On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The question here is whether, under the circumstances presented, a person who has qualified under each of two separate pension retirement plans has the privilege of electing the one most beneficial to him.
The plaintiff entered the employ of the City of Newark as a health officer on June 1, 1915, and continued in office without interruption until August 15, 1951, at which time he had attained the age of 79 years.
On February 15 of that year he wrote to the Director of Public Affairs, his immediate superior on the city commission, asking for six months' leave of absence and tendering his resignation to be effective August 15. The Director answered the following day granting the sick leave and accepting the resignation, adding:
"I may also add that I sincerely trust that you will succeed in obtaining such financial benefits to which you are entitled under the laws governing the Newark Board of Health Pension Fund Association, and to which you have contributed for so many years."
The plaintiff answered saying he was "hereby advising you that in accordance with the provisions of R.S. 43:12-1 et seq. I am electing to retire on a pension of one-half of the amount of salary that I shall be receiving at the time of my retirement."
The Director countered by a letter stating: "It was my understanding * * * that you would apply to the Newark Board of Health Pension Fund Association for those benefits due you as a consequence of your pension payments over the years."
The plaintiff never made application for pension to the Board of Health Pension Fund but on September 19, 1951, petitioned the board of commissioners for retirement under the provisions of R.S. 43:12-1. On October 3, the board adopted a resolution finding the plaintiff, "whom the Director of the said department in charge of the local health department has determined that by reason of advanced age is found unfit for the performance of the duties of his aforesaid employment," was entitled to be retired on pension as a member of the Board of Health Pension Fund Association and denied his petition for retirement under the provisions of R.S. 43:12-1.
Thereafter the Board of Health Pension Fund Association adopted a resolution granting a pension to the plaintiff and pursuant to this checks were sent to him for the amount of the pension as determined by the rules of the Association. The plaintiff refused to accept the checks and returned them. Meanwhile he brought this action to compel the defendant to pay him the pension provided for by R.S. 43:12-1.
The case was tried in the Superior Court, Law Division, and resulted in a judgment in favor of the plaintiff holding he had met the conditions imposed by the statute under which he elected to retire and that he would not be deprived of the benefits of the act "merely because he ...