On appeal from the District Court of the county of Bergen.
For the plaintiffs-appellees, William Breslin.
For the defendants-appellants, F. Hamilton Reeve (John W. Griggs and William J. Morrison, Jr., of counsel).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
TRENCHARD, J. Four suits were brought in the District Court and by consent were consolidated and tried together before the judge, sitting without a jury. A judgment for the plaintiff was entered in each suit and defendant has appealed from each of these judgments, on the ground that there was no evidence to support them.
Plaintiffs are patrolmen, members of the Englewood police force. Both were appointed on December 1st, 1931, and have served continuously since that time and are presently serving.
We are here concerned only with plaintiffs' claims for additional pay for the years 1938 and 1939.
We believe that under the evidence the plaintiffs are estopped to claim or be awarded any additional pay for 1938.
The salaries of patrolmen in Englewood were fixed in 1924 at $2,000 per annum, with an advance each year until a salary of $2,500 for the fifth year of service was reached. As stated, plaintiffs were appointed patrolmen on December 1st, 1931. For the year 1932 they voluntarily accepted a reduced salary. For 1933, 1934, 1935 and 1936 they accepted a salary reduced in the manner provided by the Emergency acts. For 1937 they accepted their salary without "increments" pursuant to a resolution of the mayor and council. We have pointed out that in the cases now before this court, no claim is made in respect to salaries for 1937 or prior years; the claims in the present suits relate to the salaries for 1938 and
1939. The plaintiffs knew, of course, that their salary was a yearly one payable in semi-monthly installments, for that had been the arrangement ever since they had been patrolmen. They knew, of course, that the city was unable, in those difficult years, to increase salaries by "increments" or otherwise, and no doubt considered themselves fortunate that their "base salaries" were paid without the reductions suffered or voluntarily accepted by many other public officials and employes. For the common good they voluntarily accepted pay without "increments" in 1932. For 1933, 1934, 1935 and 1936 their pay was fixed by the method provided in the so-called Emergency acts. Pamph. L. 1933, ch. 14; Pamph. L. 1933, ch. 459; Pamph. L. 1935, ch. 5; Pamph. L. 1936, ch. 6. When these acts no longer empowered the city to reduce their pay, they again, in 1937, accepted pay "without increments" for that year. Later, in December, 1937, or early in January, 1938, the governing officials of the city had a conference with the policemen, or their representatives, as to their salary for 1938. Apparently the policemen agreed for 1938, as they had done for 1937, to continue to accept their yearly salaries without "increments," for the budget appropriation for these salaries for 1938 was made on that basis and the policemen were paid in 1938 on that basis. Each of them was paid $87.50 semi-monthly and accepted twenty-three such payments (until December 31st, 1938) signing each time the following statement: "I hereby acknowledge that I have received from the city of Englewood the amount shown opposite my name, in full for all services herein specified." It was not until December 31st, 1938, that plaintiffs definitely refused to accept pay at this rate. (In order to avoid undue hardship to these men, the city paid them $87.50 for December 31st, 1938, and paid them $91.67 semi-monthly (at the rate of $2,200 per year) in 1939 under the no-prejudice stipulation).
In Love v. Jersey City, 40 N.J.L. 456, this court held that a municipal officer who continued in office after his salary was reduced, receiving warrants for monthly payments of his salary during the term, ...