Opinion
March 7, 1949.
In an action for a declaratory judgment as to whether plaintiff's pension rights in the Mount Vernon Police and Paid Firemen's Pension Fund should be computed on the basis of his total annual compensation, including a cost of living adjustment, plaintiff appeals from an order denying his motion, pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice, to strike out the affirmative defense alleged in defendants' answer, and denying his motion, pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings. Order affirmed, without costs. The defense alleges, in part, that the cost of living adjustment was paid and accepted upon the express condition and understanding that it would not be deemed compensation for the purpose of computing a pension. While membership in any pension or retirement system of the State or of a civil division thereof is a contractual relationship (N Y Const., art. V, § 7; Hoar v. City of Yonkers, 295 N.Y. 274; Underhill v. Valentine, 267 App. Div. 778), and existing rights may not be impaired, the constitutional provision does not prohibit an agreement such as that alleged in the defense pleaded. As a matter of pleading the defense is sufficient. Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.