Opinion
Submitted May 27, 1938 —
Decided September 16, 1938.
In a suit brought by a county prosecutor to recover the difference between the amount of his statutory salary and that actually received by him, the answer filed by the county set up the defenses of waiver and estoppel, which were struck by the trial judge. Held, under Vander Burgh v. County of Bergen, 120 N.J.L. 444, that the defense of estoppel and waiver is available in actions of this character, and that the affidavits in opposition to the motion to strike sufficiently supported the allegations of the answer so as to raise questions necessary to be determined at a trial.
On appeal from a judgment of the Supreme Court.
For the defendant-appellant, Walter S. Keown and George D. Rothermel.
For the plaintiff-respondent, Carl Kisselman.
This is an appeal from a judgment of the Supreme Court affirming a judgment of the Camden County Circuit Court entered in favor of the plaintiff after the Circuit Court judge struck the answer of the defendant.
Plaintiff, who is prosecutor of the Pleas of Camden county, brought this action to recover the difference between the amount due him under the salary for his position fixed by statute and the amount actually received by him during a period of three years up to and including February 4th, 1937. He has judgment for this amount plus interest and costs.
Among the defenses set up in the answer was that of waiver and estoppel based upon the allegation that plaintiff had accepted the reduced salary tendered him without protest and had made no demand for payment of his salary in full until January 1st, 1937. The trial judge struck this defense upon the authority of the decision of this court in Delmar v. County of Bergen, 117 N.J.L. 337.
In this, we think there was error. As is pointed out in our recent decision in Vander Burgh v. County of Bergen, 120 N.J.L. 444, the question of waiver and estoppel was not presented in the Delmar case, Judge Delmar having declined to accept less than his full statutory salary for the period for which recovery was had. In the Vander Burgh case this court has held that the defense of waiver and estoppel is available in actions of this character.
The affidavits in opposition to the motion to strike sufficiently supported the allegations of the answer so as to raise questions necessary to be determined at a trial.
The judgment under review is reversed, and the cause remanded for further proceedings in accordance herewith.
For affirmance — None.
For reversal — THE CHANCELLOR, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.