For the plaintiff-respondent, Raymond Chasan.
For the defendant-appellant, Daniel T. O'Regan, William George and Frank G. Schlosser.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The question for decision is whether the Hudson County Court of Common Pleas erred in striking the defendant's answer and in entering summary judgment in plaintiff's suit for arrears in salary as sergeant-at-arms of the Fourth Criminal Judicial District Court of Hudson County. The complaint alleged that plaintiff was, during the period sued for, namely, November 8th, 1945, to March 15th, 1946, sergeant-at-arms as aforesaid, that he duly performed all the duties of his office, that his salary was at
the annual rate of $2,500, and that for the designated period it amounted to $888.28; for which amount, and interest and costs, judgment was demanded. The answer admitted some of the allegations, set up insufficient knowledge on others and controverted still others. The plaintiff moved to strike, whereupon the parties respectively submitted affidavits. Upon those pleadings and proofs, and the construction given our decision in In re Rosenblum, 130 N.J.L. 344, the court determined that some parts of the answer were sham, that the remainder were insufficient in law, struck the answer and awarded judgment to the plaintiff in the amount of $905.53 and costs.
The duty of the court, on the motion to strike because sham, was to determine whether an issue of fact was presented and not to decide which of the parties was telling the truth. Berger v. Interstate Building and Loan Association, 121 N.J.L. 507. On such an issue when the defendant's proofs are such that, if truthful, they present a defense the defendant is entitled as a matter of right to have his answer sustained, Kaplan v. Catlett, 121 Id. 201, and to go to trial in the usual manner.
The Fourth Criminal Judicial District Court comprised a territorial area separate and distinct from any of its companion courts. Chapter 201, Pamph. L. 1940. Plaintiff's duty as sergeant-at-arms of that court was to attend the sittings of the court, preserve order therein and perform such other duties as the judge of the court might, from time to time, prescribe. R.S. 2:212-15. Plaintiff was appointed (id.) by the Judge of the Fourth Criminal Judicial District Court, Ashley B. Carrick, on October 30th, 1940. Judge Carrick was inducted into the army on or about January 22d, 1942, and requested the Judge of the First Criminal Judicial District Court to take charge of the Fourth District during his absence in military service; but, on June 24th, 1942, Judge Carrick resigned his judgeship, whereupon his request upon another judge to perform his judicial duties became ineffective. Since that time the office of judge in the Fourth District has remained vacant. The appointment of the judge lies with the Governor, by and with the consent
of the Senate; the appointment of a sergeant-at-arms and court attendants is by the judge of the respective court. On July 23d, 1942, the clerk of the court resigned, since which time there has been no clerk. On August 5th, 1943, plaintiff was inducted into the military service where he remained until his discharge on November 7th, 1945. By R.S. 2:212-19 (amended chapter 200, Pamph. L. 1940) it was the duty of the Board of Chosen Freeholders to provide suitable quarters for a Criminal Judicial District Court together with proper equipment, transportation and places of detention, and the board met that duty while there was a functioning court. But shortly after August 5th, 1943, there being no judge, no clerk, no sergeant-at-arms, not even the semblance of a court, the board, under an adopted resolution, removed the furniture and books and vacated the quarters. Until plaintiff left the army he was paid by the county, under R.S. 38:23-3 and a resolution of the board passed thereunder, the difference between his army pay and his official salary. By letter dated November 8th, 1945, plaintiff informed the board that he had been honorably discharged and had returned to active duty as sergeant-at-arms. Without any authority so to do he reported at the court room of the First Criminal Judicial District Court of Hudson County, and has reported "regularly" -- whatever that may mean -- at that court room, and, according to his proofs, has performed "all of the duties required of him." But it does not appear what, if any, duties were required of him, or that he actually did anything. Particularly, it does not appear that he has done anything as sergeant-at-arms of the Fourth Criminal Judicial District Court since Judge Carrick's resignation on June 24th, 1942; on the other hand there is a statement under oath that he has rendered no such service. The Board of Chosen Freeholders has refused payment of salary since plaintiff's separation from the army, for the alleged reason that he is performing no service and that, while there is no judge, no court clerk and no court business, there is no service for him to perform.
It is established sufficiently for the purposes of the defensive pleading that plaintiff is doing no work in his appointed position and that there ...