On appeal from the East Orange District Court.
For the defendants-appellants, Raymond Schroeder.
For the plaintiff-respondent, Charles E. McCraith, Jr.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
BODINE, J. The plaintiff, who had judgment, was employed December 20th, 1928, by the City of Newark as a clerk telephone operator in the Department of Public Works at a salary of $1,440 a year. When her employment commenced, she was nineteen years of age. She never made application for a pension. No deductions were made from her salary until August 1st, 1941, and no contributions equal to four per cent. of her salary were ever made by the city. On May
20th, 1941, she notified the city that she did not desire to be bound by the provisions of N.J.S.A. 43:13-2. However, from her salary, for the months of August to December, 1941, inclusive, was deducted three per cent. of her salary for those months, and an interest charge of three per cent. on the excess of salary paid to her -- three per cent. having never been previously deducted. For these sums judgment was entered in her favor. This money had been paid into the treasury of the pension fund by the city.
The rights of the parties are governed by the provisions of the Pension Act. Newark is a first class city.
N.J.S.A. 43:13-2 provides in part: "For the purposes of this article the words 'municipal employee' or 'employee,' mean and include any employee of a city of the first class holding a position of permanent employment and recognized as a permanent appointee." The plaintiff was such employee.
By N.J.S.A. 43:13-3, upon serving twenty years and attaining the age of sixty, she was entitled to retire on half pay if within the act. It was further provided in N.J.S.A. 43:13-9, for the purpose of paying the pension, "a. There shall be deducted from every payment of salary to a municipal employee benefited by this article three per cent. of the amount thereof and if any employee shall hereafter enter the service of the municipality after reaching the age of thirty-five years, such percentage shall be increased to such an amount as shall be determined by the pension commission to correspond to the risk arising by the age of such employee. b. The city shall raise by taxation and pay into the fund yearly an amount equal to four per cent. of the total salaries paid to the employees who shall benefit by this article."
N.J.S.A. 43:13-12 provides as follows: "If any municipal employee shall decline to accept the provisions of this article he shall notify the pension commission in writing of the fact that he does not desire to be bound by the provisions thereof, and in such event no payments or deductions shall be made from the salary of such employee, but neither such employee ...