Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Gaulkin, J.A.D.
This is a workmen's compensation case. Verra, a Hoboken fireman, claimed that he had been injured during a fire on July 30, 1958. Although Hoboken admitted that he was disabled and unable to work, it denied that he had been injured in the course of his employment. On August 21, 1958 Verra signed the following agreement:
"I, FRANK VERRA, a Fireman of the Fire Department, Department of Public Safety of the City of Hoboken, hereby stipulate and
agree that in consideration of wages paid to me in excess of the rate of compensation I would be entitled to under the Workmen's Compensation Act of the State of New Jersey, any wages paid to me by the City of Hoboken in excess of the rate of compensation that I would be entitled to under the Workmen's Compensation Act of the State of New Jersey, during the period or periods of illness allegedly resulting from a compensable accidental injury suffered by me on July 30, 1958, will not be considered by me as a gift from or a voluntary payment made by the said City of Hoboken, and the total of said excess of wages paid to me as aforesaid will be credited to the said City of Hoboken against any amount that may be due me for permanent disability under the Workmen's Compensation Act of the State of New Jersey as the result of said accident.
Verra did not return to work until April 1, 1959, a period of 35 weeks after July 30. Pursuant to the quoted agreement, Hoboken paid him his salary of $100 per week during that time. Hoboken says it did so under the authority of R.S. 40:11-9, which reads as follows:
"The governing body of every county or municipality may grant a leave of absence with pay to any member of its police or fire department who shall become injured, ill or disabled from any cause so as to be physically unfit for duty during the period of such disability and physical unfitness for duty * * *
No such leave of absence with pay shall exceed one year commencing from the date of such injury, illness or disability."
In short, the agreement between the parties was that Verra was to receive his salary during his disability, not exceeding one year, but, if Verra established his right to compensation, the "excess of wages" paid was to be credited against "any amount" adjudged due him for permanent disability.
When his stipulation was signed Verra had not yet filed a petition for compensation. He filed it in March 1959, shortly before he returned to work. Hoboken filed an answer contesting his right to compensation. On June 22, 1960 the deputy director adjudged that petitioner had been injured in the course of his employment; that he had been temporarily disabled for a period of 35 weeks (the judgment
erroneously says "From 7-30-58 to 8-1-59") for which he had been paid at the rate of $40 per week, via the payments of $100 per week received during that period; and that he was entitled to "40% of total permanent partial disability or 220 ...