The opinion of the court was delivered by
Sullivan, J. A. D.
Intervenors-appellants appeal from a ruling of the trial court which granted plaintiff’s motion for summary judgment and declared null and void a resolution adopted by the mayor and council of the Borough of Ciiffside Park (borough) purporting to involuntarily retire plaintiff as chief of police of said borough. The ruling reinstated plaintiff as chief of police “with full tenure protection until he shall reach the age of seventy.” Ancillary to its ruling upholding plaintiff’s status as chief of police, the trial court also nullified the consequential appointments in the borough’s police department of intervenors-appellants as chief, captain, lieutenant, sergeant and patrolman, respectively.
Basically the question involved is whether or not plaintiff, having been retained in service by the governing body of the Borough of Ciiffside Park after he became 65 years of age, may be involuntarily retired before he attains the age of 70.
The facts are undisputed. Plaintiff was appointed a member of the police department of the borough in 1920 and was duly appointed chief of police in May 1955. On October 19, 1960 plaintiff became 65 years of age. Shortly prior thereto plaintiff attended a conference meeting of the borough mayor [536]*536and council, expressed a desire to continue in service, and was “granted an extension to serve as Chief of Police of the Borough of Cliffside Park, over and above the compulsory retirement age of sixty-ñve years.” On October 20, 1960 the borough clerk sent the following letter to the Consolidated Police and Firemen’s Pension Fund Commission.
“Consolidated Police & Firemen’s Pension Fund Commission
P. O. Box 1416
Trenton 25, New Jersey
Re: John J. McEvoy Police Department Birthdate 10-19-1895
Gentlemen:
The Mayor and Council wish me to advise you that Police Chief John J. McEvoy is to be retained in service by the governing body for an indefinite period.
Very truly yours,
Nicholas Oastbonuovo Borough Clerk
NO/B”
Plaintiff continued in service as chief of police until December 3, 1961, at which time, by resolution adopted by the mayor and council, he was involuntarily retired “from said post, effective immediately,” and granted accumulated sick leave of $6,461.20, to be paid weekly until said amount was exhausted.
The sick leave benefits were paid for 11 weeks and then discontinued. After considerable negotiations plaintiff formally demanded reinstatement, or payment of the balance of his sick leave. The council, however, did not take any action on the demand for reinstatement and refused to continue the sick leave payments on the ground that the part of the resolution authorizing them was illegal. The instant suit was then filed against the mayor and council seeking plaintiff’s reinstatement,'or in the alternative, payment to plaintiff of the sick leave benefits granted to him by the resolution of December 3, 1961. Thereafter intervenors-appellants were [537]*537permitted to intervene in the suit so that their rights and status might be adjudicated.
Cross-motions lor summary judgment were made by plaintiff, defendants and intervenors respectively. Plaintiff’s motion was supported by his affidavit setting forth his version of the events immediately preceding the retirement resolution of December 3, 1961, as follows:
“Mayor Calabrese arrived at my office at approximately 4:30 and advised me that at the meeting of the Mayor and Council to be held that evening a resolution would be introduced effecting my immediate ‘retirement’ from office. He told me that he was personally sorry that this step had to be taken but that he was forced to do it by political pressures within his own party. He advised me further, however, that my ‘retirement’ was being arranged in such a way that it would be accompanied by the granting to me of an accumulated 40 week sick leave allowance based upon my full weekly pay. I clearly stated to him that this ‘retirement’ was contrary to my wishes and without my consent.”
These factual allegations were not disputed.
The affidavit of Mayor Calabrese submitted on intervenors’ cross-motion stated that:
“Subsequent to the said John J. McEvoy having attained the compulsory retirement age of 65 years and in response to his indicated desire to remain in said office, permission was given for him to do so; however, it being the clearly understood intent that same could be terminated at the will of the Mayor and Council and in accordance with such intent a certain letter dated October 20, I9601 and signed by the then Borough Clerk, Nicholas Oastronuovo, was sent to the Consolidated Police & Firemen’s Pension Fund Commission.”
Plaintiff’s reply affidavit thereto asserted that “it was never my understanding, nor was it ever explained to me, that my continuance in office beyond the age of 65 could he terminated at any time at the will of the Mayor and Council.”
As heretofore noted, the trial court granted plaintiff’s motion, holding that plaintiff had full tenure protection until he reached the age of 70.
Plaintiff’s basic position, which was adopted by the trial court, is that he cannot be involuntarily retired until the age [538]*538of 70 because of N. J. S. A. 40:47-6, the pertinent provisions of which follow:
“No person shall be removed from office or employment in any such police department * * * for political reasons, or for any other cause than incapacity, misconduct, nonresidence, or disobedience of rules and regulations established for the government of the police force and department.”
Plaintiff concedes that his right to tenure under the above statute is modified by his membership in the Consolidated Police and Firemen’s Pension Fund, established under N. J. 8. A. 43:16-1 et seq., and that he is bound by the compulsory retirement provisions of that act.
We need consider only N. J. S. A. 43 :16—1 and N. J. 8. A. 43:16-1.1. The first of these sections provides that an active member of a police department who has served honorably in such department for a period of 25 years, and has reached the age of 51 years “shall, on his own application, be retired.” It further provides that an active member with 25 years of service and who has reached the age of 65, “shall be retired.”
N. J. 8. A. 43:16—1.1, first enacted in 1947, provides:
“Notwithstanding the provisions of section 43:16-1 of the Revised Statutes, any member who holds office, position, or employment as chief of a police department * * * may be retained in service by the governing body of the municipality, or by the director of public safety if the municipality has such a director, until such member attains the age of seventy years.”
Plaintiff contends that this latter section must be construed in pari materia with the Tenure Act, N. J. 8. A. 40:47-6, so that while plaintiff could have been retired at age 65 under N. J. 8. A.
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The opinion of the court was delivered by
Sullivan, J. A. D.
Intervenors-appellants appeal from a ruling of the trial court which granted plaintiff’s motion for summary judgment and declared null and void a resolution adopted by the mayor and council of the Borough of Ciiffside Park (borough) purporting to involuntarily retire plaintiff as chief of police of said borough. The ruling reinstated plaintiff as chief of police “with full tenure protection until he shall reach the age of seventy.” Ancillary to its ruling upholding plaintiff’s status as chief of police, the trial court also nullified the consequential appointments in the borough’s police department of intervenors-appellants as chief, captain, lieutenant, sergeant and patrolman, respectively.
Basically the question involved is whether or not plaintiff, having been retained in service by the governing body of the Borough of Ciiffside Park after he became 65 years of age, may be involuntarily retired before he attains the age of 70.
The facts are undisputed. Plaintiff was appointed a member of the police department of the borough in 1920 and was duly appointed chief of police in May 1955. On October 19, 1960 plaintiff became 65 years of age. Shortly prior thereto plaintiff attended a conference meeting of the borough mayor [536]*536and council, expressed a desire to continue in service, and was “granted an extension to serve as Chief of Police of the Borough of Cliffside Park, over and above the compulsory retirement age of sixty-ñve years.” On October 20, 1960 the borough clerk sent the following letter to the Consolidated Police and Firemen’s Pension Fund Commission.
“Consolidated Police & Firemen’s Pension Fund Commission
P. O. Box 1416
Trenton 25, New Jersey
Re: John J. McEvoy Police Department Birthdate 10-19-1895
Gentlemen:
The Mayor and Council wish me to advise you that Police Chief John J. McEvoy is to be retained in service by the governing body for an indefinite period.
Very truly yours,
Nicholas Oastbonuovo Borough Clerk
NO/B”
Plaintiff continued in service as chief of police until December 3, 1961, at which time, by resolution adopted by the mayor and council, he was involuntarily retired “from said post, effective immediately,” and granted accumulated sick leave of $6,461.20, to be paid weekly until said amount was exhausted.
The sick leave benefits were paid for 11 weeks and then discontinued. After considerable negotiations plaintiff formally demanded reinstatement, or payment of the balance of his sick leave. The council, however, did not take any action on the demand for reinstatement and refused to continue the sick leave payments on the ground that the part of the resolution authorizing them was illegal. The instant suit was then filed against the mayor and council seeking plaintiff’s reinstatement,'or in the alternative, payment to plaintiff of the sick leave benefits granted to him by the resolution of December 3, 1961. Thereafter intervenors-appellants were [537]*537permitted to intervene in the suit so that their rights and status might be adjudicated.
Cross-motions lor summary judgment were made by plaintiff, defendants and intervenors respectively. Plaintiff’s motion was supported by his affidavit setting forth his version of the events immediately preceding the retirement resolution of December 3, 1961, as follows:
“Mayor Calabrese arrived at my office at approximately 4:30 and advised me that at the meeting of the Mayor and Council to be held that evening a resolution would be introduced effecting my immediate ‘retirement’ from office. He told me that he was personally sorry that this step had to be taken but that he was forced to do it by political pressures within his own party. He advised me further, however, that my ‘retirement’ was being arranged in such a way that it would be accompanied by the granting to me of an accumulated 40 week sick leave allowance based upon my full weekly pay. I clearly stated to him that this ‘retirement’ was contrary to my wishes and without my consent.”
These factual allegations were not disputed.
The affidavit of Mayor Calabrese submitted on intervenors’ cross-motion stated that:
“Subsequent to the said John J. McEvoy having attained the compulsory retirement age of 65 years and in response to his indicated desire to remain in said office, permission was given for him to do so; however, it being the clearly understood intent that same could be terminated at the will of the Mayor and Council and in accordance with such intent a certain letter dated October 20, I9601 and signed by the then Borough Clerk, Nicholas Oastronuovo, was sent to the Consolidated Police & Firemen’s Pension Fund Commission.”
Plaintiff’s reply affidavit thereto asserted that “it was never my understanding, nor was it ever explained to me, that my continuance in office beyond the age of 65 could he terminated at any time at the will of the Mayor and Council.”
As heretofore noted, the trial court granted plaintiff’s motion, holding that plaintiff had full tenure protection until he reached the age of 70.
Plaintiff’s basic position, which was adopted by the trial court, is that he cannot be involuntarily retired until the age [538]*538of 70 because of N. J. S. A. 40:47-6, the pertinent provisions of which follow:
“No person shall be removed from office or employment in any such police department * * * for political reasons, or for any other cause than incapacity, misconduct, nonresidence, or disobedience of rules and regulations established for the government of the police force and department.”
Plaintiff concedes that his right to tenure under the above statute is modified by his membership in the Consolidated Police and Firemen’s Pension Fund, established under N. J. 8. A. 43:16-1 et seq., and that he is bound by the compulsory retirement provisions of that act.
We need consider only N. J. S. A. 43 :16—1 and N. J. 8. A. 43:16-1.1. The first of these sections provides that an active member of a police department who has served honorably in such department for a period of 25 years, and has reached the age of 51 years “shall, on his own application, be retired.” It further provides that an active member with 25 years of service and who has reached the age of 65, “shall be retired.”
N. J. 8. A. 43:16—1.1, first enacted in 1947, provides:
“Notwithstanding the provisions of section 43:16-1 of the Revised Statutes, any member who holds office, position, or employment as chief of a police department * * * may be retained in service by the governing body of the municipality, or by the director of public safety if the municipality has such a director, until such member attains the age of seventy years.”
Plaintiff contends that this latter section must be construed in pari materia with the Tenure Act, N. J. 8. A. 40:47-6, so that while plaintiff could have been retired at age 65 under N. J. 8. A. 43:16-1, having been retained in service past that age under the provisions of N. J. 8. A. 43 :16-1.1, he cannot be involuntarily retired until he attains the age of 70.
The trial judge held that plaintiff, having been retained in service past the age of 65, “could not be removed from office without cause and under the Police Tenure Act as Chief of [539]*539Police of the municipality he was fully protected in that office until the end of his term which, after being continued after age 65, could not be terminated before he would attain age 70.”
We do not agree. Plaintiff was subject to retirement at age 65. We read N. J. S. A. 43:16-1.3 to do no more than enable the municipality to retain plaintiff in service beyond plaintiff’s sixty-fifth birthday, at the municipality’s discretion or pleasure, but not beyond his attaining the age of 70 years. Section 1.1 merely suspends operation of the mandatory retirement provision of section 1 for such period of time as the municipality considers it advisable.
There are many reasons why a municipality may want to retain a police chief in sendee for a limited period of time past his normal retirement date. However, the advantages to be had by such retention would be nullified if any retention were held to confer tenure in office for an additional five years.
The provisions of the Police Tenure Act, N. J. 8. A. 40 :47-6, dealing with removal from office or employment, are not applicable to the involuntary retirement of a police chief Avho is retained in service past the normal retirement age of 65, i. e., the Tenure Act does not protect against involuntary retirement. Plaintiff could have been retained in service for a specified period of time, provided it did not extend beyond his seventieth birthday. The undisputed evidence, however, indicates that plaintiff’s retention was for “an indefinite period.” The borough, therefore, had the power to involuntarily retire plaintiff at any time.
Plaintiff argues that the phrase “for an indefinite period,” as contained in the borough clerk’s letter of October 20, 1960, has a special meaning in law. Plaintiff cites numerous eases holding that appointment for an indefinite period to a position of tenure means appointment until removal for cause. Suffice it to note that the cases referred to deal with original appointment to office rather than retention in service past normal retirement age.
[540]*540The trial court, since it held that the involuntary retirement of plaintiff was null and void, found it unnecessary to rule on plaintiff’s alternative demand for payment of sick leave benefits granted to him by the resolution of December 3, 1961. This issue must now be resolved at the trial level.
The judgment herein is reversed and the matter remanded to the trial court for entry of judgment upholding the involuntary retirement of plaintiff, reinstating the consequential appointments of intervenors-appellants to the offices enumerated, and adjudicating plaintiff’s alternative demand for payment of sick leave benefits. No costs.