167 Misc. 826 | N.Y. Sup. Ct. | 1938
Section B3-35.0 of the Administrative Code of the city of New York provides for pension benefits to a member of the retirement system “ who is removed or otherwise involuntarily separated from city-service for any cause other than fault or delinquency on his part after having completed twenty years of allowable service.”
The petitioner, as a result of a competitive examination held in the year 1917, was appointed to the position of micro-analyst in the department of health and had occupied that position for more than twenty years prior to October 1, 1937. The notice of the competitive examination which resulted in the petitioner’s appointment did not specify the place where the duties of the position of micro-analyst were to be performed. By permission of the health authorities the petitioner has ever since his appointment performed the duties of his position in private laboratories, in his home or elsewhere and not in laboratories of the health department. On April 1, 1937, the commissioner of health notified the petitioner that he would have to carry on his work in the laboratory of the health department or else give up his position. The petitioner was given until October first to comply with this direction of the commissioner. It is the contention of the petitioner, to quote from the petition, that “ the change from ordinarily regarded part time employment and extra-mural character of the employment of Petitioner constitutes a termination of his service and the abolishing of the employment and the particular place of employment held by the Petitioner without fault or delinquency
Since October first the petitioner has been on a leave of absence without pay pending the determination by the board of estimate and apportionment of his application for retirement. In the meantime Local Law No. 40 for the year 1937 went into effect, providing that " any person now in the employ of the City of New York who is not a bona fide resident or dweller in the City of New York shall have until January first, nineteen hundred thirty-eight, to establish a residence in the City of New York and any failure to do so shall forfeit his or her appointment or employment.” The petitioner, although notified on or about December 13, 1937, of.the provisions of Local Law No. 40, failed to establish a residence in New York city and, according to the petition, his employment was terminated and he was separated from the service of the city on January 1, 1938, by operation of law. The petitioner maintains that the termination of his employment by reason of non-residence was not due to fault or delinquency on his part, and that he is, therefore, entitled to retirement under the provisions of the Administrative Code, previously quoted. No attack on the legality of Local Law No. 40 is made by the petitioner, and it must, therefore, be assumed to be a valid enactment. In the court’s opinion the termination of the petitioner’s employment by reason of his failure to become a resident of the city of New York prior to January 1, 1938, may not be said to have been without fault or delinquency on his part. The refusal or failure of the petitioner to comply with valid and reasonable requirements imposed by the city in connection with his position characterize his separation from the
As the other relief sought is incidental to the two main forms of relief previously referred to, the motion is denied in all respects.