The petitioner-appellant is the widow of a member of the Department of Street Cleaning who died on September 1, 1937. Under the provisions of section 552 of the Charter of the City of New York, she is entitled to a pension to be paid out of the pension fund of the department if her husband had been "ten years in the service in said department at the time of his death." The decedent was appointed an "extra sweeper" in the department on July 15, 1927, and as an "extra sweeper" he reported for work every day. In April, 1928, he was notified that he was appointed a regular sweeper. He continued in that position until his death. If the ten-year period of service which would entitle the decedent's widow to a pension began upon the appointment of the decedent as a regular sweeper, the required period had not been completed at the time of his death and the widow would not be entitled to a pension. If, however, appointment as an "extra sweeper" marks the beginning of the period of service, then the petitioner has a clear right to a pension. *Page 136
The pension fund of the department is "for the benefit of the members of the clerical and uniformed forces of the department of street cleaning as defined by section five hundred and thirty-six of the charter, and the incumbents of such other positions in said department as have been created and not specified in section five hundred and thirty-six of the charter." (§ 548.) Section 536 of the Charter provides that "the uniformed force shall be appointed by the commissioner of street cleaning, and shall consist of * * * sweepers, not exceeding thirty-one hundred in number, * * * drivers, not exceeding sixteen hundred in number, * * * hostlers, not exceeding one head hostler to each stable and additional hostlers not exceeding one for each ten horses. * * * "The same section further provides: "The commissioner of street cleaning shall have power and is hereby authorized to increase the said uniformed force, from time to time, by adding to the number of sweepers, drivers and hostlers, provided the board of estimate and apportionment and the board of aldermen shall have previously made an appropriation for the purpose of permitting such increase. The annual salaries and compensations of the members of the uniformed force of the department of street cleaning shall not exceed the following: * * * sweepers, seven hundred and twenty dollars each." It is clear, and the petitioner-appellant does not contend otherwise, that the decedent became one of the sweepers not exceeding 3,100 in number, except as such number may have been increased after an appropriation was made by the Board of Estimate for the purpose of permitting such an increase, and became entitled to an annual salary of $720 only at the date of his appointment as a "regular" sweeper in April, 1928. In another part of the same section there is a provision that "any person registered or eligible to appointment as a driver, or as a sweeper, may be temporarilyemployed at any time as an extra driver or sweeper to fill the place of a driver or sweeper who is suspended or temporarily absent from duty from any cause. The rate of compensation for such extra drivers or *Page 137 sweepers shall be two dollars per day, and the driver or sweeper whose place is so filled shall not receive any compensation for the time during which he is so absent from duty or his place is so filled, unless such injury or illness was caused by service in the department." Authority for the employment of the decedent as extra sweeper is derived from that provision. That authority is expressly limited to temporary employment upon a per diem basis, and the problem presented upon this appeal is whether a person so employed is an appointed member of the uniformed forces of the department as defined in section 536.
Men employed as extra drivers or extra sweepers are, as I have pointed out, not included in the number of "drivers" or "sweepers" who by the express terms of the statute are included in the uniformed force. Not only is the employment temporary, but the services performed and paid for are necessarily intermittent or occasional. An extra driver or sweeper serves only when he is assigned to fill the place of a regular employee "who is suspended or temporarily absent from duty." Temporary employment calling for intermittent service cannot mark the beginning of the period of ten years of service which is required before the widow of the employee may receive a pension.
An extra driver or sweeper temporarily employed to fill the place of a driver or sweeper who is temporarily absent is not included in the class of uniformed force of the Department of Street Cleaning as defined in section 536; and other sections of the Charter demonstrate that such temporary employees were not intended to share in the benefit of the relief and pension fund of the department. The Comptroller is required to deduct three per cent of the "weekly or monthly pay, salary or compensation" of each member of the department who is entitled to share in the benefit of the fund and to pay the amount so deducted into the fund. In this case such deductions began only when the temporary employment was terminated by permanent appointment. A failure by the Comptroller to make such *Page 138 deduction earlier if it was his duty to do so would, I agree, not in itself constitute a ground for denying to the petitioner a right conferred upon her by statute. Here, however, the statute placed no such duty upon the Comptroller. The temporary employee did not receive "weekly or monthly pay, salary or compensation." He received per diem compensation for occasional days' work. The statute does not provide or contemplate that deduction should be made from the per diem pay of an employee whose service is temporary, intermittment, or occasional, nor does it contemplate that such a person should share in the benefit of the pension fund.
For these reasons the order of the Appellate Division should be affirmed.
FINCH, CONWAY and DESMOND, JJ., concur with RIPPEY, J.; LEHMAN, Ch. J., dissents in opinion in which LOUGHRAN and LEWIS, JJ., concur.
Order reversed, etc. *Page 139