# Breen v. Board of Trustees

> Appellate Division of the Supreme Court of the State of New York · June 7, 1948 · 273 A.D. 689

URL: https://www.frixlaw.com/law-library/cases/5384683

## Case

- **Full name:** In the Matter of Dennis M. Breen, against Board of Trustees of the New York Fire Department Pension Fund
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 7, 1948
- **Citations:** 273 A.D. 689; 79 N.Y.S.2d 548; 1948 N.Y. App. Div. LEXIS 4666
- **Precedential status:** Published
- **Opinion:** Dissent by Peck
- **Judges:** Cohn, Peck
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5384683

## Opinion text

Peck, P. J.
(dissenting) There being no finding that petitioner is unfit for the light duty on which he was placed under paragraph 2 of subdivision a, I am of the opinion that he is entitled to maintain his status under that subdivision and may not be retired under subdivision b. In other words, subdivision b does not require the retirement thereunder of a member of the department who has been placed on light duty under subdivision a, so long as he is fit for that duty, merely because he has performed twenty years’ service. If subdivision b had that effect it might produce the incongruous result of forcing a retirement on less favorable terms (half pay) than the member is entitled to by voluntary retirement (three quarters pay) under subdivision a. While petitioner has been granted three-quarters pay, that seems to be a matter of grace rather than right, and in construing the statute we should consider rights. Accordingly, I dissent and vote to affirm.
Dobs and Callahan, JJ., concur with Cohn, J., Peck, P. J., dissents in opinion in which Van Voobhis, J., concurs.
Order reversed and the petition dismissed, without costs. Settle order on notice.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5384683. Public record. Not legal advice.