Matter of Sheridan v. McElligott

O’Brien, J. Petitioner is the widow of Arthur A. E. Sheridan who died while a member of the uniformed force of the Fire Department of the city of New York. The petition alleges that he died in February, 1936, as a result of injuries sustained by him at a fire. At the time of his death his salary was $3,000. Petitioner has been awarded a pension of $600 per annum. This mandamus proceeding is brought to compel the Fire Commissioner, as trustee of the relief fund of the Fire Department, to award to her an annual pension of one-half her husband’s salary, or $1,500. It is based upon the provisions of section 791, Greater New York Charter (Laws 1901, ch. 466, as amd.), as it existed at the time of the death of petitioner’s husband. This section provides that the annual allowance to the representative of a member of the uniformed force who shall die during his term of service “ shall be six hundred dollars,” and that, in the case of the death of such a member resulting from actual performance of his duties, the trustee of the relief fund “ shall have the power ” to award to the widow an amount not to exceed one-half of his compensation at the date of his decease. *62 Assuming that the death of petitioner’s husband February 22, 1936, resulted from injuries sustained by him at a fire February 1, 1936, does section 791 impose a mandatory duty upon the Fire Commissioner to grant a pension in excess of $600? In any event, the pension “ shall ” be not less than $600, but, in the case of death resulting from active duty, the Commissioner “ shall have the power ” to award a sum indefinite in amount but not more than half the salary of the deceased fireman. Concede, if we please, that the fireman’s death resulted from injury while actually engaged in the performance of his duty. The most that can be said is that the Fire Commissioner has the power to award a pension in an amount not to exceed one-half of his salary. This discretion is vested in the Fire Commissioner and is not reviewable by the courts. (People ex rel. Bliel v. Martin, 131 N. Y. 196.) The contrast between the words “ shall ” be $600 and “ shall have the power,” used in the same section of the statute, indicates in the latter instance a legislative determination that the Commissioner’s decision shall be final. The language is merely permissive and, therefore, petitioner has failed to show a clear legal right. The orders should be reversed and the petition dismissed, without costs.