In re Fitzpatrick, 212 A.D. 760

In re Fitzpatrick

212 A.D. 760 | N.Y. App. Div. | 1925

H. T. Kellogg, J.:

The law, entitled “ State Teachers’ Retirement Fund for Public School Teachers,” being article 43-B of the Education Law (added by Laws of 1920, chap. 503, as amd.), provides for the retirement of certain member teachers, upon allowances to be made, in the event of superannuation or disability, but in no other event. Section 1109 of the Education Law (added by Laws of 1920, chap. 503, as amd. by Laws of 1923, chap. 48) deals with “ superannuation retirement.” The list of teachers entitled to this form of retirement includes a teacher member sixty years of age who has performed twenty-five years of service, if a present teacher, or if a new entrant who has completed twenty-five years'of total State service; a teacher member, regardless of age, who has performed thirty-five years of service; a teacher member, regardless of service, who is seventy years of'age. As to every such teacher it is provided that he “ may retire” on condition that he "files with the Retirement Board a statement duly attested setting forth at what date subsequent to the execution and filing thereof he desires such retirement.” As to each of them it is provided: “ Tim Retirement Board shall retire said member as of the date so specified * * * or as of such other time within thirty days thereafter as the Retirement Board may find advisable.” Section 1109-a of the Education Law (added by Laws .of 1920, chap.-503, as amd. by Laws of 1923, chap. 48) provides for “ Disability retirement.” The list of availables for this form of retirement includes a member with fifteen years of State service to his credit; a present "teacher member who has to his credit twenty years of service, the last ten of which is State service. Such a member “ may be retired on account of disability either upon the application of his employer or upon his own application ” provided “ the Retirement Board, after a medical examination of said member, made at the place of his residence within the State or other place mutually agreed upon, by a physician or physicians designated by said board shall determine upon the basis of a report submitted by said physician or physicians that the said member is physically or mentally incapacitated for the performance of duty and that said member ought to be retired.” The distinction made between the *762class of members who seek retirement for superannuation and the class of members who seek retirement, or are required to retire, for disability, is quite evident. A member of the former class “ may retire.” The Retirement Board “ shall retire said member.” He must be retired “ within thirty days ” from the date specified by himself for retirement. His rights, therefore, to retirement and the fruits of retirement, granted that- age and service are sufficient, are absolute. On the other hand, a member of the second class “ may not retire ” but “ may be retired.” His retirement eventuates only in case the Retirement Board “ shall determine * * * that the said member is physically or mentally incapacitated,” and “ ought to be retired.” This determination can be made only “ after a medical examination of said member ” and “ upon the basis of a report submitted by said physician or physicians that the said member is physically or mentally incapacitated.” The Retirement Board is not required “ within thirty days ” or within any other period to retire him. It may retire him, or refuse to retire him, accordingly as it determines the question of fact of disability. Moreover, in disability cases, the statute does not specify when the report and decision shall be rendered. Doubtless, the Legislature, realizing that a multiplicity of disability cases, worthy and unworthy, would arise, and that an extended period of investigation and deliberation would be required to dispose of them, considered it unwise to establish an arbitrary period within which decisions thereupon must be given. We are told by the defendant that more than 30,000 teachers are members of the retirement fund, and that the accumulated moneys of the fund exceed $7,000,000. While there is no proof of these facts we may take notice that the assertions made cannot far exceed the truth. Inevitably a multitude of disability cases must arise. Inevitably a substantial period of time must be required carefully, to investigate and correctly to decide them. The preservation of the fund, and the security of its countless members, hang upon the justness of the decisions made in such cases. A rule has been adopted by the board that disability claims, if approved, shall not become effective until at least thirty days after their filing. We think this rule is not unreasonable. However that may be, we deem it indispensable to every disability claim that a report by the board’s physician and a favorable determination by the board be made before the claim becomes effective. While the court may by mandamus compel the physician or the board to act within a reasonable time it may not originally decide for itself the question of disability or direct the physician or the board how the question shall be decided. The teacher member, whose case is under con*763sideration here, died within seventeen days of the filing of her application for her retirement, prior to any medical examination made by the board’s physician or any determination by the board. We think that it cannot now be determined by this court that she was entitled to retire or that the petitioner, her beneficiary named under the option selected, is now entitled to that sum which might have accrued to her had the application for retirement been granted by the Retirement Board.

The order should be reversed and the writ dismissed.

All concur.

Final order reversed, on the law, and proceeding dismissed, without costs.