Matter of Newcomb v. New York State Teachers'ret. Sys.

36 N.Y.2d 953 (1975)

In the Matter of Ralph E. Newcomb, Appellant, v. New York State Teachers' Retirement System et al., Respondents.

Court of Appeals of the State of New York.

Argued May 8, 1975.

Decided June 16, 1975.

Jeffrey G. Plant, Richard R. Rowley and Bernard F. Ashe for appellant.

Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondents.

Concur: Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG. Judge JASEN dissents and votes to reverse in the following memorandum in which Judge COOKE concurs.

Order affirmed, without costs, on the opinion by Mr. Justice ELLIS J. STALEY, JR. at the Appellate Division.

JASEN, J. (dissenting).

I am in general agreement with Justice GREENBLOTT'S analysis of the applicable statutes. On their face the statutes do not permit of distinction based on length of service or whether the applicant was a career military person before returning to teaching. It should be emphasized that upon this analysis petitioner would receive credit for only some, but not all, of his 20 years plus of military service. This, I think, is fair and consonant with the applicable statutes. To the extent that Matter of Wulff v Teachers' Retirement Bd. of City of N. Y. (27 AD2d 929, affd 21 N.Y.2d 802) may be read as holding to the contrary, it should be overruled.

Order affirmed, etc.