New York State Employees' Retirement System v. Board of Supervisors

251 A.D. 198, 296 N.Y.S. 286, 1937 N.Y. App. Div. LEXIS 6894

Opinions

Per Curiam.

This is an appeal from a peremptory order of mandamus. The board of supervisors of the county of Tioga adopted a resolution on December 15, 1930, approving the inclusion of its officers and employees in the State Retirement System which fully complied with section 75 of article 5 of the Civil Service Law of the State.

In pursuance of the resolution making the officers and employees a part of the Retirement System some forty-eight employees became members and thereafter and on March 2,1931, the board of supervisors adopted a resolution rescinding the resolution of inclusion. This was done on the ground that the information given to the board of supervisors before the adoption by a representative of the Comptroller’s office, while innocently given, was erroneous and that they were induced by such erroneous statements to adopt the resolution in the first instance.

The power conferred by section 75 of the Civil Service Law upon the board of supervisors to approve of the entry of county officers and employees into the New York State Retirement System is permissive and when the board has legally granted its approval it has not the power to either revoke or rescind the same and the peremptory order of mandamus should be affirmed, with costs.

McNamee, Crapser and Bliss, JJ., concur; Hill, P. J., dissents, with an opinion, in which Heffernan, J., concurs.