The opinion of the court was delivered by: MEANEY
Martin Bush, deceased, was an employee of the Susquehanna Railroad for a period of forty-eight years previous to the date of his application for benefits under the Railroad Retirement Act, 45 U.S.C.A. § 228a et seq. He made his application under the terms of that Act in April, 1947, for an annuity. The Railroad Retirement Board approved his application and the annuity accrued on July 1, 1947. Bush received a total of $ 2,694.75 in benefits from July 1, 1947 to the date of his death in 1950. He had completed over thirty years of service and had attained the age of sixtyfive, as required by the provision of the Act under which he applied. At the time of his application he was a master mechanic, subject to call at any hour of the day or night, but regularly on duty daily from Monday through Friday, from 8 A.M. to 5 P.M.
In the application submitted to the Railroad Retirement Board Bush stated that he had not performed any service for any other person, company, or institution during the period of his last service with his employer and that he had last worked for an employer on June 30, 1947. While the application was officially filed April 9, 1947, the application itself contains the statement that the applicant worked for the Susquehanna Railroad from January 1, 1946 to June 30, 1947, as the latter date was the date after which the annuity was to accure, and as a matter of fact Bush did work for the Railroad until that date.
After the death of Bush the Railroad Retirement Board learned that Bush, previous to the time of his retirement and also previous to his application, actually had worked at various times for the North Jersey Paper Company at Saddle River, N.J. Thereafter the Board sent notice to the General Accounting Office that payments made to Bush had been erroneously made and suit was started in the name of the United States for recovery of the payments allegedly paid in error. The suit was instituted against the executors named in the last will and testament of Martin Bush, who answered, denying any right of recovery on the part of the United States.
Previous to the institution of the suit there was no hearing by the Board of which the defendants in the instant suit were given notice.
It may be well at this point to dispose of whatever question may be raised by the omission by the Board to have a hearing with notice. No such hearing is made a prerequisite to the institution of suit for moneys erroneously paid out under circumstances similar to those existing in the instant case, though the Act does provide for a hearing to be had on application of a person, claiming to be a beneficiary of the Act, who is denied the benefits claimed. Therefore, this court may proceed to determine the rights of the parties regardless of whether or not a hearing was had by the Board before the institution of suit.
The evidence adduced at the trial leads the court to make the following findings of fact.
1. Martin Bush was employed by the Susquehanna Railroad for a period of forty-eight years previous to July 1, 1947.
3. In his application Bush stated that he had not performed any service for any other person, company, or institution during the period of his last service with his employer under the Railroad Retirement Act.
4. In the year previous to the accrual date of his annuity Bush worked for the North Jersey Paper Company, of which he was a stockholder and vice president, at least from April, 1947 to the date of accrual.
5. Bush continued to work for the Paper Company until April 30, 1949.
6. Previous to July 1, 1947, he had received the sum of $ 611.25 from the Paper Company for services performed.
7. Thereafter he received for the balance of 1947 from the Paper Company, the sum of $ 1,465. In 1948 he ...