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Delisle v. City of Camden

Decided: May 25, 1961.

PETER DELISLE, PETITIONER-RESPONDENT,
v.
THE CITY OF CAMDEN, RESPONDENT-APPELLANT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

[67 NJSuper Page 588] Petitioner appealed to the State Department of Civil Service from the action of the Director of Revenue and Finance of the City of Camden in terminating his service in the position of Cashier at the end of the three-month probationary period provided for by R.S. 11:22-6. His contention was that the notification to him of the unsatisfactory nature of his services was given too late,

and his tenure in the position therefore became vested. Civil Service agreed with him; Camden appeals its ruling.

The statute reads as follows:

"Appointments and promotions to positions in the competitive, noncompetitive and labor classes of the classified service shall be for a probationary period of three months. If, at the expiration of such period, the conduct or capacity of the probationer has not been satisfactory, to the appointing authority, the probationer shall be notified in writing that he will not receive absolute appointment, otherwise his retention in the service shall be equivalent to his final and absolute appointment."

On July 16, 1959 petitioner was promoted by the city authorities from his previous position of Senior Tax Clerk to that of Cashier. A letter to the petitioner by the appointing authority, the Director of the Department of Revenue and Finance of the city, dated October 15, 1959, notified him that his probationary service was unsatisfactory and that he was being returned to his former position. The testimony taken before the Department of Civil Service is conflicting as to whether this letter was delivered to petitioner on October 15, 1959, as claimed by the city, or on the afternoon of October 16, 1959, as sworn to by petitioner. The Department of Civil Service found the latter to have been the date of delivery of the notice. This finding is supported by the proofs and we adopt it.

We are unable, however, to agree with the Department that the fact so found requires the conclusion that the notification was late.

It is clear to us that the three-month probationary period did not expire until October 16, 1959. Although the city conceded in its brief that the period expired October 15, 1960, it repudiated that concession at the argument when the court questioned its correctness, and we gave the parties an opportunity to submit supplementary briefs on the point.

It is well settled that when a legal requirement fixes a number of days from a date or an event for the doing of an act, the computation is made by excluding the first

date and including the last, absent any legislative indication of intent that a different formula should apply. McCulloch v. Hopper , 47 N.J.L. 189, 190 (Sup. Ct. 1885); Kilmurray v. Gilfert , 10 N.J. 435, 439 (1952); State v. Rhodes , 11 N.J. 515, 521-522 (1953); Barron v. Green , 13 N.J. Super. 483 (Law Div. 1951). This is also the rule of computation used in our practice rules. R.R. 1:27.

The same rule is held applicable when the legal time period is stated in terms of months, Warshaw v. De Mayo , 8 N.J. Misc. 359 (Sup. Ct. 1930), or years, McCulloch v. Hopper, supra. Thus, in the Warshaw case, supra , involving the requirement that a mechanics lien claim action be instituted within four months from the date of furnishing the last materials, an action begun July 23, 1928 was held timely where the last material was furnished March 23, 1928. By general legislative definition, the word "month" means a calendar month. N.J.S.A. 1:1-2. The notion that a month means a lunar month, In re Ellis' Case , 8 N.J.L. 232 (Sup. Ct. 1825), is out of harmony with the common modern acceptation of the meaning of the term and with the authorities cited.

There can consequently be no doubt that the notification by the city in the present case to petitioner on October 16, 1959 was within three months of the commencement of his probationary period of service on July 16, ...


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