Ferraiolo v. O'Dwyer

Dye, J.

In this appeal by permission from an order of the Appellate Division, Supreme Court, First Department, unanimously annulling in part a determination of the board of estimate of the city of New York constituting the trustees of the New York City Employees’ Retirement System, we are called upon to review whether the appellant board correctly applied the pertinent provisions of the Administrative Code when in granting petitioner-respondent’s application for pension benefits in an accidental death case, it deducted therefrom as an offset the amounts paid and to be paid by the city as a self-insurer pursuant to an award of the Workmen’s Compensation Board made by reason of the same accidental death.

The circumstances giving rise to the controversy are not in dispute. The petitioner-respondent’s deceased husband was an employee of the city transit system and a member of the city employees’ retirement system. He met death under circumstances warranting payment of workmen’s compensation benefits and such awards were duly made by the Workmen’s Compensation Board to his widow, his daughter under the age of eighteen years and to his father, found to be dependent by reason of incapacity (Workmen’s Compensation Law, §§ 10, 16).

When the petitioner-respondent as a widow, made application to the city employees’ retirement system for accidental death benefits the board, by resolution, granted such application to the extent of refunding the accumulated salary contributions made by her husband in his lifetime amounting to $2,558.50, together with an annual pension during widowhood in the amount of $1,534.15 computed at “ one-half of the final compensation ” received by her husband at his death (Administrative Code, § B3-33.0) against which the board offset as a deduction the total of the amounts payable by the city under the compensation awards, to wit: $655.20 per annum during widowhood; $218.40 per annum for the infant daughter under eighteen years, and $546 during dependency of deceased’s father (Administrative Code, § B3-45.0).

The petitioner-respondent then instituted this proceeding under article 78 of the Civil Practice Act, to have such determination reviewed and for affirmative relief by way of reimbursement of the sums deducted and for an order directing payment of her pension in the future without such deduction, The Special Term and the Appellate Division were each of the view that the board erred in making an offset of the amounts payable on account of the dependents other than to the widow. A problem of statutory construction is thus presented.

We turn now to the applicable provisions of the Administrative Code, the pertinent parts of which are quoted for convenience :

“ § B3-33.0 Death benefits; accidental death benefits.— * * * Upon application by or on behalf of the dependents of such deceased member, such board shall grant a pension of one-half of the final compensation of such employee:

“1. To his widow, to continue during her widowhood; or

“2. If there be no widow, or if the widow dies or remarries before any child of such deceased member shall have attained the age of eighteen years, then to his child or children under such age * * * to continue as a joint and survivor pension of one-half of his final compensation until every such child dies or attains such age; or

“ 3. If there be no widow or child under the age of eighteen years surviving such deceased member, then to his dependent father or mother * * * as such board in its discretion shall direct, to continue for life.”

“ § B3-45.0 Betieement allowances; eestbictions on.— a # *

“ b. * * * If an amount which is payable throughout a period under the provisions of the workmen’s compensation law be a percentage less than one hundred per cent of the amounts otherwise payable during the same period out of moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, there shall be paid during such period as it becomes due under the provisions of this title, in lieu of each amount otherwise payable, the percentage thereof which is the difference between such lesser per cent and one hundred per cent.” (Emphasis supplied.)

We have heretofore approved as a proper rule of construction that the phrase “ out of moneys provided or to be provided by the city * * * on account of the same disability of the same person ” (Administrative Code, § B3-45.0) was not limited to disability benefits payable to an injured employee during his lifetime, hut included accidental death benefits as well, from which it followed that an offset in full of a compensation award payable by the city to a widow was properly made against her accidental death pension benefit (Matter of Daley v. O’Dwyer, 274 App. Div. 938, affd. 298 N. Y. 890). To be sure, this case involves the offset of compensation award to dependents other than a widow but, even so, there is no substantial difference in principle and no different construction is warranted. For instance, had the deceased been incapacitated rather than killed as a result of the accident, it is clear beyond dispute that — regardless of the number, age or relationship of his depend-, ents — the benefit payable to him by the city would have been limited to the sum payable under the provisions of the Workmen’s Compensation Law when such sum equaled or exceeded the present value of all amounts otherwise payable by the city on account of the same disability (Administrative Code, § B3-45.0; Workmen’s Compensation Law, § 30) and when less would be limited, except for annuity, to three quarters of his final compensation (§ B3-44.0). The same policy is followed by the State in administering payments under the State Employees’ Retirement System, offsets of compensation awards being made against pensions but not against annuity benefits, which is but an application of the established policy and prohibition against dual payment of public funds (Civil Service Law, § 85, formerly § 67; Matter of Dalton v. City of Yonkers, 262 App. Div. 321, affd. 287 N. Y. 592; see, also, Matter of Svec v. City of New York, 251 App. Div. 758).

It should be noted that since October 1,1920, the effective date of the city employees’ retirement system (L. 1920, ch. 427; Greater New York Charter, §§ 1700-1725, now new Administrative Code, ch. 3, tit. B), workmen’s compensation awards have been deducted in full from accidental death pensions irrespective of the number of dependents surviving. While practical construction by an officer or agency charged with the administration of a statute, especially when followed by a long period of time, is entitled to great weight and may not be ignored (Household Finance Corp. v. Goldring, 263 App. Div. 524, affd. 289 N. Y. 574; Matter of Kolb v. Holling, 285 N. Y. 104), such an interpretation is not necessarily binding on the court but nonetheless constitutes an element to be considered (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 93). In the instant case it is also the construction dictated .by the language of the statute which not only fixes the formula for payment of an accidental death pension but specifically provides that payments shall be made “ Upon application by or on behalf of the dependents of such deceased member ” (§ B3-33.0, emphasis supplied), an unmistakable expression of legislative intent to include dependents other than the widow. To make a distinction in offset because the workmen’s compensation award includes one or more classes of beneficiaries along with the widow is neither logical nor sound and is surely in conflict with the clear limitation respecting the payment of city funds “ on account of the same disability of the same person ”.

The orders of the Appellate Division should be reversed and the petition dismissed, without costs.