On appeal from the Supreme Court.
For the relator-respondent, Edward A. Markley and Isador Haber.
For the defendant-appellant, Besson & Pellet (Harlan Besson and Otmar J. Pellet).
The opinion of the court was delivered by
WOLFSKEIL, J. This is an appeal from a judgment of ouster in quo warranto proceedings. Title to the office of judge of the District Court of the First Judicial District of Hudson county is involved.
At the outset procedural objections are urged for reversal. Appellant claims that the information should have been filed under section 1 of the Quo Warranto act which requires leave of the court, whereas it was actually filed under section 4. This is a disputable question perhaps but the practice adopted by the relator appears to find support in many cases, notably McGuire v. DeMuro, 98 N.J.L. 684; Zenkert v. Garfield,
5 N.J. Mis. R. 498; State v. Godfrey, 11 Id. 283; Anderson v. Myers, 77 N.J.L. 186; Davis v. Davis, 57 Id. 80; Tonkin v. Kenworthy, 112 Id. 274. Without passing upon the question, however, we prefer to decide the case on the merits, as it is one of public importance.
Consideration of the subject-matter requires a review of the factual situation. On March 4th, 1935, defendant, Umansky, was appointed as judge of the District Court for a second term, his first term having expired on March 3d, 1935. He subsequently qualified and entered upon the performance of his duties. A resignation admittedly signed by him was received by the governor and accepted as of July 15th, 1936. The relator, Haber, then received an ad interim appointment as judge of the same court on July 16th, 1936, and took the oath of office. Thereafter Haber was appointed for a full term of five years and again qualified. Obviously, both relator and defendant could not hold the office at the same time and manifestly the determination of the controversy rests upon the potency of the resignation.
Umansky testified that after signing an undated resignation he delivered it to one Andrew O. Wittreich, at the state house, in Trenton, on March 4th, 1935, in advance of his appointment, and that it was to take effect at the pleasure of the governor. He claims he never sent the resignation directly to the governor and withdrew it before it had been accepted. Wittreich testified that Umansky did not give him the resignation and that he knew nothing about it, save as the facts developed in the trial.
The testimony further discloses that the resignation was found on July 1st, 1936, with the Governor's opened mail on the desk of his secretary. There was no proof as to how it got there. It was brought to the immediate attention of the governor and on the same day Umansky was notified that the governor would see him on July 7th, 1936. Umansky then consulted counsel and on July 2d, 1936, telegraphed to the governor that he could not keep the appointment, asked for another day, and to be told the nature of the conference.
On July 7th, 1936, he received a telegram from the governor accepting his resignation as of July 15th, 1936. On July 9th, 1936, Umansky wired the governor claiming surprise and insisting ...