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Kessler v. Zink

Decided: January 29, 1948.

HENRY H. KESSLER, RELATOR-APPELLANT,
v.
HOMER C. ZINK, COMMISSIONER, DEPARTMENT OF TAXATION AND FINANCE OF THE STATE OF NEW JERSEY, RESPONDENT-RESPONDENT



On appeal from the Supreme Court.

For the appellant, Kristeller & Zucker (Saul J. Zucker and Charles Silber).

For the respondent, Walter D. Van Riper, Attorney-General.

Case

The opinion of the court was delivered by

CASE, CHIEF JUSTICE. This is an appeal from a judgment in the Supreme Court sustaining respondent's demurrer to an alternative writ of mandamus which sought to compel the payment of pension benefits under R.S. 43:4-2, et seq. We find no opinion of the Supreme Court, but the briefs make clear that the demurrer was sustained for the reason that the relator below -- appellant here -- was not shown to have attained the age of sixty-two years.

On November 1st, 1920, appellant became Director of the New Jersey Rehabilitation Clinic in the Department of Labor. He served in that capacity continuously until November 1st, 1941, at which time he was retired. At the time of his retirement he was a veteran of the first world war. Thereafter he served in the second world war for a period terminating with his honorable discharge on or about April 16th, 1946.

The pertinent sections of the statute, as printed in the 1937 Revision, are as follows:

43:4-1. "This chapter shall apply to and include persons serving in and honorably discharged from the military or

naval service of any war of the United States, including all Indian wars, campaigns, insurrections or uprisings, and any military or naval service of the United States, in connection with the American punitive expedition or other intervention campaign or trouble with the republic of Mexico during the administration of president Woodrow Wilson, provided such designated persons shall have attained the age of sixty-two years or become incapacitated for the duties of their office or position."

43:4-2. "When an honorably discharged soldier, sailor or marine has or shall have been for twenty years continuously or in the aggregate in public office or position in this state or in the service of a county or municipality thereof, the body, board or officer having power to appoint his successor in case of vacancy may, with his assent, order his retirement from such service, or he shall be retired on his own request."

43:4-3. "A person so retired shall be entitled, for and during his natural life, to receive by way of pension, one-half of the compensation then being received by him for his service, * * *."

Thus, section 1 designates those to whom the statute applies, viz., veterans of the several wars, &c., who have attained the age of sixty-two years; section 2 provides that a veteran so designated may retire or be retired from the service of the state, or of a county or a municipality, after twenty years' employment; and section 3 provides that a person as retired employment; and section 3 provides that a person so retired is entitled to a ...


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