[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 534 In determining whether the deduction of one dollar from the monthly pay of a fireman, and from the monthly pension of the retired members of the department *Page 535 who had contributed to the widows' and orphans' relief fund before retirement, was voluntary or compulsory, it is proper to notice:
1. The widows' and orphans' relief fund was derived from the deductions from the monthly pay of officers and firemen of the department, and of other employees of the department who should desire to avail themselves of its benefits, and also from the monthly pensions of such retired members of the department as had contributed to said fund before retirement.
2. The firemen's insurance fund was derived from other sources.
3. A member of the department, such as was the relator's husband while in the uniformed force, who, after serving ten years, became disabled, was entitled to his discharge, and could be awarded a pension from the firemen's insurance fund.
4. Under the Brooklyn charter, and as is apparent from the provisions above quoted, an "employee" was not a "member" of the fire department, and, therefore, could receive no pension from the firemen's insurance fund.
5. The distinction between retired members who had contributed to the widows' and orphans' relief fund before retirement and those who had not so contributed was, no doubt, made because at the time of the original enactment for the establishment of the fund the members who had already retired had not contributed anything to the fund, and could not have done so. Thus the distinction was due to the situation, and not to the intention to confer an option.
This fact explains the meaning of the words "so contributing" in the provision:
"In case of the death of any member or employee of said department in the service thereof, or retired pensioner socontribution, there shall be paid to the widow or legal representative of such deceased member or employee or retired pensioner the sum of one thousand dollars so assessed."
It is thus obvious that the option of contribution was limited to employees and that as to members the contribution was in *Page 536 fact an assessment; that, as the relator's husband was a member for years after the enactment of the provision respecting the widows' and orphans' relief fund, he could not fall within the class of members retired before its enactment, and, therefore, not within the non-contributing class. He was in fact a contributing member during his active service, and after his retirement the trustees of the firemen's insurance fund should, under the mandate of the statute, have deducted one dollar from his monthly pension for the benefit of the relief fund, notwithstanding his unwillingness to be thus "assessed."
The order should be affirmed, with costs.
O'BRIEN, HAIGHT, MARTIN and VANN, JJ., concur; PARKER, Ch. J., and BARTLETT, J., not voting.
Order affirmed.