The issue projected here arises out of a complaint in lieu of prerogative writ filed in behalf of the plaintiff Nathaniel A. Jacoby, who seeks summary judgment declaring the plaintiff as being lawfully entitled to hold the office of magistrate of the Municipal Court of the Borough of Carteret until midnight of May 16, 1959; and also seeking the removal of the defendant Robert L. Brown, the present magistrate for said borough.
The facts indicate that on December 16, 1948 the Borough of Carteret adopted an ordinance pursuant to N.J.S. 2 A:8-1, establishing a municipal court. The pertinent part of said ordinance provides:
"Section 1. A Municipal Court for the Borough of Carteret is established as of January 1, 1949."
Section 4 of said ordinance provides:
"There shall be a Municipal Magistrate of the said Municipal Court who shall be appointed by the Mayor with the advice and consent of the Borough Council, and who shall serve for a term of three years from the date of his appointment and until his successor is appointed and qualified."
Pursuant to the terms of the above ordinance the defendant Brown, on January 2, 1950, was appointed by the mayor, with the advice and consent of the borough council, "Municipal Court Magistrate for the term prescribed by law." Three years thereafter the mayor failed to appoint a magistrate, and on April 16, 1953, by reason of the mayor's failure to make such appointment within 30 days after the office became vacant, the council appointed the defendant Brown as magistrate for a period of three years, pursuant to N.J.S. 2 A:8-5.
The term of office of the appointee expired April 15, 1956, and a successor to the defendant Brown could have been appointed by the local authority.
The undisputed facts further indicate that the defendant Brown relinquished his office as magistrate on December 31, 1955, and on January 2, 1956 the mayor and council appointed Nathaniel A. Jacoby, this plaintiff, as "Magistrate for the Borough of Carteret for the term prescribed by law."
The record reveals that subsequent to this plaintiff's appointment as magistrate he advised the mayor and council that the three-year term of the defendant Brown did not expire until April 16, 1956, and thereafter this plaintiff, on May 18, 1956, was appointed by the mayor and council to the office of magistrate of the Municipal Court of Carteret "for the term and at the salary prescribed by law, effective January 1, 1956." Subsequent thereto, and on January 1, 1959, the defendant Brown was appointed magistrate of the Borough of Carteret for the full term prescribed by law.
The plaintiff herein contends that the three-year term of his appointment will not expire ...