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Kessler v. Kervick

Decided: October 30, 1961.

HENRY H. KESSLER, APPELLANT,
v.
JOHN A. KERVICK, TREASURER OF THE STATE OF NEW JERSEY, DEPARTMENT OF THE TREASURY, DEFENDANT-RESPONDENT



Kilkenny, Herbert and Collester. The opinion of the court was delivered by Herbert, J.s.c. (temporarily assigned).

Herbert

The appellant applied to the State of New Jersey for a pension under N.J.S.A. 43:4-1 et seq. , and his application was denied. He brings that decision here for review upon an agreed statement. R.R. 1:6-2. He has three statutory qualifications for a veteran's pension: He is in fact a veteran, having served in the nation's armed forces in both the first and second world wars; for more than twenty years he was employed by the State; and he was over sixty-two years old -- having been born in 1897 -- when making the application which he contends should have been granted.

The State asserts that a fourth qualification is necessary and is missing. The appellant was not a state employee

when he reached the age of sixty-two. He had retired from state service in 1941 when he was about forty-four, and did not thereafter re-enter the employ of the State in any capacity.

Some fourteen years ago the appellant litigated his right to a pension as a war veteran who had been employed by the State for twenty years or more. He lost on the ground the statute provides pensions only for persons sixty-two or older; and he was then about fifty. Kessler v. Zink , 136 N.J.L. 479 (E. & A. 1948). The opinion in that case contains no express comment as to whether a claim to a pension, if presented by the same applicant after his sixty-second birthday, should or should not be honored. The appellant argues that his present application is perfectly consistent with the earlier decision. We are unable to adopt that reasoning.

In Kessler v. Zink, supra , the court examined carefully N.J.S.A. 43:4-1, 2 and 3, the legislation upon which the appellant's claim now depends just as it did in 1948. This language appears in the opinion (at p. 480):

"Appellant would isolate the second section; he contends that he is entitled thereunder and that because age is not mentioned therein, age is not a factor. Clearly, not only must the first and second sections be read together, but the two must be read with the third section in order to make sense."

In effect the appellant now says that as the second section mentions no age for retirement it is immaterial that he retired when he was younger than sixty-two; that his retirement in 1941 with twenty years of service behind him was subject to and under section two. This overlooks the real effect of section one, the effect given to it in Kessler v. Zink.

Section one (N.J.S.A. 43:4-1) reads:

"This chapter shall apply to and include persons serving in and honorably discharged from the military or naval service of the United States, including nurses, in any war in which the United States is

or has been engaged and in connection with the American punitive expedition or other intervention campaign or trouble with the Republic of Mexico during the administration of President Woodrow Wilson; provided , such designated persons shall have attained the age of sixty-two years or ...


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