Roddy v. Valentine

• Decision Date: 11 July 1935
• Citation: 268 N.Y. 228,197 N.E. 260
• Court: New York Court of Appeals Court of Appeals
• Parties: RODDY v. VALENTINE, Pollce Commissioner of City of New York.

268 N.Y. 228

197 N.E. 260

RODDY

v.VALENTINE, Pollce Commissioner of City of New York.

Court of Appeals of New York.

July 11, 1935.

Action by William D. Roddy against Lewis J. Valentine, as Police Commissioner of the City of New York and as trustee of the Police Pension Fund of the City of New York. From an order of Appellate Division, Second Department (243 App. Div. 781, 277 N. Y. S. 769), which affirmed order of Special Term, King's county, granting judgment on the pleadings and the judgment entered thereon defendant appeals by permission of the court.

Affirmed.Appeal from Supreme Court, Appellate Division, Second department.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Seymour B. Quel, both of New York City, of counsel), for appellants.

Isidor Neuwirth and Edmund J. Pickup, both of Brooklyn, for respondent.

CROUCH, Judge.

The Greater New York Charter (Laws 1901, c. 466, as amended) by section 351 et seq. makes provision for the creation and administration of a police pension fund. The fund (section 353, as amended by Laws 1904, c. 626, § 2) consists of moneys recruited from various sources, for the most part public, but includes 2 per centum of the monthly pay of each member of the police force deducted from his salary by the comptroller and by him paid into the fund. Section 355 provides, among other things, that any member of the force may upon his own written application and by order of the police commissioner, be retired from service and be granted an annual pension, to be paid from the fund, provided he is 55 years old and has served 20 years; and ‘pensions granted under this section shall be for the natural life of the pensioner, and shall not be revoked, repealed or diminished.’ Amended by Laws 1919, c. 518; Laws 1920, c. 508; Laws 1921, c. 685. By the provisions of section 1560 of the charter, however, the payment of the pension may be suspended temporarily if the pensioner takes ‘office, employment or position under the state or city of New York or any of the counties included within said city.’ Amended by Laws 1923, c. 266.

On August 24, 1924, the plaintiff upon his own application was retired and was awarded a pension of $1,250 per annum.

The Laws of 1932, c. 78, added to the Civil Service Law (Consol. Laws, c. 7) a new section (section 32) which provides that if any person subsequent to his retirement from the civil service of the state, or of any municipal corporation or political subdivision of the state, shall accept any office, position, or employment on and after July 1, 1932, to which any salary or emolument is attached in the civil service of the state or of any municipal corporation or political subdivision of the state (with certain exceptions not material here), any pension awarded to him upon retirement shall be suspended during such employment.

From August 7, 1932, to December 31, 1933, the plaintiff was employed as chief of police of the city of Long Beach, N. Y. During that period payment of the plaintiff's pension was suspended. This action was brought to recover the unpaid amount. The sole question is whether section 32 of the Civil Service Law affects the plaintiff's right to his pension during the time he was employed by the city of Long Beach.

The concept embodied in the word pension has developed far beyond the original idea of a bounty or gratuity, ‘springing from the appreciation and graciousness of the sovereign,’ granted in recognition of meritorious past services. One has but to examine the statutes of our own state (e. g., Civil Service Law, arts. 4, 5, 6 [section 50 et seq.]; Education Law [Consol. Laws, c. 16], art. 43-B [section 1100 et seq.]) to appreciate the extent of the development. Necessarily there has come with that development changed theories relating to the nature of the rights and obligations under pension statutes both of civil servants and of the government. In an attempt at legal classification of the relation, the courts have come to widely varying results. Cf. Ball v. Board of Trustees of Teachers' Retirement Fund, 71 N. J. Law, 64, 58 A. 111;State ex rel. Risch v. Board of Trustees of Policemen's Pension Fund, 121 Wis. 44, 98 N. W. 954. Where the statutory scheme creates a fund wholly or largely out of public moneys, the interest of the member down to the point where there has been compliance with all precedent conditions and the award has been or as of right should have been made can hardly be deemed contractual. There has been a suggestion that it is quasi contractual. 40 Harvard Law Review, 504, 505. In Pennie v. Reis, 132 U. S. 464, 471, 10 S. Ct. 149, 151, 33 L. Ed. 426, it is called ‘a mere expectancy created by the law.’ But whatever...