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Bernstein v. Krom

Decided: December 18, 1969.

NATHAN BERNSTEIN, AS A CITIZEN AND TAXPAYER OF THE BOROUGH OF POMPTON LAKES, PLAINTIFF,
v.
DONALD KROM AND THE MAYOR AND COUNCIL OF THE BOROUGH OF POMPTON LAKES, DEFENDANTS



Rosenberg, J.c.c. (temporarily assigned).

Rosenberg

Plaintiff has brought an action in lieu of prerogative writs to remove Donald Krom from the office for which he was appointed to fill the vacancy of Councilman William Schneider whose term would have terminated December 31, 1970.

Krom was elected as a councilman of the Borough of Pompton Lakes, New Jersey, for a term commencing January 1, 1966 and expiring December 31, 1968. He ran for reelection on November 5, 1968 and was defeated. On December 4, 1968 Councilman Schneider resigned as councilman, which resignation was duly accepted. His term, as stated, would have terminated December 31, 1970. On December 18, 1968 Krom resigned and his resignation was duly accepted. Thereafter Krom was appointed by the mayor and council of the borough to fill the vacancy created by

Schneider. In the election held November 4, 1969, Krom was elected as councilman for a term of one year commencing January 1, 1970.

Plaintiff's claim is that the appointment of Krom was invalid under N.J.S.A. 40:46-5, which reads as follows:

Members of governing body ineligible for certain offices.

No member of any governing body of any municipality shall, during the term for which he shall have been elected or appointed such member, be eligible for election or appointment to an office required to be filled by the governing body of which he is a member, unless such office is required by law to be filled by a member of such governing body; provided, nothing herein contained shall prohibit a councilman or alderman or commissioner or member of a township committee from resigning as councilman or alderman or commissioner or member of a township committee and being appointed to a position required to be filled by the governing body of a municipality during the time for which he was elected such councilman or alderman or commissioner or member of the township committee; provided, further, that said position shall have been in existence and continuously filled for 5 years or more prior to the passage of this act or was created by statute; provided, said position was not created during said term of office; and provided further, that the salary of said office shall not be increased during the term for which said councilman or alderman or commissioner or member of the township committee was elected. [Emphasis added]

Defendant concedes that plaintiff has standing to bring this action as a citizen and taxpayer and as an inhabitant of the municipality. Goff v. Hunt , 6 N.J. 600 (1951); N.J.S.A. 2A:66-6. The parties have agreed to the above-stated facts.

Normally the time in which an action in lieu of prerogative writs may be brought in a matter such as this is no later than 45 days after the accrual of the right to review or relief claimed. However, the court may enlarge the period of time provided in paragraph (a) of the rule where it is manifest that the interests of justice so require. R. 4:69-6(a)(c). I have enlarged the period of time in the interest of public importance.

It is quite clear from the facts that the resignation of Krom had but one purpose, and that was to extend his

term of office beyond December 31, 1968, and was in opposition to N.J.S.A. 40:46-5. Such appointment ...


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