Rinaldi v. Mongiello

• Decision Date: 18 May 1949
• Docket Number: No. A--105,A--105
• Citation: 66 A.2d 182,4 N.J.Super. 7
• Parties: RINALDI v. MONGIELLO, Director of Revenue & Finance of City of Hoboken, Hudson County.
• Court: New Jersey Superior Court — Appellate Division

Page 7

4 N.J.Super. 7

66 A.2d 182

RINALDI v. MONGIELLO, Director of Revenue & Finance of City of Hoboken, Hudson County.

No. A--105.

Superior Court of New Jersey, Appellate Division, Part B.

Argued Feb. 7, 1949.

Decided May 18, 1949.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, JJ.

Mr. Albert J. Shea, Hoboken, argued the cause for appellant.

Mr. Nicholas S. Schloeder, Union City, argued the cause for respondent.

The opinion of the Court was delivered by McGEEHAN, Senior Judge.

This appeal is from an interlocutory order entered in the Law Division of the Superior Court in a proceeding in lieu of prerogative writ.

The complaint was filed on October 26, 1948. It alleged that plaintiff was duly appointed City Attorney of Hoboken for three years next succeeding January 1, 1948; on July 14, 1948, defendant, Director of Revenue and Finance of Hoboken, took certain acts purporting to suspend plaintiff from his office as City Attorney, and since then has stopped payment of his salary; on July 29, 1948, defendant served notice of trial of certain charges against the plaintiff and fixed August 6th as the day of trial; these proceedings were stayed by a restraining order of the former Court of Chancery, dated August 5, 1948, and also by a writ of certiorari issued by the former Supreme Court on August 4, 1948, to review the suspension; the Chancery proceeding which was transferred on September 15, 1948, to the Chancery Division of the Superior Court, was dismissed by consent on April 8, 1948 (October 8, 1948), on representation of defendant that the certiorari issued on August 4, 1948, which had been transferred to the Appellate Division of the Superior Court as of September 15, 1948, still operated as a stay; on October 21, 1948, defendant revived the charges and fixed October 27, 1948, for hearing before him. The complaint further alleged that the charges were insufficient in law and constituted an unwarranted and vexatious interference with the performance of plaintiff's duties as City Attorney, and that defendant 'is biased and unable to accord the plaintiff a fair trial.' It asked for the following relief: (a) that the defendant be restrained from further proceeding against the plaintiff as aforesaid; (b) that the said proceedings and charges be declared null and void and the defendant without jurisdiction thereof; (c) that the defendant cause payment to be made to said plaintiff for services rendered as such City Attorney; and (d) for costs. When the complaint was filed, the plaintiff also filed notice of motion for ad interim relief by way of a restraint against the proceedings brought by the defendant against the plaintiff pending the final disposition of the cause before the Superior Court. Defendant then filed a notice of motion to dismiss the complaint on the ground that it failed to state a claim upon which relief might be granted.

On November 15, 1948, the Superior Court Judge entered an order 'that the defendant, Stephen E. Mongiello, be and he is hereby restrained from proceeding on the trial of charges heretofore noticed for October 27, 1948, and mentioned in the complaint filed herein until the final hearing of the cause and the further order of this court,' and 'that the defendant's motion to dismiss the complaint herein for failure to state a claim upon which relief can be granted be and the same is hereby denied.' The defendant's appeal is from both provisions of this order of November 15, 1948.

The first question presented is whether appeal may be taken from this interlocutory order of the Law Division. Under our former practice, appeal did not lie from an interlocutory order of a law court (Lully v. National Surety Co., 106 N.J.L. 81 148 A. 762 E. & A. 1930); but appeal did lie from an interlocutory order of Chancery granting, refusing, sustaining or dissolving an injunction. Morgan v. Rose, 22 N.J.Eq. 583 E. & A. 1871); R.S. 2:29--117, 118, N.J.S.A. Appellant argues that under our new rules, appeal now lies from the restraining part of this interlocutory order by virtue of Rule 4:2--2(a), and from the part refusing to dismiss the complaint by virtue of Rule 4:2--2(c). Rule 4:2--2 in pertinent part provides: 'Appeals may be taken to this court from orders or judgments, whether or not interlocutory: (a) Granting, continuing, modifying, refusing, or dissolving an injunction. * * * (c) Determining that the court has jurisdiction over the subject matter or the person. * * *'

Under the new rules the filing of a complaint in lieu of a prerogative writ carries with it no stay, but provision is made in Rule 3:81--5 for the granting, on motion, of 'ad interim relief by way of stay, restraint or otherwise as justice may require, which relief may be granted by the court with or without terms.' The power granted by this rule goes far beyond the mere power to grant a stay, such as was incident to a writ of certiorari, and among other things empowers the court to command or restrain the doing of any specific act. When the court enters an order under this rule which commands or restrains a specific act, it enters an injunction as that word is used in our rules. That such an order is considered an injunction, is made clear by Rule 3:65--Injunctions,...