Ratajczak v. Bd. of Educ. of City of Perth Amboy

• Decision Date: 23 June 1937
• Docket Number: No. 8.,8.
• Citation: 118 N.J.Law 311,192 A. 591
• Parties: RATAJCZAK v. BOARD OF EDUCATION OF CITY OF PERTH AMBOY.
• Court: New Jersey Supreme Court

192 A. 591

118 N.J.Law 311

RATAJCZAK

v. BOARD OF EDUCATION OF CITY OF PERTH AMBOY.

No. 8.

Supreme Court of New Jersey.

June 23, 1937.

Syllabus by the Court.

The amended "Act to provide for the recovery of salary by municipal officers or employees illegally dismissed from such office or employment" (P.L.1919, p. 323, c. 149, Comp.St.Supp.1924, § *136—1320B(1) construed as including all cases where dismissal is set aside by a court of competent jurisdiction, whether or not his duties had been performed by a de facto substitute.

Appeal from Court of Common Pleas, Middlesex County.

Action by Edward Ratajczak against the Board of Education of the City of Perth Amboy. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1937, before BROGAN, C. J., and TRENCHARD and PARKER, JJ.

Joseph B. Schwartz, of Perth Amboy, for appellant. John C. Stockel, of Perth Amboy, for respondent.

PARKER, Justice.

The case involves the construction and applicability of chapter 149 of the Laws of 1919 (P.L. p. 323, C.S.Supp.1924, p. 2137, § *136—1320B(1) amending chapter 139 of P.L.1918, p. 322. The first section reads as follows: "Whenever any municipal officer or employee has been or shall be illegally dismissed from such office or employment and the said dismissal has been or shall be set aside as illegal by a court of competent jurisdiction, such officer or employee shall be entitled to recover the salary of such office or employment for the period covered by such illegal dismissal."

The act was held constitutional in State ex rel. Jardot v. Rahway, 127 A. 799, 3 Misc. 201, and no question is now raised on that score.

The plaintiff, who had been employed as a school janitor by the defendant, was dismissed, and another was appointed in his place. He appealed to the commissioner of education, who held the dismissal unlawful and ordered reinstatement. Review of this decision by the State Board of Education, by this court on certiorari (114 N.J.Law, 577, 177 A. 880) and by the Court of Errors and Appeals (116 N.J.Law, 162 183 A. 214), resulted in affirmances all along the line. After demand of ad interim salary and refusal, the present action was brought in the common pleas. The answer admitted all the allegations of fact in the complaint. and set up three special defenses: First, that another had performed the service during the period of exclusion, and had been paid for so doing: second, the same allegation, adding that a payment to plaintiff would involve paying twice for one service: third, the same in another form, that a de jure employee is not entitled to be paid for service that has been performed by a de facto employee. Such, of course, is the general rule at the common law. McDonald v. Newark, 58 N.J.Law, 12, 32 A. 384. The decision of the present case in the pleas rests upon the statute of 1919, which that court construed, and correctly so in our judgment, as intended by the Legislature to change the rule of the common law, and in broad...