Harper v. Atl. City.
| Citation | 38 A.2d 874 |
| Parties | HARPER et al. v. ATLANTIC CITY. |
| Decision Date | 03 August 1944 |
| Court | United States State Supreme Court (New Jersey) |
OPINION TEXT STARTS HERE
Action by William E. Harper and others against the City of Atlantic City to recover the balance of salary and interest alleged to be due plaintiffs for service performed by them as firemen during the years 1932 to 1941, both inclusive. On motion to strike portions of complaint and for oral testimony in opposition thereto.
Orders in accordance with opinion.
W. Elmer Brown, of Atlantic City, for plaintiffs.
Samuel Backer, of Atlantic City, for defendant.
BURLING, Supreme Court Commissioner.
William E. Harper and one hundred and eighty-three other plaintiffs have brought suit against the defendant to recover the balance of salary and interest alleged to be due them for services performed as firemen during the years 1932 to 1941, both inclusive.
The complaint contains one hundred and eighty-four separate counts (one for each plaintiff) each in substantially the same form.
The theory and substantive law of this class of actions has been explored in much recent litigation as an aftermath of the depression and recession, prior to the activity due to the present world war. For instance, Vander Burgh v. Bergen County, Err. & App., 1938, 120 N.J.L. 444, 200 A. 561; Orlando v. Camden County, Err. & App., 1938, 121 N.J.L. 46, 1 A.2d 943; Van Houghten v. City of Englewood, Sup., 1940, 124 N.J.L. 425, 12 A.2d 668; Borz v. City of Camden, Err. & App., 1937, 119 N.J.L. 17, 194 A. 66; Hopkins v. City of Passaic, Sup., 1940, 125 N.J.L. 379, 16 A.2d 63; Kriser v. Board of Education of City of Trenton, Sup., 1939, 122 N.J.L. 323, 5 A.2d 466; Goldberger v. City of Perth Amboy, Sup., 1938, 197 A. 267, 16 N.J.Misc. 84; Harley v. Passaic County, Err. & App., 1938, 121 N.J.L. 44, 1 A.2d 454.
This is a motion for an order striking out that portion of each count of the complaint which makes claim or demand for interest on the amounts allegedly due each plaintiff upon the following grounds:
1. The complaint or demand for interest is frivolous.
2. The complaint or demand for interest is sham.
3. The complaint does not allege a cause of action by virtue of which interest can be recovered.
4. The complaint does not allege such facts as to entitle the plaintiffs to interest against the defendant, a municipal corporation.
5. The complaint does not set forth that a proper demand was made by or on behalf of the plaintiffs for payment of the sum or sums allegedly due the plaintiff, or that the defendant agreed to pay interest thereon, and hence the plaintiffs are not entitled to interest.
6. No demand or request was ever made by or on behalf of the plaintiffs, or any of them, upon the defendant, or its proper official or officials for payment of the debts or amounts allegedly due the said plaintiffs, and hence interest does not accrue upon the same.
7. The plaintiffs did not, at any time, present a detailed verified bill of the items or demands set forth in the complaint specifying particularly how the bill or demand was made up, and hence interest does not accrue.
8. The claims against the defendant set forth in the said complaint were never presented to the Mayor of the City of Atlantic for his approval or disapproval and hence interest does not accrue.
9. The City of Atlantic City never agreed to pay interest to the plaintiffs on the sums claimed by them, or otherwise, and hence they are not entitled to interest.
These may be classified and disposed of in three categories:
One-Comprising Reasons 1, 3, 4, and 5.
These attack the complaint upon the ground that it is insufficient in law.
Two-Reasons 2 and 6.
Resort is made to the provisions of Supreme Court Rule 85, N.J.S.A. Tit. 2, and the adopted practice incident to motions to strike defenses defined by Supreme Court Rules 80 to 84, inclusive, upon the ground that the demand for interest is sham.
Three-Reasons 7, 8 and 9.
These appear not to be within either of the above categories, but the information therein alleged is the subject matter of plea and not for attack by way of affidavit or other proof. Standard Radio Corp. v. Triangle Radio Tubes, Inc., Sup., 1940, 125 N.J.L. 131, at page 134, 14 A.2d 763, at page 765; Faitoute Iron & Steel Co. v. City of Asbury Park, Err. & App., 1941, 127 N.J.L. 239, at page 241, 21 A.2d 796, at page 798.
In support of the motion, affidavits were submitted among which was the affidavit of Bessie M. Townsend, Comptroller of the defendant. Subsequent to the argument of this motion, a subordinate motion was made to take oral testimony of the said Bessie M. Townsend, to enlarge upon the facts set forth in her affidavit, it being asserted that the cause of said application was the result of disagreement between opposing counsel as to certain facts which were to have been the subject matter of stipulation for use in the primary motion and her anticipated refusal to make further affidavit upon advice of defendant's counsel.
Both motions will be disposed of in this memorandum.
A-Principal Motion. This motion will be granted for the reasons assigned in category one of the grounds.
The substantive law is that no liability arises for interest against a municipal corporation until demand has been made for its payment unless it is otherwise agreed. Hudson County Nat. Bank v. City of Bayonne, Sup., 1934, 113 N.J.L. 258, at page 264, 174 A. 241, at page 243; Naar v. Inhabitants of City of Trenton, Sup., 1880, 42 N.J.L. 500.
It has been argued that such doctrine does not apply where a salary has been fixed. The principle of the necessity for a demand was applied in the case of Harley v. County of Passaic, Sup., 1937, 194 A. 298, at page 302, 15 N.J.Misc. 641, at page 650, wherein the plaintiff was a Common Pleas Judge of this State. This case was reversed upon other grounds, Err. & App., 1938, 121 N.J.L. 44, 1 A.2d 454.
One of the leading cases cited in treatises dealing with this subject is that of Smith v. Board of Education of New York City, 208 N.Y. 84, 101 N.E. 791, Ann.Cas.1914D, 406. This case involved the salary of an architectural draftsman in the Department of Education of the City of New York. The Court laid down the rule which is cited in 19 R.C.L. 1049 and in Hudson County National Bank v. Bayonne, supra. However, the minority opinion in that case advanced the argument of the futility of the necessity for demand to provoke the rule.
But the trend of New Jersey decisions seems to make the demand the gist of the action for interest where no agreement (as in this case) to pay interest is alleged in the complaint. Therefore for the purpose of this motion, assuming the principal to be due, the element which causes the action to arise for interest is the demand. This is contrast to the right to compensation from a municipality for salary itself wherein the presentation of the claim does not ‘create’ the cause of action. In such case the cause of action exists already-it does not spring into being upon demand and refusal.
At common law the attack under these reasons would be in the nature of a general demurrer. While demurrers are abolished the motion provided for by Supreme Court Rule No. 40 is substituted, yet the principles of common law method of pleading are essentially followed. Lully v. National Surety Co., Err. & App., 1929, 106 N.J.L. 81, at page 83, 148 A. 762, at page 763; Savage v. Public Service R. Co., Err. & App., 1920, 95 N.J.L. 432, 113 A. 252; Campbell v. Pure Oil Co., Sup., 1937, 194 A. 873, 15 N.J.Misc. 723.
Accordingly for the purpose of this motion, the defendant admits the truth of all facts well pleaded in...
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