Civil action. On motion for summary judgment.
The plaintiff and the defendant by motion and cross-motion respectively each seek summary judgment on the pleadings and stipulation of fact.
The plaintiff was duly re-appointed County Prosecutor of Bergen County on April 25, 1949 for a term of five years under the New Jersey Constitution of 1947 (Art. VII, § II, par. 1) at a statutory annual salary of $10,000 as fixed by resolution of and payable by the Board of Freeholders of the County of Bergen in semi-monthly installments on the fifteenth and last lay of each month under R.S. 2:182-10 and 11, and N.J.S.A. 2 A:158-10 and 13.
After the plaintiff had qualified and entered upon the discharge of the duties of the office, the Board of Freeholders of Bergen County on finding that an investigation of the Attorney-General of the State of New Jersey, made since October 20, 1950 when the Attorney-General had assumed jurisdiction in Bergen County over the investigation and prosecution of gambling activities, disclosed that a larger staff from the Attorney-General's office was necessary to prosecute the criminal business of the county, determined it would be wise for the State to assume full responsibility for the operation of the office of county prosecutor, thereupon, on December 1, 1950, adopted the following resolution:
"NOW THEREFORE BE IT RESOLVED, that the Attorney-General of the State of New Jersey be requested in writing by the Board of Chosen Freeholders of the County of Bergen to assume immediately the full responsibility for the prosecution of all criminal business in this County.
BE IT FURTHER RESOLVED, that the Attorney-General of the State of New Jersey be advised that all personnel and facilities of the County, of which he wishes to avail himself, shall be placed at his disposal to the end that justice will be served without fear or favor in an expeditious and thorough investigation of gambling and related matters."
A copy of the resolution was delivered to the plaintiff in the county prosecutor's office at 4 P.M. on December 1, 1950. At 5 P.M. the same day an Assistant Attorney-General took complete possession of the county prosecutor's offices, files,
cabinets and desks to the exclusion of the plaintiff and retained such exclusive possession thereof, investigating and prosecuting therefrom all the criminal business of the county through the end of the term of office of the incumbent plaintiff, April 25, 1954.
During this period plaintiff performed no services as county prosecutor and received no salary.
Plaintiff seeks recovery from defendant of his salary as county prosecutor for the period December 1, 1950 to April 25, 1954 amounting in the aggregate to $34,005.32.
Defendant denies plaintiff continued to hold the office of county prosecutor through the period December 1, 1950 to the end of the appointed term; denies plaintiff performed all the obligations and conditions precedent to compensation and asserts by way of four separate defenses that: (1) there is no contractual or statutory duty on the defendant to pay plaintiff for services not rendered; (2) plaintiff was superseded as county prosecutor by the Attorney-General during the period and having performed no services as county prosecutor during such period failed to fulfill such condition precedent to his right to receive the salary of the office; (3) plaintiff failed to test or set aside the action of the Attorney-General superseding him as county ...