Citations
- 226 A.D. 99
Full opinion text
O'Malley, J.
The petitioner, Mary Jane Keily, is the sister of one Emma E. Keily, who, on February 1, 1928, was a “ present-teacher ” in the employ of the board of education of the city of New York and a member in good standing of the Teachers’ Retirement Association. For the purposes of retirement under the Teachers’ Retirement Law, Emma E. Keily, had on January 18, 1928, to her credit upwards of twenty-six years of service. On the latter date she filed with the defendant teachers’ retirement board her application for disability retirement. On February 1, 1928, the medical board of the defendant examined the applicant and certified to the defendant that she was physically incapacitated for the performance of duty and ought to be retired. Such certificate was filed with the defendant on February 15, 1928.
After the making and filing of such certificate and on February 21, 1928, Emma. E. Keily filed with the defendant an election in writing of the benefits of option I, provided for by subdivision O of section 1092 of the Greater New York Charter (Laws of 1901, chap. 466, as amd. by Laws of 1917, chap. 303, and Laws of 1920, chap. 784), known as the Teachers’ Retirement Law, in which she named the petitioner, her sister, as beneficiary.
Subdivision O, option I, provides as follows:
“ 0. A contributor may at any time file with the board of retirement his election to receive on retirement his benefits in a retirement allowance payable throughout life or to receive thé 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.”
On March 27, 1928, the defendant rejected this application for benefits of option I, and retired the applicant as of February 1, 1928, the date of the certificate of its medical board. Emma E. Keily died on May 15, 1928, without having received or accepted any payments made by the defendant because of her retirement.
The order appealed from was predicated upon the theory that the retirement became effective when the certificate of the defendant’s medical board was filed and that the applicant was prevented thereafter from making the election provided for in the section of the charter in question. The applicant, on the other hand, contends that such retirement did not become effective upon the mere making or filing of such certificate with the defendant, but that the action of the defendant board itself was required.
The decision below is sought to be sustained because of certain language found in Rees v. Teachers’ Retirement Board (247 N. Y. 372), where the court said when dealing with disability retirement (p. 375):