Molinari v. Quayle

CourtNew York Court of Appeals
Writing for the CourtDESMOND
Citation300 N.Y. 55,88 N.E.2d 820
Decision Date23 November 1949
PartiesMOLINARI v. QUAYLE et al.

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.

[88 N.E.2d 820]

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...

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3 practice notes
  • Brinkman v. Oil Transfer Corp.
    • United States
    • New York Court of Appeals
    • November 23, 1949
    ...policies. The decisions referred to in appellant's brief and in the memorandum filed by the Appellate Division minority, do not forbid [88 N.E.2d 820]recovery here. Some of them, like our Sonnesen case, 298 N.Y. 262, 82 N.E.2d 569, supra, merely state the settled doctrine that maintenance a......
  • Lake Placid Club, Inc. v. Abrams
    • United States
    • New York Supreme Court Appellate Division
    • November 10, 1958
    ...the waiver of which would not be prejudicial, may be relaxed when the ends of justice require it (Matter of Molinari v. Quayle, 300 N.Y. 55, 88 N.E.2d 820; National Labor Relations Board v. Monsanto Chemical Company, 8 Cir., 205 F.2d 763; Davis on Administrative Law, Sec. 56; Forkosch, Admi......
  • Bozeat v. Berger
    • United States
    • New York Supreme Court
    • July 7, 1976
    ...of their own rules, apparently dependent upon the circumstances involved.' Petitioner also cites Page 1010 Matter of Molinari v. Quayle, 300 N.Y. 55, 88 N.E.2d 820 to the effect that rulings which do not affect substantial rights of individuals, the waiver of which would not be prejudicial ......
3 cases
  • Brinkman v. Oil Transfer Corp.
    • United States
    • New York Court of Appeals
    • November 23, 1949
    ...policies. The decisions referred to in appellant's brief and in the memorandum filed by the Appellate Division minority, do not forbid [88 N.E.2d 820]recovery here. Some of them, like our Sonnesen case, 298 N.Y. 262, 82 N.E.2d 569, supra, merely state the settled doctrine that maintenance a......
  • Lake Placid Club, Inc. v. Abrams
    • United States
    • New York Supreme Court Appellate Division
    • November 10, 1958
    ...the waiver of which would not be prejudicial, may be relaxed when the ends of justice require it (Matter of Molinari v. Quayle, 300 N.Y. 55, 88 N.E.2d 820; National Labor Relations Board v. Monsanto Chemical Company, 8 Cir., 205 F.2d 763; Davis on Administrative Law, Sec. 56; Forkosch, Admi......
  • Bozeat v. Berger
    • United States
    • New York Supreme Court
    • July 7, 1976
    ...of their own rules, apparently dependent upon the circumstances involved.' Petitioner also cites Page 1010 Matter of Molinari v. Quayle, 300 N.Y. 55, 88 N.E.2d 820 to the effect that rulings which do not affect substantial rights of individuals, the waiver of which would not be prejudicial ......

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