Matter of Ralph v. Bd. of Estimate of City of Ny

Desmond, J.

(dissenting). The New York City employees’ retirement system, as set up under title B of chapter 3 of the city’s Administrative Code, includes special benefits for members who suffer accidental deaths while in the actual physical performance of their official duties. On the death of any employee while a member of the retirement system, his estate or nominee is entitled to the return of his “ accumulated deductions ” plus a half-year salary or full-year salary, depending on length of service (Administrative Code, § B3-32.0). Appellant’s rights to those “ ordinary benefits ” is conceded. But much different and greater benefits are available to the dependents of a member accidentally killed while on duty. In the latter case, besides the return to the member’s estate or nominee of his “ accumulated deductions ”, there is payable to his dependents a pension of one half of the deceased employee’s compensation *455 (Administrative Code, § B3-33.0). But the grant of such a pension is specifically conditioned on the production of proof by the applicants therefor, that death resulted from an accident sustained “ while in the performance of duty at some definite time and place ”. To give this statutory language any meaning at all, we must read it as saying that a “ pension ” (Administrative Code, § B3-33.0) as distinguished from an “ ordinary death benefit ” (Administrative Code, § B3-32.0) requires an affirmative showing of death from an accident sustained by the member at the “ definite time and place ” of his actual, physical work for the city. (Unless such was the intent, the use of the words “ definite time and place ” was without purpose.)

Obviously, petitioner did not prove that her late husband’s fatal accident was at the time and place of his employment. The exact opposite appears without dispute, since he was run down by an automobile in the street, while on his way home from the camera shop. This is not a workmen’s compensation case where one who is returning home after an errand for his employer may raise a question of fact as to “ arising out of and in the course of employment ” (Workmen’s Compensation Law, § 2, subd. 7), but even in such a case a fact finding against the claim could not be set aside on appeal. Quite differently, the statute we are construing puts on the survivors the burden of proof that the death-causing accident occurred at the actual time and place of employment. So, even if Mr. Ralph’s business at the camera shop had some relation to his duties as City Register, it still could not be said, as matter of law, that the decision against the claim was unfounded.

With the fairness of this strict statute we cannot concern ourselves, but we must remember that what is here involved is the grant of a pension for a service-connected death, in addition to ordinary death benefits.

The order should be affirmed.

Conway, Dye, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Desmond, J., dissents and votes for affirmance in an opinion in which Van Voorhis, J., concurs.

Order reversed, etc.