McGrath v. Jersey City

• Citation: 175 A.2d 278,70 N.J.Super. 143
• Decision Date: 03 November 1961
• Docket Number: No. L--18891,L--18891
• Parties: James P. McGRATH, Plaintiff, v. JERSEY CITY, a municipal corporation of the State of New Jersey, Defendant.
• Court: Superior Court of New Jersey

Page 143

70 N.J.Super. 143

175 A.2d 278

James P. McGRATH, Plaintiff, v. JERSEY CITY, a municipal corporation of the State of New Jersey, Defendant.

No. L--18891.

Superior Court of New Jersey, Law Division.

Nov. 3, 1961.

Philip J. Mylod, Newark, for plaintiff (Mylod & Mylod, Newark, attorneys).

Joseph G. Mintz, Jersey City, for defendant (Ezra L. Nolan, Jersey City, attorney).

PINDAR, J.S.C.

The complaint in this case seeks to recover back salary for a period from April 3, 1959 to June 23, 1961, inclusive, calculated at $15,544, plus lawful interest thereon to date.

Previously plaintiff was employed as a plumber by the defendant city, and such municipal position had the benefit of Civil Service protection. On April 3, 1959 plaintiff was discharged for reasons of 'economy and without prejudice.' Thereafter, through administrative proceedings and an Appellate Division appeal, plaintiff was ordered reinstated to his position, but this was not accomplished until the aforesaid date of June 23, 1961. He has since continued in his employment and therefore no issue is raised as to his salary after that date.

By answer filed, defendant admits the controlling factual circumstances concerning he discharge and restoration, but by way of separate defenses avers the right of defendant to receive credit, in the manner of mitigation, of the amount claimed for earnings received by plaintiff since April 3, 1959, or for any income he could have realized within the period for which back salary is claimed.

Now, plaintiff, on notice of motion, seeks the entry of a summary judgment under R.R. 4:58--3 and defendant moves for more specific answers to certain interrogatories under R.R. 4:23--5. Although not formally sought, counsel for plaintiff and defendant argued a converse motion to strike certain of the interrogatories, as provided in R.R. 4:23--8. In the light of the conclusions to be stated hereafter, I have first considered defendant's motion.

The questioned interrogatories are designated 4 to 19 inclusive. Except for numbers 10 and 19, which will be stricken as irrelevant, the other interrogatories are directed to a comparable question, to wit: defendant's right to be informed, for the desirable use of mitigation in this action, as to what were plaintiff's earnings, or what his income was, either actual or probable, for the stated period of 26 months and 20 days (April 3, 1959 to June 23, 1961).

It will be noticed that if the aforementioned effort to procure a record of plaintiff's monetary gains is upheld, the asserted right to have summary judgment cannot be granted and the issue, under a probable dispute of material fact, will be continued for a plenary trial. On the other hand, in the event it is held that no lawful right to mitigate exists, a final summary judgment will be entered.

Plaintiff's claim is qualified by the provision of N.J.S.A. 40:46--34, to which he has conformed. This statute is quoted in full:

'Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension 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 or suspension; provided, that a written application therefor shall be filed with the clerk of the municipality within thirty days after such judicial determination, unless such determination was made prior to the effective date of this act, in which case such application shall be filed within six months after the effective date of this act.'

Plaintiff, with reliance thereon, cites the case of D'Elia v. Jersey City, 57 N.J.Super. 466, 155 A.2d 13 (App.Div.1959). In that case the court, in an opinion by Judge Foley, produced an illuminating review of the precedent rulings which have dealt with the Legislature's expressed policy, and at page 469 of 57 N.J.Super. at page 15 of 155 A.2d quoted from the opinion of our Supreme Court in DeMarco v. Board of Chosen Freeholders of Bergen County, 21 N.J. 136, 143--144, 121 A.2d 396 (1956), as follows:

'While such legislation would tend to satisfy the individual interests involved it would admittedly do so by placing upon the public the burden of expenditures for salaries without corresponding services. If other officers are appointed during the period of suspension duality of payments may result and if the suspended officers engaged in private work during their suspensions they may be enabled to receive double compensation. The conflicting policy considerations are socially important and far reaching and the proper course to be carefully chosen and ultimately followed will rest with the Legislature rather than with the courts.'

On the other hand, defendant, while conceding the aforementioned status of that judicial holding, presumes to seek Sub judice a ruling which would in effect overrule, if not reverse, the aforementioned appellate holding and in this assumed manner adopt a means to minimize plaintiff's recovery afforded by the statute. But should this proposed reduction be credited in the light of unequivocal prevailing statutory relief? I think not.

Clear significance must be given to the utter fact that plaintiff herein, as a municipal employee, comes directly within the legislative grant. The court here is not called upon, in any way, to establish a different policy merely because there has been no similar legislative expression in the case of county or state employees. See DeMarco v. Board of Chosen Freeholders of Bergen County, supra, 21 N.J. 136, 121 A.2d 396 (1956); also Lowenstein v. Newark Board of Education, 35 N.J. 94, 171 A.2d 265 (1961).

Notwithstanding the foregoing, counsel for defendant stresses that the court should apply cautious consideration to the recent opinion in Lowenstein v. Newark Board of Education, supra, as support for a...