Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Township of North Bergen appeals from a County Court judgment affirming an award of the Workmen's Compensation Division granting compensation to the surviving widow and dependent child of William Guth, late a lieutenant in the township fire department.
The facts are undisputed. Petitioner's decedent died as a result of injuries resulting from an accident arising out of
and in the course of his duties as fire department lieutenant. Following his death the township voted the widow a pension of $1,500 annually pursuant to N.J.S.A. 43:16-1 et seq. She also received through the local firemen's relief association, organized under R.S. 43:17-1 et seq. , the sum of $500 from monies it had obtained pursuant to N.J.S.A. 54:17-4. Thereafter the widow filed a dependency claim petition for compensation which the township resisted on two grounds:
1. The employer-employee relationship based on contract, and upon which the right to receive workmen's compensation depends, did not exist between the township and decedent because he was a township officer possessing the character, privileges and emoluments peculiar to such status.
2. In the case of an officer, where a beneficiary enjoys a pension under a mandatory and vested right to receive the same, such beneficiary cannot claim benefits under the Workmen's Compensation Act.
The deputy director granted the compensation award, and on appeal the County Court affirmed. This appeal followed.
Involved here is N.J.S.A. 34:15-43, which provides:
"Every employee of the * * * municipality * * * who may be injured in line of duty shall be compensated under and by virtue of the provisions of this article and article two of this chapter (sections 34:15-7 et seq.). No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; * * *
"Nothing herein contained shall be construed as affecting or changing in any way * * * any provision of any retirement or pension fund provided by law."
We agree with the County Court that compensation was properly allowed.
The township's whole argument is based on the contention that a fire department lieutenant holds public office and is not an "employee" within the meaning of the Workmen's Compensation Act; that the duties of a public officer do not repose in contract, but rather are incidental to a ...