Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.
Appellant, a patrolman, seeks the reversal of a decision of the Civil Service Commission dismissing an appeal by which he sought to set aside the action of the Director of the Department of Public Safety of Hoboken "in passing over his name for immediate appointment" as sergeant of police. He contends that he was entitled to an appointment, effective March 19, 1959, because he was twelfth on the list of men certified by the Department of Civil Service as eligible for the position and that one Joseph Marotta, who was fourteenth on the list, was selected improperly in his place. The Commission, after a hearing, upheld the director's action.
At the hearing it was stipulated that:
"* * * City of Hoboken was and is operating under the so-called Faulkner Act, Law of 1950, Chap. 210, N.J.S.A. revised statutes 40:69A-1, etc.
With few exceptions, the facts which provoke the present controversy are not in dispute. As revealed by the record, appellant and Joseph Marotta, also a patrolman and a brother of the director Arthur Marotta, passed a promotional examination for the position of sergeant on the police force of Hoboken. Both men were honorably discharged war veterans. The list was "promulgated" March 15, 1956 and "expired" March 14, 1959.
On March 11, 1959, the Commission, in response to a letter delivered to it by Director Marotta the same day, sent to him a written certification of the names of the first 15 men on the list eligible for promotion to the rank of sergeant,
although under the terms of the applicable ordinance, which provided for 23 sergeants on the force, only 12 vacancies for the positions then existed. The director asked for 15 names because, as he testified before the Commission, there was "expectation of some retirements between March and September 1959."
On March 12, the director conferred with each patrolman "up for promotion." His conference with appellant took place on that day at about 1:00 P.M. He testified that at the conference he advised Sogliuzzo that the latter would be promoted but, as "the appropriation * * * was for only twenty-three" he (Sogliuzzo) would be held "in abeyance for a future date"; that appellant, responding "Well, you are the Director of Public Safety, * * * accepted the position with the understanding that he would go to work in September" 1959. Appellant concedes that the director told him at that interview that he "wouldn't go on active duty as a sergeant," but denies that any particular time for the assumption of those duties was specified. In greater detail he described the conference as follows:
"* * * I went into Director Marotta's office and told him I received the certification and I accepted the job as sergeant. I was told to sit down. He shook my hand and said, "Tomorrow morning I am going to swear you in as a sergeant. After all, blood is thicker than water. I am interested in my brother who is the fourteenth man on the list.' * * * I said, 'That's right.' He said, 'I am going to ask you, after the swearing in, to come up and sign a waiver waiting for potential retirements. On the first vacancy you will be made a sergeant.' I was stunned at that time. I just looked at the director and said to him, 'You are the boss. You do what you want.'
Q. Then what happened? A. We talked for a while. I was just thinking. Then he said, 'I will see you in the morning.' He shook my hand and I left.
Q. That was prior to your being sworn in? A. That's right.
Q. After that conversation did you say to the director that you would not accept the appointment under ...