Graven v. Scott

249 A.D. 514, 292 N.Y.S. 771, 1937 N.Y. App. Div. LEXIS 9634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1937
• Status: Published

Opinion

Per Curiam.

The proceeding was brought to obtain a peremptory order of mandamus directing the respondents, as trustees of the police pension fund of the city of New Rochelle, to pay to the petitioner the sum of $375, being the amount of his contributions, two per cent of his monthly salary, during the period of his service as a police officer of that city. The petitioner resigned from the police force.

The statute, chapter 268 of the Laws of 1904, “ An Act to provide for a pension fund for the police force of the city of New Rochelle,” contains no provision authorizing or directing a refund to a police officer, upon his resignation, of contributions made by him during his incumbency in office; and the court is without power to read such a provision into the statute. (Pennie v. Reis, 132 U. S. 464, 471; Clarke v. Reis, 87 Cal. 543; 25 P. 759; McKuskie v. Hendrickson, 128 N. Y. 555, 558; McCluskey v. Cromwell 11 id. 593, 601; Leach v. Auwell, 154 App. Div. 170, 176.)

The order should be affirmed, with costs.

Present — Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ.

Order denying an application for a peremptory mandamus order unanimously affirmed, with costs, as a matter of law and not in the exercise of discretion.