For the plaintiff-respondent, LeRoy Vander Burgh, pro se.
For the defendant-appellant, Walter G. Winne.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment for the plaintiff entered in the Bergen County Circuit Court upon the striking of the answer as "sham and frivolous." We observe no reason for condemning the answer as sham. Whether it is frivolous or not depends upon the applicability of the legal principles which it seeks to invoke.
The complaint alleges that plaintiff was, until May 20th, 1937, the judge of the District Court of the First Judicial District of the county of Bergen and as such was entitled to receive, including the sum of $600 as judge of the Small Claims Division, the statutory salary of $4,100 a year payable by the county treasurer, on the order of the board of chosen freeholders, in equal half-monthly payments, that the salary for the years 1933 to 1936, inclusive, and for the month of January, 1937, computed on that basis, amounted to $17,141.66, that the amounts ordered by the board to be paid, and which were paid, fell short of that total by $2,575, and that the suit was to recover the last mentioned sum, with interest and costs.
The answer denied that the plaintiff was entitled to receive the sum sued for or any sum beyond the moneys already paid. To the answer was appended, as a part thereof, four separate defenses which may be briefly stated as follows: The first formally asserted that plaintiff had been paid the salary to which he was entitled by law. The second set out at length an agreement, which will be more fully recited infra, made by the plaintiff with the board. The third pleaded chapter
17, Pamph. L. 1933 expiring by its terms on January 1st, 1934, but given successive extensions to January 31st, 1937; also resolutions by the board, acting under those statutes, fixing plaintiff's salary at the sums actually paid. The fourth asserts that the county treasurer made half-monthly payments in pro rata amounts in accordance with the schedule so fixed and that the plaintiff, before receiving each check, signed his name in receipt thereof upon the certified payroll in manner hereinafter set forth and, being given the checks, accepted and cashed them; and that the plaintiff's continuance in office was an assent to the reduction of his salary and his receipt of the checks and his signing of the certified payrolls throughout his whole term of office are an estoppel against now claiming additional compensation.
The proofs submitted by plaintiff on the motion to strike were not in substantial variance with the pleadings. There is before us, also, a stipulation which recites that the payments made as aforesaid were upon the certification of the Civil Service Commission after certification by the plaintiff in the following language:
"I hereby certify that all names in the within payroll are employed solely in the proper duties of the positions and employment indicated, and are justly entitled to the amounts opposite their names. (Signed) LeRoy Vander Burgh, Department Head."
That the department payroll was on every such occasion signed by plaintiff, or his authorized agent, in substantially the following manner:
County Treasurer Check No. 59658
Name of employe: LeRoy Vander Burgh
Office classification: Judge
Payee's signature: LeRoy Vander Burgh; but that each year, in anticipation of the annual budget, the plaintiff sent a requisition to the county in the sum ...