For the prosecutor, Joseph B. Gallagher.
For the defendant, N. Louis Paladeau, Jr.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The case arises under chapter 190 of the laws of 1927. Pamph. L., p. 365. It is entitled "An act providing for the retirement of certain municipal employes in cities of
the first class of this state and providing a pension for such retired municipal employes and their dependents."
The first section provides in substance that any municipal employe who has served for twenty years and reached the age of sixty may be retired on his own application.
The second section provides, among other things, that if any such employe who has served for twenty years and paid his contributions shall die from causes other than injuries or illness received in the line of duty, then subject to limitations thereinafter provided, a pension of one-half the salary received at the time of the death shall be paid to the widow, dependent husband, children under the age of sixteen years or dependent parents, as the case may be; the pension to be limited to a thousand dollars annually. In the event there is no widow, dependent husband and no children under sixteen years, then the pension shall be paid to the dependent parent or parents, if any, of such deceased municipal employe.
Section 3 provides that where the employe dies from causes other than injuries or illness in the line of duty and had not been retired or pensioned, and had paid the annual contributions and served the municipality for five years, then the amount of pension is to be twenty-five per cent. of what would have been paid for twenty years' service, and for each additional year the proportionate amount shall be increased five per cent. per annum.
The admitted facts appear to be that Harry P. or Henry P. Webster, son of the prosecutor, had been an employe of Jersey City for fourteen years and had paid his pension contributions regularly for that time, consequently under the statute if any pension is payable it would be seventy per cent. of $1,000 or $700. So far there is no dispute.
The controversy arises under section 4 of the act which provides, among other things, that no pension shall be paid to any dependent parent "unless said * * * dependent parent or parents shall be and shall continue to remain dependent upon the income which the said employe was receiving at the time of her (sic) death. The pension ...