202 A.D. 684 | N.Y. App. Div. | 1922
The facts are conceded by both parties, who desire a determination as an issue of law. David Wright is a veteran of the Civil War and is over seventy years of age; he has been employed continuously for the past ten years in the civil service of the State of New York, the first three and one-half years thereof as a clerk in the office of the State Fire Marshal, and the later part of his term of service with the Bronx Parkway Commission. All of the relator’s services constituted a State employment. The portion thereof performed for the State Fire Marshal’s office was directly rendered to the State, which presumably paid him for his services. The services performed for the Bronx Parkway Commission were paid for through the comptroller of the city of New York, pursuant to the statute which created the Commission and which is hereinafter briefly outlined.
In November, 1921, relator applied to the Bronx Parkway Commission for retirement on a pension at the rate of one-half of the salary paid to him during the last year of his employment. His pension would amount to $888 per annum, payable at the rate of $74 per month.
The Bronx Parkway Commission acted favorably upon his application, and it has included his name on the payrolls as a pensioner since November 30, 1921. The comptroller has refused to pay this pension on the broad ground that its payment would violate article 8, section 10, of the State Constitution, which forbids the appropriation of public moneys as gratuities.
The Bronx Parkway Commission as such has the control and management of the “ Bronx River Reserve and Parkway,” which is declared by the act to be a “ public parkway for public use ” (§ 1), and the three members of the Commission are appointed by the Governor. (See §§ 2, 3.) It is not a board or body of the city of New York, but is a distinct and separate body corporate which acts as the agent of the State in the management, control and regulation of the Bronx River Reserve and Parkway. In that respect it is like the Transit Commission (Matter of McAneny v. Board of Estimate, etc., 232 N. Y. 377, 390) and the board of education of the city of New York, which the Court of Appeals (Matter of Hirshfield v. Cook, 227 N. Y. 297, 301) has declared to be one of the “ branches of the State government charged by the State with the administration of its educational system.”
The relator rests his claim upon section 21-a of the Civil Service Law, which was enacted by the Laws of 1916, chapter 438, and amended by Laws of 1921, chapter 54. It reads as follows: '
“ § 21-a. Retiring veterans of the late Civil War and granting them pensions. Every soldier, sailor or marine of the army or navy of the United States in the late Civil War honorably discharged from service who shall have been employed for a continuous period of ten years or more in the civil service of the State of New York and the several cities and counties thereof and who shall have reached the age of seventy years upon his own request, or if employed in manual labor upon being incapacitated for performing manual labor, shall be retired from his employment by the State of New York and the several cities and counties thereof, and thereafter and during his life the State department or institution and the several cities and counties which employed him at the time of his retirement shall pay to him, in the same*687 manner that the salary or wages of his former position were customarily paid to him, an annual stun equal in amount to one-half the salary or wages paid to him in the last year of his employment.”
Appellant insists that the payment to the petitioner of a pension out of moneys raised by taxation in the city of New York would be a mere gratuity, violative of article 8, section 10, of the Constitution which provides: “No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes.”
It is contended in behalf of the city that “ there is no moral, and certainly no legal obligation on the part of the City of New York to provide city funds by taxation to pay pensions to persons who were never in its service, because as to such persons the grant of a pension is a mere gratuity.” In support of its argument, our attention is called to Matter of Mahon v. Board of Education (171 N. Y. 263, 267). The following excerpt from the opinion in that case, which is relied upon by the appellant, seems to us to be a complete answer to the city’s contention: “ The question of establishing a system of pensions is one of policy, not of obligation. The Legislature might well think that in a large city where teaching is adopted as a calling to be pursued for years, and often for life, it would be wise to provide a system of pensions as an inducement both to service at low wages and also to good conduct in service. But these considerations have no application to the case of officers or employees who are not in service at the time the pension system is established or in force. As to such persons the grant of a pension is a mere gratuity.”
The appellant apparently relies upon the two concluding paragraphs of the quoted opinion, claiming that, when the petitioner entered the service of the State Fire Marshal and of the Bronx Parkway Commission in the years 1911 and 1915, respectively, section 21-a of the Civil Service Law was not in effect.
The opinion, however, distinctly recognizes that the statute would be applicable to the petitioner, who was in service at the time the pension system was established and in force.
It may also be pertinent here to refer to the case of Hammitt v. Gaynor (144 N. Y. Supp. 123), which was an opinion of the late Mr. Justice Bischoff, who died before findings had been made by him in conformity with his opinion, necessitating a retrial of the action. Upon the retrial the Special Term trial justice wrote
It may also be observed that although the Bronx Parkway Commission is a State board, it nevertheless is limited in its scope to special localities, i. e., Westchester county and the city of New York, in part, which are directly benefited by the improvement of the parkway.
We are of opinion that upon the undisputed facts the petitioner was entitled to a peremptory mandamus order. '
The order appealed from should be modified so as to provide for the granting of a peremptory mandamus order, instead of an alternative one, and as thus modified should be affirmed, with ten dollars costs and disbursements to the respondent. '
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to the respondent. Settle order on notice.