Belfer v. Borrella, A--271

• Decision Date: 25 October 1950
• Docket Number: No. A--271,A--271
• Citation: 76 A.2d 25,9 N.J.Super. 287
• Parties: BELFER v. BORRELLA.
• Court: New Jersey Superior Court — Appellate Division

Page 287

9 N.J.Super. 287

76 A.2d 25

BELFER v. BORRELLA.

No. A--271.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 9, 1950.

Decided Oct. 25, 1950.

Frank I. Casey, Trenton, argued the cause for the defendant-appellant.

Nathan N. Schildkraut, Trenton, argued the cause for the plaintiff-respondent (Kahn & Schildkraut, Trenton, attorneys).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

The issue here is whether the defendant-appellant, D. Donald Borrella, complied with the provisions of P.L.1947, p. 214, sec. 1 (R.S. 11:27--1, N.J.S.A.), at the time he filed his application to take a competitive examination for the office of Police and Fire Surgeon of the City of Trenton. The Superior Court, Law Division, held that he did not and Dr. Borrella appeals from that judgment.

The matter originated in the former Supreme Court upon an information in the nature of a Quo warranto filed by the plaintiff, disputing the title of defendant to the office in question. Subsequently, by agreement of the parties, the issue was tried both as to law and fact before the Superior Court, Law Division.

Complying with the request of the appointing authority of the City of Trenton, the Civil Service Commission (hereinafter referred to as 'the commission'), announced and held a competitive examination to determine those eligible for the appointment. The plaintiff and defendant were among those who applied for the appointment and took the examination, which was listed by the Commission in a published bulletin, fixing September 15, 1947, as the closing date for filing applications. The plaintiff, Dr. Belfer, a disabled veteran of World War II, filed his application on August 28, 1947, and submitted therewith proof of his record of disability incurred in the line of duty as required by P.L.1947, p. 214, sec. 1; R.S. 11:27--1, N.J.S.A. The application of defendant, also a veteran of World War II, was dated and filed September 15, 1947. In response to two of the questions thereon: 'Were you wounded or disabled in the line of duty?' and 'Are you now receiving compensation or pension?' the defendant stated: 'No'. An employee of the Commission made several notations in ink on the defendant's application, among which he indicated that the defendant had a claim pending for an injury to his left hand which had been incurred during his service in World War II in line of duty. The defendant's disability compensation claim was filed with the United States Veterans Administration on September 28, 1947. On January 16, 1948, the Veterans Administration awarded disability compensation to the defendant effective as of September 29, 1947. The examination was held on February 3, 1948, and thereafter the Commission certified the first three eligibles in the following order: Doctors D. Donald Borrella, George T. Horovitz and Jacob J. Belfer. On that certification, the appointing authority selected the defendant and the oath of office was administered to him on April 16, 1948, whereupon the plaintiff instituted the ouster proceedings.

Defendant contends that he was eligible for compensation for a service-connected disability from World War service and having been so certified by the Commission, he was properly and lawfully entitled to hold and possess the disputed office. Plaintiff contends that in view of defendant's failure to comply with the pertinent provision of R.S. 11:27--1, N.J.S.A., the Commission erroneously placed defendant's name at the top of the list of eligibles certified to the appointing authority; that, in fact, of the first three eligibles, plaintiff was the only one who had presented to the Commission on or before the announced closing date, full and convincing evidence of his disability incurred in line of duty, and that he was entitled, therefore, to preferential treatment under the statute.

The pertinent portion of the statute (R.S. 11:27--1, N.J.S.A.), applicable to the issue here, reads as follows: "Veteran with a record of disability incurred in line of duty' means any veteran as hereinafter defined who is eligible under the United States veterans' bureau qualifications for compensation for service-connected disability from World War service or who is receiving or who is entitled to receive equivalent compensation for service-connected disability arising out of such other military or naval service hereinafter defined, and has presented to the Civil Service Commission of New Jersey full and convincing evidence of such record of disability incurred in line of duty on or before the announced closing date for filing applications for a particular examination.' P.L.1946, p. 837, sec. 3; R.S. 11:27--3, N.J.S.A., directs that preference shall be given to disabled veterans receiving a passing rating in competitive examinations or tests, viz 'Veterans with a record of disability incurred in line of duty, as herein defined in section 11:27--1 of this Title, who shall receive a passing rating in competitive examinations or tests as herein provided for entrance into the public service, shall be placed at the top of the employment list in the order of their respective final ratings.'

The defendant argues that the statute sets up two classes of eligibles: one embracing a veteran who is receiving compensation for a service-connected injury, and the second, one who is entitled to receive such compensation. Dr. Borrella concedes that he was not receiving compensation on the closing date for filing applications, but asserts that he was entitled to receive such benefits and thus comes within the second classification. However, unfortunately for the defendant, under the circumstances here, the applicable statute does not provide that preference be given to a veteran who is merely entitled to such compensation. To obtain the benefit of the statute, the law clearly provides that on or before the announced closing date for filing applications, the applicant must present to the Commission 'full and convincing evidence of such...