at all disturbed by the provisions of section 355 of the charter, relating to pensions. The subject-matter of this section is quite independent of that which fixes *10■the grade upon the force. Therein, in terms, the right to pension-is conferred upon those members of the police force who had been members of the force transferred. Because their period of service upon the police force of which they were formerly members was taken into consideration in fixing and determining their right to a pension, does not bear even remotely upon the provision of law which fixed their -grade. The statute in each case speaks with a clearness which leaves no room for controversy. One made the grade dependent upon compensation received at. the time of the consolidation; the other considered the entire service in fixing the right to a pension. There is no conflict between the two. Both regulate a given subject in express terms.

We conclude, therefore, that the plaintiff’s intestate was properly placed in the fourth grade upon the consolidated force. He has been paid in full the salary attached to such grade. His personal representative has, therefore, no cause of action against the city. This view renders it unnecessary that we should consider what, if any, effect should be given to the receipt in full which he gave for his salary at the time he received the same.

It follows that the judgment should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment affirmed, with costs.