On motion and counter-motion for summary judgment.
[16 NJSuper Page 525] The plaintiff, having retired as health officer of the City of Newark as of August 15, 1951, after upwards of 36 years of continuous service in that office and employment, sues to compel the Board of Commissioners of the City of Newark to pay him in semi-monthly installments one-half of the salary of $10,900 which he was receiving at the time of his retirement, under the provisions of L. 1923, c. 103, as amended and supplemented (R.S. 43:12-1 et seq.).
The board of commissioners deny plaintiff's right to the payments sought on the grounds that plaintiff was a member of the Newark Board of Health Pension Fund Association; that he was retired by reason of advanced age and inability to longer perform his duties, under the provisions of L. 1913, c. 215, as amended and supplemented (paragraph III of R.S. 43:18-15); that plaintiff is entitled upon retirement to receive payments from the board of trustees of said pension fund under the provisions of said act last referred to; and that the plaintiff is not entitled to the payments sought under R.S. 43:12-1 et seq.
With the exception noted below, the facts of the controversy are not in dispute. Plaintiff entered the employ of the defendant city as health officer on June 1, 1915, and served in that office uninterruptedly until his retirement on August 15, 1951, at the age of 79 years. On February 15, 1951, plaintiff wrote a letter to Hon. Stephen J. Moran, Director of Public Health of the City of Newark, and who is also Director of the Department of Public Affairs of the city, requesting, because of poor health at that time, a six-months' sick leave to run from February 15 to August 15, 1951, and tendering his resignation as health officer to become effective August 15, 1951. The following day, Director Moran wrote the plaintiff acknowledging plaintiff's letter, accepting the latter's resignation to become effective August 15, 1951, and granting the sick leave requested. In his letter, the director also expressed the hope that plaintiff would obtain the financial benefits to which he was entitled under the laws governing the Newark pension fund association (see R.S. 43:18-1 et seq.). February 28, 1951, the plaintiff again wrote director Moran, by way of supplement to his letter of February 15, 1951, setting forth his qualifications for retirement and that he was exercising his option of retiring on pension equal to one-half of his salary under the provisions of the statute, R.S. 43:12-1 et seq. Director Moran wrote the plaintiff under date of February 28, 1951, stating that it was the director's understanding that the plaintiff would apply to
the pension fund association for the benefits to which he was entitled, and in his letter the director refused to entertain plaintiff's application for retirement under the provisions of R.S. 43:12-1 and directed the plaintiff to apply to the pension fund association. Thereafter, in the month of September, 1951, plaintiff filed a formal verified petition with the board of commissioners setting forth the facts of his employment as city health officer aforesaid; that he had attained the age of 79 years on April 15, 1951; that he had been retired as health officer as of August 15, 1951; that his salary at the date of his retirement was $10,900 per annum; and requesting that he be paid a pension of $5,450 per annum pursuant to the provisions of the statute, R.S. 43:12-1. Thereafter, on October 3, 1951, the city commissioners adopted a resolution denying plaintiff's request that he be paid the pension provided by R.S. 43:12-1 "because the said employee, as a member of the Newark Board of Health Pension Fund Association, is entitled to be retired on pension as a member thereof." October 24, 1951, the board of trustees of the Newark Board of Health Pension Fund Association, existing under the provisions of R.S. 43:18-1, adopted a resolution reciting the action of the board of commissioners of the defendant city, including the statement that the employment of the plaintiff as health officer had been terminated August 15, 1951, pursuant to the provisions of R.S. 43:18-1, and placing the plaintiff on the retirement roll and directing the proper officers of the fund to effect payment of pension benefits to the plaintiff as a retired member of the fund.
It is to be noted that the plaintiff never applied to the trustees of the pension fund association for retirement as required by R.S. 43:18-14 and that Director Moran, by his letter of February 16, 1951, accepted plaintiff's resignation as health officer, to become effective August 15, 1951.
It further appears that plaintiff had been, in fact, a member of the Newark Board of Health Pension Fund Association; that he was eligible for pension from the pension fund association
had he chosen to apply therefor; that on or about October 24, 1951, the pension fund association forwarded to plaintiff a check in payment of the pension accrued between August 15 and October 15, 1951, as well as subsequent checks for pension subsequently accruing, under the provisions of R.S. 43:18-1 et seq. , but that the plaintiff returned to the pension fund association said checks and refused to accept or cash the same.
The only matter in dispute is that Director Moran takes the position, as set forth in his letter of February 28, 1951, that it was his understanding, in his conversations with the plaintiff, that the plaintiff would apply to the Newark Board of Health Pension Fund Association for the financial benefits to which he was entitled, whereas plaintiff denies that he had any conversations whatever with Director Moran on that subject prior to his letter of February 28, 1951, to the director in which he applied for a pension under the provisions of R.S. 43:12-1 et seq. And, as stated, it appears in fact that the plaintiff never applied to the pension fund association as required by R.S. 43:18-14.
By enactment of the Legislature, two separate and distinct plans for retirement of city officers and employees have been created. The first plan was created under the provisions of L. 1913, c. 215 (R.S. 43:18-1 et seq.), which plan provided for the organization of a corporation or association to be composed of officers and employees of the Department of Health, to be managed by a board of three trustees, to which the member employees and the city would jointly contribute toward the creation of a fund for the payment of pensions to retired employees; and the statute provides for the payment of a pension to such retired member who qualifies under the statute, of a sum equal to one-half of his average salary for the past two years of his employment. The statute sets up certain qualifications that have to be ...