Price, Gaulkin and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff appeals from a judgment of the Law Division which denied her motion for summary judgment and dismissed her complaint "on the ground of the lack of jurisdiction."
The complaint alleges that plaintiff's deceased husband, William E. De Nike, "On or about January 20, 1955 pursuant to R.S. 43:15 A -47 * * * filed a duly attested application for retirement * * * as Borough Clerk of
the Borough of East Rutherford, being a veteran who had attained the age of 62 years * * * under Option 1 with benefits which may be due and payable after his death to be paid to * * * Mrs. Mattie De Nike, wife * * *"; the application requested retirement as of March 1, 1955, and on March 15, 1955 it was approved by the defendant, effective as of March 1; Mr. De Nike died on April 4, 1955 without receiving any payments under the pension system; this, plaintiff claims, left a balance of approximately $29,000 due her, which she demands.
It does not appear from the appendix submitted to us that either the caption or the backer of the complaint included the words "in lieu of Prerogative Writs," as required by R.R. 4:88-3, or that plaintiff considered the complaint anything other than an action at law for a money judgment when it was filed. However, when the defendant's answer alleged that "this action is an appeal from a determination of an administrative agency and pursuant to R.R. 4:88-1 should have been instituted in the Appellate Division," plaintiff replied that the complaint "is one in lieu of mandamus."
In addition to raising the jurisdictional question, defendant's answer admits Mr. De Nike's retirement and death, but denies that the sum claimed by plaintiff is due, because (emphasis ours):
"1. On or about January 20, 1955 William E. DeNike filed an application for retirement with the defendant, Public Employees' Retirement System of New Jersey, wherein he elected to retire under option 1 of N.J.S.A. 43:15 A -50.
2. William E. DeNike on or about March 8, 1955 personally appeared at the Office of the Public Employees' Retirement System and thereupon executed a new form whereby he asked to be retired without option and to receive maximum allowance, which allowance would cease at his death pursuant to N.J.S.A. 43:15 A -50.
3. The Board of Trustees of the Public Employees' Retirement System at their regular meeting in March approved the decedent's application for maximum allowance retirement to be effective March 1, 1955."
Plaintiff contends that the decedent's alleged request of March 8, that he be retired without option and to receive maximum allowance, was inoperative and did not affect his previous written election to retire under Option 1 because, to quote the reply, " R.S. 43:15 A -47 * * * provides that the application be 'duly attested' and the deceased, William E. De Nike had not submitted a duly attested application on March 8, 1955."
Each side moved for summary judgment. On the return day of the motions the trial judge said, "I am going to render an order dismissing this action. It should be filed in the Appellate Division. In my opinion the action by the Board of Trustees of the Retirement System, the action which you are seeking is a review of the final decision or action of that body and it is a State Administrative Agency, and under Rule 4:88-8, notice of appeal should have been filed with the Appellate Division." Accordingly, he entered the judgment of dismissal.
Plaintiff argues (1) that the complaint was the equivalent of one for mandamus under the old practice and that the Law Division had jurisdiction and should have granted summary judgment in her favor; (2) even if the Law Division did not have jurisdiction it should not have dismissed the complaint but transferred the case to the Appellate Division under R.R. 1:27 D and Central R.R. Co. v. Neeld , 26 N.J. 172, 184 (1958); and (3) in any event, since the case is now here, we should decide it on the merits in her favor. Cf. Bruder v. Teachers' Pension & Annuity Fund , 27 N.J. 266, 273 (1958).
The defendant answers that (1) the Law Division properly dismissed the complaint for lack of jurisdiction; (2) transfer under R.R. 1:27D was not possible because the action had not been instituted in the Law Division within the time limited by R.R. 1:3-1(b) for appeals to the Appellate Division (Central R.R. Co. v. Neeld, supra , 26 N.J. , at p. 184) or even within the time allowed for the institution of in lieu actions in the Law Division, (R.R. 4:88-15); and
(3) in any event defendant is entitled to prevail on the merits.
Mr. De Nike retired under N.J.S.A. 43:15 A -47, which provides (emphasis ours):
"a. A member who shall have reached 60 years of age may retire from service by filing with the board of trustees a written statement, duly attested , stating at which time subsequent to the execution and filing thereof he desires to be retired. The board of trustees shall retire him at the time specified or at such other time within 30 days after the date so specified as the board finds advisable."
It is not disputed that on January 20, 1955 Mr. De Nike completed and signed an application for retirement upon a printed form furnished by defendant. (This application is marked "Exhibit A" in defendant's appendix and hereafter will be so called.) He acknowledged it before a notary in Bergen County, who so certified in the space provided in the form for that purpose.
Defendant admits that by Exhibit A Mr. De Nike elected to receive his benefits under Option 1 of N.J.S.A. 43:15 A -50, the pertinent parts of which are as follows:
"* * * at the time of his retirement any member may elect to receive his benefits in a retirement allowance payable throughout life, or he may on retirement elect to receive the actuarial equivalent at the time of his annuity, his pension or his retirement allowance, in a lesser annuity, or a lesser pension, or a lesser retirement allowance, payable throughout life, with the provision that:
Option 1. If he dies before he has received in payments the present value of his annuity, his pension or his retirement allowance as it was at the time of his retirement, the balance shall be paid to his legal representatives or to such person as he shall nominate by written designation acknowledged and filed with the board of trustees at the time of his retirement, either in a lump sum or by equal payments over a period of years at the option of the payee.
No optional selection shall be effective in case a beneficiary dies within 30 days after retirement and such a beneficiary shall be considered an active member at the time of death until the first payment on account of any benefit becomes normally due."
The only affidavit submitted to the trial court by the defendant upon the motion for summary judgment was one signed by Mr. Borden, its secretary, which said:
"3. William E. DeNike on or about March 8, 1955 personally appeared at the Office of the Public Employees' Retirement System and thereupon executed a new form whereby he asked to be retired without option and to receive maximum allowance, which allowance would cease at his death pursuant to N.J.S.A. 43:15 A -50. A copy of this application is attached.
4. The Board of Trustees of the Public Employees' Retirement System at their regular meeting in March approved the decedent's application for maximum allowance retirement to be effective March 1, 1955."
Defendant has submitted to us an affidavit of Gladys H. Cleary, assistant secretary of the defendant, which was not submitted to the trial court. We pass the question of the propriety of such action. Cf. R.R. 4:88-9; Metropolitan Motors v. State , 39 N.J. Super. 208 (App. Div. 1956). The affidavit says (emphasis ours):
"4. On March 8, 1955 William E. DeNike visited the office of the Public Employees' Retirement System and was referred to me for interview concerning his retirement and his selection of pension benefits.
5. During the course of said interview I explained in detail to Mr. DeNike the benefits payable under the maximum retirement allowance and the Option 1 allowance, and I also explained to him that under the maximum life benefit plan all payments would cease upon his death with the exception of 3/16ths of his annual salary payable as insurance.
6. At Mr. DeNike's request I prepared a written paper, identical to his original notarized application for retirement with the exception that on this new document maximum retirement was indicated as his selection. Mr. DeNike then drew a line through the statement 'I wish to retire under Option 1 [ ] 2 [ ] 3 [ ]' and signed said document in his own hand and at the bottom of said document wrote in 'Mrs. Mattie DeNike, wife' under a paragraph typed on the document requesting the member to indicate his beneficiary of the 3/16ths insurance. (Said amended document annexed hereto as Exhibit C).
7. Mr. William E. DeNike then left this amended selection with me to become part of his retirement file."
An examination of Exhibit C (the paper signed by Mr. De Nike on March 8) ...