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Mullen v. Ziegener

Decided: January 30, 1947.

EDWARD A. MULLEN, DEPUTY DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE CITY OF HOBOKEN, AND THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, PROSECUTORS,
v.
HONORABLE AUGUST ZIEGENER, JUDGE OF THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF HUDSON, AND WILLIAM H. GILFERT, CLERK OF THE COURT OF COMMON PLEAS AFORESAID, AND GEORGE FITZPATRICK, RESPONDENTS



On certiorari.

For the prosecutors, John J. Fallon.

For the respondents, Rothbard, Harris & Oxfeld (Emil Oxfeld, of counsel).

Before Justices Bodine, Perskie and Wachenfeld.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The question for decision is whether the reversal by the Hudson County Court of Common Pleas of the dismissal of George Fitzpatrick from the police department of the City of Hoboken is proper.

George Fitzpatrick, a patrolman of the police department of the City of Hoboken, was convicted, by the Deputy Commissioner of Public Safety (R.S. 40:72-9), of having violated certain of the rules and regulations governing the conduct of members of the police department, as more particularly specified in each of the two separate complaints which had been filed against him. He appealed to the Hudson County Court of Common Pleas. R.S. 40:47-10. That court, pursuant to the last cited statute, re-tried the charges de novo.

It reversed the convictions and restored Fitzpatrick to his position as patrolman with back pay from May 12th, 1945, to the date of his restoration; and it entered an order on October 23d, 1945, accordingly. To review the order so entered, prosecutors were allowed a writ of certiorari. Pursuant to stipulation between counsel of the respective parties, approved by Chief Justice Case, the two separate complaints involved in the cause were consolidated for the purpose of hearing and argument before this court.

Our study of the competent proofs and the law applicable thereto (compare for analogy, Friese v. Nagle Packing Co., 110 N.J.L. 588; 166 A. 307; Helminsky v. Ford Motor Co., 111 N.J.L. 369, 373; 168 A. 420; Cino v. Driscoll, 130 N.J.L. 535; 34 A.2d 6) to the end of reviewing them de novo (R.S. 2:81-8; Mullen v. Ziegener, 134 N.J.L. 207, 208; 46 A.2d 783), satisfies us that they amply support the result reached in the Hudson County Court of Common Pleas.

One of the complaints against Fitzpatrick grew out of what the judge, in the Pleas, characterized as the "Officer Gehm incident" and the other as the "Jersey Observer incident."

THE PHILLIP GEHM INCIDENT.

The complaint relating to this incident was filed by a captain of the police department on May 3d or 4th of 1945. Broadly stated, it charged Fitzpatrick with willful disobedience to orders, neglect of duty, & c., on March 3d, 1945. The gravamen of these charges is that Fitzpatrick admitted knowledge, on March 3d, 1945, of the whereabouts of one Phillip Gehm, wanted on the charge of atrocious assault and battery, but contrary to instructions, failed to report that information to his ...


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