For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
We granted certification to review the Appellate Division. 33 N.J. 389 (1960).
Subject to the qualifying comments which here follow, the judgment is affirmed for the reasons expressed in the comprehensive opinion of the Appellate Division, DeNike v. Board of Trustees, etc., Retirement System, 62 N.J. Super. 280 (App. Div. 1960). These comments are restricted to the procedural aspect of the Appellate Division opinion and concern the timeliness of the filing of plaintiff's action.
For the purpose of what follows it is necessary to repeat only these facts: Plaintiff's husband, who died on April 4, 1955, filed a duly attested application for retirement with the Board of Trustees of the State Employees' Retirement System of New Jersey (Board) on January 20, 1955, requesting retirement on March 1, 1955 and electing to retire under Option 1 of N.J.S.A. 43:15A-50. On or about March 8, 1955 he attended at the office of the Board in Trenton and executed a second request for retirement on March 1, 1955 and therein purportedly elected the maximum benefits as provided under N.J.S.A. 43:15A-50. The Board met on March 15, 1955 and officially approved plaintiff's application for retirement as of the date requested, i.e., March 1, 1955. Some time after April 4, 1955 plaintiff was advised, in some fashion which does not appear in the appendix, of the funds to which she was entitled: On April 15, 1955 plaintiff requested an opportunity to be heard concerning her husband's selection of pension benefits. She appeared before three members of the Board with a neighbor, Mrs. Cleary, on May 17, 1955 and sought to obtain the benefits of Option 1. Under date of July 18, 1955 the secretary of the Board addressed a letter to plaintiff which read, in part:
At the regular meeting of the Board of Trustees held on Tuesday, July 12, a poll was taken of the members in the matter of their
decision regarding your claim for reversal of the maximum retirement allowance granted to your husband, William E. DeNike based on his selection, under date of March 8. At a ratio of four to one it was agreed that it was impossible to accede to your request. * * *
Secretary" (Emphasis supplied)
No further action was taken by plaintiff until some date in July, 1958 when for the first time she retained counsel to represent her. Complaint was filed by this counsel in the Law Division on February 14, 1959 after some correspondence with both the Board and the Deputy Attorney General assigned to represent the Board.
Defendant argues that the action of the Board of Trustees of July 12, 1955 was a final decision of a state administrative agency and hence that a contest by plaintiff of that action should have been by appeal to the Appellate Division, R.R. 4:88-8, rather than by a proceeding in lieu of prerogative writs in the Law Division, as here undertaken, R.R. 4:88-2. The Board rationalizes that the Law Division was justified in not transferring the cause to the Appellate Division, R.R. 1:27D(a) because the time for appeal from that decision had run prior to the filing of the complaint on February 14, 1959. Central R.R. Co. of New Jersey v. Neeld, 26 N.J. 172, 184 (1958). It computes the time ...