Devlin v. City of Trenton
| Decision Date | 01 May 1941 |
| Docket Number | No. 41.,41. |
| Citation | 126 N.J.L. 563,19 A.2d 812 |
| Parties | DEVLIN v. CITY OF TRENTON. |
| Court | New Jersey Supreme Court |
Appeal from Circuit Court, Mercer County.
Action by Martin P. Devlin, Jr., against the City of Trenton, a municipal corporation, for salary alleged to be due plaintiff as a police judge. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Frank I. Casey, of Trenton, for plaintiff-appellee.
Louis Josephson, of Trenton, for defendant-appellant.
This is the defendant's appeal from a judgment of the Mercer County Circuit Court entered after the answer filed by the defendant, City of Trenton, was stricken out. The court considered the answer as frivolous and that it "failed to show such facts to entitle it to defend."
The plaintiff, a justice of the police court of the City of Trenton, sued the defendant municipality for salary due him as police judge of that city for a period commencing June 8, 1939, and ending February 5, 1940. For that period of time—eight months—the plaintiff contended he was "illegally dismissed and excluded from performing the duties of that office," having been supplanted therein by Albert Cooper, Jr., who was appointed to the office by the Mayor of the municipality. Judge Devlin had been duly appointed to the police court office while the City of Trenton was under the commission form of government. On referendum the people of Trenton adopted the manager form of government and the Mayor, considering that Devlin's term of office, though it had not yet expired, was nevertheless ended by the change in the form of government, appointed Mr. Cooper to the office held by Devlin. The plaintiff, by quo warranto, obtained judgment of ouster against the said Cooper (Devlin v. Cooper, 124 N.J.L. 155, 11 A.2d 29, affirmed 125 N J.L. 414, 15 A.2d 630). This was alleged in the complaint and admitted in the answer. In the meantime Cooper was paid the salary attaching to the office in question. It was decided in these cases (Devlin v. Cooper, supra) that Judge Devlin was in the unclassified service of a city operating under Civil Service and that his right to that office for his term was secure against termination even though the form of government changed over as it did here from the "commission" to the "manager" form of government.
The right of the plaintiff to recover his salary for the time between his dismissal and his reinstatement we consider settled by the statute, which provides as follows: "Whenever a municipal officer or employee * * * has been or shall be illegally dismissed from his office or employment, and such dismissal has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal." R.S. 40:46-34, N.J.S.A. 40:46-34. That statute is controlling on the law; the facts surrounding Judge Devlin's dismissal are not in dispute. He was a municipal employee; he was dismissed, and the Supreme Court, in the case referred to, judicially declared the dismissal illegal, which judgment was affirmed by this court. The appellant says that that statute "is not...
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...56 A.2d 885 (E. & A.1948); Pollak v. Borough of Wallington, 37 A.2d 424, 22 N.J.Misc. 239 (D.Ct.1944). Cf. Devlin v. City of Trenton, 126 N.J.L. 563, 19 A.2d 812 (E. & A.1941); Hart v. Borough of Hawthorne, 120 N.J.L. 27, 197 A. 891 (Sup.Ct.1938), affirmed 121 N.J.L. 135, 1 A.2d 416 (E. & A......
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...for back salary can be had, there must be a 'judicial determination' of the illegality of the suspension. Cf. Devlin v. Trenton, 126 N.J.L. 563, 19 A.2d 812 (1941); Strohmeyer v. Little Ferry, 6 N.J.Super. 282, 71 A.2d 141 (App.Div.1950); Rozmierski v. Newark, 42 N.J.Super. 14, 125 A.2d 747......
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