On appeal from the Hudson County Circuit Court.
For the plaintiff-appellant, Emil W. A. Schumann.
For the defendant-respondent, Maurice C. Brigadier.
The opinion of the court was delivered by
EASTWOOD, J. The present appeal arises from the refusal of the Hudson County Circuit Court to direct a verdict in favor of plaintiff-appellant and against the defendant-respondent in the amount of $27,265.22. There is also before us for consideration a cross-appeal "from a judgment in the amount of $7,500, returned by the jury in favor of plaintiff-appellant against the defendant-respondent. Appellant's decedent, James R. Erwin, instituted suit to recover from the County of Hudson the sum of $27,265.22, alleged to be the total of principal and interest due the said James R. Erwin, in his capacity of Judge of the Court of Common Pleas of Hudson County, during the period from February 21st, 1934, to July 1st, 1939, which sum is claimed to be the difference between the statutory salary fixed for Common Pleas Judges during that period and the amount actually received by the said James R. Erwin during said period after semi-monthly deductions from his regular statutory base salary of $15,000 per annum, in accordance with certain resolutions adopted by the Board of Chosen Freeholders of the County of Hudson, in the interest of economy during the wide-spread financial depression which existed at that time. It was stipulated by counsel that the amount of $27,265.22 represents the loss of salary suffered by Judge Erwin. The cross-appeal of the respondent, County of Hudson, is predicated upon alleged error on the part of the trial court in excluding certain proffered evidence of payroll records indicating salary payments to Judge Erwin and other officials commencing with the Febbruary 16th, to February 28th, 1934 payroll and ending June, 1939; and on the further ground that the trial court erred in refusing to permit the witness, John F. O'Neill, acting clerk of the Board of Freeholders, to answer the following questions:
"Q. Can you tell approximately the number of county employees from whom payroll deductions were made in 1934?
"Q. Mr. O'Neill, at the time you last appeared upon the stand you were asked approximately how many employees paid by the county suffered deductions in salaries under these resolutions that have been offered in evidence."
It has been stipulated that from February 21st, 1934, to the date of his death on November 23d, 1942, James R. Erwin was a duly appointed Judge of the Court of Common Pleas in and for the County of Hudson and that he duly qualified and acted as such judge during said period. The treasurer of the respondent county was required to pay Judge Erwin his statutory salary in equal semi-monthly installments from county funds. The respondent county is a body politic and corporate in law of the State of New Jersey, and as such, is entitled to the funds of said county and controls the distribution and payment of said funds by order of the Board of Chosen Freeholders thereof. It is not denied that the respondent county, through its servants and agents, refused to pay James R. Erwin the stipulated amount of $27,265.22. It is admitted that under our decision in the case of Delmar v. Bergen County, 117 N.J.L. 377; 189 A. 75, the resolutions of the Board of Chosen Freeholders of the County of Hudson heretofore referred to and which were admitted in evidence below are unconstitutional and without authority of law and afforded no legal authority for the reduction of the salary of said James R. Erwin, appellant's testator. It will be observed that Judge Erwin died on November 23d, 1942, following the institution of suit, and the same proceeded in the name of appellant herein as executrix of his estate.
Answer was filed by the respondent in the nature of a general denial, and additionally, there were interposed three separate defenses which may for convenience be summarized as follows:
(1) That Judge Erwin accepted his appointment and qualified with full knowledge of the then existing economic crisis and of certain resolutions adopted by the county prior to his appointment, authorizing certain deductions from the salaries of Common Pleas Judges; that he received and accepted checks in the reduced amounts in full payment of
his statutory salary; that he acknowledged in writing the receipt of each of said payments or caused the receipt of said payments to be thus acknowledged for him on the certified payrolls of the court department of said county, as full payment of the salary; that he made no protest or demand for payment to him of the amounts deducted and that the respondent county relied on such acceptance by Judge Erwin and others of the reduced salaries in carrying on its public duties and in arranging its financial affairs and in determining the amount to be levied against and collected from the taxpayers for the purpose of conducting its affairs and by reason thereof, collected from said taxpayers less moneys than it would have been forced to collect if ...