Flanagan v. O'DWYER

• Decision Date: 05 January 1950
• Parties: Salome A. Flanagan, as General Guardian for Francis A. Flanagan, Jr., et al., Plaintiffs,<BR>v.<BR>William O'Dwyer et al., Constituting The Board of Estimate of the City of New York, as Trustees of The New York City Employees' Retirement System, et al., Defendants, and Robert F. Flanagan et al., Cross Claimants, Defendants.
• Court: New York Supreme Court

197 Misc. 5

Salome A. Flanagan, as General Guardian for Francis A. Flanagan, Jr., et al., Plaintiffs,

v.William O'Dwyer et al., Constituting The Board of Estimate of the City of New York, as Trustees of The New York City Employees' Retirement System, et al., Defendants, and Robert F. Flanagan et al., Cross Claimants, Defendants.

January 5, 1950.

Benjamin Levin for plaintiffs.

Jeremiah F. Cross for cross claimants, defendants.

HOFSTADTER, J.

This action is brought by plaintiffs to recover against the board of estimate of the city of New York, as trustees of the New York City Employees' Retirement System and the New York City Employees' Retirement System, on behalf of the plaintiff, Francis A. Flanagan, Jr., the cash death benefit in the sum of $4,382.90, and on behalf of the plaintiff, George P. Flanagan, the accumulated salary deductions in the sum of $6,045.91, both payable on the death of Francis A. Flanagan.

The Appellate Division, First Department, made an order permitting the said defendants to interplead the cross claimants, and to pay to the treasurer of the city of New York the funds involved in this action, and discharging the defendants from liability to either of the parties, upon making such payment. The cross claimants, so interpleaded, Robert Francis Flanagan and Gladys Marie Flanagan, claim to be entitled to the said cash death benefit and accumulated salary deductions, in equal shares.

Francis A. Flanagan, deceased, was an employee of the city of New York and a member of the New York City Employees' Retirement System. On February 8, 1937, he filed a designation of beneficiary with the system, nominating the cross claimants to receive the cash death benefit and accumulated salary deductions in equal shares.

On the same date, a decree was made in an action brought in this court, Bronx County, by Naomi Flanagan against her husband, Francis A. Flanagan, separating the parties and requiring him to pay to her during her life the sum of $20 per week commencing with February 15, 1937, and the sum of $25 per week commencing with January 1, 1938, for her support and the support, maintenance and education of the issue of their marriage.

On or about August 10, 1939, Naomi Flanagan, having previously obtained a judgment against Francis A. Flanagan for $1,145 for arrears of alimony, and an additional sum of $325 for unpaid alimony having accrued, made an application to Special Term, Bronx County, pursuant to the provisions of sections 1171 and 1171-a of the Civil Practice Act, to sequester certain funds which allegedly the New York City Employees' Retirement System held to his credit and account. Special Term in effect denied this application, but the order which was entered thereon, dated September 1, 1939, contained the following provision: "Ordered that the said motion be, and the same is hereby granted only to the extent of restraining any disposition or encumbrance by the defendant herein of his interest in the pension fund of the New York City Employees' Retirement System and any payment to him out of said fund until the further order of this Court." There has been no further order of the court.

On March 27, 1940, Mr. Flanagan changed the beneficiary of the cash death benefit and the accumulated salary deductions by filing with the system a designation nominating his sister, Catherine V. Flanagan. On June 19, 1944, he again changed the beneficiary by filing with the system a designation, nominating one of the plaintiffs, Francis A. Flanagan, Jr., to receive the cash death benefit, and the other plaintiff, George P. Flanagan, to receive the accumulated salary deductions. Francis A. Flanagan died on May 20, 1948. Thereafter, both plaintiffs and cross claimants respectively filed with the system proofs of claim upon forms provided by the system.

The plaintiffs were children of the employee, born out of wedlock; the cross claimants were the issue of the marriage of the employee and Naomi Flanagan.

The plaintiffs base their claim upon the designation of beneficiary filed in June, 1944, and on the ground that at the time of the death of the employee, they were the designated beneficiaries of the respective benefits. The cross claimants base their claim upon the designation of beneficiary filed in February, 1937, and on the ground that the changes of the beneficiary of March 27, 1940, and of June 19, 1944, were in violation of the restraining order of September 1, 1939, and were therefore null and void. The issue narrows down to whether the restraining provision of the order of the Special Term impaired the validity of the subsequent designation by the employee of the plaintiffs, as beneficiaries, that is, whether the latter designation was such a disposition or encumbrance by the employee of his interest in the system as was enjoined by the Special Term. I think not.

A proper construction of the Special Term order, its scope and effect, can best be determined by an examination and analysis of the provisions of the Civil Practice Act pursuant to which the sequestration proceeding was brought, and the papers upon which the decision of the court was based, including the order to show cause with its annexed affidavits, and the memoranda which were submitted in opposition.

Section 1171 of the Civil Practice Act provides for the enforcement of the payment of alimony, and specifically only, for the husband giving reasonable security for such payment, and in default of giving security or making payment, for the sequestration, and the appointment of a receiver of his personal property and the rents and profits of his real property. (Section 1171-a makes similar provision where the defendant cannot be personally served within the State and was not applicable here.)

It clearly appears that, in conformity with the statute, Naomi Flanagan sought merely the appointment of a receiver and sequestrator, and the furnishing of a bond by the husband to insure payments of alimony. And the specific and sole property against which the sequestration was directed was a pension fund, representing accumulated salary deductions amounting to $1,800, allegedly to the husband-employee's credit and account in the New York City Employees' Retirement System. Although the employee had the right to designate a beneficiary to whom salary deductions and, additionally, a cash death benefit should be paid in the event of his death prior to retirement on pension, and to revoke any such designation previously made, the wife did not request an injunction...