Moran v. Firemen's And Policemen's Pension Fund Comm'n of Jersey City

• Decision Date: 24 November 1942
• Citation: 20 N.J.Misc. 479,28 A.2d 885
• Parties: MORAN v. FIREMEN'S AND POLICEMEN'S PENSION FUND COMMISSION OF JERSEY CITY.
• Court: New Jersey Supreme Court

28 A.2d 885

20 N.J.Misc. 479

MORAN

v. FIREMEN'S AND POLICEMEN'S PENSION FUND COMMISSION OF JERSEY CITY.

Circuit Court, Hudson County, New Jersey.

Nov. 24, 1942.

Suit by Thomas Moran against the Firemen's & Policemen's Pension Fund Commission of Jersey City to recover unpaid pension payments due the plaintiff. On plaintiff's motion to strike the amended answer, and for summary judgment.

Motion granted, and judgment ordered in favor of plaintiff.

Ziegener & Brenner, of Jersey City, for plaintiff.

Charles A. Rooney, of Jersey City, for defendant.

BROWN, Judge.

The plaintiff moves to strike the amended answer and for summary judgment upon the grounds that the "allegations contained in said amended answer are untrue in fact, and sham, and the separate defenses contained therein are frivolous". This is the third motion, of this kind, made in the cause. The first was denied because of a defective affidavit. The second was granted and judgment entered and thereafter the judgment was opened for the purpose of permitting the defendant to file an amended answer and upon condition that the plaintiff may renew his motion to strike. The complaint contains the allegations that the plaintiff for several years has been a pensioned lieutenant of the Police Department of Jersey City; that he is entitled to a pension payment of $112.50 each month; that for several years and to the first day of June, 1940, the defendant paid the monthly pension. The suit is brought for twenty-three payments remaining unpaid since the date last mentioned. Suit was brought on April 21, 1942. The amended answer and the first separate defense thereof admit the allegations in the complaint but the defendant refuses to pay the claim because it does not know whether the plaintiff is alive and is entitled to the pension and leaves the plaintiff to his proof. The new matter in the amended answer defends that the defendant is ready to pay the plaintiff at the City Hall in Jersey City provided the plaintiff shall appear in person to be identified; that the defendant has adopted a regulation for such an appearance for the purpose of identification; that the defendant has refused to pay because the appearance was not made and that the defendant has no "knowledge or information sufficient to form a belief as to whether plaintiff is entitled thereto or whether the person entitled thereto is in fact alive". The sixth defense is to the effect that the defendant has adopted a regulation that for the duration of the present war, no pension checks are to be delivered if the pensioner does not reside in the United States and asserts that the plaintiff does not so reside. It should be noted that the regulations requiring the plaintiff to come and get his pension and that the defendant will not make payments unless the pensioner is a resident of the United States were adopted August 10, 1942. The plaintiff's claim was reduced to judgment on July 10, 1942. Monthly pension checks were forwarded by the defendant to the plaintiff from May, 1938, to June 1, 1940, while the plaintiff was living in Ireland and in which place he continued to reside.

Before considering the proof submitted on the motion it is in order to consider the allegations in the answer. The part thereof, both in the separate defenses and otherwise, which alleges that the defendant "does not know whether the plaintiff is alive * * * and leaves the plaintiff to his proof" is in the nature of a plea in abatement. Whenever the subject matter of a defense is that the plaintiff cannot maintain any action at any time in respect to the supposed cause of action it should be pleaded in bar; but matter which merely defeats the present proceeding and does not show that the plaintiff is forever concluded should generally be pleaded in abatement. Such was the common law practice. The defense of the "death" of a party plaintiff was always considered as a plea in abatement. While the defendant in the case under consideration does not directly charge the plaintiff as being non est, the essence of its argument on the motion rests primarily on that possibility. Under rule 56 of the Supreme Court, N.J.S.A. Tit. 2, pleas in abatement are abolished and in lieu thereof the objection should be made by motion. The defendant has failed to comply with this rule and it has, therefore, waived the objection by filing an answer. In any event the answer does not deny or admit the death of the plaintiff but leaves the plaintiff to his proof. An answer which does not specifically deny a matter is equivalent in law to an admission. Union Garage Co. v. Wilner, 101 N.J.L. 362, 128 A. 161. There is no presumption that a person in whose name a suit is brought is not living. The presumption, if any, is to the contrary. The law presumes a continuation of life until seven years have elapsed after a person has been last heard from. Vreeland v. Vreeland, 78 N.J.Eq. 256, 259, 79 A. 336, 34 L.R.A.,N.S, 940....