Schwab v. McElligott

• Decision Date: 05 March 1940
• Parties: SCHWAB v. McELLIGOTT, Commissioner of Fire Department, et al.
• Court: New York Court of Appeals Court of Appeals

282 N.Y. 182

26 N.E.2d 10

SCHWAB

v.McELLIGOTT, Commissioner of Fire Department, et al.

Court of Appeals of New York.

March 5, 1940.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of Ernest L. Schwab for an order against John J. McElligott, as Commissioner of the Fire Department of the City of New York, and as trustee of the New York Fire Department Relief Fund, and another to review the defendants' order which retired the applicant from the service in the Fire Department of the City of New York with an award of pension. From an order of the Appellate Division, First Department, entered in the office of the Clerk thereof May 12, 1939, 257 App.Div. 808, 12 N.Y.S.2d 587, unanimously affirming an order of the Supreme Court entered January 30, 1939, denying petitioner's prayer for relief and granting defendants' cross-motion to dismiss the petition, the petitioner appeals by leave of the Court of Appeals by order dated October 3, 1939, after the Appellate Division denied a motion for leave to appeal to the Court of Appeals, 257 App.Div. 947, 13 N.Y.S.2d 108.

Orders reversed and cross-motion to dismiss the petition denied. George Rosling, of Brooklyn, for appellant.

William C. Chanler, Corp. Counsel, of New York City (Charles F. Murphy, of New York City, of counsel), for respondents.

LEWIS, Judge.

The petitioner, a lieutenant in the Fire Department of the City of New York, with service in excess of twenty-five years to his credit, has been retired by the respondent Fire Commissioner by an order awarding a pension which the petitioner contends is less than the amount to which he is entitled as of right under chapter 19, title B, article I, section B19-5.0 of the Administrative Code. Laws 1937, Ex.Sess., ch. 929, p. 304.

Resisting his retirement thus directed and objecting to the amount of the pension, the petitioner instituted this proceeding under article 78 of the Civil Practice Act to review the respondents' order. The proceeding reaches us upon the petitioner's appeal, by leave of this court, from an order of the Appellate Division unanimously affirming an order of the Supreme Court which denies the petitioner's prayer for relief and grants the respondents' cross-motion to dismiss the petition under section 1293 of the Civil Practice Act.

As the petition was dismissed at Special Term by reason of its legal insufficiency, our inquiry will proceed upon the assumption that the following facts alleged therein are true: On April 10, 1937, while responding with his company to a fire call, the petitioner fell through a floor opening in the burning building and sustained personal injuries which partially and permanently disabled him. Since that time he has been unable to perform active service as a member of the uniformed force of the Fire Department but is able to perform such ‘light duties' as are assigned to officers or members similarly situated.

Prior to the commencement of this proceeding and in accord with an order of the respondent Fire Commissioner, the petitioner appeared before a board of medical officers of the Fire Department assigned to examine the petitioner as to whether he was disqualified physically or mentally for service as a member of the uniformed force. Thereafter the medical officers reported that the petitioner was totally and permanently disqualified physically for the performance of active duties and that such disqualification was not caused or induced by the active performance of the dutes of his position. Thereupon the respondent Fire Commissioner directed the petitioner's retirement by an order which also awarded him an annual pension of $1,950, being one-half the annual salary he had been paid immediately prior to the date of such order. The petitioner has since been divested of the insignia of his office, forbidden to perform duties incident thereto and has been dropped from the rolls of the Department. Among other forms of relief sought by this proceeding, he demands reinstatement in the Department or an order declaring that his injuries were sustained in the performance of duty, thus entitling him to a pension equal to three-fourths of his annual salary at the date of his retirement.

The respondents did not serve an answer to the petition. Instead, as was their right under section 1293 of the Civil Practice Act, they moved for an order dismissing the petition as a matter of law, upon the ground that it failed to state facts sufficient to constitute a cause of action. Under settled law relating to such procedure(Nevins, Inc. v. Kasmach, 279 N.Y. 323, 325, 18 N.E.2d 294;Lamb v. S. Cheney & Son, 227 N.Y. 418, 420, 125 N.E. 817) the respondents thus admitted the facts outlined above and in addition...