Devens v. Gokey

• Decision Date: 29 December 1958
• Citation: 188 N.Y.S.2d 813,18 Misc.2d 647
• Parties: Matter of the Application of Harry DEVENS v. J. Neil GOKEY as Commissioner of Public Safety of the City of Oswego, New York, et al.
• Court: New York Supreme Court

Page 813

188 N.Y.S.2d 813

18 Misc.2d 647

Matter of the Application of Harry DEVENS v. J. Neil GOKEY as Commissioner of Public Safety of the City of Oswego, New York, et al.

Supreme Court, Oswego County.

Dec. 29, 1958.

Leyden E. Brown, Oswego, for petitioner.

Kirke M. White, Oswego, for respondents.

HENRY A. HUDSON, Justice.

The petitioner has instituted a proceeding under Article 78 of the Civil Practice Act, first, for an order directing J. Neil Gokey, Commissioner of Public Safety for the City of Oswego and Frank Sayer, Chamberlain of the said city, to pay to the petitioner compensation which would have been due him had he continued in his position as fireman in the City of Oswego from the 5th day of May, 1951 to the date of such order and secondly for an order reinstating and restoring the petitioner to the payroll of the City of Oswego as a city fireman with all of the rights and privileges to which he would have been entitled under his seniority rights based upon his original employment, July 16, 1932.

The matter was submitted to the Court upon the petition, the answer and an answering affidavit of the attorney for the petitioner which in effect is a reply to the answer and the supporting affidavits of the parties. Upon the submission of the matter to the Court it was stipulated that a prior proceeding conceded to have been instituted by the petitioner October 7, 1955, which had never been previously disposed of, should be considered by the Court as the original petition herein thus fixing the date of the institution of this proceeding as October 7, 1955 and further stipulating that the notice and petition herein dated December 30, 1957 and served January 30, 1958, should be deemed an amended notice and petition superceding in its entirety the notice and petition served October 7, 1955. It was further stipulated that the notice and petition of October 7, 1955, should not be deemed any part of this proceeding or considered herein.

The facts relied upon by the petitioner and which form a background for the application are for the most part undisputed. It appears without contention that the petitioner, Harry Devens, entered the employ of the City of Oswego as a fireman in the Fire Department July 16, 1932. He was then 39 years of age having been born November 23, 1892. He continued in his employment until February 21, 1949, when he ceased work because of a disability sustained in the course of his employment on that day. He returned to work May 5, 1949 and continued therein until February 5, 1950. He did not report for work thereafter. On December 25, 1949, he was promoted to the rank of lieutenant. He was a member of the New York State Employees Retirement System. On October 27, 1950, Leonard T. Gadwood, then Commissioner of Public Safety of the City of Oswego, New York, filed with the State Retirement System an application for the retirement of the petitioner for ordinary disability. This would have entitled the petitioner to a retirement allowance of not to exceed one quarter (1/4) of his final average salary. Upon the suggestion of the State Retirement System a further application was filed by Mr. Gadwood for the retirement of the petitioner for accidental disability which would entitle the petitioner to a retirement allowance of three quarters (3/4's) of his final average salary. The State Retirement System on May 3, 1951, advised Mr. Gadwood that the application had been approved. The petitioner was removed from the payroll of the City of Oswego, May 5, 1951. He was advised by Mr. Gadwood May 9, 1951. The petitioner advised the State Comptroller in accordance with the Comptroller's written request, that his employment had been terminated May 5, 1951. On May 25, 1951, the petitioner advised the State Comptroller that he elected to take the maximum allowance without optional deduction. As a result thereof his retirement allowance was fixed at $2,206.16 per year. The approval of the application for the petitioner's retirement was made on the ground that he had permanent, total disability. The petitioner also received an allowance and an award based upon a finding of permanent, total disability from the Workmen's Compensation Board of the State of New York, such award being fixed at the rate of $32 per week. Under the provisions and requirements of the law, this amount is being paid to the State Comptroller for reimbursement to the State Retirement System for the payments made to the petitioner representing his retirement allowance. The petitioner received his full salary from the city to and including the 5th day of May, 1951. From May 5, 1951, to October 7, 1955, the petitioner made no claim against the City of Oswego for any other or further benefits and accepted the payments from the State Comptroller representing his retirement allowance. During this time he did engage in some employment for which he received compensation. The amount thereof is not stated. On October 7, 1955, four (4) years and five (5) months after the effective date of his retirement, the petitioner instituted a proceeding against the City of Oswego claiming that he had been improperly retired and that he was entitled to the benefits provided by section 207-a of the General Municipal Law.

It is urged by the petitioner that under and pursuant to the terms and provisions of section 207-a of the General Municipal Law, he was entitled, as a paid fireman of the City of Oswego, New York, to be paid by the municipality the full amount of his regular salary until his disability arising from injuries sustained in the performance of his duties had ceased; that he had been informed officially that the City of Oswego had a right to terminate his employment and compel him to retire under the provisions of section 63 of the Retirement and Social Security Law, formerly section 79 of the Civil Service Law, and that it was by reason of a mistake of law upon his part that he accepted retirement May 5, 1951 and accepted the payments from the State Retirement System through the State Comptroller. He urges that this mistake of law was concurred in by the officials of the City of Oswego. The petitioner further contends that he did not make application for retirement but rather such application was filed pursuant to the provisions of section 79 of the Civil Service Act by the Commissioner of Public Safety who is, pursuant to the provisions of such section, head of the Department in question, authorized to file such an application. Petitioner states that he had advised the Commissioner of Public Safety that he did not desire to retire and that the correspondence which passed back and forth between the petitioner and the State Comptroller clearly shows that the petitioner was advised that he would have to accept retirement.

It is the contention of the respondents that the petitioner acquiesced in the making of the application for his retirement; that he corresponded with the Comptroller of the State of New York in connection therewith before such retirement became effective and that he continued to correspond with the Comptroller of the State of New York in connection therewith and with payments thereunder for some time after his retirement; that at no time until October 7, 1955, did the petitioner object to the action of the officials of the City of Oswego or the action of the Comptroller of the State of New York in respect to his retirement; that during that entire period of time he accepted the retirement payments without protest and that he thereby waived any right to object thereto and that as a result of his retirement he was removed May 5, 1951, from the payroll of the City of Oswego and ceased to be an employee thereof so that from that time forward he was not entitled to any of the benefits provided under section 207-a of the General Municipal Law. The respondents further contend that no payment has been made to the petitioner by the City of Oswego since May 5, 1951; that it has at all times since October 7, 1955, refused to pay any salary or provided any medical treatment or care and that under the provisions of section 1286 of the Civil Practice Act, the petitioner is barred from instituting this proceeding as more than four (4) months had elapsed since the termination of the petitioner's employment. The respondents further contend that the petitioner is guilty of laches which in equity should bar the maintenance of this proceeding and that as a result thereof a fireman was employed to take the place of petitioner upon the termination of his employment and that the rights given to the respondents under section 207-a of the General Municipal Law for medical inspections and treatment of the petitioner have been precluded.

Section 207-a of the General Municipal Law reads as follows:

'Any paid fireman of a fire company or fire department of a city of less than one million population, or town, village or fire district, who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition, such municipality or fire district shall be liable for all medical treatment and hospital care furnished during such disability. Provided, however, and notwithstanding the foregoing provisions of this section, the municipal health authorities or any physician appointed for the purpose by the municipality or fire district, may attend any such injured or sick fireman, from time to time, for the purpose of providing medical, surgical or other treatment, or for making inspections, and the municipality or fire district shall not be liable for salary or wages payable to such a fireman, or for the cost of medical or hospital care or treatment furnished,...