This is an action by plaintiffs seeking the recovery of back salary for the period of suspension pending the trial and determination of criminal indictments. Defendant moves to dismiss the complaint on the ground that the same fails to state a claim against it upon which relief can be granted as a matter of law. Plaintiffs filed a cross-motion for summary judgment.
The parties are in agreement that there is no genuine issue as to any of the following material facts.
Plaintiffs were members of the Police Department of the City of Asbury Park, a municipal corporation, and on the 7th day of November 1958, were suspended from their positions pursuant to written notices occasioned by their indictment by the Monmouth County grand jury.
No written departmental charges were served or filed, or departmental trial held. The notice of dismissal simply stated that they were suspended during the pendency of the indictments and no other charge was stated nor was there a time fixed for hearing.
On April 24, 1959 plaintiffs applied to the Civil Service Commission for reinstatement, which Commission determined that no action would be taken on the application for reinstatement until such time as the indictments had been disposed of.
On December 29, 1959 the city manager of Asbury Park requested of the Civil Service Commission permission to hire the plaintiffs in a new, temporary capacity, to wit, laborers in the Beach Department. This permission was denied.
On June 22, 1960 plaintiffs were acquitted of the criminal charges laid in the indictments, and on July 3, 1960 they were ordered back to duty as patrolmen of the City of Asbury Park Police Department and have been so functioning ever since.
Plaintiffs filed written application for salary covering the period of suspension within 30 days after July 3, 1960.
Throughout the entire period of suspension plaintiffs did not render any services for the benefit of the municipality.
Previous to the present suit plaintiffs, by complaint in lieu of prerogative writs, sought (1) reinstatement to their positions as police officers of the City of Asbury Park, from which they allege they were improperly suspended; and (2) their salaries from the date of the suspension.
Assignment Judge J. Edward Knight, in a letter opinion dated June 7, 1960, determined that ...