On appeal from the Supreme Court, whose opinion is reported in 129 N.J.L. 288.
For the appellant, Peter Hofstra (Joseph V. Fumagalli and Joseph J. DeLuccia, of counsel).
For the respondent, Arthur T. Vanderbilt (G. Dixon Speakman, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is a pension case. The question requiring decision is whether the affirmance of the denial of prosecutor's application, as a county employee, for retirement on pension was proper.
From the record submitted, we learn that prosecutor, William A. Wagner, was at the time of the taking of the depositions sixty-nine years old. He had been in the meat business and had been a butcher by occupation since 1900. He was employed, as a butcher, by the Essex County Isolation
Hospital, at Bellevue, New Jersey, on December 2d, 1929, and continued to work until December 31st, 1940, when, because of a heart condition which allegedly developed in 1939, and thereafter became aggravated, he was obliged to and did stop working. Accordingly, on January 7th, 1941, he made application, in writing, to respondent, the County Employees Pension Commission of Essex County, "for retirement on pension," to take effect on January 16th, 1941, on the ground that he had suffered a "permanent physical disability." Cf. Ursi v. County Employees, &c., Essex, 120 N.J.L. 52; 197 A. 744.
Prosecutor's application for retirement on pension was based upon N.J.S.A. 43:10-4 which provides as follows:
"A county employee who shall have received a permanent disability by reason of injury, accident or sickness, incurred at any time in the service, which permanently incapacitates him, shall, upon the certificate of a physician designated for that purpose by the pension commission, be retired on half pay."
"When a county employee desires to retire by reason of injury or disease, he shall apply in writing to the pension commission for retirement. Thereupon, the pension commission shall call to its aid a regularly licensed and practicing surgeon or physician. The president of the pension commission may administer oaths to any persons called before the commission regarding the matter. If the two surgeons or physicians so called fail to agree upon the physical condition of the applicant, the pension commission may call a third and disinterested, licensed and practicing physician or surgeon and the determination of a majority of them, they having been first duly sworn, shall be reduced to writing and signed by them. The commission shall decide, by resolution, whether the applicant is entitled to the benefits of this article and shall consider the physicians' or surgeons' determination in reaching its decision."
Prosecutor's application was denied on September 19th, 1941. Concededly, that denial was based upon the written reports of examinations made of prosecutor by two physicians selected by ...