Molinari v. Quayle

• Decision Date: 23 November 1949
• Citation: 300 N.Y. 55,88 N.E.2d 820
• Parties: MOLINARI v. QUAYLE et al.
• Court: New York Court of Appeals Court of Appeals

300 N.Y. 55

88 N.E.2d 820

MOLINARI

v.QUAYLE et al.

Court of Appeals of New York.

Nov. 23, 1949.

Proceeding in the matter of the application of Margaret Molinari for an order under Civil Practice Act, s 1283 et seq., directing Frank J. Quayle, chairman, and others, constituting the board of trustees of the New York Fire Department Life Insurance Fund, to pay petitioner, as a deceased city fireman's widow, $2,000 death benefit.

The Supreme Court, New York County, McNally, J., entered an order denying petitioner's motion for a pre-emptive order granting her such sum, and she appealed.

The Supreme Court, Appellate Division, First Department, 275 App.Div. 813, 89 N.Y.S.2d 413, affirmed the order by a divided court and the petitioner appealed.

The Court of Appeals, Desmond, J., held that the fire commissioner did formally and legally appoint Molinari and others and that they thus became members of the fire department and of the fund and became entitled to the benefits and widow was entitled to collect $2,000 death benefit less contributions to fund and reversed the orders and granted the relief prayed for.

Lewis, J., dissented. David A. Savage, New York City, and Donald A. Savage, for appellant.

John P. McGrath, Corporation Counsel, New York City (Helen R. Cassidy and Seymour B. Quel, New York City, of counsel), for respondents.

DESMOND, Judge.

Petitioner's husband, Francis J. Molinari, entered the United States Army in June, 1943. He was reported missing in action on January 12, 1945, and the War Department recorded the presumptive date of his death as January 13, 1946. While Molinari was away on active military service he was, on June 19, 1944, appointed a fireman in the New York City Fire Department, by an order of the fire commissioner. That order stated that Molinari was assigned to the military service division of the department, ‘subject to a medical examination by the Fire Department Medical Board’, the appointment to be without compensation until Molinari (and others similarly appointed at the same time by the same order) should be discharged from military services and actually begin to perform their duties as firemen. Molinari never came home from war service to take the fire department medical examination, or take an oath of office, or go to work as a fireman. His widow applied to respondents, trustees of the New York Fire Department Insurance Fund, for payment to her of the $2,000 death benefit provided for by section B19-8.0 of the New York City Administrative Code. That section says that there shall be deducted from the pay of each fireman, $1 per month which deductions shall make up a special fund (separate from the pension system and not contributed to by the city) out of which, on the death of a member or pensioned or retired member of the fire department, there shall be paid to his named beneficiary, or to his widow, $2,000. Subdivision f of section B19-8.0 provides that any member of the fund on leave of absence for military duty shall continue to be a member of the fund, his contributions thereto to be deferred until his return from military service, and further provides that, if he shall die during absence on military duty, his beneficiary or widow shall receive $2,000, less unpaid contributions. The trustees refused to pay the death benefit to Mrs. Molinari, on the ground that her husband had received a ‘conditional’ appointment, only, to the fire department, and that he had never satisfied the conditions thereof by submitting to and passing the fire department medical examination and by taking an oath of office, so that, according to the trustees, he never became a fireman or a member of the life insurance fund. In this proceeding, brought by the widow to compel payment to her of the $2,000 benefit, less contributions, the courts below have denied her relief. We think that the special facts of this case, and a fair application thereto of the several pertinent statutes, require a holding that petitioner is entitled to payment of the death benefit.

Molinari passed the required civil service examination for fireman in December, 1941, and was, on February 1, 1943, certified by the civil service commission to the fire commissioner as...