#### In the Matter of David Ayman et al., Individually and in Behalf of Others Similarly Situated, Petitioners, against Teachers’ Retirement Board of the City of New York, Respondent. (Proceeding No. 1.) In the Matter of Ellis Johnson et al., on Behalf of Themselves and All Others Similarly Situated, Petitioners, against New York City Teachers’ Retirement Board, Respondent. (Proceeding No. 2.)

Supreme Court, Special Term, New York County,

November 2, 1959.

*Zelman & Zelman*for petitioners in proceeding No. 1. *Benjamin Masen*and *Jules Kolodny*for petitioners in proceeding No. 2.

*Charles E. Tenney, Corporation Counsel (Leo A. Larkin*and *Pauline K. Berger*of counsel), for respondent in proceedings Nos. 1 and 2.

*Louis J. Lefkowits, Attorney-General (Milton Alpert*of counsel), *amicus curiae*in proceedings Nos. 1 and 2.

*375Irving H. Saypol, J.

The proposed orders on both sides in both proceedings are improper in form and substance.

The petitioners’ orders contain improper decisional discussion in the proposed directory provisions. Counsel’s attention is directed to a revision of their proposed orders so as to eliminate all discussion and factual findings (Civ. Prac. Act, § 127; Rules Civ. Prac., rules 70-74; Carmody, New York Practice [Forkosch, 7th ed.], §§ 44, 45, 46; *White*v. *White,*175 Misc. 66, 67).

The respondent’s proposed orders are at variance with the decision and opinion *(Matter ofAymanY. Teachers’ Retirement Bd.,*19 Mise 2d 355). The Corporation Counsel seeks to limit the recovery by beneficiaries to withheld annuity amounts computed according to tables of mortality in effect July 1, 1940. Practically this applies to beneficiaries who entered service before 1934 when the tables in effect in 1940 were adopted.

The court has held beyond the petitioners’ prayers that tables of mortality used to certify the rate of contribution upon entering service shall be the tables to be used when determining the annuity upon retirement, and has invalidated the contrary practice as illegal. Two grounds support that conclusion. The first is in the decision by the Court of Appeals in *Birnbaum*v. *New York State Teachers Retirement System*(5 N Y 2d 1, 9) that the purpose of the amendment to the New York State Constitution (art. V, § 7) was to fix the rights of the employee at the time he became a member of the system (19 Misc 2d 355). Secondly and additionally the text of the applicable statute, particularly section B20-30.0 of the Administrative Code of the City of New York which guarantees the payment of annuity as an obligation of the city, remains the same as originally enacted by the Legislature in 1917 (L. 1917, ch. 303; Greater New York Charter, § 1092, subd. G.).

The order should contain two directions as to the petitioners and those similarly situated, i.e., directing that actuarial values including tables of mortality in effect upon entering service which are the basis for fixing the new entrants’ rate of contribution shall be the actuarial values and mortality tables to be used when calculating annuities at the time of retirement. Such rates govern the annuities of beneficiaries who are entitled to withheld amounts with interest from the date of retirement.

Let the orders be resettled accordingly.