
    In the Matter of the Application of Martha Ward and Another, Executrices of the Estate of Theresa F. Ward, Deceased, Respondents, for a Peremptory Mandamus Order against The Teachers’ Retirement Board, Appellant.
    
    First Department,
    December 26, 1930.
    
      Henry J. Shields of counsel [William E. C. Mayer and J. Joseph Lilly with him on the brief; Arthur J. W. Hilly, Corporation Counsel], for the appellant.
    
      Paul J. McCauley of counsel [William A. Hyman, attorney], for the respondents.
    
      
       Revg. 137 Misc. 170; affd., 255 N. Y. 635.
    
   McAvoy, J.

Petitioners applied at Special Term for a peremptory mandamus order directing the appellant teachers’ retirement board to pay to them the sum of $18,448.71, that being the amount of the retirement allowance due upon the retirement of Theresa F. Ward, as a teacher in the public schools of the city of New York, and payable upon her death to her estate.

In December, 1925, Theresa F.¡Ward was a school teacher, employed by the board of education and had rendered services for a period of upwards of thirty-five years. She applied for retirement on December 4,1925, and made written request to have “ the maximum allowance payable during my life without optional modification.” The retirement allowance was to become effective January 1, 1926.

January 26, 1926, the retirement board established the rate of the applicant’s annual pension at $1,502.66, and on January 27, 1926, wrote to applicant with respect thereto. Immediately upon receipt thereof the applicant executed and filed an election to accept a lesser retirement allowance during her own life, and directed that the unexpended balance be paid to her sister, Martha Ward.

On January 30, 1926, Theresa F. Ward received a communication from the teachers’ retirement system signed by its secretary, wherein she was informed that her application for retirement as of January 1, 1926, was authorized by the board on January 26, 1926, and her annual retirement allowance fixed at $1,502.66.

An election to receive a lesser retirement allowance under subdivision O of section 1092 of the Greater New York Charter (Laws of 1901, chap. 466, as amd. by Laws of 1920, chap. 784, since amd. by Laws of 1929, chap. 514), known as the Teachers’ Retirement Law, can only be made by a contributor to the teachers’ retirement fund. Theresa F. Ward ceased to be a contributor to the fund on January 1, 1926, inasmuch as she was retired as of that date. Her letter of January 29, 1926, was, therefore, ineffective in so far as it purported to be an election by one whose right of election had ceased to exist. No statutory prescription gives a right to alter the election of benefit originally made.

The order should be reversed, with ten dollars costs and disbursements, and the application for mandamus denied, with ten dollars costs.

Dowling, P. J., and Sherman, J., concur; Merrell and Finch, JJ., dissent.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  