Waldor v. Untermann

Citation76 A.2d 906,10 N.J.Super. 188
Decision Date29 November 1950
Docket NumberNo. A--447,A--447
CourtNew Jersey Superior Court – Appellate Division

Page 188

10 N.J.Super. 188
76 A.2d 906

No. A--447.
Superior Court of New Jersey
Appellate Division.
Argued Nov. 13, 1950.
Decided Nov. 29, 1950.

Page 189

[76 A.2d 907] Julius Kass, New York City, argued the cause for the appellant (Jacob H. Bernstein, Perth Amboy, attorney).

Raymond C. Connell, Montclair, argued the cause for the respondent.


The opinion of the court was delivered by


This is an appeal from a judgment entered in the Law Division which determined that the defendant was not lawfully appointed to the office of member of the Board of Education of the City of Newark and directed his ouster.

The plaintiff, as a taxpayer of the City of Newark, filed a complaint pursuant to Rule 3:81--2 which alleged that, on or about July 1, 1949 the defendant was appointed as a member of the Board of Education of the City of Newark and thereafter assumed and continued to occupy the office although he had not met the residence requirement of R.S. 18:6--8, N.J.S.A., and

Page 190

sought his ouster. Affidavits attached to the complaint set forth that the defendant had not been a resident of the City of Newark for a period of three years preceding his appointment, maintained his home in the Township of Maplewood, was registered to vote as a resident of that Township until March, 1949, and voted in that Township in the general elections for the years 1946 through 1948.

Following the filing of the complaint the Law Division issued an order to show cause why the defendant should not be enjoined from carrying on the duties of member of the Board of Education. Thereupon the defendant served notice of motion to dismiss the complaint on the ground that the court lacked jurisdiction because the 'plaintiff had failed to exhaust his remedies before the Commissioner of Education and the State Board of Education as required by the statutes of New Jersey in such case made and provided.' See R.S. 18:3--14, N.J.S.A. When the order to show cause and the motion to dismiss came on for argument before Judge Colie the parties entered into an oral stipulation that the court may render final judgment thereon. We take this stipulation, as did Judge Colie, to have been intended as an agreement authorizing the court to dispose of the matter on the papers before it and the arguments of counsel with like effect as if trial had been had and completed. The defendant filed no affidavits whatever in opposition to those asserting that he was not a qualified resident of the City of Newark and the Law Division's finding on this factual issue was justified upon the record before it. Cf. Taub v. Taub, 9 N.J.Super. 219, 75 A.2d 822 (App.Div.1950). The sole legal contention raised by the defendant before the Law Division was that there was a lack of jurisdiction because of the plaintiff's failure to exhaust his administrative remedies; this contention was found to be without merit. See Waldor v. Untermann, 7 N.J.Super. 605, 72 A.2d 342 (Law Div.1950). Before this court the appellant has renewed this contention as his first and primary point on appeal.

The rule that administrative remedies must ordinarily be exhausted before resort is had to the courts has long

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29 cases
  • Laba v. Board of Educ. of Newark
    • United States
    • United States State Supreme Court (New Jersey)
    • 4 Febrero 1957
    ...preliminary procedural points. See Appeal of Pennsylvania Railroad Co., 20 N.J. 398, 120 A.2d 94 (1956); Waldor v. Untermann, 10 N.J.Super. 188, 76 A.2d 906 (App.Div.1950). Dr. Lowenstein received his B.A. degree from Rutgers University in 1928, his M.A. from the University of Pennsylvania ......
  • Jorgensen v. Pennsylvania R. Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • 20 Enero 1958
    ...632 (Sup.Ct.1942); Draper v. Comm'rs of Public Instruction, 66 N.J.L. 54, 55, 48 A. 556 (Sup.Ct.1901). Cf. Waldor v. Untermann, 10 N.J.Super. 188, 191, 76 A.2d 906 (App.Div.1950). It has been applied to cases arising under the Civil Service Act where employees claimed to have been illegally......
  • Central R. Co. of N. J. v. Neeld
    • United States
    • United States State Supreme Court (New Jersey)
    • 17 Febrero 1958
    ...v. Keenan, 3 N.J. 298, 302, 70 A.2d 77 (1949); Nolan v. Fitzpatrick, 9 N.J. 477, 484, 89 A.2d 13 (1952); Waldor v. Untermann, 10 N.J.Super. 188, 190, 76 A.2d 906 (App.Div.1950). In the federal sphere the doctrine has been said to date back to the advent of the Interstate Commerce Commission......
  • Rogers v. American Can Company, 13493-13495.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 15 Junio 1962
    ...the general body of stockholders is not absolute and will readily give way in the interests of justice. Cf. Waldor v. Untermann, 10 N.J.Super. 188, 191, 76 A.2d 906 (App.Div.1950). Thus, resort to the general body of stockholders would be unnecessary where it would jeopardize the cause of a......
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