Barnes v. Tremaine

246 A.D. 673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Submission upon an agreed statement of facts, to review a determination of the State Comptroller as Executive Director of the State Retirement System. Petitioner, a member of the State Retirement System, entered the civil service on July 6, 1906, by appointment to a position in the engineering service of the board of water supply of the city of New York, competitive class, and remained in the competitive class until December 12, 1921, when he was appointed by the same board to the position of division engineer, exempt class. He served in this latter position about four years, or until January 15, 1926. He was again transferred to the position of assistant engineer, in the competitive class, in which he remained until January 31, 1933, when his service was discontinued through no fault of his. The petitioner has attained the age of forty-five years and he now seeks the increased pension rights provided by section 61, subdivision 3, paragraph b, of the State Civil Service Law, as amended by chapter 454 of the Laws of 1932, accorded to certain members of the State Retirement System who have been discontinued from the State service through no fault or delinquency of their own after attaining the age of forty-five years, the pertinent part of which amendment provides as follows: “ except that a member who has attained age forty-five and has been for twenty or more years continuously employed in the competitive class of the classified service so discontinued from service shall be paid a pension equal to the value of a pension were the member age sixty at the time of such discontinuance.” It appears from the agreed statement of facts that the petitioner has not been continuously employed in the competitive class of the classified service for twenty years or more. While his service was continuou” and included a period of twenty-two years, five months and twenty-three days, more than four years of this time was spent in the exempt service; and the longest continuous period served by the petitioner in the competitive class was that from July 6, 1906, to December 12, 1921, less than fifteen years. We regard the action of the Comptroller to be in accord with the statute. Judgment rendered in favor of the respondent, without costs. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.