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McEvoy v. Mayor and Council of Borough of Cliffside Park

Decided: April 2, 1963.

JOHN J. MCEVOY, PLAINTIFF-RESPONDENT,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF CLIFFSIDE PARK, ET AL., DEFENDANTS-RESPONDENTS, AND JOHN GERRITY, ET AL., INTERVENORS-APPELLANTS



Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D. Lewis, J.A.D. (dissenting).

Sullivan

Intervenors-appellants appeal from a ruling of the trial court which granted plaintiff's motion for summary judgment and declared null and void a resolution adopted by the mayor and council of the Borough of Cliffside Park (borough) purporting to involuntarily retire plaintiff as chief of police of said borough. The ruling reinstated plaintiff as chief of police "with full tenure protection until he shall reach the age of seventy." Ancillary to its ruling upholding plaintiff's status as chief of police, the trial court also nullified the consequential appointments in the borough's police department of intervenors-appellants as chief, captain, lieutenant, sergeant and patrolman, respectively.

Basically the question involved is whether or not plaintiff, having been retained in service by the governing body of the Borough of Cliffside Park after he became 65 years of age, may be involuntarily retired before he attains the age of 70.

The facts are undisputed. Plaintiff was appointed a member of the police department of the borough in 1920 and was duly appointed chief of police in May 1955. On October 19, 1960 plaintiff became 65 years of age. Shortly prior thereto plaintiff attended a conference meeting of the borough mayor

and council, expressed a desire to continue in service, and was "granted an extension to serve as Chief of Police of the Borough of Cliffside Park, over and above the compulsory retirement age of sixty-five years." On October 20, 1960 the borough clerk sent the following letter to the Consolidated Police and Firemen's Pension Fund Commission.

"Consolidated Police & Firemen's

Pension Fund Commission

P.O. Box 1416

Trenton 25, New Jersey

Re: John J. McEvoy

Police Department

Birthdate 10-19-1895

Gentlemen:

The Mayor and Council wish me to advise you that Police Chief John J. McEvoy is to be retained in service by the governing body for an indefinite period.

Very truly yours,

NICHOLAS CASTRONUOVO

Borough Clerk

NC/B"

Plaintiff continued in service as chief of police until December 3, 1961, at which time, by resolution adopted by the mayor and council, he was involuntarily retired "from said post, effective immediately," and granted accumulated sick leave of $6,461.20, to be paid weekly until said amount was exhausted.

The sick leave benefits were paid for 11 weeks and then discontinued. After considerable negotiations plaintiff formally demanded reinstatement, or payment of the balance of his sick leave. The council, however, did not take any action on the demand for reinstatement and refused to continue the sick leave payments on the ground that the part of the resolution authorizing them was illegal. The instant suit was then filed against the mayor and council seeking plaintiff's reinstatement, or in the alternative, payment to ...


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