Daley v. O'Dwyer

274 A.D. 938, 83 N.Y.S.2d 776, 1948 N.Y. App. Div. LEXIS 4173

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1948
• Status: Published

Opinion

Proceeding under article 78 of the Civil Practice Act to review a determination of respondents, as trustees of the New York City employees’ retirement system. The appellant’s deceased husband was an employee of the City of New York; a member of the city retirement system; and his employment was covered by the provisions of the Workmen’s Compensation Law. Respondents awarded appellant a widow’s pension under section B3-33.0 of the New York City Administrative Code, and, purporting to act under subdivision b of section B3-45.0 of the code, deducted from the amount of the pension the amount awarded to appellant by the State Industrial Board. Order denying appellant’s motion to annul respondents’ determination, and for other relief, affirmed, without costs. No opinion. Johnston, Adel and Sneed, JJ., concur; Nolan, P.J., and Wenzel, J., dissent and vote to reverse the order and to grant the motion, with the following memorandum: In our opinion, appellant is entitled to the full amount of the death benefit provided by section B3-33.0 of the Administrative Code, without deduction of payments made to her under the Workmen’s Compensation Law. Subdivision b of section B3-45.0 of the Administrative Code provides for deductions of amounts payable under the Workmen’s Compensation Law from amounts otherwise payable out of moneys provided by the city on account of “ the same disability of the same person ”. The provisions of this section of the code relate solely to payments on account of “ disability ” and have no relation to the “ death benefits ” provided to be paid by section B3-33.0'.