278 A.D. 388 | N.Y. App. Div. | 1951
Lead Opinion
The questions presented are (1) whether subdivision f of section B18-4.0 of the Administrative Code of the City of New York is valid or whether its provisions contravene section 1 of article VIII of the New York State Constitution, which prohibits a municipality from making gifts of public funds; and (2) if the statute is constitutional, whether defendants James E. Furey and Bernard A. Collins are entitled to the pension benefits provided thereunder.
The Special Term held that subdivision f of section B18-4.0 of the Administrative Code is unconstitutional as authorizing a gift of public funds. The court ruled that, since under the statute one holding the office of police commissioner or deputy police commissioner for no matter how short a period could retire immediately upon the adoption of a resolution fixing his pension, pension payments so authorized “ cannot be regarded in any other light than as 6 gifts ’ of public funds without any consideration therefor.” A final order was granted permanently restraining the trustees of the police pension fund of the city of New York from giving effect to this provision of the code and from awarding any pension to Furey and Collins except such as each might be entitled to receive as a retired patrolman assigned to duty as a first grade detective, directing the board of trustees to forthwith rescind resolutions retiring them on an annual pension of $6,000 and to discontinue payment
The facts are not in dispute. On July 11, 1950, defendant Furey, who had been a member of the police department of the city of New York for over thirty years, resigned his position as detective, first grade, at a salary of $5,175, to accept appointment as seventh deputy police commissioner at a salary of $8,500 per annum. The day he was appointed to the deputy commissionership he made application for retirement from the police force and on July 17, 1950, the board of trustees of the police pension fund adopted a resolution retiring him pursuant to subdivision f of section B18-4.0 and placing his name on the pension roll at an annual pension of $6,000 effective July 11, 1950. The maximum pension that service on the police force would have entitled him to receive would have been $3,087.50. Furey held the title of deputy police commissioner for forty-four days, or until August 24,1950, when he resigned. He then began to receive pension payments at the rate of $6,000 per annum. Furey, for the last ten years of his service on the uniformed force, had been assigned to duty as chauffeur and bodyguard to the then District Attorney of Kings County and later to the same official when he became the Mayor of the City of New York.
On the day Furey resigned as a deputy police commissioner, defendant Collins, who had been a policeman for more than twenty years, gave up his position as first grade detective at a salary of $5,175, to accept appointment as seventh deputy police commissioner, left vacant by Furey, at a salary of $8,500 per annum. Prior to his promotion he too had served as a bodyguard and chauffeur for the Mayor, but for a period of four years. On the day of his appointment, Collins applied for retirement from the police force and on September 19, 1950, the board of trustees retired him and placed his name upon the pension roll at an annual pension of $6,000 effective as of the day of his appointment as deputy police commissioner, to-wit, August 24,1950. He held the title for sixty-seven days, or until October 31, 1950, when at the request of the new police commissioner, he resigned. Thereafter he began to draw the pension at the rate of $6,000 per annum. As a first grade detective his maximum pension would have been $2,787.50.
Subdivisions c and f of section B18-4.0 of the Administrative Code make provision for retirement from the service in certain cases as follows:
“ c. Any member who:
“ 1. Shall have elected to contribute on the basis of retirement after twenty years of service and who has or shall have performed service in the force for at least twenty years, or
“ 2. Shall have elected to contribute on the basis of retirement after twenty-five years of service and who has or shall have performed service in the force for at least twenty-five years,
“ upon his own application in writing shall be retired from such force and service, and placed on the roll of the pension fund, and awarded and granted, to be paid from such fund, an annual pension during his lifetime, of not less than one-half his full salary on the date of his retirement from service.”
“ f. Any member who shall have performed duty on the force for a period of twenty years, and who subsequently shall serve as police commissioner or deputy police commissioner, shall be retired and placed upon the pension roll of such pension fund and granted the pension allowed to a chief inspector in such department.”
A ‘‘ member ’ ’ is defined by section B18-1.0 of the Administrative Code as “ A person who was a member of the police force in the department at the time when this section shall take effect ” [namely March 29, 1940].
The validity of the statute (Administrative Code, § B18-4.0, subd. f) depends upon whether the pensions authorized by its terms are in the nature of increased compensation to public servants or whether they constitute a gift of the city’s moneys. Where as here the rendition of services by persons of the class affected by the statute is voluntary and they are under contract of service for no fixed time, any promise of reward in addition to regular compensation which looks to the future and depends upon the continued performance of service after the promise is made, enters into the consideration for services to be rendered and is not extra compensation, nor is it a gift. (Matter of
Under the challenged section of the Administrative Code, a member of the police force at the time it took effect, to wit, March 29,1940, who has contributed to the pension fund, has performed duty on the force for a period of twenty years, and who subsequently has served as police commissioner or deputy police commissioner, could be retired upon his own application with a pension allowed to a chief inspector. .The salary of a chief inspector in 1950 was $12,000 and the minimum pension which could then' be granted was $6,000. A pension awarded pursuant to this enactment, we hold, is sustained by adequate consideration. A grant made thereunder in good faith is not a gift of the city’s moneys but a pension in its true sense. It is a prospective award or deferred compensation for service not fully recompensed as rendered. As such the statute does not contravene the provisions of section 1 of article VIII of the State Constitution. (Timmerman v. City of New York, 69 N. Y. S. 2d 102, affd. 272 App. Div. 758.)
The legislative intent in enacting subdivision f was to offer to the then members of the police force further incentive' to
Accordingly, we hold that subdivision f of section B18 — 4.0 of the Administrative Code is a valid statute and is constitutional. Mere proof of the use of the statute for purposes not intended, does not justify the court in annulling a law which has served to- protect capable and qualified members of the police force who have accepted civilian status as police commissioner or deputy police commissioner at the request of a Mayor or police commissioner whose desire it is to keep them in the department in the public interest. If under the statute the pensions awarded are not made in good faith but are in fraud of the rights of the city or of other beneficiaries of the pension fund, such acts may be corrected. A pension thus obtained may be annulled. (Cf. Matter of Heffernan v. McGoldrick, 259 App. Div. 671, 675.)
Insofar as the appointments of Furey and Collins as seventh deputy police commissioner are concerned, we are of the view that they were made in fraud of the rights of the city, and solely for the purpose of enabling the favored appointees, who had served as chauffeur and bodyguard to the then Mayor of the city, to receive as a reward for such personal service the
The circumstances of the appointments and the record of their performance compel the inference that the sole and primary purpose in giving them the title of deputy commissioner was to afford them an opportunity after a brief period to resign and to seek for life a pension in excess of the salary they had been receiving as first grade detective and which was about twice as large as that which they would have received if they had been retired as first grade detective. In purpose and effect they were to be given the pension of a deputy commissioner at an unauthorized and excessive pension for their particular police and detective service rather than for any service as a commissioner. The latter service would be a requisite to the increased pension but such service was not rendered nor was it ever intended to be rendered.
Accordingly, we hold that their respective appointments to the position of seventh deputy police commissioner were made in bad faith and were invalid and illegal, and that the award to them of a pension in the sum of $6,000 was likewise invalid and illegal. Defendants, constituting the board of trustees of the police pension fund, are accordingly directed to rescind the resolutions retiring them on an annual pension of $6,000 and in lieu thereof to retire them on such pension as each may be
Insofar as the order appealed from declares unconstitutional the provisions of subdivision f of section B18-4.0 of the Administrative Code, it is reversed, and is otherwise aErmed. Settle order.
Dissenting Opinion
(dissenting). I dissent and vote to reverse the order appealed from and to dismiss the petition. I agree entirely with the view of the majority that the statute is constitutional. Furthermore, in my opinion the pension payable under subdivision f of section B18-4.0 is mandatory. The statute provides as the sole requirement for the right to receive the pension twenty years’ prior service as a police oEcer and appointment to a commissionership.
The court has no power to review the original appointments of Furey and Collins as seventh deputy police commissioners. Nor would the board of trustees of the police pension fund have power or authority to question such appointments, where they were regularly made by an oficer having authority to act. Under the circumstances, the pension awards may not be reviewed by the courts, where the recipients are qualified by reason of having rendered the required prior service and have been duly appointed to the oEce of deputy police commissioner. The action of the trustees in this case was not discretionary, as it was in Matter of Heffernan v. McGoldrick (259 App. Div. 671). Nor was there any attempt to pay in excess of the minimum pension of a chief inspector as in Matter of Kent v. Valentine (184 Misc. 94, affd. 269 App. Div. 831). Since the action by the trustees is mandatory and in accord with the statute, it would seem improper for the courts to label such action in bad faith or in fraud of the city’s rights. If there is an evil to be cor
Peck, P. J., and Glennon, J., concur with Cohn, J.; Shientag, J., concurs in result, in opinion; Callahan, J., dissents and votes to reverse and dismiss the petition, in opinion.
It is hereby ordered that the order so appealed from, insofar as it declares unconstitutional the provisions of subdivision f of section B18-4.0 of the Administrative Code, is reversed, and the order is otherwise affirmed. Settle order on notice.
Concurrence Opinion
(concurring in result). I agree with the result reached by the learned majority. I go further, however. 1 believe that the section in the Administrative Code in controversy is invalid; it is in violation of section 1 of article VIII of the State Constitution which prohibits a municipality from “ giving” public funds to or in aid of any individual. The section in the Administrative Code here under attack is dressed in the garb of a pension, but its terms disclose what in reality it is: a gift of city funds. The reasons for this holding are set forth in the opinion of Benvenga, J., at Special Term and need not here be repeated.
The order appealed from should be aErmed in all respects.