Beisman v. New York City Employees' Retirement System

275 A.D.2d 836

Opinion

The trial court found that when the deceased purported to make a choice of retirement benefits during February, 1944, he was lacking in sufficient mental capacity to understand properly the nature, quality and effect of his decision. This finding, if we assume that it is sufficient to sustain the judgment, is not supported by the evidence. The proof was insufficient as matter of law to establish that decedent, when he made application for retirement, did not understand, not only that he was retiring, but also that he had elected to receive the maximum allowance payable during his life, and not to receive a lesser allowance which would have been payable under the options which were open to him and which he did not select. It is also insufficient to establish any connection between decedent’s alleged incompetency and the act of retirement without a selection of any of the options with respect to pension payments; or that decedent, by reason of such incompetency, refrained from choosing one of the optional plans, which he would have selected if thoroughly competent. (Cf. Aldrich v. Bailey, 132 N. Y. 85; Moritz v. Moritz, 153 App. Div. 147, affd. 211 N. Y. 580.) Inconsistent findings are reversed. Nolan, P. J., Carswell, Adel, Sneed and MaeCrate, JJ., concur.