215 A.D. 220 | N.Y. App. Div. | 1926
The petitioner’s sister, Margaret O’Brien, was a teacher in the public schools and a member of the retirement system created by article 43-B of the Education Law. She had been a teacher within the year prior to February 21, 1925. She had then completed more than thirty-five years of total service as a teacher. She was, therefore, entitled, as a matter of right, to retirement from service, as provided by section 1109 of the Education Law.j That section, among other things, provides that “ any member who has completed thirty-five years of total service may retire from service if 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 and if during the year immediately preceding the filing of such statement he shall have been a teacher.” On the date named Margaret O’Brien filed a statement, duly attested, Wherein she stated that she desired to retire and to have her retirement take effect on February 6, 1925. That was tantamount to an election to have her retirement take effect immediately after the filing of the statement. She, also, in the statement, expressed her election to accept option No. 1 under section 1109-c of the Education Lawt and designated her sister, the petitioner, as her beneficiary. It is provided in that section that a member may “ on retirement elect to receive the actuarial equivalent at that time of his retirement allowance in a lesser retirement allowance, payable throughout life ” with a provision as follows: “ Option 1. If he die before he has received in payments the present value of his retirement allowance as it was at the time of his retirement, the balance shall be paid to his legal representatives or to such person as he shall nominate by written designation duly acknowledged and filed with the retirement board.” Thus Margaret O’Brien, having the absolute right to retire, by filing the
The Retirement Board contends that it delayed action by reason of the terms of a general rule previously adopted by it which reads as follows: “ That all claims, if approved, shall become effective thirty days after filing the application for retirement.” The rule, in so far as it relates to superannuation retirements, denies to the Board the very power committed to it by statute. Section 1109, in a clause immediately following the clause already quoted therefrom, provides: “ The retirement board shall retire said member as of the date so specified by the member or as of such other time within thirty days thereafter as the retirement board may find advisable.” It is the intendment of this provision that the Retirement Board shall in each case separately exercise its judgment relating to the fixing of a date of retirement. The provision is not satisfied by the enactment of a universal rule expressing in advance the judgment of the Board upon all cases. The Board also contends that it could not make an order of retirement in the case of Margaret O’Brien after her death. Assume that the Board had in some case delayed action for more than thirty days after the date of retirement given in a member’s statement, and thereafter had delayed until the member died, it cannot be doubted that the Board would still have the power to grant an order of retirement,. Were it otherwise, the Board, by having recourse to every known method of procrastination, might nullify the statute and defeat retirement allowances in a majority of superannuation cases. Such a result would not be tolerated. A court would command the Board to make the order which it should have made as of the date when it' should have made it. The statute itself contemplates that the Board shall make orders which are retroactive. It provides that the ■ Board shall retire “ as of the ” day specified in the statement “ or as of such other time ” as may be found “ advisable.” It does not require the Board to make its order within thirty days. It does not forbid it to make an order after the death of a member. The argument that the retirement of a member after her death, with a provision for a disability allowance, would be inconsistent, ignores the fact that the member, by her long service, will have earned not alone a pension for her own support, but the right as well to confer an allowance upon a designated beneficiary to take effect upon her death. The Board also contends that in the particular case of Margaret O’Brien,
A mandamus order should issue to the Retirement Board directing it to make the appropriate order of retirement of Margaret O’Brien as of the date of the filing of her petition.
All concur.
Mandamus order requiring the Retirement Board to make an order of retirement of Margaret O’Brien as of February 21, 1925, granted, with fifty dollars costs and disbursements.