Foley, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Rae W. Freedman, as widow of Sanford Freedman and as executrix of his estate, applied to the Board of Trustees of the Public Employees' Retirement System of New Jersey for the payment of $13,500 in death benefits, claiming that she was entitled thereto under the provisions of N.J.S.A. 43:15A-41(c). The Board denied her application on the ground that decedent was not a "member in service" at the time of his death, as required by the aforesaid statute.
Mrs. Freedman then brought an action in the Superior Court, Law Division, against the Board and the Prudential Insurance Company, whose policy insures payment of the
statutory death benefits. On the Board's motion the action was transferred under R.R. 1:27D(a) to the Appellate Division and the claim against Prudential was stayed pending our disposition of the matter.
The parties have agreed to the following facts:
"Sanford Freedman entered the employ of the County of Essex on September 1, 1953, as Legal Assistant Prosecutor to the Prosecutor of Pleas of Essex County. He remained actively engaged in his employment in the office of the Prosecutor of the Pleas until March 17, 1959, holding the position of Legal Assistant Prosecutor, and later, that of Assistant Prosecutor.
From and after January 1, 1955, decedent was required by L. 1954, C. 84, Section 6 et seq. (now N.J.S.A. 43:15A-6 et seq.) to make regular contributions of a portion of his base salary to the Public Employees' Retirement System of New Jersey. Pursuant to the provisions of N.J.S.A. 43:15A-41, the decedent executed and filed with the Board of Trustees of the Public Employees' Retirement System of New Jersey a written designation nominating the plaintiff as the beneficiary of any non-service connected death benefit to which he might become entitled under the provisions of N.J.S.A. 43:15A-41c.
From January 1, 1955, until March 17, 1959, decedent made all payments to the retirement plan which were required of him by statute. For at least the twelve months prior to March 17, 1959, these contributions were computed on the decedent's then salary of $9,000 per year.
On March 17, 1959, decedent, while serving as Assistant Prosecutor, was granted a leave of absence without pay from the Office of the Prosecutor of the Pleas of Essex County. Prior to his being granted a leave of absence, decedent became, on February 16, 1959, a Deputy Attorney General of the State of New Jersey, to prosecute the appeal of a criminal action [ State v. Croland ] which had been under his direction while he was serving as Assistant Prosecutor. He was to be compensated on a fee basis by the County of Essex for his work.
From March, 1959, to December, 1959, the decedent devoted a substantial part of his time and energy to the preparation of the appeal to which he had been assigned by the Attorney General. He received from the County of Essex payments for this work of $250 in July, 1959, and $750 in December, 1959, from which payments no deductions for social security contributions were made.
On March 24, 1959, the then Attorney General of New Jersey wrote to the decedent, approving his leave of absence and informing him that his insurance coverage could not be extended while on leave of absence for a period greater than 93 days, and within 31 days thereafter the coverage could be continued upon an ...