Civil action. On motion for summary judgment.
Barlow, J.c.c. (temporarily assigned).
Plaintiff institutes this action to recover back salary which he contends is due and owing but was not paid to him during the period he was illegally discharged from his position as a municipal employee of the City of Trenton.
Prior to July 1, 1962, plaintiff was a duly appointed tax assessor for the City of Trenton, his term of office to expire on
July 1, 1965. Since July 1, 1962, the City of Trenton has operated under a new form of government provided for by the provisions of the Faulkner Act, previously adopted by its citizens.
On July 1, 1962 defendant, acting within the authority which he considered to be conferred upon him by the provisions of the newly-adopted Faulkner Act, terminated the employment of plaintiff. Thereafter, on January 1, 1963, plaintiff was reinstated and restored to his former position.
During the fall of 1962, following his discharge but prior to his reinstatement, plaintiff appeared on one or more occasions before the Mercer County Board of Taxation as an expert witness on behalf of three property owners who were appealing assessments levied by the City of Trenton for the tax year 1962. His testimony was, of course, necessarily adverse to the position taken by the city through its tax assessor's office.
Following his reinstatement plaintiff instituted this action, seeking a determination adjudging the termination of his employment to be illegal, and demanding payment of the salary due and owing to him but unpaid during the period between his discharge and his reinstatement. He now moves for a summary judgment.
Defendant does not resist the contention that plaintiff's discharge was illegal, that, while defendant considered that he was acting properly within the limits of the authority thought to be conferred upon him by the newly-adopted Faulkner Act, such an interpretation, he concedes, was erroneous in light of the decision in Beirne v. Gangemi , 74 N.J. Super. 557 (App. Div. 1962), which decision was published following plaintiff's discharge. Indeed, as a result of the decision aforesaid, plaintiff was reinstated by the defendant and resumed his employment on January 1, 1963.
Accordingly, the only issue here then remaining to be resolved is whether or not plaintiff is entitled to recover the salary he lost during the period of his discharge.
N.J.S.A. 40:46-34 provides in part as follows: