Bodnar v. Board of Health

190 A. 776, 15 N.J. Misc. 279, 1937 N.J. Sup. Ct. LEXIS 173

• Court: Supreme Court of New Jersey
• Decided: March 23, 1937
• Status: Published

Opinion

Per Curiam.

The plaintiff, a nurse, employed by the board of health of the borough of Carteret, was illegally discharged January 9th, 1936. Bodnar v. Board of Health, 14 N. J. Mis. R. 318; 184 Atl. Rep. 632; affirmed, 189 Atl. Rep. 95; 117 N. J. L. 527.

The present action was brought after the decision of the Supreme Court and before the affirmance by the Court of Errors and Appeals, to recover the salary due the plaintiff for the months of January, February, March and April, 1936. The trial court refused to stay the action until the determination of the cause in the Court of Errors and Appeals.

The statute applicable to the plaintiff’s situation is as follows: “Whenever any municipal officer or employe has been or shall be illegally dismissed from such office or employment, and the said dismissal has been or shall be set aside as illegal by a court of competent jurisdiction, such officer or employe shall be entitled to recover the salary of such office or employment for the period covered by such illegal dismissal.” Pamph L. 1918, ch. 139, p. 322, as amended, Pamph. L. 1919, ch. 149, p. 323; Cum. Supp. Comp. Stat. 1911-1924, p. 2137, § *136-1320B(1). The * dismissal of plaintiff having been set aside by the Supreme Court, an action for the salary fixed for the plaintiff’s employment was well founded.

Appellant complains because the trial court refused a stay pending the determination of the invalidity of the dismissal in the Court of Errors and Appeals. The granting of a stay of a law action is usually a matter vested in the sound discretion of the trial court. The Court of Errors and Appeals having now determined that the plaintiff was unlawfully deprived of her office, we need not consider whether there should have been a stay, and the judgment below is affirmed, with costs.