Adams v. Atl. City.

• Citation: 59 A.2d 825
• Parties: ADAMS v. ATLANTIC CITY.
• Decision Date: 14 June 1948
• Court: New Jersey Supreme Court

59 A.2d 825

ADAMS

v.ATLANTIC CITY.

Supreme Court of New Jersey, Atlantic County.

June 14, 1948.

Action under the Uniform Declaratory Judgments Act by Gordon W. Adams against the City of Atlantic City, a municipal corporation of the County of Atlantic, in the State of New Jersey, for a judgment declaring that plaintiff's discharge from employment as a fireman in city's fire department was illegal, and for a judgment against the city for all back salary from date of allegedly illegal discharge. On motion by city to strike out the complaint.

Motion granted.

Lee F. Washington, of Atlantic City, for plaintiff.

Leon Leonard, of Atlantic City, for defendant.

LLOYD, Circuit Court Judge and Supreme Court Commissioner.

This matter comes before the Court on a motion to strike out a complaint filed under the provisions of the Uniform Declaratory Judgments Act, R.S. 2:26-66 et seq., N.J.S.A. The facts, as recited in the complaint and necessarily admitted for the purposes of this motion, are as follows:

In June of 1943, the plaintiff was appointed a temporary fireman in the paid Fire Department of the City of Atlantic City, at an annual salary of $2,050, beginning June 16, 1943. Said appointment was made by the Director of Public Safety as the municipality's duly authorized appointing authority. At the time of the appointment, Atlantic City had already adopted the provisions of the Civil Service Act, R.S. 11:1-1 et seq., N.J.S.A., and, according to the complaint, the municipality ‘has ever since been governed by said act, as supplemented and amended’. Plaintiff emphasizes in his complaint that his appointment was originally of a temporary nature, ‘pending the holding of a Civil Service examination for the position’. Plaintiff was sworn-in, placed in the regular uniform of the paid Fire Department, assigned to a regular fulltime shift and continued as a paid fireman until March 3, 1944, on which date he enlisted in the United States Navy.

On November 10, 1944, plaintiff received his Honorable Discharge from they Navy and he then returned to his employment with the Atlantic City Fire Department. He continued to serve as a paid fireman until February 28, 1947, when, according to the complaint, ‘he was summarily dropped from his said position, without cause, or hearing, or charges, or trial.’

Plaintiff contends that under R.S. 38:16-1, N.J.S.A., Veterans' Tenure Act, he was protected in his employment and that his dismissal was illegal and void. He further contends that by reason of the facts recited in his complaint, a justiciable controversy has now arisen between plaintiff and the defendant touching the plaintiff's status with respect to his alleged office, position, or employment and his right to collect back salary from the date of his allegedly illegal discharge. Plaintiff asks a judgment in his favor declaring that his discharge from employment was illegal and void and that he was and has remained a permanent employee of the Atlantic City Fire Department. He further asks a judgment against the defendant for all back salary from the date of his allegedly illegal discharge.

Defendant moved to strike out the complaint on the ground, inter alia, that plaintiff is precluded from instituting an action for a Declaratory Judgment in this matter because there are other legal remedies available to him, and, particularly, because he has not exhausted his statutory remedies.

Since the adoption of the Uniform Declaratory Judgments Act in this State our courts have held that the declared purpose of the act, R.S. 2:26-67, N.J.S.A., limited its application ordinarily to cases where rights had rights had not yet been invaded or wrongs yet committed to the extent of actionable damage; that whether or not relief under the act should be granted is a matter resting in sound, judicial discretion, but that such relief ought not ordinarily to be granted where another adequate remedy is at hand. Empire Trust Co. v. Board of Commerce, etc., 124 N.J.L. 406, 11 A.2d 752. This interpretation, in so far as it indicates that the mere availability of another adequate remedy is sufficient reason for denying relief under the Declaratory Judgments Act, has been adversely criticized and even expressly repudiated by the federal courts and text writers. Franklin Life Ins. Co. v. Johnson, 10 Cir., 157 F.2d 653. Borchard, Declaratory...