Bigelow, Waesche and Tomasulo. The opinion of the court was delivered by Waesche, J.s.c. (temporarily assigned).
This is an appeal from an order denying the defendant's motion to dismiss the complaint.
The defendant Marcus W. Newcomb is the Superintendent and Medical Director of said hospital. The Newcomb Chest Hospital is a county tuberculosis hospital, established pursuant to R.S. 30:9-48 by Burlington County, in New Lisbon, New Jersey. The plaintiff is Supervisor of Nurses of the Newcomb Chest Hospital.
Before the time of any act relating to this case, Burlington County had adopted the Civil Service Act, Subtitle 3 of Title 11 of the Revised Statutes , and plaintiff, therefore, contends that she holds a final and absolute appointment in the competitive class of the classified service under the Civil Service Act. She contends that she has satisfactorily completed a probationary period of three months as required by R.S. 11:22-6. Defendant contends that plaintiff did not receive her appointment as supervisor of nurses according to the provisions of the Civil Service Act, and hence the provisions of that act are not applicable in her case.
On or about March 10, 1953 the defendant furnished the plaintiff with a written statement of reasons for her removal as supervisor of nurses. The statement charges the defendant with incompetency, inefficiency, discrimination among nurses, lack of cooperation, and other improper conduct. The plaintiff was notified that the defendant would hold
a hearing on the said charges on March 26, 1953. The plaintiff answered the charges in writing.
The hearing on the charges aforesaid began on March 26, 1953. The complaint alleges that the defendant conducted the said hearing at that time in an unfair, hostile and illegal manner, so that the plaintiff was deprived of a fair and impartial trial. The plaintiff further states in her complaint that the defendant is biased and prejudiced against her, and that since he brought the charges against her and is acting as both prosecutor and judge, she cannot obtain a fair hearing before him.
The plaintiff in her complaint asks the court to order the defendant to conduct the hearing on the charges aforesaid in a fair and impartial manner or, in the alternative, to enjoin the defendant from proceeding further with the hearing on said charges.
On March 30, 1953 the plaintiff obtained in the court below in this proceeding an order directing the defendant to show cause why the action instituted by the defendant against the plaintiff should not be set aside, which order also temporarily restrained the defendant from continuing with the hearing on the charges against the plaintiff. This order was made returnable on April 6, 1953.
The defendant then served the plaintiff with notice of a motion to dismiss her complaint. This motion was made returnable on the same day, to wit, April 6, 1953.
The court denied the defendant's motion to dismiss the complaint, and restrained the defendant from proceeding with the hearing on the charges until further order of the court. The defendant appealed.
R.S. 11:21-4 provides that no employee of a county adopting the Civil Service Act shall be dismissed except in the manner prescribed by Subtitle 3 of Title 11 of the Revised Statutes. R.S. 11:22-38 provides that no employee holding a position in the competitive class shall be removed or discharged until he has been furnished with a written statement of the reasons for ...