Long v. Board of Chosen Freeholders of Hudson County

• Decision Date: 20 October 1952
• Docket Number: No. A--4,A--4
• Citation: 91 A.2d 724,10 N.J. 380
• Parties: LONG et al. v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

Page 380

10 N.J. 380

91 A.2d 724

LONG et al. v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 22, 1952.

Decided Oct. 20, 1952.

Frederick J. Gassert, Newark, argued the cause for the appellant (Daniel T. O'Regan, Jersey City, attorney).

Thomas J. Brogan, Jersey City, argued the cause for the respondent (Isadore Glauberman, Jersey City, of counsel; Louis Steisel, Jersey City, attorney).

The opinion of the court was delivered by

BURLING, J.

The plaintiffs in this case instituted against the defendant Board of Chosen Freeholders of the County of Hudson (hereinafter referred to as Hudson County) in the Hudson County Court an action to recover unpaid municipal employees' salaries. At the conclusion of testimony at the trial the defendant moved for judgment on the ground of waiver as a matter of law. The trial court granted the motion and entered judgment for the defendant. The plaintiffs' perfected an appeal to the Superior Court, Appellate Division, which court reversed the judgment. Long v. Bd. of Chosen Freeholders of the County of Hudson, 16 N.J.Super. 448, 84 A.2d 765 (App.Div.1951). Hudson County thereupon petitioned this court for certification, which was allowed. 9 N.J. 179, 87 A.2d 387 (1952).

The facts are not in dispute. The claims involved are for salary alleged to be due under the provisions of L. 1938, c. 54 (N.J.S.A. 40:21--80, now incorporated in N.J.S.A. 30:8--13.1) which became effective March 30, 1938. This statute provided as follows:

'Be It Enacted by the Senate and General Assembly of the State of New Jersey:

'1. In all counties of the first class in this State the guards, keepers and industrial officers employed in the jails, houses of detention and penitentiaries shall receive the minimum compensation of two thousand dollars ($2000.00) per annum and the maximum compensation of three thousand dollars ($3,000.00) per annum. The salaries of such employees hereafter appointed shall commence at said minimum and shall be increased two hundred dollars ($200.00) per annum for each year of service thereafter, not to exceed the masimum herein established. All such employees now in service shall on July first following the passage of this act be entitled to receive an increase of two hundred dollars ($200.00) over his or her present salary and on July first in each year thereafter shall be entitled to a further increase of two hundred dollars ($200.00), not to exceed the maximum herein established.

'2. All acts or parts of acts inconconsistent herewith be and the same are hereby repealed and this act shall take effect immediately.'

On the effective date of the foregoing statute the plaintiffs' intestates, Daniel S. Long and Thomas Francis Lane, were in the employ of Hudson County as jail guards at the Hudson County jail, each at an annual salary of $2,200. These salaries remained unchanged until June 1, 1944, at which time they were increased to $2,600 per annum. A further increase to the statutory maximum of $3,000, per annum, became effective on January 1, 1945. In the interim, I.e., between March 30, 1938 and June, 1944 no provision for the payment of the statutory salary increments was made by Hudson County. Neither Long nor Lane made any demand upon the defendant for the statutory salary increases, but on the contrary signed payrolls and accepted and endorsed salary checks based on the rate of $2,200 per annum.

Prior to June, 1944, an attorney was retained to represent all the jail guards of Hudson County with regard to their respective demands for the statutory salary increments. Acting upon this attorney's advice, Long and Lane, the guards here in question, in concert with other county jail guards, (one testified he signed only the receipt and not the waiver) on June 1, 1944 signed an instrument which contained the following pertinent language:

'We, the undersigned, guards, keepers and industrial employees or officers employed in the jail, house of detention and penitentiary of the County of Hudson claiming to be entitled to salary according to the schedules provided in R.S. 40:21--80 (Laws of 1938 Chapter 54, page 150, as amended, Laws of 1940, Chapter 134, page 292, in order to reach the maximum salaries thereby provided, having agreed that our present rates of salary shall be increased as of June 1, 1944, to $2600.00 and shall be further increased on the 1st day of January 1945, to $3000.00 in consideration of the payment of wages thus increased, and in consideration of our respective signatures hereto, do hereby expressly waive any and all claims and demands whatsoever which we or any of us might have in and to any other compensation or wages which would otherwise accrue to us prior to or after June 1, 1944, under the provisions of said statute.'

and:

'We * * * do hereby acknowledge the receipt from the Board of Chosen Freeholders of Hudson County, of the sum of money set opposite our several names as full payment of the amount of money due to us for services rendered to the County of Hudson in our respective positions or offices of employment from the 1st day of June, 1944, to the 31st day of August, 1944.'

The board of chosen freeholders thereupon on June 8, 1944 by resolution effected the salary increases above set forth. It appears from the payroll list incorporated in said resolution that all of the underkeepers, guards and orderlies would have been entitled to have their respective salaries increased to the statutory maximum as of July 1, 1944, had the provisions of the statute been fully complied with.

No legal action was instituted by Long and Lane during their respective lifetimes, nor by the plaintiffs, as their personal representatives after their respective deaths (Long died July 27, 1946 and his widow qualified as administratrix on August 2, 1946; Lane died January 14, 1949 and his widow qualified as administratrix on June 14, 1949) until the filing of the complaint in this cause in August, 1949 by the latter. The action was commenced by four plaintiffs, sub nom. Miller v. Bd. of Chosen Freeholders in the Hudson County Court (Docket No. 56615). The trial court ordered a severance and directed the two other plaintiffs to file a new complaint. See our opinion, filed concurrently herewith, in Miller v. Bd. of Chosen Freeholders of the County of Hudson, 16 N.J.Super. 457, 84 A.2d 746 (App.Div.1951), reversed 10 N.J. 398, 91 A.2d 729 (1952). Long's administratrix and Lane's administratrix prosecuted the original action. In this action (from which the present appeal stems) defenses asserted by Hudson County included laches, the bar of the six-year statute of limitation (R.S. 2:24--1, N.J.S.A.) and waiver by estoppel as well as the defense of waiver based upon the writing, hereinabove quoted, signed by the plaintiffs' intestates on June 1, 1944. The proceedings at the trial were unorthodox. The parties stipulated that the motions, arguments and rulings thereon made in the Miller case, supra, be included in the record as if made in the present case. These included Hudson County's motions for judgment on the ground that plaintiffs' claims were barred by the six-year statute of limitation and on the grounds of laches, estoppel and waiver. The defendant's motions were denied. The plaintiffs in the Miller case moved to strike all the defendant's special defenses except that of waiver, which they admitted was sufficient in law; the special defenses were stricken, except for waiver, which the trial court permitted to go to the jury.

In addition in the present case Hudson County moved for judgment on the ground that the written instrument of June 1, 1944 was an enforceable express waiver.

In the present case, therefore, we find the record in this posture: Hudson County moved for judgment at the trial at the close of the plaintiffs' case on the following grounds: the bar of the six-year statute of limitation, laches, estoppel, waiver by estoppel and express waiver; the trial court denied the defendant's motions, with the exception of the motion grounded on the express written waiver of June 1, 1944. This the trial court held to constitute an express written waiver based on Valuable consideration, namely the mutual signatures of the county employees who signed the instrument, and in reliance thereon granted the defendant's motion for judgment. Judgment was entered for the defendant.

The plaintiffs appealed to the Superior Court, Appellate Division, asserting that the judgment of the trial court should be reversed on the ground that an express written waiver must be supported by valuable consideration, and that no such consideration exists in this case for the waiver of June 1, 1944. The Appellate Division deemed this to be the law of the case and reversed the judgment. 16 N.J.Super. 448, et seq., 84 A.2d 765. It also held that as a matter of law waiver by estoppel was not proved.

Upon the entry of judgment of reversal in the Superior Court, Appellate Division, the defendant petitioned this court for certification, asserting specifically its defenses of express waiver and waiver by estoppel and also asserting here its defenses in the Miller case, supra, as grounds for reversal of the Appellate Division judgment. The petition for certification was granted, 9 N.J. 179, 87 A.2d 387, as hereinbefore stated and this appeal results.

The defendant's stated question involved on this appeal is 'Have the claims asserted been waived?' And its argument is in two categories: firstly, that there was sufficient consideration ...