Korb v. Brooklyn Edison Co.

258 A.D. 799, 15 N.Y.S.2d 557, 1939 N.Y. App. Div. LEXIS 7003

Opinion

In an action by a former employee of the defendant corporation, the plaintiff seeks to enforce payment to him of a greater amount of separation allowance than has been paid by the defendant. It is alleged that plaintiff has an absolute right to the amounts shown in one of the tables which constitute a part of the defendant’s Provisional Retirement Plan. After trial by the court without a jury, judgment was rendered in favor of plaintiff. The appeal is by defendant, by permission of this court, from an order of the Appellate Term which affirmed the judgment rendered in the Municipal Court of the City of New York. Order of Appellate Term affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, reversed on the law, judgment of the Municipal Court vacated, and the complaint dismissed, with costs in all courts. Under the terms of the Provisional Retirement Plan plaintiff is entitled to such allowances as are made in the discretion of the board of trustees of the plan, and has a vested interest in such allowances only as are determined and paid. There is no proof that the board of trustees made any other allowances than those that have been paid to the plaintiff, and hence there are no amounts to which plaintiff has an enforceable right. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ.„ concur.