For the prosecutor, Maxmilian M. Stallman.
For the defendants, John H. Yauch, Jr.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up a determination of the trustees of the Newark Board of Works Pension Association holding that the disability of the prosecutor is not the result of an injury or illness incurred in the discharge of his duties as manager of the Newark municipal airport and that he is not, therefore, entitled to a pension on the basis of disability arising from other causes.
It is first argued by the defendant trustees that this court will not weigh the factual features of the case on certiorari and that the determination of the trustees is final and not subject to review on the fact issue, unless fraud or mala fides entered into the determination. We consider that this is not so and that it is within the power of this court to weigh the evidence in such a case under the authority of Moore v. Fire and Police Pension Fund Commission of the City of Paterson, 10 N.J. Mis. R. 854, affirmed on the opinion of the Supreme
Court, 112 N.J.L. 17. There Mr. Chief Justice Brogan, speaking for the Supreme Court, said, "The respondent, the pension commission, takes the position that this court will not review evidence with a view to ascertaining whether it might have reached a different conclusion from the tribunal below and that if the judgment of the pension commission can be supported it will not be disturbed.
" This generally states the law on this question, but there are certain exceptions thereto and the instant case is one of them. The facts in this case are reviewable in this court."
We can perceive no distinction in this regard between a pension commission and the trustees of a pension association. Both were dealing with the right of an applicant for a pension to receive an award and were weighing the facts in the light of the rules of the pension systems. We think the prosecutor has the right to have the facts reviewed.
The prosecutor suffered a fall in the course of his work at the airport on September 6th, 1934, and it is claimed that the injuries resulting from this fall are the cause of his present condition of disability. It is the position of the defendants that prosecutor's condition is caused by a glandular trouble known as lymphadenopathy or Hodgkin's disease. It is admitted that he is suffering from this disease.
In May, 1940, prosecutor applied to the Director of the Department of Public Affairs for retirement under the pension law. His physician made affidavit that prosecutor was disabled by a back injury resulting from the 1934 fall. The examining physician for the trustees examined prosecutor and reported thereon to the trustees at length, ending his report: "Conclusion: I feel that the patient is disabled for further work, and the disabling factor either in part or in total is due to the injuries of 1934." Thereupon, on June 7th, 1940, he was retired upon an annual pension of $6,250, being at the rate of ...