Finch, J.
The question presented by this appeal is whether the Legislature by provisions of the Administrative Code of the City of New York (effective January 1, 1938) has authorized the Board of Estimate to grant the application for payment of a pension to a person who has been removed from his position as a member of the city service on charges involving fault and delinquency which he has not disproved.
The facts are not in dispute. The petitioner was in the city service for forty-three years and at the time of his
dismissal occupied the position of chief clerk to the Municipal Civil Service Commission. He had been a member of the Retirement System since its inception in 1920 and had attained the minimum retirement age, namely, sixty, of the group of which he was a member. On April 4, 1939, he was suspended from his position pending the filing of formal charges as follows: (1) that he had delayed payment of moneys due to the city; (2) that his accounts were in a confused and disordered state; (3) that there was a substantial shortage in his accounts; and (4) that he had failed to report the shortage and the confused state of his accounts to his superiors. On April 12, 1939, a bill of particulars showing a net cash deficit of $1,300.48 in his accounts, subsequently raised to $2,929.77, was served upon petitioner and a hearing set for April 18, 1939.
On April 17, 1939, while the charges were pending and the day before they were to be heard, the petitioner filed with the Board of Estimate his written application for retirement from the city service. Pursuant to his request at the hearing, petitioner on April 19, 1939, sent a letter to the Commission setting forth his defense to the charges. On April 20, 1939, the Commission found the petitioner guilty of the above charges. Petitioner thereupon was dismissed from the service and his name removed from the civil service rolls. The propriety of this dismissal by the Commission has never been attacked by the petitioner.
The Board of Estimate, on December 14, 1939, granted the petitioner’s application for retirement. It later reconsidered the resolution after the Mayor, who had not been personally present when it was passed, disapproved. On reconsideration by the Board of Estimate, the pension was denied by a vote of fourteen to two. The question of the right of the Board of Estimate to reconsider its original resolution is not presented here but rather the right of the Board to pass the resolution in the first instance.
This is a proceeding brought by the petitioner to compel the Board of Estimate as the Trustees of the Employees’ Retirement System to grant his application for retirement and to determine the amount of his retirement allowance. It is respondent’s position that he was a member in the city
service at the time that he filed his application for retirement. Since he had attained the minimum retirement age, he contends that notwithstanding his dismissal for fault and delinquency three days after he filed the application, the Board of Estimate must grant such retirement allowance and its action in so doing is purely ministerial. His position is based upon his interpretation of section B3-36.0 of the Administrative Code (L. 1937, ch. 929) and rule 58 of the Rules of the Board of Estimate.
Petitioner did not apply for retirement until after he had been suspended and charges involving fault and delinquency had been filed against him. Upon those charges he was removed from the city service and this removal took place before the earliest date on which the Board could or did act upon his application. Under the provisions of the Administrative Code formerly contained in the Charter of the City of New York (L. 1901, ch. 466, as amended) the members of the retirement system are entitled to certain rights, which rights have been characterized as being in the nature of contractual or quasi-contractual rights.
(Roddy
v. Valentine, 268 N. Y. 228, 231.) Where the statutory conditions for retirement have been met those rights become vested and payment of the pension cannot be withheld in the absence of fault or delinquency at the mere whim of any administrative officer or body.
(Rees
v.
Teachers’ Retirement Board,
247 N. Y. 372;
People ex rel. Fitzpatrick
v.
Greene,
181 N. Y. 308, 312.) In the case at bar the question presented is whether these rights include retirement allowance for a prior member of the system who has been suspended from the service upon charges before his application for retirement was made and where the charges have been sustained and the member dismissed from the service before the date set in the application for actual retirement. Under these circumstances have the statutory conditions been met?
Section B3-36.0 of the Administrative Code, upon which the petitioner relies, provides that “ any member in city-service may retire upon written application to the board setting forth at what time, not less than thirty days subsequent to the execution and filing thereof, he desires to be
retired, provided that such member
at the time so specified for his retirement
shall have attained the minimum age of retirement provided for the group of which
he shall be a member at such time.
* * * ” (Italics interpolated.) The statutory conditions for retirement are entirely clear. The applicant must (1) have attained the minimum age of retirement, and (2) he must be a member of the city service at the time so specified for his retirement. It is obvious that an applicant could not be “ retired ” from the service if prior thereto he has been removed. In the case at bar, the petitioner has failed to comply with this second requirement.
Since the application for retirement in this case was not filed until April 17, 1939, it could not become effective or be acted upon by the Board of Estimate until at least thirty days after that date. Before May 17, 1939, the petitioner had been involuntarily removed from the city service. Under section B3-36.0, the petitioner, having been removed from the service before his application became final, has no right to a pension. The effect of the petitioner’s dismissal from the city service is the same as if he had died before the effective date of his application. In such case the right to a pension is lost.
(Matter of O’Brien
v.
Tremaine,
285 N. Y. 233;
Matter of Creveling
v.
Teachers’ Retirement Board,
255 N. Y. 364.) Following this principle, we held in
Matter of McMeekan
v.
Dept. of Health of the City of New York
(157 Misc. Rep. 620; affd., 249 App. Div. 609; affd., 274 N. Y. 521) that voluntary retirement was not effective until the Board of. Health by resolution approved. In that case, petitioner, an employee of the city, having learned that charges were to be preferred against him filed his application for retirement. The next day he was suspended and thereafter dismissed upon charges. To the same effect, see
Matter of Murnane
v.
LaGuardia
(242 App. Div. 823).
The petitioner contends that the defect in his application is remedied by rule 58 of the Rules of the Board of Estimate which provides that
“
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Finch, J.
The question presented by this appeal is whether the Legislature by provisions of the Administrative Code of the City of New York (effective January 1, 1938) has authorized the Board of Estimate to grant the application for payment of a pension to a person who has been removed from his position as a member of the city service on charges involving fault and delinquency which he has not disproved.
The facts are not in dispute. The petitioner was in the city service for forty-three years and at the time of his
dismissal occupied the position of chief clerk to the Municipal Civil Service Commission. He had been a member of the Retirement System since its inception in 1920 and had attained the minimum retirement age, namely, sixty, of the group of which he was a member. On April 4, 1939, he was suspended from his position pending the filing of formal charges as follows: (1) that he had delayed payment of moneys due to the city; (2) that his accounts were in a confused and disordered state; (3) that there was a substantial shortage in his accounts; and (4) that he had failed to report the shortage and the confused state of his accounts to his superiors. On April 12, 1939, a bill of particulars showing a net cash deficit of $1,300.48 in his accounts, subsequently raised to $2,929.77, was served upon petitioner and a hearing set for April 18, 1939.
On April 17, 1939, while the charges were pending and the day before they were to be heard, the petitioner filed with the Board of Estimate his written application for retirement from the city service. Pursuant to his request at the hearing, petitioner on April 19, 1939, sent a letter to the Commission setting forth his defense to the charges. On April 20, 1939, the Commission found the petitioner guilty of the above charges. Petitioner thereupon was dismissed from the service and his name removed from the civil service rolls. The propriety of this dismissal by the Commission has never been attacked by the petitioner.
The Board of Estimate, on December 14, 1939, granted the petitioner’s application for retirement. It later reconsidered the resolution after the Mayor, who had not been personally present when it was passed, disapproved. On reconsideration by the Board of Estimate, the pension was denied by a vote of fourteen to two. The question of the right of the Board of Estimate to reconsider its original resolution is not presented here but rather the right of the Board to pass the resolution in the first instance.
This is a proceeding brought by the petitioner to compel the Board of Estimate as the Trustees of the Employees’ Retirement System to grant his application for retirement and to determine the amount of his retirement allowance. It is respondent’s position that he was a member in the city
service at the time that he filed his application for retirement. Since he had attained the minimum retirement age, he contends that notwithstanding his dismissal for fault and delinquency three days after he filed the application, the Board of Estimate must grant such retirement allowance and its action in so doing is purely ministerial. His position is based upon his interpretation of section B3-36.0 of the Administrative Code (L. 1937, ch. 929) and rule 58 of the Rules of the Board of Estimate.
Petitioner did not apply for retirement until after he had been suspended and charges involving fault and delinquency had been filed against him. Upon those charges he was removed from the city service and this removal took place before the earliest date on which the Board could or did act upon his application. Under the provisions of the Administrative Code formerly contained in the Charter of the City of New York (L. 1901, ch. 466, as amended) the members of the retirement system are entitled to certain rights, which rights have been characterized as being in the nature of contractual or quasi-contractual rights.
(Roddy
v. Valentine, 268 N. Y. 228, 231.) Where the statutory conditions for retirement have been met those rights become vested and payment of the pension cannot be withheld in the absence of fault or delinquency at the mere whim of any administrative officer or body.
(Rees
v.
Teachers’ Retirement Board,
247 N. Y. 372;
People ex rel. Fitzpatrick
v.
Greene,
181 N. Y. 308, 312.) In the case at bar the question presented is whether these rights include retirement allowance for a prior member of the system who has been suspended from the service upon charges before his application for retirement was made and where the charges have been sustained and the member dismissed from the service before the date set in the application for actual retirement. Under these circumstances have the statutory conditions been met?
Section B3-36.0 of the Administrative Code, upon which the petitioner relies, provides that “ any member in city-service may retire upon written application to the board setting forth at what time, not less than thirty days subsequent to the execution and filing thereof, he desires to be
retired, provided that such member
at the time so specified for his retirement
shall have attained the minimum age of retirement provided for the group of which
he shall be a member at such time.
* * * ” (Italics interpolated.) The statutory conditions for retirement are entirely clear. The applicant must (1) have attained the minimum age of retirement, and (2) he must be a member of the city service at the time so specified for his retirement. It is obvious that an applicant could not be “ retired ” from the service if prior thereto he has been removed. In the case at bar, the petitioner has failed to comply with this second requirement.
Since the application for retirement in this case was not filed until April 17, 1939, it could not become effective or be acted upon by the Board of Estimate until at least thirty days after that date. Before May 17, 1939, the petitioner had been involuntarily removed from the city service. Under section B3-36.0, the petitioner, having been removed from the service before his application became final, has no right to a pension. The effect of the petitioner’s dismissal from the city service is the same as if he had died before the effective date of his application. In such case the right to a pension is lost.
(Matter of O’Brien
v.
Tremaine,
285 N. Y. 233;
Matter of Creveling
v.
Teachers’ Retirement Board,
255 N. Y. 364.) Following this principle, we held in
Matter of McMeekan
v.
Dept. of Health of the City of New York
(157 Misc. Rep. 620; affd., 249 App. Div. 609; affd., 274 N. Y. 521) that voluntary retirement was not effective until the Board of. Health by resolution approved. In that case, petitioner, an employee of the city, having learned that charges were to be preferred against him filed his application for retirement. The next day he was suspended and thereafter dismissed upon charges. To the same effect, see
Matter of Murnane
v.
LaGuardia
(242 App. Div. 823).
The petitioner contends that the defect in his application is remedied by rule 58 of the Rules of the Board of Estimate which provides that
“
the rights of an applicant to retirement shall not be forfeited by separation from service or other change in status subsequent to the filing of an applica
tion for retirement . * * The language of this rule would not seem inconsistent with the provisions of the Administrative Code. It would seem to refer to acts which might lead to removal occurring subsequent to the filing of the application. If, however, its language is inconsistent it cannot stand. A mere rule must give way to an act of the Legislature.
It is submitted that the above construction of section B3-36.0 would seem to follow from reading the retirement law as a whole. The petitioner having served upwards of forty years, the provision of the retirement law under which he normally would make application would be section B3-35.0 which applies to twenty years or more of service. But this petitioner is expressly excluded from section B3-35.0 because he was removed from bis position for fault and delinquency. Therefore he has applied for a pension under section B3-36.0 which he contends permits retirement in spite of removal for fault or delinquency. If we sustained that contention, the result which we would adopt would allow a member of the city service who had attained the minimum age to compel the payment of a pension to him after dismissal from the service no matter how serious the charges filed against him and even though his city service falls far short of twenty years, whereas a member of the service who had completed twenty years of service and had been removed therefrom upon charges would have no right to a pension. It would not seem that the Legislature intended to produce so inconsistent a result. It is unnecessary, however, to pass upon this question for the reason as already noted that the petitioner had been properly removed from the service before his application became final and hence has no right to a pension.
It has been urged by the petitioner that the deductions from his salary and the expected benefits of the retirement plan constituted a part of his compensation during his tenure of office and that to deprive him of such benefits now would deprive him of compensation which has already been earned. Since the petitioner was not in the service of the city at the time his application for retirement became final he is not entitled to a pension under section B3-36.0
but may recover his accumulated deductions from salary under section B3-29.0 which provides for such payment in all cases except death or retirement. Even though a member be removed for fault or delinquency he is still entitled under section B3-29.0 to the accumulated deductions. Thus there arises no forfeiture and petitioner is in no way penalized.
Petitioner also urges that he has an adequate defense to the charges made against him and upon which he was dismissed. Such question is not before us upon this appeal. The propriety of his dismissal is reviewable only upon a petition for reinstatement under article 78 of the Civil Practice Act. Nor does the fact that petitioner has made restitution of a part of the amount of the shortage found in his accounts alter the character of the charge. Restitution cannot be considered as a criterion for the purpose of the determination of whether the charge involves fault or delinquency. Until the petitioner’s dismissal has been set aside upon review by the courts, the finding of the Commission that petitioner was guilty of fault and delinquency is conclusive upon this court for the purposes of this appeal.
It follows that the orders should be reversed and the petition dismissed, without costs.