On appeal by defendant from a judgment rendered by the trial judge of Passaic District Court, sitting without a jury, in favor of the plaintiff. Affirmed.
For the appellant, Harry L. Schoen.
For the appellee, Milton Schamach.
The opinion of the court was delivered by
PERSKIE, J. The plaintiff sued for salary for the period December 15th, 1932, to January 4th, 1933, amounting to $208.30. The complaint was made up of two counts. The first was for the salary alleged to be due to the plaintiff for the aforementioned period, at the agreed salary of $4,000 a year, and the second was on a quantum meruit for a like amount.
The record discloses that on August 19th, 1931, plaintiff was appointed superintendent and sealer of weights and
measures of Passaic county, apparently for an indefinite term, or at least the term is not made to appear, at the yearly salary of $4,000. The position held by the plaintiff is classified under our civil service laws. In April or May of 1932 an examination for the position was held and the certification of three names, all veterans, two disabled, was forwarded to defendant. The plaintiff's name was not among those certified although he was number one on the list on merit. He is not an ex-service man. In this certificate the civil service commission advised the clerk of the defendant board that the pay of the plaintiff, as a temporary incumbent, would be withheld after September 22d. Despite this the plaintiff continued working and received pay on November 1st, 1932, and thereafter was likewise paid up to December 15th, 1932. The commission approved the pay up to November 1st, 1932. But the defendant paid plaintiff, as indicated, up to December 15th, 1932. Thereafter, February 11th, 1933, the clerk of the defendant board wrote to the secretary of the civil service commission inquiring whether it had approved the services of the plaintiff from December 15th, 1932, to January 4th, 1933, and further inquired whether the plaintiff's salary for the period in question should be paid. The secretary of the commission replied that the commission directed him to advise the defendant that in view of the fact that plaintiff worked during this time (i.e., December 15th, 1932, to January 4th, 1933), the commission would pass the pay-roll when presented for the time indicated. No such actual approval, however, is made to appear.
The plaintiff was not advised, at least not prior to January 4th, 1933, officially or unofficially, that his services were no longer required. The board took no formal action. Moreover, it continued to pay him his salary, as already indicated, up to December 15th, 1932.
The defense urged, in substance, is that the appropriation for plaintiff's salary was exhausted and that since he worked knowing that fact he was a mere volunteer and therefore could not, in either event, recover. We do not think this is so.
This court, in the case of Ringleben v. City of Long Branch,
11 N.J. Mis. R. 391; 166 A. 470, held the burden of proving that there was no appropriation from which the plaintiff could be paid, and, if in fact there ...