
    Mary E. Reidy, Plaintiff, v. The City of New York, Defendant.
    
      Death benefit from'the New York fire department life insurance fund — the widow of an employee whose position is abolished and who dies three weeks subsequently thereto is not entitled, to the benefit—-he is not at his death “ in the service” of the department.
    
    Under section 792 of the revised charter of the city of New York (Laws of 1901, chap. 466) relating to the fire department life insurance fund, which provides, “ In case of the death of any * * 9 employe of said department in the service thereof who has availed himself of this provision 9 9 9 and so contributing, there shall be paid to the widow 9 9 9 the sum of one thousand dollars,” the benefit of §1,000 cannot be recovered by the widow of a person who entered the employ of the fire department on January 16, 1884, availed himself of the privilege of membership in the life insurance fund and continuously remained in the employ of the department until May 7, 1903, upon which date the position which he then held was abolished, and who died on May 38, 1903, without having been reinstated.
    It is a condition of the widow’s right of recovery that the employee shall be in the service of the department at the time of his death.
    The person in question cannot be said to have been in the service of the department at the time of his death by virtue of section 1543 of the revised Greater Hew York charter, which provides that when a position is abolished or becomes unnecessary, "the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar-office, position or employment if within one year thereafter there is need for his or their services.”
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Henry K. Davis, for the plaintiff.
    
      Terence Farley, for the defendant.
   Laughlin, J.:

The question submitted for determination is whether the plaintiff, the widow of Michael Reidy, deceased, is entitled to receive the sum of §1,000 from the life insurance fund of the New York fire department. The decedent entered the employ of the fire department as a watchman on the 16th day of January, 1884, and remained continuously in the employ of that department, having received several promotions, until the 7th day of May, 1902, when the position of clerk in the bureau of the chief of said department, which he then held, was abolished and he was, in form, for that reason, discharged by an order of the commissioner on the 14th day of May, 1902. He died on the twenty-eighth day of the same month without having been reinstated. From'the time of entering the department he availed himself of the privilege of membership in the-life insurance fund as provided by section 521 of the Consolidation Act (Laws of 1882, chap. 410), and there was deducted from bis monthly pay, from time to time as required, sums of money for the benefit of said life insurance fund. The only obstacle to the plaintiff’s recovery is the abolition of the position and the fact that the decedent was not reinstated in the department prior to 1 is death. The statute formerly regulating the right of recovery ivas section 521 of the Consolidation Act, and at the time of the decedent’s death it was section 792'of the revised Greater New York charter (Laws of 1901, chap. 466), which provides, among other tilings, that “ all persons who have paid into the said respective funds, and who shall continue to pay into the life insurance fund, shall receive the benefits of said fund as pr i vided in this chapter. * * * In case of the death of any * * employe of said department in the service thereof, who has availed himself of this provision * * * and so contributing, there shall be paid to the widow * “ the sum of one thousand dollars.” The language of the statute seems to require as a condition of the right of recovery that the employee shall be in the service of the department at the time of his death. The learned counsel for the plaintiff contends that the decedent was in the employ of the department by virtue of the provisions of section 1543 of the revised Greater New York charter which provides, among other things, that when a position is abolished or becomes unnecessary, “ the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services.” Where a position or employment is abolished or becomes unnecessary the provisions of this section do not authorize the discharge of the occupant, but it is the duty of the head of the department to certify the facts to the municipal civil service commission, and the suspended employee is entitled not only to reinstatement to a position in the department as before, but to a corresponding or similar office or position in that or any other department of the city government, if within one year thereafter there is need for his services. (See Matter of Jones v. Willcox, 80 App. Div. 167; Matter of Donovan v. Cantor, 89 id. 50.) It seems like a harsh rule in this case, but we are of opinion that the decedent was not in the service of the fire department at the time of his death, and that, therefore, his widow is not entitled to participate in the insurance fund.

It follows that the city is entitled to judgment in accordance with the submission dismissing the complaint upon the merits, -but without costs.

Yan Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment ordered for defendant dismissing complaint on the merits, without costs.  