Mcfeely v. Bd. Of Pension Com'rs Of City Of Hoboken

• Decision Date: 03 June 1948
• Docket Number: No. 250.,250.
• Parties: McFEELY v. BOARD OF PENSION COM'RS OF CITY OF HOBOKEN et al.
• Court: New Jersey Supreme Court

137 N.J.L. 234

59 A.2d 412

McFEELY

v.BOARD OF PENSION COM'RS OF CITY OF HOBOKEN et al.

No. 250.

Supreme Court of New Jersey.

June 3, 1948.

Certiorari proceeding by Edward J. McFeely against Board of Pension Commissioners of City of Hoboken, and James Chirichella, to review a resolution of the board purporting to rescind a prior resolution retiring prosecutor from service in the city police department.

Resolution set aside in accordance with opinion.

May term, 1948, before DONGES, COLIE and EASTWOOD, JJ.

Markley & Broadhurst, of Jersey City (Edward A. Markley and James J. Langan, both of Jersey City, of counsel), for prosecutor.

Dominick R. Rinaldi, of Hoboken (E. Norman Wilson, of Hoboken, of counsel), for respondents.

COLIE, Justice.

This writ of certiorari was allowed to review a resolution of the Board of Pension Commissioners of Hoboken adopted August 21, 1947, purporting to rescind a prior resolution dated May 15, 1947 which latter resolution retired Edward J. McFeely from service in the Police Department of Hoboken.

Prosecutor, when he applied for a pension on June 6, 1945, was Chief of Police of Hoboken and had then served in excess of twenty years in the department and was sixty-one years of age. On May 15, 1947 the Board of Pension Commissioners passed a resolution reciting that whereas prosecutor had served honorably in the police department for thirty-seven years and had reached the age of sixty-three years ‘he is hereby retired on a pension of $3,095.83 per annum.’ Thereafter prosecutor received neither his salary as Chief of Police nor the pension awarded to him. On August 21, 1947 the Board of Pension Commissioners adopted a further resolution to the effect that by the resolution of May 15, 1947 the Board ‘inadvertently granted or attempted to grant a pension to Edward J. McFeely’ and then resolved that the earlier action ‘be and the same is hereby rescinded and set aside as being null and void.’

The personnel of the Board which adopted the resolution granting the pension was composed of different individuals from those composing the Board which adopted the resolution of rescission. We state the fact without comment and pass to the legal questions involved.

The statute under which prosecutor applied for a pension is R.S. 43:16-1, N.J.S.A., and provides that ‘In all municipalities any policeman or fireman or member of the police or fire department, including members of the fire departments of any fire district located...