Strohmeyer v. Borough of Little Ferry, A--311
| Decision Date | 06 February 1950 |
| Docket Number | No. A--311,A--311 |
| Citation | 6 N.J.Super. 282,71 A.2d 141 |
| Parties | STROHMEYER v. BOROUGH OF LITTLE FERRY. |
| Court | New Jersey Superior Court — Appellate Division |
Alfred W. Kiefer, Hackensack, argued the cause for appellant.
James A. Major, Hackensack, argued the cause for respondent (Joseph H. Gaudielle, Hackensack, attorney).
Before Judges McGEEHAN, COLIE and EASTWOOD.
The opinion of the court was delivered by
COLIE, J.A.D.
Henry Strohmeyer, a member of the police force of the Borough of Little Ferry, was suspended on December 4, 1945 after indictment by a grand jury on a charge of non-feasance. On December 15, 1945 charges were filed and eventually terminated in a dismissal of the charges and his restoration to duty on September 9, 1946. In the meantime, the pending indictment had been nolle prossed. Subsequently, plaintiff sued the Borough to recover salary during the period of his suspension. The trial court struck the complaint and on appeal this action in doing so was affirmed. Strohmeyer v. Borough of Little Ferry, 136 N.J.L. 485, 56 A.2d 885 (E. & A. 1948). The basis of the affirmance was that R.S. 40:46--34, N.J.S.A., gave the right to recover salary for a dismissal declared illegal, but not for a suspension, the court saying: 'Had the legislature also provided for recovery where a police officer was illegally suspended, the appellant's right to recovery in this case would have been clear; but since no such right has been granted we are obliged to find that the ruling of the learned trial Judge in striking the complaint was in all respects proper.' Thereafter the legislature enacted Chapter 395, Laws 1948 R.S. 40:46--34, N.J.S.A., to read: '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 then sued the Borough to recover his salary for the period of his suspension. The Borough filed an answer which, on...
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...591 (Sup.Ct.1937), Bodnar v. Board of Health of Carteret, 15 N.J.Misc. 279, 190 A. 776 (Sup.Ct.1937); Strohmeyer v. Borough of Little Ferry, 6 N.J.Super. 282, 71 A.2d 141 (App.Div.1950); United States v. Andrews, 240 U.S. 90, 36 S.Ct. 349, 60 L.Ed. 541 Therefore, where the statutory salary ......
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