On appeal from a judgment of the East Orange District Court.
For the plaintiff-respondent, H. Joseph Rosenberg.
For the defendant-appellant, Robert H. Schenck and King & Vogt.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
CASE, J. Plaintiff sued alleging that upon the death of her husband, Patrick D. Taffey, she became entitled to the money benefit conferred upon a widow of a deceased exempt fireman. The trial was before the judge sitting without a jury. Judgment for $300 went for plaintiff, and defendant appeals.
Plaintiff's decedent was admitted as a member of the Eclipse Hose Company, a volunteer firemen's organization of the township of North Bergen, on August 5th, 1913. He became a citizen of the United States on January 8th, 1923. On October 18th, 1923, he received from the township a certificate of exemption, signed by the chairman and mayor and authenticated by the seal of the township under the attestation of the township clerk, certifying that he had "served seven full years as an active member of the Eclipse Hose Company of the Township of North Bergen Fire Department, the time required by law which entitles him to this certificate." The certificate was filed in the county clerk's office March 19th, 1924. Taffey died February 13th, 1935.
The defendant is the recipient of tax moneys from the State
of New Jersey and under the authority of appropriate legislation has the following provisions in its rules and regulations: "To the next of kin of every deceased fireman * * * who has served the necessary seven years to become exempt, the maximum amount of $400 will be paid. * * * The next of kin interpreted to rank in the following order: Widow, children, father and mother, brothers and sisters. * * * Proof necessary in order to be eligible to the burial benefit is to have an exempt certificate issued by the municipal officers." The death benefit was later reduced to $300.
In addition to the exempt fireman's certificate there was a proof of claim for the benefit made out on defendant's form, signed by the plaintiff, certified by the secretary and president of North Bergen Local Relief Association, accompanied by the attending physician's statement and by the attending undertaker's statement, forwarded to the defendant bearing the latter's claim number 7778 and produced by the defendant at the trial. It does not appear that the defendant requested other proofs. The pertinent rules and regulations are in evidence.
The gist of the first point is that at the close of plaintiff's case certain essential proofs were lacking and defendant's motion for a nonsuit should have been granted. The proofs to which appellant calls attention under this point were of defendant's rules and regulations, whether proper claim had been made and whether there had been action thereon under defendant's rules. These proofs were in before the case closed. The error, if there had been one, was thus cured. McGee v. Kraft, 110 N.J.L. 532; Hollingshead v. Zemkoski, 115 Id. 376.
It is next said that decedent was not a citizen when he became a member of the department, that therefore by the township ordinance he did not lawfully become a member and that consequently his widow is not entitled to the benefit. The fire department ordinance of the township provided in section 2 as follows: "Each hose company shall consist of not less than twenty ...