Butler v. Inhabitants of City of Plainfield

135 A. 669, 5 N.J. Misc. 170, 1927 N.J. Sup. Ct. LEXIS 337

Opinion

Per Curiam.

Relator seems to have mistaken his remedy. He claims that he was de facto and de jure inspector of buildings of the city of Plainfield from January 1st, 1925, to January 26tli, 1925, and that he performed the service. All this is denied. The municipal body has not admitted the propriety of the claim; on the contrary, it says it is illegal and refuses to order it paid.

Tn this situation, and in the absence of any judicial determination that there is a debt due from the city to relator, the general rule applies that mandamus will not lie, and this on the fundamental ground that the legal right must be clear. The ordinary and well-recognized procedure where the right to salary is asserted and denied is by an ordinary suit at law for the salary. Instances are Fredericks v. Board of Health, 82 N. J. L. 200, and Gaskill v. Atlantic City, 89 Id. 269. If that suit results in a judgment favorable to the claimant, mandamus then lies to compel the municipality to pay it. So, also, if the corporate body has recognized the propriety of the claim and ordered it paid and the disbursing officer refuses to pay, mandamus will lie against him. American, &c., Co. v. Seymour, 79 Id. 92. But the present case does not fall within either class.

The rule to show cause will be discharged, with costs.