Madge Walsh, Appellant, v. Lillian Andorn et al., Respondents

Madge Walsh, Appellant, v. Lillian Andorn et al., Respondents. [MAJORITY] Judgment, Supreme Court, New York County, entered on- September 22, 1972-,. dismissing the complaint in this action for a declaratory judgment, reversed, on the law and on the facts, without costs, and without disbursements, and vacated, and judgment awarded to plaintiff declaring her.to be the lawful wife of James A. Walsh, deceased, arid, as such, entitled to all pension benefit's commencing six years from- the daté of the institution of this action. The unilateral Mexican divorce decree obtained without notice to plaintiff and which purportedly dissolved her marriage, to the decedent, a member of the New York' City Police Departmént .and its pension fund, was invalid. It is .clear, that the decedent was never a bona fide resident of Mexico (Gorie v. Gorie, 26 A D 2d 368). Accordingly; the decedent’s subsequent Connecticut .marriage to defendant Andorn was a nullity and conferred upon her no right .by operation of.law to the.pehsión'bénefits in issue. However; plaintiff did not1-bring this action until after more than six years had.elapsed from the date of death , and cominencement of pensión payments to defendant Andorn. Recovery, of' pension benefits accruing more , than-six years prior to the commencemerit- of this action is time" barred '.(CPLR- 213; subd. 1). Concur — Stevens, P. -J.,--. Markewich, Murphy arid. Capozzoli, JJ.; ,Kupferman, J., dissents in part in. , the following memorándum:•While-'it is- obvious that the marriage .between.thé. plaintiff arid the decedent was never "properly dissolved, the problem of the ■ pensiori arid the Statute-bf . Limitations warrants-a .discussion at- some length, . as was done by the Trial judge in his logical conclusion that-the plaintiff was ' barred by laches: and-.the. Statute, of 'Liinitatioris.. Plaintiff. arid the' decedent . were married in 1921.--.-They were .'remarried: in 1938 in New York, because - the original marriage record was destroyed. .They lived together in New York City until 1930'. For reasons of .sickness-,: plairitiff moved to Long Island, while her husband,.a -member Of the -Policé Department, remained in New York City,because the theri “ Lyons- Law ” prohibited his living'outside of the city. . Dec'e- - - dent retired, from the .Police Department in 1956; but the sepárate residence continued. Plaintiff contends’ they remained- ori: friendly terms until I960; In 1959, he obtained , the invalid'' unilateral Mexican. divorce,-. and. shortly thereafter married , the defendant ■ in-. Connecticut,' and they lived. in-New .York City in Riverdale; ' In' 1963j';he. notified the Police Pension Fund that he wanted his ,beneficiary.changed “to my present wife”. He died in 1964, and the defendant was awarded his Widow’s pension.- Some 6%. years later, plaintiff had a law:yer friend inquire of- the. Pension Bureau as'to. decedent’s whereabouts and discovered her husband was . dead.' She then ■ made a claim to the pension.. Payments were thereafter held tn estiro'w. ' Plaintiff testified tó some desultory inquiries between I960 -and- .1970 as -to her ; husband’s, whereabouts, but it is obvious that her interest in the man was-a'far cry'from that of Henry. Wads-worth ■ Longfellow’s' legendary Evangeline.. So. .we 'have a technically: valid; marriage upon which plaintiff .bases her claim. - The loches is clear, and the-, six-year Statute of Limitations (CPLR 213) has. run from the time the pensión right accrued to. plaintiff by death. (See Sorrentino v. Mierzwa, 25 N Y 2d 59.). We now come t.o-the problem of the effect Of-the Statute' of Limitations • '-.on -the claim. First, it' should be noted in passing that the Police Pension Fund •is'also. a defendant,-and-the determination by the majority mandates upon thém a. burden with-which- even the United States Supreme Court could not readily; cope, (see, e.g., Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226),'and-'that is to-go behind every divorce decree. j;o see, whether it-is'valid. .“As in Other cases, generally,'.the caiise Of .action upon.-a claim for a pension accrues when- a. siiit may be maintained .thereon, and-the statute- of limitations begins to run at-that, time.-. It has been held that with respect to'a pension, •the. statute of limitations commences running when the claim for the pension is formally rejected by the pension board or agency. It may be observed, in : this connection,'...that an action to determine the existence of the right to a pension' necessarily precedes, and is distinct, as regards the commencement of the period of limitation, -from, an action to recover instalments- which have fallen due after the pension has been granted.” (60 Am. Jur. 2d, Pensions and Retirement Funds, § 70.) Once the pension right has been determined, as here, to belong to the second “wife”, then the question is whether, under the Statute of Limitations, the whole claim becomes incontestable ■ after six years (Dillon v. Board of Pension Comrs., 18 Cal. 2d 427) or whether the individual monthly periodic payments have a life of their own. The majority has decided on th,e latter. While I am inclined to the former, view, the logical approach is. somewhere in between and avoids inequities. “ The right to receive a pension is a very-different .right from the right to receive payment once -the basic right to receive the pension itself has been determined. Once the right to receive a. pension has been determined, then the receipt of the .pension is a continuing one. The basic Or primary right (to'receive the pension) is not. a continuing one and may be barred by loches or- by a- statute óf limitations.” (Board of Trustees of Policemen’s Pension Fund v. Koman, 133 Col. 598, 605.) The' claim of the plaintiff should be barred until she has a determination as to her standing as the wife, which we now so declare. • That should start a new-period of timé running, and spYnture-payments only' should be .made to her;.. This' is in accordanceVwith.CPLR 206 (subd. [a]), computing “ from the time when the right to'makethe demand is complete.”^;.-'