spect to the other employés. But no assessment was provided for against a retired pensioner, and payable out of his monthly pension. It necessarily follows that the widow of a retired pensioner, from whose salary before retirement the monthly deduction had been made, would have been entitled to payment out of the fund, notwithstanding her husband made no contribution to the fund after his retirement; and this must still be the law, unless the amendments made in 1889, supra, effected a change. I can see nothing in the amendments made to section 15 of title 13 by chapter 153 of the Laws of 1889 which discloses an intention to deprive the widow of a retired pensioner of the benefit of this fund. On the contrary, the intention of the amendments to confirm and strengthen her rights seems very manifest. By the amendments the amount of the payment to the widow was increased to the sum of $1,000, and provision was made, in addition to the monthly deductions already referred to and provided for, for a deduction by the trustees of the firemen's insurance fund of $1 from the monthly pension of such retired members of the department as had contributed to said fund before retirement; the amount so deducted to become a part of the widows' and orphans' relief fund. It is not clear whether the words "said fund" refer to the firemen's insurance fund or the widows' and orphans' relief fund, nor is it very material to the decision of this case. If they refer to the insurance fund, there is nothing in the record to indicate that Tobin, before his retirement, contributed anything to that fund, and consequently there would be no legislative authority for subsequently deducting anything from his monthly pension. If, how ever, the words refer to the widows' and orphans' fund, as seems most probable, then it was the duty of the trustees of the firemen's insurance fund to deduct $1 from Tobin's pension in each of the four months between his retirement and his death, and their failure to do so cannot deprive the widow of her rights under the law. It is not pretended that Tobin ever notified these trustees that he desired to cease contributing to the fund. I do not find any warrant in the statute for the suggestion that it is optional with the pensioner whether he will continue to be interested in the fund, or that he might at will waive or destroy his widow's future interest therein. The statute as amended retains the same provision as that contained in the original section, by virtue of which the contributions only of employés other than officers and firemen were dependent on a desire to avail themselves of the provision of the law. But the contributions of the officers and firemen, and of such of the retired pensioners as are included in the provision, are compulsory, and must be deducted from pay and pension for the benefit of the fund, irrespective of the wishes of the parties. The statute, as amended (Laws 1889, c. 153), reads: "There shall be deducted by the comptroller of the city of Brooklyn, from the monthly pay of each officer and fireman of said department, and from that of the other employees of said department, as shall desire to avail themselves of this provision, and by the trustees of the firemen's insurance fund from the monthly pension of such retired members of the department who had contributed to said fund before retirement, the monthly sum of one dollar," etc. and 100 New York State Reporter The phrase, "as shall desire to avail themselves of this provision,” relates only to the other employés, and not to the officers and firemen, and certainly not to the retired members of the department. The object was to compel those who were exposed to the hazards of active service, or who had become incapacitated for remunerative employment, to provide a fund for their widows and orphans, and to leave it optional to do so, or not, as they might see fit, with those employés who were not exposed to danger, and were capable of earning a living. But, whatever view is taken of the statute as discussed, a final amendment to section 15 by chapter 153 of the Laws of 1889 would seem to place the relatrix's right beyond all question. As so amended, and as if to confirm the claim of the widow of a retired pensioner to payment out of the fund, quite independently of her husband's contributions after retirement, the section provides that: "The said commissioner of the fire department of the city of Brooklyn may direct the trustees of the Brooklyn fire department widows' and orphans' relief fund to pay from said fund to the widow of any deceased retired pensioner of , said fire department who had contributed to said fund previous to his said retirement, and who, by reason of said retirement, was debarred from further contributing to or receiving any of the benefits of said fund, such sum of money as the widow of said retired pensioner would have been entitled to receive if said retired pensioner had not been retired from said fire department at the time of his death." It is a familiar rule that where a statute clothes a body or officer with power to do an act which concerns the public interests or the rights of individuals, though the language of the statute be permissive, merely, it will be construed as imperative, and the execution of the power may be insisted upon as a duty. In such cases the word "may" is construed as "must." People v. Otsego Co. Sup'rs, 51 N. Y. 401; Phelps v. Hawley, 52 N. Y. 23; Hagadorn v. Raux, 72 N. Y. 586; Smith v. Floyd, 140 N. Y. 337, 342, 35 N. E. 606. It is unnecessary, however, to construe the section cited as mandatory, and as requiring the payment to be made in every instance to the widow of a retired pensioner. It is quite sufficient for the purposes of this decision that the rights of the relatrix were unquestioned in the condition of the law before the amendment; that, as the law then existed, the widow of a retired pensioner was entitled to payment of the benefit sum, although the pensioner made no contribution to the fund from his pension money; and that the amendment cited is a very strong manifestation that the intention of the legislature was not to impair the rights of the widow of the pensioner, or to make them dependent upon either his ability or his willingness to continue his contributions to the fund after his retirement. The order should be reversed, and the motion for a peremptory writ granted. Order reversed, with $10 costs and disbursements, and motion for peremptory writ of mandamus granted. All concur, except BARTLETT, J., not voting. LEVY et al. v. ROSENSTEIN et al. (Supreme Court, Special Term, New York County. June, 1900.) 1. INJUNCTION EVIDENCE TO AUTHORIZE. Where the complaint and moving papers on which a temporary injunction was granted, restraining defendants from certain disorderly acts, though not made on information and belief, contain allegations which could not have been within the affiants' knowledge, and defendants answered, denying the acts enjoined, and submitted many affidavits, by persons in a position to know, denying in detail the commission of the acts complained of by any of the defendants, the temporary injunction will not be continued, since on similar evidence at the trial the complaint would be dismissed. Where the moving papers for an injunction charged some of the defendants with loitering round the street and sidewalk in front of plaintiffs' premise, and with picketing or patrolling such premises, an injunction to restrain such acts will not be granted; the acts being not unlawful if unaccompanied by disorderly conduct. 3. SAME-PAYMENTS TO STRIKERS. Where temporary injunction was granted, restraining defendants from paying or offering to pay any former employé of the plaintiffs any money to induce such person not to enter plaintiffs' employ, or for the purpose of combined action to prevent plaintiffs from continuing in business, and answering affidavits denied making the payments for any such purpose, but admitted making the payments to help plaintiffs' employés in their strike, the injunction will not be continued, since such payment is not unlawful. Action by Levy and others against Rosenstein and others. Motion to continue temporary injunction. Denied. Einstein & Townsend, for plaintiff. Vernon M. Davis, for defendant. ANDREWS, J. This is a motion to continue an injunction heretofore obtained by plaintiffs, restraining the defendants from doing certain acts until the trial of the action. Among the matters complained of in the complaint and affidavits upon which the injunction was granted, and which are restrained by such injunction, are the following: Insulting, annoying, accosting, threatening, waylaying, and following the plaintiffs and their employés, hands, and workers, and persons seeking employment of the plaintiffs, on the streets and sidewalks in front of, adjacent to, and at the houses of the plaintiffs, their employés and workers. All the above acts were clearly unlawful, and the papers submitted to the learned judge who granted the order fully justified the making of it. Upon this motion, however, to continue the injunction, an entirely different situation is presented. The defendants have served an answer which denies the doing of any of the acts above mentioned, and they have also submitted a great number of affidavits which deny that the defendants, or any of them, have done any of the acts above charged; and these affidavits are of such a character that the evidence furnished by them greatly outweighs that furnished by the affidavits. submitted on behalf of plaintiffs. The injunction was granted upon a very long and elaborate affidavit made by plaintiff, and upon some brief affidavits made by a few other persons as to some minor mat and 100 New York State Reporter ters. The affidavit of the plaintiff, assuming that all the allegations contained in it were true, undoubtedly made out a complete case for the granting of an injunction to restrain the doing of the acts above mentioned. This affidavit, however, for the most part, is not made upon information and belief, but purports to be made of plaintiff's own knowledge, and it is evident that he has sworn to a great number of matters and things of which he could not by any possibility have had personal knowledge. On the other hand, the affidavits submitted on behalf of the defendants are made by persons who were in a position to have, and apparently do have, personal knowledge of the various matters concerning which their affidavits are made. These affidavits deny in great detail the charges made in the complaint and moving affidavits, that the defendants have been guilty of the acts above enumerated. If the action were on trial, and the evidence as to the doing of the acts above mentioned were the same as that presented on this motion, the court would undoubtedly dismiss the complaint, and for this reason I am constrained to deny the motion to continue the injunction restraining the defendants from doing the unlawful acts above enumerated. The complaint and affidavits also charge the defendants, or some of them, with loitering around, about. or standing in and upon the street and sidewalk in front of the premises Nos. 423 and 425 East Sixty-Third street, and also with picketing and patrolling about the plaintiffs' premises. These charges are also denied in the answering affidavits. But, even if the charges were true, they would not be unlawful acts, or ground for an injunction, unless such loitering, patrolling, and picketing were accompanied by some of the unlawful acts above mentioned, or other acts of a similar character. The injunction which was granted also restrained the defendants from paying any person any sum of money for picketing, patrolling, and loitering about plaintiffs' premises, and also from paying, or offering or promising to pay to any former employé of the plaintiffs any sum of money for the purpose of inducing such person or persons to refuse to enter plaintiffs' employ, and from promising to pay to any former employé of the plaintiffs any sum of money for the purpose of continuing organized, concerted, and combined action on the part of said former employés of plaintiffs, with the object and purpose of interfering with and preventing plaintiffs from carrying on their business. The answering affidavits deny that any such payments were made for the purpose of continuing organized, concerted, and combined action on the part of said former employés of plaintiffs, with the object and purpose of interfering with and preventing the plaintiffs from carrying on their business. But they admit that such payments had been made for the purpose of assisting the employés of the plaintiffs in making their strike a success. I am of the opinion from the evidence that the object of making such payments was not to interfere with plaintiffs' business, but to assist the strikers by helping to support them during this strike, and I do not think that such payments for that purpose are unlawful. It follows from the above views that the application to continue the injunction must be wholly denied, with $10 costs. 32 Misc. Rep. 52.) CLARK v. CITY OF NEW YORK et al. (Supreme Court, Special Term, New York County. June, 1900.) PARKS ERECTION OF MONUMENT-INJUNCTION. Laws 1893, c. 522, provided that the mayor, aldermen, and commonalty of the city of New York might erect at such place as the department of parks should designate for that purpose a suitable memorial arch or monument to the memory of soldiers and sailors. Held that, the department of parks having designated a site in Riverside Park as a location for the monument, one owning property situated between 192 and 275 feet from the proposed site had no such right to or property in the use and enjoyment of the park as to entitle her to an injunction restraining the erection of the monument on the ground that it would deprive complainant of easements of prospect, light, and air. Motion by Elizabeth F. Clark against the city of New York for injunction pendente lite to restrain the erection of a monument in Riverside Park. Motion denied. Young, Verplanck & Prince (Augustus Van Wyck and Henry A. Prince, of counsel), for plaintiff. John Whalen, Corp. Counsel (Charles Blandy, of counsel), for defendants. FITZGERALD, J. The plaintiff seeks an injunction pendente lite to restrain defendants from erecting a monument to the memory of our soldiers and sailors at a point on Riverside Park just south of the southerly side of 89th street. Plaintiff is the owner of property on the northeast corner of 89th street and Riverside Drive, and the grounds of her action are, as set forth in the complaint, that the proposed monument will deprive her of her easements of prospect, light, and air. The distance between plaintiff's house and the proposed site of the memorial is variously estimated at between 192 and 275 feet, but, assuming the lower of these figures to be correct, it is difficult to imagine how her light and air could be even remotely affected by its erection; and, as I understand her claim, she places her main reliance for success in the pending action upon the encroachment with which her easement of view is threatened. Plaintiff claims that defendants are under legal obligations to keep this park free from structures or buildings of any kind, and the soundness of this proposition is denied by defendants' answer. Chapter 697, Laws 1867, authorizes the commissioners of Central Park to acquire title to certain property between 59th street, 155th street, 8th avenue, and the Hudson river, and under this act Riverside Drive and Park were constructed. The act provided that proceedings to acquire title to the land in question should be had pursuant to such acts then in force relating to the opening of public squares, streets, etc., in the city of New York. Section 178, c. 86, Rev. Laws 1813, entitled an act to reduce several laws relating particularly to the city of New York into one act, is in part as follows: "On such final confirmation of such report by the said court, the said mayor, aldermen and commonalty of the city of New York shall become and be seized in fee of all the said lands * * that shall or may be so required for the purpose of opening the said public square or place, street or avenue. In trust, nevertheless, that the same be appropriated and kept open |