How have the courts interpreted the meaning of an implied agreement to exclude an increased cost of living allowance from the full compensation of a retired police officer's pension?

these checks so indorsed, the court found that the defendant had established an implied agreement to exclude the increase from the officer's compensation upon which his pension should be based. The plaintiff's complaint in an action for a declaratory judgment was dismissed and the determination of the learned Referee was unanimously affirmed in White v. Hussey (276 App. Div. 1028).

In the case at bar there is no proof of any express agreement to exclude the increased cost of living allowance from the full compensation upon which the plaintiff's pension should be based; nor, in the opinion of this court, has an implied agreement to said effect been established. The proof herein does not show that any indorsements were contained upon the salary checks issued to the plaintiff. The plaintiff has testified, and it is not disputed, that he had no notice or knowledge of the aforesaid condition contained in the village resolutions wherein said increased cost of living allowances were granted to him. In Miller v. Schloss (218 N.Y. 400, 407), it was held that where one seeks to establish an implied agreement, it is essential that "The assent of the person to be charged is necessary and unless he has conducted himself in such a manner that his assent may fairly be inferred he has not contracted." In the light of this rule and the evidence presented in the case at bar, this court is of the opinion that the plaintiff did not assent to the afore-mentioned condition unilaterally imposed upon the increased cost of living allowance granted to him and the proof herein does not establish an implied agreement on the part of the defendant that said increased cost of living allowance be excluded from the plaintiff's "full salary or compensation" upon which his pension is required to be based. On the contrary, the evidence in this case shows that for the period beginning March 1, 1946, to the date of the plaintiff's retirement, June 16, 1946, the village treasurer deducted (as and for the plaintiff's contribution to said police pension fund) a sum equal to 5% of the plaintiff's base salary, together with 5% of the increased cost of living allowance paid him during said period. It may fairly be inferred that in accordance with subdivision 5 of section 193 of the Village Law, these deductions were then paid by the village treasurer to the village police pension fund. No part of these deductions have been refunded or tendered to the plaintiff herein. Certain it is that the deduction of those contributions which were deducted from the plaintiff's increased cost of living allowance and the payment and retention of the

[201 Misc. 1058]