Mcalpine v. City Of Garfield.

• Citation: 55 A.2d 666
• Parties: McALPINE v. CITY OF GARFIELD.
• Decision Date: 05 November 1947
• Court: New Jersey Circuit Court

55 A.2d 666

McALPINE

v.CITY OF GARFIELD.

Circuit Court of New Jersey, Bergen County.

Nov. 5, 1947.

Action by James McAlpine against the City of Garfield, Bergen County, to recover compensation due because of illegal dismissal from employment as water plant superintendent. On motion to strike the answer and for summary judgment.

Order in accordance with opinion.

Richard J. Baker, of Garfield, and Warren Dixon, Jr., of Hackensack, for plaintiff.

Chandless, Weller, Kramer & Frank, of Hackensack, for defendant.

LEYDEN, Circuit Court Judge.

James McAlpine sues for the compensation he would have received had he not been illegally dismissed from his employment as water plant superintendent of the City of Garfield. The answer consists of denials seriatim of the allegations of the complaint and separate defenses, variously stated, to the effect that the plaintiff was never lawfully appointed to or held any office, position or employment in the service of the City of Garfield. The denials are attacked as sham and the defenses as insufficient in law. The matters raised by these defenses are put in issue by the denial of the allegations of employment contained in the complaint. The separate defenses are merely reiterations of the denials. They do not raise any affirmative defensive matter not arising on the face of the complaint which would be likely to cause surprise on the trial if not pleaded. They are unnecessary and improper and will be stricken as insufficent in law. Save for the question of whether the plaintiff ever held any office, position or employment in the service of the city, the facts are not in dispute.

The plaintiff was an employe of the city in connection with the operation of the water plant and distribution system owned by it on August 23, 1921, when the city adopted an ordinance establishing the Board of Water Works Commissioners and defining their duties and compensation. This ordinance placed the supervision of the water plant and the employment of such help as may be needed to its efficient operation and maintenance in the Board thereby created. The plaintiff has worked for the city in and about the operation and maintenance of its water plant from that time, or prior thereto, until January 1, 1945, when he was dismissed as the superintendent of the water plant. There is no denial that the plaintiff so worked and that he was paid compensation by the city for his labors during that period of time.

As a result of an investigation by two members of the Garfield Water Commission, a successor agency, the plaintiff was suspended from his duties as water plant superintendent on September 16, 1944. He was served with formal charges alleging that he failed to discharge his responsibilities and was given a notice of hearing of such charges, which hearing was held on November 2, 1944, and continued from time to time until December 13, 1944, when the Commission found him guilty of sixteen of the twenty specifications and dismissed him from his employment. The Water Commission, an agency of the City of Garfield, in taking the course which it did, recognized the plaintiff as the water plant superintendent and further recognized that he had tenure of employment by virtue of R.S. 58:11-18.7, N.J.S.A.

The plaintiff, by certiorari, reviewed the resolution of the Commission dismissing him and his discharge was upheld in the Supreme Court; see McAlpine v. Garfield Water Commission, 134 N.J.L. 432, 48 A.2d 783. In that proceeding it was stipulated by the attorneys for the parties that McAlpine ‘was employed by the Water Plant Commission of the City of Garfield as Water Plant Superintendent in 1924, having previously served the City of Garfield from 1914 to 1924 as operator and foreman in the Water Department, and enjoys tenure of office by virtue of P.L. 1941, Chapter 234, p. 654 (R.S. 1937, Title 58:11-18.7, N.J.S.A.).’ The Supreme Court in its opinion, undoubtedly as a result of this stipulation, took the view that the plaintiff occupied the office of water plant superintendent and had tenure. If, as is now contended, the plaintiff never held any office, position or employment in the service of the city of Garfield, that defense could and should have been raised in the hearing of the writ.

The judgment of the Supreme Court dismissing the writ was reversed by the Court of Errors and Appeals upon the ground that the plaintiff was not accorded a fair and impartial hearing. See McAlpine v. Garfield Water Commission, 135 N.J.L. 497, 52 A.2d 759. It is safe to say that again the court assumed that the plaintiff held either an office or a position in the service of the city. In any event, the illegality of his dismissal was judicially determined. Thus is brought into play the statute, R.S. 40:46-34, N.J.S.A., providing that whenever a municipal officer or employe has been illegally dismissed from his office or employment, and such dismissal has been judicially declared...