Underhill v. Valentine

267 A.D. 778, 46 N.Y.S.2d 93, 1943 N.Y. App. Div. LEXIS 6220

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1943
• Status: Published

Opinions

Plaintiff appeals from an order granting defendants’ motion to dismiss the complaint under the provisions of subdivision 5 of rule 106 of the Rules of Civil Practice, on the ground that it does not state facts sufficient to constitute a cause of action, and from the judgment thereon entered -dismissirig the complaint. Order and judgment reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. This is an action to compel specific performance of the contractual obligation of the defendants to retire the plaintiff as a police officer, to place his name on the roll of the Police Pension Fund and to pay to him the annual pension to which he is legally entitled. In our opinion the complaint states a cause of action. Membership in the Police Pension Fund of the City of New York constitutes a contractual relationship between the plaintiff and the defendants. (N. Y. Const. art V, § 7.) Plaintiff is entitled to the relief he seeks as a matter of right. Defendants, in obedience to the command of the statute, are required to complete the retirement upon his application. They are not vested with discretion. A proceeding pursuant to article 78 of the Civil Practice Act cannot be considered as an adequate r.emedy, for the absolute right of plaintiff to retirement might be denied him in such a proceeding pursuant to the inherent discretion of the court to grant or withhold relief on mandamus. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Coombs v. Edwards, 280 N. Y. 361.) Hagarty, Acting P. J., Johnston and Taylor, JJ., concur;