For the prosecutor, Robert H. McCarter (Philip J. Schotland and Ferdinand D. Masucci, on the brief).
For the defendant, Thomas M. Kane (Frank A. Boettner, on the brief).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Upon allegations of misconduct, which the departmental head found were sustained by the evidence,
prosecutor was removed from the office of judge of the Third Criminal Court of the city of Newark. Challenging the legality of the ouster, he sued out this certiorari, and now urges that the evidence is insufficient to support the judgment. It seems to be conceded that the power of removal for just cause resides in the director of public safety.
There are three charges of misconduct, variously stated, viz.:
(1) That prosecutor, with intent to cheat and defraud, did, on March 21st, 1934, while holding the mentioned office, falsely represent to one Joseph Galante that he "could obtain for the said Joseph Galante a permit for the use of the Centre Market plaza, * * * property of the city of Newark, for the purpose of selling flowers during the Easter season of the year 1934, and that the cost thereof would be $100," well knowing that a municipal ordinance relating to "transient merchants and itinerant vendors" provided for the granting of such licenses by the director of public safety, and, in such event, the payment by the licensee to the municipality of a fee of $300, and the posting of a bond; as a result of which Galante paid to prosecutor the sum of $100, of which the latter paid $50 to the municipality, and "fraudulently converted to his own use the sum of $50;" and that prosecutor did not apply to the director of public safety for the permit, but secured or caused to be secured a receipt from the department of parks and public property for $50, for rent of space in the Centre Market plaza, which he represented to Galante "to be the proper and sufficient permit or license for the sale of flowers;"
(2) That prosecutor, "contrary to and in violation of" the Motor Vehicle act (Pamph. L. 1921, p. 643, as amended by chapter 171 of the laws of 1931, Pamph. L. 1931, p. 347), released from imprisonment, on the day following their commitment, under a suspension of sentence, two men, Manna and Rutigliano, each of whom had been convicted on December 5th, 1933, upon a complaint charging that Manna, in violation of subdivision 2 of section 10 of the Motor Vehicle act (Pamph. L. 1931, pp. 347, 357), procured Rutigliano to
impersonate him in an examination conducted to determine his fitness to operate a motor vehicle, and committed to jail for a term of thirty days, in default of the payment of a fine of $200; and that he (Villani) untruthfully reported to the commissioner of motor vehicles that each defendant ...