Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
In connection with the defense of the pending appeal in this matter, respondents have moved to supplement the record by including certain additional evidence which, it is claimed, will be dispositive of the matter.
An outline of the factual situation is necessary to a complete understanding of the problem.
On or about March 28, 1953 appellant was arrested on complaints charging him with criminal abortions. At that time and for what appears to be an aggregate of more than 20 years, he had been employed continuously in the public service, as an employee of Cumberland County, of the Borough
of Vineland, and, at the time of his apprehension, of the City of Vineland.
On March 30, 1953 he filed with the city clerk of Vineland a written request for retirement pursuant to R.S. 43:4-1. The request was predicated upon the assertion that he was an honorably discharged veteran of World War I, that he had been an employee of the county and municipality for more than 20 years continuously, and had reached the age of 62 years.
On April 2 appellant Ballurio was suspended by respondent Albert Castellini, the Director of Streets, Roads and Public Property, for a period of 30 days from March 31, 1953. The notice stated as the reason for the suspension:
"* * * You have been arrested and are being held for Grand Jury on the charge of committing the crime of abortion and, further, you are charged with conspiring to commit abortion and thereby your conduct is unbecoming an employee in the public service."
He was further informed that he was subject to removal in the absence of a satisfactory explanation or defense, and would be given a hearing on April 23, 1953.
Upon receipt of this notice, Ballurio served the same written request for pension retirement on Castellini, who had jurisdiction over the department in which he was employed. This service was made on April 8, 1953.
Thereafter the hearing on the suspension notice was held and on May 5 appellant was advised that his explanation of the alleged criminal offences was not satisfactory and therefore he was "suspended until the final determination of the criminal charges now pending against you in the Gloucester County Court."
However, prior to this hearing, on April 22 Ballurio filed a complaint in lieu of mandamus against respondents seeking a judgment directing the payment of his pension. The theory of the complaint is that all of the statutory prerequisites to the pension had been met, namely, age, length of service and veteran status. Therefore the ...