Burton v. City of Albany

• Decision Date: 12 August 1963
• Citation: 242 N.Y.S.2d 510,40 Misc.2d 50
• Parties: Margaret BURTON, Petitioner, v. CITY OF ALBANY and Erastus Corning, II, Mayor, Lawrence J. Ehrhardt, Comptroller and James Kirwin, Police Commissioner, Constituting the Board of Trustees of the Police Pension Fund of the City of Albany, Respondents.
• Court: New York Supreme Court

Page 510

242 N.Y.S.2d 510

40 Misc.2d 50

Margaret BURTON, Petitioner, v. CITY OF ALBANY and Erastus Corning, II, Mayor, Lawrence J Ehrhardt, Comptroller and James Kirwin, Police Commissioner Constituting the Board of Trustees of the Police Pension Fund of the City of Albany, Respondents.

Supreme Court, Special Term, Albany County.

Aug. 12, 1963.

Pennock & Roberts, Albany (John H. Pennock, Albany, of counsel), for petitioner, in support of petition.

John Hacker, Corp. Counsel of City of Albany (Nicholas A. Caimano, Asst. Corp. Counsel, Albany, of counsel), for respondents, in opposition.

LAWRENCE H. COOKE, Justice.

In this article 78 proceeding, petitioner, the widow of a retired member of the Police Department of the City of Albany, applies for an order directing respondents, as Trustees of the Police Pension Fund of said City, to place her name on its pension rolls at an annual pension of $900 and to pay said sum each year from the date of her husband's death. Respondents have not answered but have moved to dismiss the petition on the grounds that it does not state facts sufficient to constitute grounds for the relief sought, that the court does not have jurisdiction to grant said relief and that the application is not timely.

It appears from the petition that Rollin J. Burton, the husband, became a member of the said Department in 1925, was released and retired from same in 1946 and thereafter received a yearly pension of $1,155 until his death in 1962.

Local Law No. 1 of 1940 of the City of Albany provided in part as follows:

' § 4. The commissioner of police shall have the power to retire from service in the police department, any officer or member thereof who may be found on examination by the surgeon of the department disqualified, physically or mentally, for the performance of his duties, and the treasurer of the pension fund shall grant pensions as hereinafter provided to such member, or to the widow, and/or children of such member who may be entitled thereto, as follows:

* * *

* * *

'(2) To any member of the police department who whilst in the actual performance of duty and by reason of the performance of such duty and without fault or misconduct on his part shall have become permanently disabled, through injuries received, so as to be unfitted to perform full police duty; and the trustees of the fund shall place upon the pension roll of the pension fund an award and grant to be paid such member, from such police pension fund, an annual pension during his lifetime of one-half of the salary of such member so retired.

'(3) The commissioner of police may release and retire from the police department any member upon a certificate of the police surgeon showing that such member of whatever age who has served twenty years continuously, is permanently disabled, physically or mentally, so as to be unfit for duty; and the treasurer of the fund shall place upon the pension roll of the pension fund an award and grant to be paid from such police pension fund, an annual pension during his life-time of one-half of the full salary or compensation of such member so retired.'

It will be noted that no provision was made therein for widows of the members mentioned, but on January 7, 1952 Local Law No. 1 of 1952 was passed by the Common Council of the City of Albany, effective February 21, 1952, amending subdivisions 2 and 3 of section 4 of said Local Law No. 1 of 1940. The following was added to subdivision 2:

'after the death of such member there shall be paid to his wife surviving him, the sum of nine hundred dollars ($900.00) per year, provided the said wife was married to said member at the time the disability occurred; and said payments shall continue during her natural life or until she remarries'.

The following was added to subdivision 3:

'after the death of such member there shall be paid to his wife surviving him the sum of nine hundred dollars ($900.00) per year, provided the said wife was married to said member at the time of his retirement by reason of disability, as aforesaid'.

In 1952, section 1 of article 8 of the State Constitution provided: 'No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual * * *'; and section 10 of article 9 thereof directed that: 'The legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.'

However, section 8 of Article 7 of the State Constitution, as amended and approved November 6, 1951 and effective January 1, 1952, provided in part: 'Subject to the limitations on indebtedness and taxation, nothing in this constitution contained shall prevent the legislature from providing * * * for the increase in the amount of pension of any member of a retirement system of the state, or of a subdivision of the state.' The use of the word 'legislature' is noted. Said constitutional section as amended was implemented by the enactment of the Supplemental Pension Act (L.1952, ch. 319), effective March 28, 1952, which authorized and empowered any municipality to adopt and amend a local law providing for monthly supplemental pension payments to local retired employees as therein defined. It will be noted that said section of the Constitution as amended and said implementing legislation, as originally enacted, made no mention of increases of pension benefits for widows and dependants of a member of a pension system. (Said Supplemental Pension Act, as variously amended, is now set forth as article 4 of the Retirement and Social Security Law.)

Of significance to the problems presented here, said section 1 of article 8 of the State Constitution was amended in 1959, effective January 1, 1960, so as to provide: 'Subject to the limitations on indebtedness and taxation applying to any county, city, or town, nothing in this constitution contained shall prevent a county, city or town * * * from increasing the pension benefits payable to retired members of a police department or fire department or to widows, dependent children or dependent parents of members or retired members of a police department or fire department.'

It is clear that the constitutional provisions in effect at the time of the adoption and effective date of Local Law No. 1 of 1952 prohibited the increase of pension benefits to petitioner's husband in the form of a pension for his widow by the Common Council of the City of Albany (People ex rel. Roth v. Kane, 256 N.Y. 684, 177 N.E. 193). Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered (Matter of Mahon v. Board of Education of City of New York, 171 N.Y. 263, 266-267, 63 N.E. 1107, 1108). Pensions given in consideration of services not fully recompensed when rendered are not gifts of public funds; they are in effect pay withheld to induce long, continued and faithful service (Matter of Bergerman v. Murphy, 278 App.Div. 388, 392, 105 N.Y.S.2d 642, 646, affd. 303 N.Y. 762, 103 N.E.2d 545). But here, the services of the husband were completed in 1946, so that any compensation or pension added after that time were not in consideration of services not fully recompensed when rendered and were not pay withheld to induce the continued service of the husband; they would have been gifts or extra compensation not permitted constitutionally at that time.

Furthermore, the general rule is that statutes are to be construed as prospective...