264 A.D. 188 | N.Y. App. Div. | 1942
Myrta E. Hunn, a teacher in the employ of the board of education of the city of Batavia and a member of the New York State Teachers’ Retirement System (hereinafter called the System)
The question, which this appeal by the System presents, is whether this quoted declaration reflects the proper construction of that part of section 1109-a of the Education Law which specifies the person who may make an application for disability retirement.
The Legislature, by chapter 503 of the Laws of 1920, established this system upon an actuarial basis (Education'Law, art. 43-B, § 1100 et seq.), created a Retirement Board and vested therein responsibility for the proper operation of the System, and authorized that Board to establish rules and regulations for the administration of its business and for the control of its funds. (§ 1103.) These funds are public moneys (Matter of Mahon v. Board of Education, 171 N. Y. 263, 265), and disbursements therefrom, for the purposes which the statute permits, may be made only as authorized by resolution of the Retirement Board duly adopted at a meeting of the Board by a majority of its members. (§ 1106, subd. [3].) While the purpose of the Legislature was to secure to the System’s superannuated and disabled members a retirement allowance, the Legislature has not required the Retirement Board to investigate or act until the Board receives an application for retirement. A member who is eligible for superannuation retirement and who wishes to retire, is required to file with the Board his duly attested statement setting forth the time — ’not less than thirty days nor more than sixty days subsequent to the execution and filing thereof —■ when he desires to be retired (§ 1109) and the statement, unless it be withdrawn prior to the effective date of retirement, is self-executing and is tantamount to being a resignation from his position as a teacher. (Matter of Fitzpatrick v. N. Y. State Teachers’ Retirement Board, 212 App. Div. 760; affd., 241 N. Y. 515. See, also, Matter of Creveling v. Teachers’ Retirement Board, 255 id. 364, 370.)
Section 1109-a provides for retirement on account of mental or physical disability and, within its many provisions, contains a comprehensive plan for the retirement of a member who has been compelled to cease teaching on account of disability. Subdivision 1 thereof reads in part: “ 1. Retirement on account of disability shall be made under the following conditions: A member * * * may be retired on account of disability either upon the application of his employer or upon his own application or that of a person acting
Since the Retirement Board may not retire a member who has not already been compelled to cease teaching, the application does not affect the member’s right to perform his duties as a teacher and to be paid therefor. Where the circumstances are such that the application is made by the employer or by a person acting in behalf of the member, his authority apparently ceases with the filing of the application. Neither, under subdivision 1 of section 1109-a, is authorized to make any election in respect to the form or amount of the retirement allowance; subdivision (2) provides for the payment of the allowance and the method for computing it. Under subdivisions (3) and (5), a former member, who has been retired for disability and who recovers therefrom, may be lestored to membership in the System and to active service without loss of prior service credit; the filing of an application for disability retirement, therefore, does not jeopardize the member’s tenure rights as a teacher but, instead, it serves to protect and to preserve such rights in the event that the member recovers.
The foregoing review of the statutory provisions leads us to conclude that an application for disability retirement, when made by a person other than the member himself, does not enable such other person to determine the disposition to be made of the member’s property or property rights; such an application is but the initial step which must be taken in order to obtain the statutory
The judgment should be reversed on the law, with costs, and judgment directed in favor of the defendant declaring and adjudging that plaintiff’s intestate was legally retired pursuant to subdivision 1 of section 1109-a of the Education Law and that plaintiff is not entitled to recover from defendant his intestate’s accumulated contributions in and to the retirement fund.
All concur, except Harris, J., who dissents and votes for affirmance on the ground that the alleged "retirement was brought about by one who was not authorized to make such application under subdivision 1 of section 1109-a of the Education Law. Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.
Judgment reversed on the law, with costs, and judgment directed in favor of the defendant declaring and adjudging that plaintiff’s intestate was legally retired pursuant to subdivision 1 of section 1109-a of the Education Law and that plaintiff is not entitled to recover from defendant the accumulated contributions in and to the retirement fund.