Carluccio v. Ferber, A--157

Citation18 N.J.Super. 473,87 A.2d 439
Decision Date24 March 1952
Docket NumberNo. A--157,A--157
PartiesCARLUCCIO v. FERBER, Director of Motor Vehicles et al.
CourtNew Jersey Superior Court – Appellate Division

Stephen Mongiello, Hoboken, argued the cause for appellant.

John J. Kitchen, Woodbury, argued the cause for respondent (Theodore D. Parsons, Atty. Gen. Attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

Plaintiff, alleging that he is an honorably discharged veteran of World War I entitled to the protection afforded by the Veterans' Tenure Act (R.S. 38:16--1 et seq., N.J.S.A.), complains of the termination by defendant Ferber, Director of Motor Vehicles, of his agency for the registering of motor vehicles, issuing registration certificates and licensing of drivers, to which he was designated pursuant to R.S. 39:3--3 (L. 1921, c. 208), N.J.S.A., by a predecessor in office of Ferber, and of Ferber's designation of defendant, Aniello, to replace him.

Ferber's action was taken by letter of December 7, 1950 advising plaintiff that his 'authority to act as agent is hereby revoked as of December 31, 1950.' Plaintiff filed an amended complaint in the Law Division seeking a judgment restoring him as agent and setting aside Aniello's designation in his place. Upon motion of Ferber the action was dismissed, without prejudice, 'for the reason that the Court lacks jurisdiction of the subject matter.' Ferber's motion was grounded upon the contention that 'plaintiff seeks review in his complaint of a decision or action of a state administrative agency' reviewable not by complaint filed in the Law Division pursuant to Rule 3:81--2 but by appeal to the Appellate Division under Rule 3:81--8. Plaintiff appeals from the order of dismissal which was entered November 14, 1951, and also 'from the final decision or action of Martin J. Ferber, administrative agent, dismissing the above plaintiff on December 31, 1950 in accordance with Rule 3:81--8.'

Whether plaintiff's challenge to Ferber's action was reviewable in the circumstances by complaint under Rule 3:81--2 or by appeal under Rule 3:81--8 it is not necessary for us to decide. His claim to relief is rested solely upon his alleged veteran's status. The question whether the Veterans' Tenure Act embraces agents designated under R.S. 39:3--3, N.J.S.A., has been fully argued in the briefs and we shall therefore determine it. It is our opinion that an agent designated under R.S. 39:3--3, N.J.S.A., is not a person 'holding any employment, position or office under the government of this State' and 'receiving a salary from such State' within the intendment of the Veterans' Tenure Act.

It is settled that 'The legislature may by the manner in which it establishes or reconstructs a public office and by the character of authority which it gives in the supervision thereof indicate a purpose to exclude the employees from the application of the Veterans' Tenure Act.' Barringer v. Miele, 6 N.J. 139, 77 A.2d 895, 897, (1951). The manner in which the Legislature established the office of Director of Motor Vehicles as regards the latter's agents of plaintiff's class and the character of the authority given to the Director's selection, supervision and termination of authority of such agents plainly evince a legislative purpose to exclude the agents...

To continue reading

Request your trial
8 cases
  • Horn v. Kean
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 16, 1986
    ...plurality opinion in Elrod --when he was a judge on the appellate division of the New Jersey Superior Court. In Carluccio v. Ferber, 18 N.J.Super. 473, 87 A.2d 439 (App.Div.1952), a former motor vehicle inspection agent sought reinstatement to his position, arguing that as a veteran the sta......
  • DeVita v. Housing Authority of City of Paterson
    • United States
    • New Jersey Supreme Court
    • January 31, 1955
    ...us. See State v. Parking Authority of the City of Trenton, 29 N.J.Super. 335, 102 A.2d 669 (App.Div.1954); Carluccio v. Ferber, 18 N.J.Super. 473, 477, 87 A.2d 439 (App.Div.1952); Monte v. Milat, 17 N.J.Super. 260, 85 A.2d 822 (Law Div.1952). In the Parking Authority case the Appellate Divi......
  • Cetrulo v. Byrne
    • United States
    • New Jersey Supreme Court
    • January 11, 1960
    ...v. Grece, 14 N.J.Misc. 164, 183 A. 291 (Sup.Ct.1936); cf. Barringer v. Miele, 6 N.J. 139, 77 A.2d 895 (1951); Carluccio v. Ferber, 18 N.J.Super. 473, 87 A.2d 439 (App.Div.1952); McCallion v. Allan, 134 N.J.L. 322, 47 A.2d 602 (Sup.Ct.1946); Di Angelo v. Keenen, 112 N.J.L. 19, 169 A. 728 (Su......
  • Horn v. Kean
    • United States
    • U.S. District Court — District of New Jersey
    • September 27, 1984
    ...militates against plaintiffs being considered to be public employees for purposes of Elrod-Branti analysis. In Carluccio v. Ferber, 18 N.J.Super. 473, 87 A.2d 439 (App.Div.1952), a former motor vehicle inspection agent sought restoration of his position on the ground that as a veteran he co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT