130 Misc. 896 | N.Y. Sup. Ct. | 1927
This is an application for a peremptory order of mandamus directed to the teachers’ retirement board of the city
Memmott died on March 16, 1926, at nine a. m. Prior to his death he executed an application for retirement under subdivision K of the Retirement Law, which provides that
“ Retirement for service shall be as follows:
“ 1. Any contributor may retire for service upon written application to the retirement board setting forth at what time subsequent to the execution of said application he desires to be retired. Said application shall retire said contributor at the time so specified: provided * * *
“ (b) If a present — teacher, he has a total — service of thirty-five years or more; * * * ”
Under subdivision O of the Retirement Law, as amended,
“ A contributor may at any time file with the board of retirement his election to receive on retirement his benefits in retirement allowance payable throughout life or to receive the actuarial equivalent of his annuity, his pension, or his retirement allowance in a lesser annuity, or a lesser pension, or a lesser retirement allowance, payable throughout life, with the provision that:
“ Option I. If he die before he has received in payments the present value of his annuity, his pension, or 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, having an insurable interest in his life, as he shall, nominate by written designation duly acknowledged and filed with the retirement board.”
Decedent on March 4, 1926, filed with the retirement board his election to accept upon retirement the benefits of subdivision O, option I, and he designated his estate as the beneficiary. This election was filed prior to his application for retirement, but it was quite proper to do so under the amended statute. The law as it originally read required such election to be made at the time
After the applicant’s death his son was appointed administrator of his father’s estate, and thereafter he assigned his claim to the petitioner herein. Respondent’s denials do not raise any issue of fact, except as to the time of the mailing, and this must be resolved in favor of the petitioner. The other issue, as to the actuarial value of the retirement allowance, is clearly a matter of mathematical calculation, within the determination of the retirement board, and petitioner is quite willing to accept the actuarial figures. No issue, therefore, arises on this score.
The sole question, then, is one of law, namely: Did the mailing of the application ipso facto entitle the applicant to immediate retirement, regardless of whether the application was acted upon by the retirement board or not? Respondent contends that, before retirement becomes effective, the application must be actually on file with the board, and, the petitioner having died prior to the receipt by such board of the application, the latter was of no effect. In support of this contention it cites the very recent case of Strianese v. Metropolitan Life Insurance Co. (221 App. Div. 81). There the insured executed a designation to change the beneficiary of the policy on December nineteenth, a Saturday. It was too late to file the change on that day. He died the next day, Sunday, and on Monday the designation was filed with the company, which refused to honor it. The court upheld the insurer in its refusal to honor the notice. The decision was based upon the strict terms of the policy, which provided that “ The insured may (while the policy is in force) designate a new beneficiary * * * by filing written notice thereof at the home office of the company accompanied by the policy for suitable endorsement. Such change shall take effect upon the endorsement of the same on the policy by the company and not before.”
Clearly that case is no authority, and provides no assistance in deciding the instant case. There is no provision in the law that the application must be filed to be effective, nor that the retirement shall not take effect until affirmative action by the
Article 6 of the by-laws of the retirement board, although not controlling upon the court, indicates quite a contrary view by the very board which is contesting the present petition. That article provides that written application, duly attested or witnessed, “ shall be sent to the office of the Teachers’ Retirement Board.” Thereafter the action of the board, involves only ministerial functions, except in the case of an applicant for the grant of a disability allowance, upon whose case a medical report must first be made. It is true that the by-law further provides that “ The application for retirement shall be submitted to the Teachers’ Retirement Board for action at the next regular meeting, succeeding the completion of those reports” (actuary and medical reports).
But, in the case of an applicant under subdivision K, those reports are clearly of a ministerial character, and do not involve the exercise of discretion. That subdivision distinctly states that “ said application shall retire said contributor at the time so specified,” provided he has reached the statutory age and has the requisite service, and as to the presence of these factors in the application before me there is no dispute. It is optional with the contributor to make the application, but, having done so, his application retires him, the succeeding acts of the board having no effect upon the substantive fact of his retirement, but merely determining the amount of his allowance, based upon the actuarial principles adopted by the board under the sanction of the statute.
Does the mailing of the application satisfy the intent of the statute? Under the well-known principles of contract law, it does. The statute is a general offer of a benefit held out to members of the retirement system who have qualified under it. The application is in the nature of the acceptance of the offer, and as soon as it is mailed the rights of the offeree become fixed, in view of the mandatory language in the law that the application itself retires the applicant.
Quite apart from the general consideration that pension laws should be liberally interpreted (Walton v. Cotton, 60 U. S. [19 How.] 355), and an interpretation avoided which will result in forfeiture (Fitzpatrick v. Knights of Columbus, 143 App. Div. 540), it is unnecessary to resort to such aids of interpretation because the statute is quite plain. It is a fact of some significance that, where filing is required, the law expressly so provides. Thus the designation of a beneficiary under subdivision 0, option I, requires filing, and the deceased complied with this requirement. If the Legislature had required similar action under subdivision K, it would have said so.
The motion is granted, without costs. Respondent will furnish to the petitioner the actuarial value of the decedent’s retirement allowance on March 16, 1926. Settle order.