Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs, employees of the City of Newark, sued to recover salary which would have been paid them during the respective periods when they were separated from municipal service because of alleged illegal dismissals, each having been ordered reinstated by an executive assistant in the State Civil Service Department. After a trial without a jury, the Law Division judge dismissed their complaint, and they appeal.
The principal question involved on this appeal is whether plaintiffs are barred from recovery by the proviso of N.J.S.A. 40:46-34, on which their suit is based. That statute, as amended in 1948 (L. 1948, c. 163 and c. 395) provides that:
"Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal or suspension; provided , that a written application therefor shall be filed with the clerk of the municipality within thirty days after such judicial determination, unless such determination was made prior to the effective date of this act, in which case such application shall be filed within six months after the effective date of this act."
Defendant municipality relies primarily on the fact that none of the plaintiffs ever filed written application with the municipal clerk, as required by the statute, so that they are not entitled to recovery. Plaintiffs claim that the city is estopped from asserting non-compliance because of assurances they received from certain officials in the department where they were employed that they were entitled to their back pay and would get it.
At the pretrial conference the parties agreed to submit their action for determination upon a stipulation of facts, oral arguments, and briefs, with leave reserved to each party to produce such oral testimony as they deemed advisable. A lengthy stipulation of facts was prepared, and thereafter plaintiffs presented testimony in support of their claim of estoppel. The trial court found there was no estoppel and then proceeded to dispose of the matter by holding that plaintiffs were not entitled to recover compensation because they had failed to perform the services called for by their respective employments. The trial judge deemed that this conclusion was compelled by the decisions in De Marco v. Board of Chosen Freeholders of County of Bergen , 21 N.J. 136 (1956) and Winne v. Bergen County , 21 N.J. 311 (1956). Accordingly, he considered it unnecessary to decide whether plaintiffs' failure to file a written application with the municipal clerk within 30 days of the Civil Service directive barred their right to recovery.
Plaintiff John Bianchi was temporarily employed as a Culture Collector by the City of Newark on August 8, 1949. He was discharged June 27, 1953. On January 9, 1955 he was given a temporary appointment as Sanitary Inspector. Some four months later he received a written notice that his services as Sanitary Inspector were to be terminated on May 21, 1955. Bianchi thereupon discussed the dismissal with one Merrigan, Executive Assistant in the State Department of Civil Service, in charge of the Newark area office, with the result that on May 26 Merrigan wrote the Mayor of Newark directing that John Bianchi be considered a permanent employee with the title of Culture Collector in the Division of Health, effective as of July 19, 1951, under L. 1951, c. 333. Accordingly, Bianchi was restored to the permanent title of Culture Collector on June 3, 1955.
John Bianchi sued for loss of wages from June 27, 1953 to January 9, 1955, totalling $6,265. He testified that immediately after being reinstated as a permanent employee he spoke about his back pay to Assistant Health Officer Morgan, who was in charge of divisional personnel and payroll.
Morgan told him he did not see why he was not entitled to receive what was due him, and mentioned that another person holding the same title had been given 2 1/2 months' back pay under similar circumstances. Bianchi said he had also spoken to Health Officer Haskin, but could not give the dates of such conversations. On October 19, 1955, more than four months after reinstatement, Bianchi wrote to the Personnel Officer of Newark, copies to the Acting Director of the city and to the Director of the Department of Health and Welfare, requesting his back pay. There was a further conversation with Dr. Haskin in February 1957 with respect to his back salary as well as that of the other two plaintiffs.
Plaintiff Anthony Bianchi was employed by the city in a temporary capacity as Pharmacist, Division of Health, on May 7, 1950. His services were terminated February 19, 1955. In August of that year he wrote the Civil Service Department requesting a review of his dismissal, with the result that on September 16, 1955 Merrigan advised the Personnel Officer of the City of Newark that Anthony Bianchi be restored to his position as Pharmacist on a permanent basis as of July 19, 1951. Anthony was returned to the payroll effective September 22, 1955. He claims the sum of $2,894 for wages lost from February 19 to September 22, 1955.
Anthony testified that he spoke to the Personnel Officer and to the Acting Director of the city, as well as to Morgan, about his back pay at the time of his reinstatement and was assured he was entitled to it. In October 1955 he wrote to the Acting Director, copy to the Personnel Officer, requesting back salary. Sometime ...