Plaintiff and defendant file cross-motions for summary judgment.
Plaintiff, a former member of the police department of the defendant municipality,*fn1 seeks a judicial determination that a suspension imposed upon him from February 10 to June 28, 1964 while he was under investigation on a charge alleging that he threatened to take the life of another, in violation of N.J.S.A. 2A:113-8, be declared illegal, and that, pursuant to N.J.S.A. 40:46-34, he recover judgment for the salary which he lost during the period of the suspension. N.J.S.A. 40:46-34 reads as follows:
"Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal or suspension."
It is noted that, before recovery for back salary can be had, there must be a "judicial determination" of the illegality of the suspension. Cf. Devlin v. Trenton, 126 N.J.L. 563 (1941); Strohmeyer v. Little Ferry, 6 N.J. Super. 282 (App. Div. 1950); Rozmierski v. Newark, 42 N.J. Super. 14 (Law Div. 1956); Hintenberger v. Garfield, 52 N.J. Super. 526 (App. Div. 1958); Graham v. Asbury Park, 69 N.J. Super. 256 (App. Div. 1961), affirmed 37 N.J. 166 (1962); Rosetty v. Hamilton Tp. Comm., 82 N.J. Super. 340 (Law Div. 1964), affirmed 96 N.J. Super. 66 (App. Div. 1967).
Plaintiff prays for the following relief: "A) Judgment that his suspension be declared illegal; B) Judgment against the defendant for $2,010.42 for back salary; * * *."
Defendant pleads several defenses, but we need only reach those relating to timeliness of this suit (a) within R.R. 4:88-15 and (b) laches. The facts are undisputed. The relevant chronology follows:
February 10, 1964 -- Complaint made in the Hoboken Municipal Court by Police Captain Fallon, whereby plaintiff herein was charged with violation of N.J.S.A. 2 A:113-8 (threatening to take the life of another with a gun).
May 1, 1964 -- Plaintiff waived preliminary examination and was held for the action of the Hudson County grand jury.
June 28, 1964 -- Plaintiff reinstated to the police department because of a shortage of men therein.
December 16, 1964 -- Hudson County grand jury "no billed" the aforesaid charge.
* August 1, 1965 -- Plaintiff arrested at Point Pleasant Beach, New Jersey, on three criminal charges, viz., intent to rape, assault with a gun, and possession of a gun; and two disorderly persons charges, viz., intoxication and molesting and interfering.
* August 2, 1965 -- Plaintiff again suspended as a member of the Hoboken Police Department pending investigation of the latter charges.
* August 16, 1965 -- Plaintiff pleaded guilty to the two disorderly persons charges and fined $50 and $10 costs on each.
* September 17, 1965 -- Plaintiff indicted by the Ocean County grand jury on four counts, namely, intent to rape, assault with a gun, lewdness, and entry with intent to commit battery.
October 7, 1966 -- Plaintiff resigned from Hoboken Police Department for "personal reasons."
December 22, 1966 -- Plaintiff pleaded guilty to the charge of entry with intent to commit battery in the Ocean County Court and was sentenced from one to two years in State Prison, which sentence was suspended and he was put on probation for a ...