Flynn v. Union City
| Decision Date | 12 May 1954 |
| Docket Number | No. 65785,65785 |
| Citation | 105 A.2d 34,30 N.J.Super. 467 |
| Parties | FLYNN v. UNION CITY. |
| Court | New Jersey County Court |
Joseph L. Freiman, Union City, attorney for petitioner-appellant.
Cyril J. McCauley, Union City, attorney for respondent-appellee.
Grover C. Richman, Jr., Atty. Gen., attorney for the State, intervenor (Charles I. Levine, Deputy Atty. Gen., appearing).
DREWEN, J.C.C.
On April 4, 1952, while a member of the Union City Fire Department, petitioner sustained accidental injuries. The attendant facts and circumstances, it is conceded, bring the happening within the terms of the Compensation Act. Petitioner returned to duty on September 6, 1952. His claim petition was filed in December, 1952.
On August 21, 1953, during the pendency of the claim and prior to its hearing, the city made application for the retirement and pensioning of petitioner, on the ground of disability. Such proceedings, including medical examinations, were had pursuant thereto that by action of the Consolidated Police and Firemen's Pension Fund Commission of the State of New Jersey the pension retirement applied for was ordered, effective October 1, 1953. Throughout the interval between the injury and the effective pension date petitioner received full pay from the city.
The claim petition came on for hearing October 26, 1953. Upon the facts above set forth and the provisions of R.S. 34:15--43, N.J.S.A., respondent moved at the hearing for the dismissal of the petition, and the motion was granted. The pertinent provision of the statute is:
'* * * No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability * * *.'
In a virtually identical situation the court, in Reinhold v. Town of Irvington, 134 N.J.L. 416, 48 A.2d 641 (Sup.Ct.1946), held that the fireman's compensation claim was barred by the statute cited. Effort is made to distinguish the Reinhold case on the grounds (a) that there, following the accident, the fireman did not return to duty; and (b) there the fireman himself applied for the pension, and having done so with knowledge of the statute, supra, must be held to have made his election. It is argued that the pension in the present instance was 'involuntary,' and the case of Campbell Soup Co. v. Board of Review, Division of Employment Security, 13 N.J. 431, 435, 100 A.2d 287 (1953), is cited as authority. The argument ignores the basic parallel that the two situations present. The petitioner in each of them had, at the time of the compensation hearing, been already retired on pension and was therefore absolutely within the class of 'former employees' designated by the statute. Reinhold v. Town of Irvington, supra (134 N.J.L. 416, 48 A.2d 642), determines simply and without qualification that 'The status of the prosecutor at the time his claim for compensation was dealt with by the Bureau placed him squarely within the provisions of R.S. 34:15--43.' Also be it noted, in neither situation could petitioner be considered as having the status of a former employee prior to his pension retirement, he having been continuously on full salary until the effective date of the retirement. Campbell Soup Co. v. Board of Review, Division of Unemployment Security, supra, is not at all in point. In that case the court deals with qualifying language in a different statute that does not appear in the enactment before us. It is of no possible consequence whether the pension status is brought about by the city's application or by that of its servant. The statutory scope broadly encompasses both situations. The giving of effect by this court to any distinction like that for which the argument contends could amount only to an attempt at judicial legislation. See DeLorenzo v. Board of Com'rs of City of Newark, 134 N.J.L. 7, 45 A.2d 686 (E. & A. 1945).
Petitioner seeks to show invalidating bad faith and design on the city's part in the timing, as...
To continue reading
Request your trial
-
Smith, Application of
...are controlled by the pertinent statutory provisions and their relation to the circumstances of each case. Flynn v. Union City, 30 N.J.Super. 467, 105 A.2d 34 (Cty.Ct.) aff'd 32 N.J.Super. 518, 108 A.2d 629 (App.Div.1954), certif. denied 17 N.J. 253, 111 A.2d 321 (1955). And since the purpo......
-
Blankley v. Nostrame
... ... Argued May 3, 1954 ... Decided May 14, 1954 ... James J. Langan, Jersey City, for plaintiffs-respondents (Emory, Langan & Lamb, Jersey City, attorneys) ... Terranella v. Union Bldg. & Const. Co., 3 N.J. 443, 70 A.2d 753 (1950). See Restatement of Torts, § 409, and note ... ...
-
Hillman v. Board of Trustees, Public Employees Retirement System
...support of this contention respondent cites Reinhold v. Irvington, 134 N.J.Law 416, 48 A.2d 641 (Sup.Ct.1946); Flynn v. Union City, 30 N.J.Super. 467, 105 A.2d 34 (Cty.Ct.1954), aff'd, 32 N.J.Super. 518, 108 A.2d 629 (App.Div.1954), certif. den. 17 N.J. 253, 111 A.2d 321 (1955), and Ziegler......
-
Flynn v. Union City
...he had been retired on a disability pension. On appeal to the Hudson County Court the action of the deputy director was affirmed, 30 N.J.Super. 467, 105 A.2d 34, and it is from this judgment that the plaintiff The plaintiff contends that he was not a former employee within the meaning of R.......