Opinion
Submitted October 27, 1933 —
Decided January 5, 1934.
On appeal from a judgment of the Supreme Court.
For the appellant, Edward A. Markley.
For the respondent, Lester C. Leonard.
Relator made application for retirement on pension from the Belmar police department, and claimed such right under section 2 of chapter 160. Pamph. L. 1920, p. 324.
This appeal brings up a rule entered in the Supreme Court overruling a demurrer of the policemen's pension commission of the borough of Belmar, to an alternative writ of mandamus sued out by the relator-respondent to require the commission to "call forthwith to your assistance the aid of a surgeon or physician representing either the police or fire department of said borough, to the end that you may consider the application for said retirement" of Cummings, "and arrive at a decision in accordance with the procedure prescribed in said statute."
This matter was in this court before ( Cummings v. Policemen's Pension Commission, c., 109 N.J.L. 97 ), and was remanded to the Supreme Court, in order that an alternative writ of mandamus with suitable recital of facts might issue and that demurrer might be made thereto, so that the questions sought to be raised in the Supreme Court could be considered. This practice was followed, and upon consideration of the question so raised, Mr. Justice Bodine concluded that relator was entitled to have the commission proceed to consider the merits of relator's application for a pension and reach a determination thereon, and directed the issuance of a peremptory writ of mandamus. The judgment goes no further than to require the commission to proceed to a consideration and determination of the application in accordance with the provisions of the statute. In the correctness of this conclusion we concur. The relator's proofs as to his status are such as to require action on the part of the commission. Hulse v. Policemen's Pension Commission, c., 5 N.J. Mis. R. 258; 136 Atl. Rep. 197; Simmons v. Policemen's Pension Commission, c., 8 N.J. Mis. R. 408 .
The judgment under review is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.