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Fuller v. Melko

Decided: November 20, 1950.

LLOYD E. FULLER, PLAINTIFF-RESPONDENT,
v.
MATTHEW F. MELKO, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

This is an appeal from a judgment of $5,212.67 plus interest for fees and expenses allegedly due to the plaintiff by reason of an investigation which he undertook at the behest of the defendant, the Middlesex County Prosecutor. The appeal was taken to the Superior Court, Appellate Division, and brought here on our own motion.

The plaintiff in 1947 was a licensed detective. On March 3rd of that year, the defendant, in his official capacity as county prosecutor, asked the plaintiff to undertake an undercover investigation of gambling activities in Middlesex County. There is a factual conflict as to what comprised the schedule of fees and expenses. The plaintiff contends he was to receive $25 per day for himself and $3 an hour when he worked less than a full day, $15 per day for each other investigator he employed on the job, ten cents a mile, hotel, meal and other expenses incidental to the investigation. The defendant asserts the mileage allowance was the only item specifically agreed upon and the remainder of the expenditures and services rendered were to be at a reasonable rate but in no event to exceed $3,500, the amount of the appropriation dedicated for this purpose.

On March 5th, two days after their first meeting, the parties met again, this time at the home of an assistant prosecutor.

There the defendant and his assistant, within the presence of the plaintiff, discussed the budgetary limitations which would be encountered. The plaintiff in his bill of particulars admits he was told at this meeting that the appropriation would not cover the cost of the investigation but that "any amount in excess of the appropriation would be covered by certification of Justice Colie," then the presiding justice of the Supreme Court in the county. The defendant denies this, asserting the plaintiff was explicitly instructed that the cost would have to stay within the $3,500 appropriation and preferably not exceed $3,000. We give no consideration to this version because the jury decided otherwise.

Investigatory activities were immediately commenced after the meeting of March 5th and continued until April 20th, when the plaintiff was ordered to quit because a special attorney general had been appointed to take charge of all gambling investigations in the county. He thereafter completed his reports and submitted his bill in the amount of $5,212.67, the subject of this action.

The prosecutor forwarded the bill to Justice Colie, pursuant to R.S. 2:182-7, which provides that amounts expended by the prosecutor "shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the supreme court justice presiding in such county." The justice refused to approve the bill as he thought it exorbitant.

The plaintiff submitted his bill to the county, which denied payment, asserting the contract was void as to the county under R.S. 40:2-29(b), being in excess of the amount appropriated for the purpose of special investigations. It also lacked the approval of the justice as provided for in R.S. 2:182-7. This suit was thereupon initiated against the prosecutor individually, based on the theory that he became personally liable by reason of having exceeded his authority in making the contract.

The case was tried before a jury and a verdict in favor of the plaintiff was returned for the full amount plus interest.

One of the grounds, which we think is without merit, urged for reversal of the judgment below is that the plaintiff knew at the inception of the contract that the cost thereof would exceed the appropriation allowed the prosecutor and the contract was ...


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