On appeal from the Supreme Court, Monmouth County.
For the appellants, Quinn & Doremus (Vincent J. McCue, of counsel).
For the respondent, Snyder, Roberts & Pillsbury (John M. Pillsbury, of counsel).
The opinion of the court was delivered by
PERSKIE, J. The same question requires decision in both cases. That question is whether the trial judge erred, as
claimed, in striking out the complaint in each case on the ground that it was insufficient in law.
Appellants, plaintiffs below, were appointed on January 2d, 1934, to the positions of truck drivers, for the County of Monmouth, defendant below and respondent here, at the salary of $1,300 per annum. On January 2d, 1936, the County Board of Chosen Freeholders passed a resolution by the terms of which appellants' positions were declared vacant and appellants were discharged. Appellants, after considerable delay, instituted certiorari proceedings to review the legality of their discharge. These proceedings were brought on for hearing on May 20th, 1939, and resulted in an order on June 3d, 1939, setting aside the action of the County Board in discharging appellants. On August 18th, 1940, appellants were returned to their positions. Although it is stated in the brief for respondent that the county served notices of appeal from the orders of June 3d, 1939, the undisputed facts are that respondent did not prosecute these appeals and that respondent does not here challenge the force and effect of the orders of June 3d, 1939.
The reason for appellants' delay in instituting the certiorari proceedings are not made to appear. Reading, however, between the lines, it is quite evident that the parties sought -- without success -- to compose their differences. But be that as it may, because of the fact that considerable time elapsed between the date of the discharge of each appellant and the date of the institution of the certiorari proceedings, the parties entered into a like stipulation which is a part of the records in these cases. Under this stipulation the county waived any right it might have had to assert the defense of laches as part consideration for the promise of each appellant to "make no claim upon the County of Monmouth, the Defendant herein, at any time for any back pay in excess of one year's pay in case of a favorable decision on a writ of certiorari; it being understood that in case of any decision favorable to the prosecutor in this action or any appeal therefrom, that he will not make any claim for compensation prior to the actual time he should start work on the alleged position, for a period longer than one year, it being the purpose of the
County of Monmouth that in waiving a defense of laches, that the taxpayers of the County of Monmouth will not be put to any expense for any back pay for a period longer than one year."
In this posture of their differences, appellants, on October 13th, 1940, instituted suit against respondent each seeking as his damages $1,300 for the year of 1936 with interest together with his wages at the rate of $1,300 a year from the date of the decision of the Supreme Court (June 3d, 1939), together with interest and costs of suit.
Respondent thereupon filed notices of motions to strike the complaints on the ground that they failed to state a cause of action against respondent "in that tender of the sum of Thirteen Hundred ($1,300) Dollars was made to (appellants) in accordance with the ...