OPINION OF THE COURT
This is an article 78 proceeding seeking an order compelling the New York City Employees’ Retirement System (NYCERS) to terminate payments of accidental death benefits to the plaintiff’s infant son, respondent John M. Skagen, Jr., and to reinstate such payments to her. Petitioner is the widow of a former transit рolice officer (and member of the NYCERS) who died in a line-of-duty accidental injury in June, 1972.
Respondent, NYCERS, seeks dismissal of the petition on the grounds that it properly and lawfully made payments, and continues to make payments, of accidental death benefits to John M. Skagen, Jr., as the son of plaintiff and the deceased, from July 2, 1977 to the present.
In 1974 the board of trustees of the NYCERS passed a resolution awarding petitioner accidental death benefits pursuant to section B3-33.0 of the Administrative Code of the City of New York. The resolution of the board stated in part that the NYCERS would pay petitioner, throughout her widowhood, $4,535.38 per annum from June 29, 1972 to September 19, 1986, and $5,161.09 per annum from September 20, 1986. Upon her death or remarriage pay
Petitioner rеmarried on or about July 2, 1977, after receiving payments from June 29, 1972 through July, 1977. NYCEES informed petitioner that since she was not entitled to receive accidеntal death benefit payments beyond July 1, 1977, the last day of her widowhood, she was required to return the July, 1977 check previously remitted. NYCEES further informed petitionеr that payments would be made to her son, John M. Skagen, Jr., as of July 2, 1977, and requested that a guardian be appointed for the minor to receive these payments. Petitioner returned the July, 1977 check to NYCEES in August, 1977, and on August 12,1977 she was appointed guardian of the person and property of John M. Skagen, Jr., by Surrogate’s Court, County of Bronx.
By resolution dated June 9, 1978, the board of trustees stated that the NYCEES would pay to petitioner, as guardian of and in behalf of John M. Skagen, Jr., accidental death benefits in the sum of $4,535.38 per annum through July 1, 1979, and then $5,434.84 per annum as of July 2, 1979 through September 19, 1986, in equal monthly installments, at which time John M. Skagen, Jr., would attain 18 years of age, and they would cease earlier in the event of his death while under 18 years of age.
Petitioner’s remarriage was annulled оn April 25, 1979, pursuant to subdivision (e) of section 140 of the Domestic Eelations Law. She was informed by NYCEES in response to her inquiry, that the annulment of her marriage did not revive her entitlement to said benefits, and that payment of said benefits would continue to be made to her minor son.
The issue before me in this article 78 рroceeding is whether the annulment of her second marriage effectively revived her entitlement. A related and critical question concerns the rights of her son. Section B3-33.0 of the Administrative Code is explicit in its provision that a member’s death benefits be paid “[t]o his widow, to continue during her widowhoоd”. It is equally explicit regard
The annulment of petitioner’s marriage is a declaration that the “marriage is void from the time its nullity is declared by a court of competent jurisdiction”. (Domestic Relations Law, § 7.)
However, section 7 of thе Domestic Relations Law would be a superfluous statute if its sole meaning were to establish that the marriage is void only from the time of a declaration by the court to that effect. The same is true of the effect of any court decree.
When a marriage has been procured by fraud, it is merely voidable, subject to appropriate action by the defrauded party. Once annulled by the court for fraud, however, that marriage is dеemed erased as if it never took place. In that respect it is very much unlike a divorce, which serves to legally terminate a marriage deemed to have validly existed. (Sleicher v Sleicher,
As stated in Saunders (supra, at p 882): “The court of appeals has held that a marriage procured by fraud is voidable not void. Even so, annulmеnt when decreed, puts an end to it from the beginning *** The judgment of annulment granted herein reverts back to the very inception of the marriage and rendеrs the marriage contract and its incidental obligations void from the beginning. The annulment destroys the marriage from the beginning as a source of rights and duties *** Nоtwithstanding the express provision of the statute that a voidable marriage is void from the time its nullity is declared, the courts hold that an annulment of a voidable marriage puts an end to it from the beginning. The intent of the statute, according to the court of appeals, was not to alter the rule that whеn the decree was pronounced the marriage was void ab initio, but was merely to require the concurrence of the court before thе parties could treat themselves as free from the contract.”
There is no doubt that on a pure economic basis the petitioner and her son will be in a better financial position if the benefits are based on her life expectancy and do not cease when her son reaches 18. Thе guardian ad litem has stated that the infant (age 11) prefers that his mother be reinstated as recipient so as to be able to continue to supрort him until age 21, which is her obligation under subdivision 3 of section 32 of the Domestic Relations Law. This, coupled with the fact that the judgment of annulment contains nо provision for support for petitioner or her son, and upon the rationale contained in the afore-mentioned cases, convinces me that it is in the best interest of both the child and his mother that petitioner be reinstated as beneficiary.
The application of the guardian ad litem for a fee shall be considered in the judgment to be settled hereon.