This controversy arises out of a claim by the widow of Morris Marcus to recover a death benefit alleged to be due her under option 1 of section 1720 of the Greater New York Charter.
Morris Marcus was in the city service as chief probation officer in the Domestic Relations Court and was a member of the defendant, New York City Employees’ Retirement System. He was retired on April 12, 1935, after he had passed the age of fifty-five years and had been over thirty-three years in service. The retire
According to the submission, “ it was the definite intention of Morris Marcus to select the benefits provided by Option 1 of Section 1720, and that no other selection was made by him, but that such intention was in no way communicated to defendant other than as above stated.” No payments were made by the defendant to Morris Marcus on account of any retirement allowance before his death. The demand made by the plaintiff for payments under option 1 has been refused.
On these facts plaintiff contends that she is entitled to receive the benefit payable under option 1 of section 1720, which would have amounted to $30,369.86. Defendant contends, on the other hand, that no valid selection of the benefit under option 1 of section 1720 having been made by Morris Marcus before his death, the case falls under section 1717, whereby plaintiff is entitled to no more than $11,407.25. This latter sum defendant has heretofore paid without prejudice to the right of plaintiff to recover the balance. The amount claimed by plaintiff is the difference between the two sums mentioned, namely, $18,962.61.
It is conceded that the deceased was privileged to select option 1 at the time of his death, and the only question is whether he actually did so in contemplation of law. In Matter of Creveling v; Teachers’ Retirement Board (255 N. Y. 364) the Court of Appeals had occasion to consider a somewhat similar situation involving the construction of a statute (Greater New York Charter, § 1092) providing for retirement upon written application to the hoard. In that case an application was handed by the deceased to a teacher member of the board but it was not presented to the defendant until after the applicant’s death. The court said: “ Even if the applica
We think that this controversy presents substantially the same situation. Whether the statute provides that the beneficiary “ may then elect ” or “ may retire for service upon written application ” is an immaterial difference. The point of the decision of the Court of Appeals was that the choice must be effectively made. We hold that an election is not validly made unless it is communicated to the defendant in the lifetime of the party making the election.
Judgment should be directed in favor of the defendant, without costs.
McAvoy, Untermyer, Dore and Cohn, JJ., concur.
Judgment directed in favor of the defendant, without costs. Settle order on notice.