23 A.D.2d 686 | N.Y. App. Div. | 1965
'In an action by a former employee against bis corporate employer and -the trustees of a “Retirement Plan” for its employees, to declare the plaintiff’s rights under said Plan, and for incidental relief, the plaintiff appeals, -as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, entered October 11, 1962 after a non-jury trial upon the opinion-decision of ia Special Referee, as “ fixed plaintiff’s rights under -the Plan as of .the date of actual retirement ” .and as “ denied him the right to recover the employer’s contributions to the Plan,” amounting to $9,092.17, which had been made for his .account, Judgment, insofar as appealed from, affirmed, without costs. Plaintiff voluntarily left his employment on January 22, 1960, prior to having attained the age for retirement under the Plan, which had been established in 1950. Before such termination of his employment the plaintiff had been notified by the employer that, pursuant to its reserved right to amend the Plan and effective December 1, 1959, it bad eliminated a provision (which it had -previously adopted Dec. 1, 1958) under which an employee could resign prior to the -age for retirement and obtain la cash payment >of his own -contributions plus the employer’s contributions to the fund applicable to him, In our -opinion, under -the circumstances here, the employer’s exercise of its reserved power to amend was effective to prevent the plaintiff from -obtaining a vested or contractual right -to the employer’s -prior contributions to the fund. Ughetta, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.