On appeal from the Passaic County Circuit Court.
For the defendant-appellant, Salvatore D. Viviano.
For the plaintiff-respondent, Archibald Krieger.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The appeal is from a judgment in favor of the plaintiff-respondent entered originally by default and subsequently confirmed by an order denying an application to open the judgment for the purpose of entering a defense to the action on its merits.
The respondent was a District Court judge. He brought the action to recover certain deductions made from his salary by the treasurer of the city of Paterson, alleging that his salary was fixed by statute, and that the city treasurer was required by law to pay him the statutory amount. The complaint alleged certain payments made between January 1st, 1933, and March 15th, 1934; a demand by the plaintiff for the balance due and a refusal by the Board of Finance of the city to direct the treasurer to pay the same. There was endorsed on the complaint a demand for an affidavit of merits.
The summons and complaint were dated October 19th, 1937, and on November 3d, 1937, a judgment by default was entered against the defendant-appellant on the ground that no affidavit of merits had been filed as demanded. On November 8th, 1937, an answer was filed by the appellant which denied the claim of the respondent and set up certain separate defenses one of which was the defense of waiver. On November 19th, 1937, a notice of motion was given to open and vacate the judgment entered on the ground that the failure of the appellant to file the affidavit of merits was due to the act that the city attorney had been stricken with appendicitis and confined to a hospital. This motion was, apparently, abandoned.
On December 1st, 1937, notice was given of a new motion "to re-open and vacate the final judgment entered" and "for leave to file an affidavit of merits and answer in said cause." This motion was argued on December 3d, 1937. On the argument an affidavit was filed, in support of the motion, by the city attorney in which he stated that he was in charge of this particular matter and that on October 25th, 1937, he was taken suddenly ill and underwent an emergency operation for appendicitis with the result that he was incapacitated up to November 15th, 1937. The facts in this affidavit were not controverted.
No affidavit was filed in support of the substantive cause of action set forth in the complaint but affidavits were filed by the appellant in support of the proposed answer and the separate defenses set up therein. Assuming the facts as pleaded in the complaint to be true, there is disclosed, in conjunction with these affidavits, a factual situation that does not differ materially from the factual situations that existed in other cases which have recently come before this court.
The affidavits show that certain deductions were made from respondent's salary, by virtue of an ordinance passed in conformance with the applicable statutes (Pamph. L. 1933, ch. 17, as amended by Pamph. L. 1933, ch. 446), which purported to authorize such deductions from the respondent's salary. They also show that notice of the proposed reductions was sent to the clerk of the District Court; that the payroll sheets were signed and certified by the respondent, which he admits by affidavit; that the payroll checks were delivered semi-monthly and received and cashed without any protests or notations on the part of the respondent; and that the payroll sheets as signed and certified by the respondent set forth his salary at the reduced rate, and that the respondent at no time protested either in writing, orally, or by personal appearance, against the reduction in salary.
The trial judge in disposing of the motion held that while on the authority of Fox v. Simon & Krivit, Inc., 109 A. 900 (not officially reported), he had the power in his discretion to open the judgment entered in this case and to permit the defendant to file an affidavit of merits, he had concluded that an examination of the answer and the affidavits relied in support thereof failed to show that a meritorious defense was set forth therein. He further held that the statutes relied on by the appellant for the power to reduce the respondent's salary were unconstitutional under the principles laid down in the case of Delmar v. Bergen County, 117 N.J.L. 377, and that the affidavits, at the most, showed no more than the mere acceptance by the plaintiff without protest of less than the salary fixed by the statute as belonging to his office and that, therefore, there could be no waiver or estoppel.
In this latter conclusion he fell into apparent and excusable error. It clearly appears that the proposed answer discloses a meritorious defense supported by the decisions of this court in Vander Burgh v. County of Bergen, 120 N.J.L. 444; Orlando v. County of Camden, 121 Id. 46; Freeman v. County of Passaic, Ibid., 48; La Corte v. County of Union, Ibid. 158. However, all of these cases were decided subsequent to the date of presentation and determination of the cause by the trial judge.
The appellant urges: (1) that the trial court erred in holding that the defendant-appellant had failed to show such facts as entitled it to defend, and (2), that the refusal of the trial court to open the default judgment was erroneous and constitutes an abuse of judicial discretion in that the affidavits produced by the defendant on the motion to open the said judgment showed such facts as, in law, constitute a just and legal defense to the action on the merits of the case.
We are met, in limine, with two objections by the respondent: (1) that an appeal does not lie from the entry of a default judgment, and (2) that an appeal does not lie from a ...