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Ballurio v. Castellini

Decided: July 30, 1953.

JAMES L. BALLURIO, PLAINTIFF,
v.
ALBERT CASTELLINI, DIRECTOR OF STREETS, ROADS AND PUBLIC PROPERTY OF THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Woods, J.s.c.

Woods

[27 NJSuper Page 114] The plaintiff, James L. Ballurio, has been an employee of the County of Cumberland, the Borough of Vineland and the City of Vineland for an aggregate period of 25 years. He was an employee of the County of Cumberland from November 5, 1927 until December 31, 1944. From January 1, 1945 until July 1, 1952 he was an employee of the Borough of Vineland, and when Vineland Borough became merged with the Township of Landis (July 1, 1952) he continued as an employee of the merged municipality (the City of Vineland) until March 31, 1953. He alleges that on July 30, 1952 he attained the age of 62 years. He is a veteran and was honorably discharged on

May 28, 1919. The last job he held with the City of Vineland was foreman of the street department.

On March 30, 1953 he filed a written request for retirement to take effect April 1, 1953 and for pension pursuant to the provision of R.S. 43:4-1 et seq. with the city clerk of the City of Vineland. Upon learning that the director of streets, roads and public property was the proper person to notify of his request for retirement, he served a notice dated April 8, 1953 requesting retirement and pension effective April 8, 1953, on Albert Castellini, the director. R.S. 43:4-1 provides:

"This chapter shall apply to and include persons serving in and honorably discharged from the military or naval service of the United States, including nurses, in any war in which the United States is or has been engaged and 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 after twenty years of continuous or aggregate service for the duties of their office or position or employment."

Also, R.S. 43:4-2 provides, in part, as follows:

"When an honorably discharged soldier, sailor or marine has or shall have been for twenty years continuously or in the aggregate in office, position or employment of this State or of a county, municipality or school district or board of education, 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."

Neither the municipal council nor the director of streets, roads and public property has acted upon plaintiff's request and he brings this action to obtain an order directing either of the defendants to act upon his retirement and directing the City of Vineland to pay him one-half of his annual compensation of $4,500 for the term of his life pursuant to the provisions of the statute R.S. 43:4-3, which provides, inter alia , as follows:

"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, which shall be paid in the same way and in the same installments as his compensation has been payable."

The defendants admit all the allegations of the complaint with the ...


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