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Salley v. Firemen''s and Policemen''s Pension Fund Commission

Decided: February 13, 1940.

EDWARD M. SALLEY, PLAINTIFF-APPELLEE,
v.
FIREMEN'S AND POLICEMEN'S PENSION FUND COMMISSION AND THE CITY OF JERSEY CITY, DEFENDANTS-APPELLANTS



On appeal from the Bayonne District Court.

For the defendants-appellants, James A. Hamill (Charles A. Rooney, of counsel).

For the plaintiff-appellee, Milton, McNulty & Augelli.

Before Justices Trenchard, Case and Heher.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This case was tried below and is submitted here on a stipulation of facts in words and figures as follows:

"On June 4th, 1936, by assignment in writing, George DeForge assigned his rights in and to payments for forty-four consecutive months, commencing July 1st, 1936, which may have been due subsequent to said assignment from the Firemen's and Policemen's Pension Fund of the City of Jersey City. Said George DeForge became a member of the Police Force of the City of Jersey City on July 16th, 1915, and served therein until his retirement for disability not arising out of line of duty on September 25th, 1933; during his service in the police department said George DeForge made the usual contributions to the Firemen's and Policemen's Pension Fund of the city, and at the time of his retirement on September 25th, 1933, he was awarded a pension at the rate of $1,500 per annum, payable monthly at $125 per month on the first of each month. This pension was paid pursuant to the provisions of Chapter 160, Pamph. L. 1920, under which the Firemen's and Policemen's Pension Fund Commission was created; deductions were made from the pension payments at the rate of four per cent. for dependents, so the net payment was made to the said George DeForge of $120 per month; on November 26th, 1935, the said George DeForge was indicted by the grand jury of Hudson County on a charge of murder in the first degree, there being three indictments returned of first degree murder in connection with the deaths of Marie DeForge, James Deveny and Philip Missingharter. The said George DeForge retained the plaintiff herein, Edward M. Salley, as his attorney, and on June 1st, 1936, said George DeForge pleaded non vult to a charge of murder in connection with the indictment returned against

him for the death of Marie DeForge and was sentenced by Judge Thomas F. Meaney, sitting in the Court of Oyer and Terminer of Hudson County to be confined to State's Prison for the rest of his natural life; the said George DeForge was forthwith and still is confined in the State Prison at Trenton; notice of the assignment to the plaintiff was given to the Firemen's and Policemen's Pension Fund Commission on the 4th day of June, 1936, and thereafter monthly payments of the pension moneys were made to the plaintiff; the last payment was made on September 1st, 1938, and subsequent to that date no further payments were made because of the provisions of Chapter 221 of the Laws of 1938, page 516, which is entitled 'An Act to prohibit the payment of any pension or subsidy by this State or by any municipality or school district of this State to any person for the period during which he is confined in a penal institution as a result of conviction of a crime involving moral turpitude and supplementing subtitle 1, title 43 of the Revised Statutes.'"

Such is the full extent of the stipulation as to the facts upon which the case was tried and is here presented.

In this posture of affairs the plaintiff instituted this suit in the District Court to recover for the installment payments alleged to be due on the first days of October, November and December, 1938, and the first days of January, 1939, at the rate of $120 per month, all aggregating the sum of $480. The court, sitting without a jury, rendered judgment for the plaintiff for the full amount for which he sued.

The defendants' appeal is based upon the contention that the action was barred by the Statute, ...


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