On appeal from Superior Court, Law Division, whose opinion is reported in 21 N.J. Super. 489.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
This is a civil action. Plaintiff, Morris Fantl, instituted the action in the Superior Court, Law Division, to recover moneys allegedly due him as "sick leave" pay from the defendant City of Newark. From an adverse judgment in the trial court the defendant appealed to the Superior Court, Appellate Division. Prior to hearing there we allowed certification of the appeal to this court upon our own motion.
Morris Fantl, the plaintiff, was employed by the defendant City of Newark as a butcher at the city hospital from September 1914 until his involuntary retirement on September 8, 1951. That employment was in the "classified service" under the Civil Service Act. The facts giving rise to this action are not in dispute and are admitted by the defendant's answer or established as true in the pretrial order. In August 1951 Fantl was granted a vacation, to expire August 16, 1951. On August 14 of that year he became ill, and his illness endured until January 1, 1952. At the time his illness ensued he was receiving pay at the annual salary rate of $4,400, and as of August 16, 1951 he was entitled to 466 days of accumulated "sick leave." On September 8, 1951 the defendant retired the plaintiff, placing him on pension at the rate of one-half of his salary rate, or $2,200 per year. Money has been paid to plaintiff at the pension rate since his retirement, but has been received by him under protest.
This suit was instituted by the filing of plaintiff's complaint in the Superior Court on May 12, 1952. Plaintiff sought "judgment * * * in the sum of" $1,396 (i.e., pay for sick leave at his salary rate prior to September 8, 1951 for the period from September 8, 1951 to January 1, 1952), evidently in addition to his pension. There was apparently no attack by the plaintiff upon the validity of the action of the defendant in placing plaintiff upon retirement. His retirement had been based by the defendant upon age (71 years) and length of service (36 years), under R.S.
43:12-1, as amended by L. 1939, c. 218, sec. 1, L. 1947, c. 160, sec. 1, post.
Trial was had in the Superior Court, Law Division, without a jury upon the pleadings and the facts as stipulated in the pretrial order. It devolved upon the trial court under those circumstances to declare that judgment which the law imposes. Judgment was entered "in favor of the plaintiff and against the defendant, in the sum of" $1,481.90 (i.e., for his claim for "sick leave" pay at his salary rate prior to September 8, 1951, for the period from September 8, 1951 to January 1, 1952, with interest) and costs of suit.
The sole question involved in this appeal is whether a person in addition to pension may receive pay at the salary rate existing prior to his retirement, as "sick leave" pay during that portion of an illness (contracted before retirement) continuing after his retirement and until his accumulated sick leave may be exhausted or until his illness may terminate, whichever shall first occur.
The plaintiff bases his claim for "sick leave" pay after retirement upon L. 1939, c. 232, p. 630, sec. 3, as amended by L. 1943, c. 200, p. 547, sec. 1 (N.J.S.A. 11:24 A -3), which reads as follows:
"In the preparation and administration of regulations regarding sick leaves of absence with pay, every employee in the classified service of such county, municipality or school district shall, in addition to his or her annual vacation-leave with pay, be granted sick leave, as hereinafter defined, with pay of not less than one working day for every month of service during the remainder of the first calendar year of service following permanent appointment and in addition fifteen working days in every calendar year thereafter. If any such employee requires none or only a portion of such allowable sick leave for any calendar year, the amount of such leave not taken shall accumulate to his or her credit from year to year and such employee shall be entitled to such accumulated sick leave of absence with pay if and when needed; provided, that in computing the amount of pay or sick leave, there shall be deducted the amount of money, if any, which the employee is paid under the provisions of chapter fifteen of Title 34 of the Revised Statutes of New Jersey for temporary disability, for any period for which he is entitled to sick leave with pay under this act. In computing the accumulation of sick leave, the years of service of such employee prior and subsequent to the adoption of this act shall be used."
The defendant relies upon R.S. 43:12-1, as amended by L. 1939, c. 218, p. 617, sec. 1, L. 1947, c. 160, p. 715, sec. 1, as authority for it to retire an employee against his will regardless of the existence of any amount of accumulated "sick leave" and at the rate of one half of his salary prior to retirement. (The further amendment to R.S. 43:12-1 effected by L. 1952, c. ...