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Avella v. Kobylarz

New Jersey Supreme Court


Decided: May 22, 1941.

FRANK AVELLA, PROSECUTOR,
v.
JOSEPH KOBYLARZ, GUSTAVE DEAK, JOHN FRANK, JR., NICHOLAS MIKULIK AND EDWARD JONASKY, DEFENDANTS

On certiorari.

For the prosecutor, Charles Bernstein (Louis J. Cohen, of counsel).

For the defendants, Henry L. Janowski (Richard J. Baker, of counsel).

Before Justices Bodine, Perskie and Porter.

Porter

[126 NJL Page 511]

The opinion of the court was delivered by

PORTER, J. This is on a rule to show cause why the defendants should not be held in contempt of court for disobeying the supersedeas of a writ of certiorari issued by this court on April 15th, 1941, to review the legality of an ordinance of the City of Garfield reducing the pay of prosecutor as building inspector. The defendants are five of the eight members of the City Council of Garfield.

It appears that upon the issuance of the writ the prosecutor notified the mayor and members of the City Council, including the defendants, that the said writ operated as a supersedeas of the ordinance and requesting that the salary of prosecutor due under the unamended ordinance be paid pending the court's determination of the proceedings before it on the writ.

It further appears that the defendants, constituting a majority of the City Council, refused to take action to permit the payment of the original salary to the prosecutor but on the contrary voted against a motion to that effect made at a meeting of the council on April 16th, 1941.

Irrespective of the motives of the defendants it is clear that the legal effect of the issuance of the writ of certiorari was to act as a supersedeas of the questioned ordinance. Hunt v. Lambertville, 46 N.J.L. 59. The defendants failed

[126 NJL Page 512]

to so regard it. However, we do not think that any serious injury or undue hardship was done the prosecutor and so we conclude that under the particular circumstances of this case it does not require that these individuals be liable to attachment in contempt. Especially is this so because we are filing a decision contemporaneously herewith setting aside the ordinance. Avella v. City of Garfield, 126 Id. 507.

The rule is dismissed, without costs.

19410522


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