Donovan v. City of Rye

Action by a former member of the police force of the City of Rye for a refund of the pension deductions made from his monthly salary during the period when he was in such service. Plaintiff was dismissed from the force on September 14, 1945, after being found guilty of charges preferred against him. Order granting plaintiff’s motion for summary judgment and denying a defendant’s cross motion for similar relief, and the judgment entered thereon, reversed on the law, with $10 costs and disbursements, plaintiff’s motion denied, and defendant’s cross motion granted, without costs. The statute (Local Laws, 1942, No. 15 of City of Rye, § 14) provides for the payment of deductions made from salary, for pension purposes, to a member of the pension fund should such member “ discontinue service * * except by death, retirement or dismissal * * Plaintiff did not discontinue service. His service was terminated, not by his voluntary act, but by dismissal. Since the local law makes no provision for repayment of pension deductions under such circumstances, plaintiff has no cause of action for the recovery thereof. (Matter of Graven v. Scott, 249 App. Div. 514; Pennie v. Peis, 132 U. S. 464; Picharás v. City of Geneva, 161 Mise. 572.) Hagarty, Acting P. J., Carswell. Johnston, Aldrich and Nolan, JJ., concur.