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Strohmeyer v. Borough of Little Ferry

New Jersey Supreme Court


Decided: January 29, 1948.

HENRY W. STROHMEYER, APPELLANT,
v.
BOROUGH OF LITTLE FERRY, RESPONDENT

On appeal.

For the appellant, Joseph H. Gaudielle and James A. Major.

For the respondent, Charles W. Weleck.

Bodine

[136 NJL Page 485]

The opinion of the court was delivered by

BODINE, J. The appellant in this case had been a police officer in the Borough of Little Ferry. On December 4th, 1945, he was suspended pending his trial on charges preferred against him. On September 9th, 1946, he was given a trial and was found not guilty. The present action was for salary for the period from December 4th, 1945, to September 9th, 1946. The complaint was struck by the learned Judge of the Circuit Court and this action is before us on this appeal.

The right to suspend, pending a trial on charges, is granted by statute, R.S. 40:47-6. Under R.S. 40:46-34, it is provided that where a policeman or fireman has been illegally dismissed and such dismissal has been declared judicially illegal, the fireman or policeman shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal. Had the legislature also provided for recovery where a police officer was illegally suspended, the appellant's right to recovery in this case would have been clear; but since no such right has been granted we are obliged to find that the ruling of the learned trial judge in striking

[136 NJL Page 486]

the complaint was in all respects proper. Sganga v. Teaneck Township, 130 N.J.L. 218. In that case the authorities are collected. Apart from statute that there is no right of recovery for a salary not earned seems clear.

The judgment under appeal will be affirmed.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 14.

For reversal -- None.

19480129


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