Ramsay v. Hayes

Rich, J.: This is'an appeal from a judgment in favor of the plaintiff, and the facts are as follows-: The plaintiff, who had been in the employ of the fire department of the city of Brooklyn •■and Greater Hew -York for more than ten years, was retired in March, 1903. The order retiring the plaintiff allowed him $533-.33 per annum, whereas plaintiff claims that he was entitled to one-half his.salary as pension, or $800 per annum. The plaintiff - alleged that the difference" [443] between $533.33 and $800 was due him, and the fire commissioner claims it was not. The act set up by the fire commissioner is as follows: “ After ten years’ active and continuous service in the said fire department, the amount of annual pension to be allowed shall be one-lialf of the annual compensation allowed such officer of member as salary at the date of his retirement from the service, or such less sum in proportion to the number of officers and members so retired as the condition cf the fund will warrant.” (Greater N. Y. Charter [Laws of 1901, chap. 466], § 790.) The fire commissioner claims he had a perfect right to reduce the amount payable to the plaintiff; he also claims that the burden was on the plaintiff to prove that the commissioner was not warranted in paying him the less amount. The real question here then is on whom is the burden of proof. The defendant claims that the presumption is in his favor; that his acts as an official were correctly and legally done. 1 believe that the qualifying clause in this statute is in the nature of a proviso and that the principles discussed in Harris v. White (81 N. Y. 532) and Rowell v. Janvrin (151 id. 67) do apply, and that the burden is not upon plaintiff to negative the proviso clause of the statute; that he properly pleaded that portion of the clause under which he claims to maintain his conte'ntion and that if the commissioner is acting under the proviso the burden is upon him to allege and prove that the funds were insufficient to meet the demands upon them. Again, the facts wére “ peculiarly within the knowledge ” of defendant, and the burden was, therefore, upon him. (1 Greenl. Ev. [15th ed.] § 79.) The judgment must be affirmed, with costs. Jenks and Miller, JJ., concurred; Hooker and Gaynor, JJ., dissented.