Price, Schettino and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is taken by plaintiff from the granting of defendant's motion to dismiss proceedings in lieu of prerogative writ for lack of jurisdiction by the Superior Court, Law Division. That court held that plaintiff should have proceeded by appeal to the County Court under N.J.S.A. 40:47-10 and, as plaintiff did not exhaust his remedies by such an appeal, the court lacked jurisdiction. On appeal plaintiff contends that the Superior Court had jurisdiction by a proceeding in lieu of prerogative writ to grant relief, and that plaintiff was not required to exhaust his remedies by an appeal to the County Court. Plaintiff further argues that if the Law Division felt it had no jurisdiction, it should have on its own motion transferred the matter to a court that had jurisdiction. Finally, plaintiff contends that it was denied due process in the proceedings before the township committee.
Initially, we consider plaintiff's argument that even if the Superior Court lacked jurisdiction, it should not have dismissed the case but rather it should have transferred the matter to the County Court on its own motion.
Plaintiff was dismissed from his position as a police officer in Cinnaminson Township by a 3-2 vote of the township committee on August 12, 1957. His complaint in the Superior Court action was filed on August 22, 1957. N.J.S.A. 40:47-10 provides for a ten-day period within which an appeal may be taken to the County Court. Therefore, the time factor is no limitation upon a transfer pursuant to R.R. 1:27 D. That rule provides, in part:
"(a) Except as elsewhere provided in these rules, and subject to the right to be prosecuted by indictment, where any court of this
State is without jurisdiction of the subject matter of an action, issue or cause, it shall, on motion or on its own initiative, order the action or cause, with the record and all papers on file, transferred to the proper court for determination; and the action or cause shall then be proceeded upon as if it had been originally commenced in the proper court."
We are informed that when defendant in its answer to the complaint stated that plaintiff's remedy was by appeal to the County Court, plaintiff did then (on September 22, 1958, well out of time) initiate an appeal to the County Court but thereafter withdrew it. He gave as his reason for proceeding in the Superior Court instead of the County Court that it was his understanding that an appeal to the County Court would not have afforded him the proper remedy in that it would be a waiver of any defect in the proceedings and a consent to the jurisdiction of the township committee and the County Court. Plaintiff alleged that the township committee lacked jurisdiction to dismiss him in that, inter alia , no charges were served upon him. But such an appeal would not have operated as a waiver of all of the alleged defects in the proceedings before the township committee. (Compare, however, R.R. 3:10-10(b); State v. Bierilo , 38 N.J. Super. 581, 584 (App. Div. 1956); State v. Hulsizer , 42 N.J. Super. 224, 228 (App. Div. 1956), dealing with appeals from the municipal courts.) We hold that the matter should have been transferred to the County Court and not dismissed. See State v. Simpkins , 8 N.J. Super. 194, 198 (App. Div. 1950); State v. Smith , 6 N.J. Super. 85, 90 (App. Div. 1950).
We next consider plaintiff's contention that he need not comply with N.J.S.A. 40:47-10. Plaintiff was a member of the township police force. He was charged with leaving his post of duty and with disobeying orders by going to a neighboring township to assist its police department instead of tending to a certain traffic light.
Plaintiff brought this action in lieu of prerogative writ to set aside the order of dismissal of the township committee
on the grounds that the proceedings were illegal, arbitrary, unconstitutional and void because:
"[(a)] the police committee of the Township did not serve a copy of the written charges on the Township Committee as required by the ordinance of the Township; (b) because there were no written charges filed and served upon the plaintiff as required by the statute and the Township ordinance; (c) because the Township Committee did not have jurisdiction to try the plaintiff in the absence of such charges and in the absence of valid and legal grounds to support such charges; (d) because there was insufficient evidence to sustain the charges made against the plaintiff; and (e) because the Ordinance of October 26, 1954, under which the alleged charges were brought was ...