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Evanko v. Duff

Decided: October 21, 1960.

JOHN EVANKO, CHAIRMAN, AND MAYNARD B. WINSTON AND JOHN P. HUGHES, COMMITTEEMEN OF THE TOWNSHIP OF WOODBRIDGE, IN THE COUNTY OF MIDDLESEX, FOR AN INVESTIGATION OF ALL MUNICIPAL OFFICIALS, OFFICERS AND EMPLOYEES IN RELATION TO DISCHARGING THEIR OFFICIAL DUTIES AND TO INVESTIGATE SUCH ADDITIONAL SUBJECTS, PERSONS OR MATTERS FALLING WITHIN THE JURISDICTION OF THE COMMITTEE AS APPEARS NECESSARY PURSUANT TO N.J.S.A. 40:48-25 AND N.J.S.A. 2A:67A., PLAINTIFFS,
v.
NATHAN DUFF, TOWNSHIP ATTORNEY OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANT



Giuliano, J.s.c.

Giuliano

[63 NJSuper Page 550] In this action, a declaratory judgment is sought pursuant to N.J.S. 2 A:16-50 to 62, inclusive, and R.R. 4:92 A , to determine whether Nathan Duff, by virtue of his status as Township Attorney of the Township

of Woodbridge and acting at the request of two members of the Woodbridge Investigating Committee, has a right to be present in the area reserved to the committee for the purpose of advising the members who requested his presence notwithstanding a 3-2 vote of the committee ordering him to leave the area reserved for the committee.

The controversy is the culmination of a course of events commencing with a resolution of the Woodbridge Township Committee adopted on August 9, 1960, which appointed an investigating committee pursuant to R.S. 40:48-25 and N.J.S. 2 A:67 A -1 et seq. ,

"* * * to examine any and all officials, officers and employees of the Township of Woodbridge, in relation to the discharge of his or their official duties or conduct, as the case may be, and to examine and investigate such additional subjects, persons or matters, falling within the jurisdiction of this Township Committee, as may, in the judgment of said Committee, require or necessitate such examination and investigation.

Be it further Resolved, that Lewis S. Jacobson be and is hereby appointed special counsel to said Board subject to the responsibilities and duties by it imposed."

At the regular meeting of the investigating committee on September 14, 1960, Nathan Duff entered the area reserved for the committee and its special counsel. He did so at the request of two members of the committee who asked him to be present to advise them on legal matters. The committee, by a majority vote of 3-2, asked Nathan Duff to leave the area reserved to the committee. He refused to do so. Thereafter, by a vote of 3-2, the committee held Nathan Duff in contempt and the committee counsel, Lewis S. Jacobson, was instructed to take such proceedings as would enforce the contempt and decide the issue involved. The committee hearing was then adjourned and has not reconvened since.

A motion was made before this court by Mr. Jacobson for an order to show cause why Nathan Duff should not be held in contempt for his refusal to obey the mandate of the committee. On September 23, 1960 an order was issued

directing Nathan Duff to appear on October 14, 1960 and show cause why he should not be held in contempt of the committee.

Before the date of the hearing, counsel for the parties advised the court that a stipulation had been consummated which provided, inter alia , for dismissal of the order to show cause entered on September 23, 1960; the dispute was to be brought before the court in an action for declaratory judgment, and the attorney for Nathan Duff agreed that he would --

as attorney for Nathan Duff waive

(1) jurisdiction

(2) time for filing an answer

(3) waive the necessary time requirements on an order to show cause and/or the order to show cause itself in order that there will be an adjudication of the issue as raised in the complaint about to be filed, and which is particularly set forth as follows: "The Court shall determine whether Nathan Duff by virtue of his status as Township Attorney, and acting at the request of two members of the Investigating Committee to be present to advise them, should be excluded from the area reserved to the Committee by the vote of three members of the Committee."

In accordance with the aforesaid stipulation, counsel for the investigating committee filed a complaint for declaratory judgment on October 6, 1960. This complaint set forth a demand for

"* * * judgment whereby this Honorable Court shall determine whether Nathan Duff by virtue of his status as Township Attorney, and acting at the request of two members of the Investigating Committee to be present to advise them, should be excluded from the area reserved to the Committee by the vote of three members of the Committee * * *."

By way of answer, the defendant admits all the factual allegations pleaded by the plaintiffs and urges the defense of legal right and duty under section 4 of the Woodbridge ordinance. The defendant also counterclaimed. In paragraphs 2, 3, 4 ...


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