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In re Application of Wells

Supreme Court of New York, Appellate Division

November 24, 1954

In the Matter of The Application of John H. WELLS, Petitioner, for an order pursuant to Article 78 of the Civil Practice Act,
v.
NEW YORK STATE EMPLOYEES RETIREMENT SYSTEM and J. Raymond McGovern, as Comptroller of the State of New York, and as Administrative Head of the New York State Employees Retirement System, Respondents.

Page 52

[135 N.Y.S.2d 458] John H. Wells, Ogdensburg, and John T. DeGraff, Albany, of counsel, for petitioner.

Nathaniel L. Goldstein, Atty. Gen., Wendell P. Brown, Sol. Gen., and George H. Rothlauf, Albany, for defendants.

[135 N.Y.S.2d 459] Before BERGAN, J. P., and COON, HALPERN, IMRIE, and ZELLER, JJ.

ZELLER, Justice.

On December 27, 1951, the petitioner, John H. Wells, applied to the Retirement System, pursuant to section 77 of the Civil Service Law, for a discontinued service retirement allowance effective January 1, 1952. The petitioner had been the City Judge of Ogdensburg since January 1, 1932 but was defeated for re-election on November 6, 1951. He was a member of the New York State Employees' Retirement System and had paid the required contributions for the years he served as City Judge and for four years prior thereto when he served as a member of the Board of Supervisors of St. Lawrence County. After preliminary proceedings, a hearing was held on the application and a final determination was made by the Comptroller which denied the petitioner's application for a discontinued service retirement allowance. The Comptroller found that the petitioner ‘forfeited the office of City Judge on the 3rd day of December, 1951, and became disqualified to hold such office or any other public office or public employment for a period of five years thereafter, as the result of his refusal to execute a waiver of immunity against subsequent criminal prosecution, and under the law he was discontinued from service in such office on the 3rd day of December, 1951, through fault or delinquency on his part, consisting of his refusal to execute the waiver.’ This is an article 78 proceeding to review the Comptroller's determination.

Pursuant to an order of the Governor, an Extraordinary Special and Trial Term of the Supreme Court was convened in St. Lawrence County on October 30, 1951 for the primary purpose of investigating and prosecuting violations of any law relating to gambling, bribery, corruption or the administration of justice. On December 3, 1951, a proceeding was instituted before the Grand Jury to inquire into the conduct in office of the petitioner and the performance of his official duties. The petitioner, when called to give testimony in that proceeding, refused to sign a waiver of immunity against subsequent criminal prosecution and, because of his refusal, was not sworn and gave no testimony.

Page 53

Article I, section 6, of the State Constitution provides, in part:

‘No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any [135 N.Y.S.2d 460] other public office or public employment for a period of five years, and shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.’ (The italicized clause was added by an amendment approved by the People on November 8, 1949.)

On December 6, 1951, an action was commenced by the Attorney-General of the State of New York, as plaintiff, against the petitioner herein, as defendant, to remove him from his office as City Judge of the City of Ogdensburg. On December 26, 1951, the defendant interposed his answer. On December 31, 1951, his term of office expired. On January 4, 1952, the defendant served an amended answer, as of course. On January 22, 1952, the plaintiff applied to the Extraordinary Special and Trial Term for an order, pursuant to Rule 104 of the Rules of Civil Practice, striking out the defendant's amended answer upon the ground that it was sham and frivolous and granting the plaintiff judgment on the the pleadings. An order was granted striking out the defendant's amended answer and directing that judgment be entered on the pleadings in favor of the plaintiff adjudging that the defendant be disqualified from holding any other public office or public employment for a period of five years from December 3, 1951 but denying the application of the plaintiff that the defendant forfeit his office of City Judge upon the ground that the issue had become moot. No appeal was taken from the order or the judgment entered thereon.

The applicable portions of the Civil Service Law provide:

Ԥ 77. Discontinued service after twenty years

‘a. Persons who last became members before April eighth, nineteen hundred forty-three.

‘1. A person who last became a member before April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his part, may elect to receive his accumulated contributions or a retirement allowance pursuant to the provisions of paragraph

Page 54

two, three, four or five of this subdivision a, as the case may be, if:

‘(a) He shall have completed twenty years of total service, and

‘(b) During the six months immediately preceding such discontinuance, he shall have been in paid service ...


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