Vander Burgh v. County of Bergen , 120 N.J.L. 444 ( 1938 )

The plaintiff, a judge of the District Court of the First Judicial District for the county of Bergen, sues for an amount representing the reduction made in his salary by the board of freeholders for the years 1933 to January, 1937. The legislature established the salary at $4,100 a year.

It appears that early in the month of January, 1933, plaintiff signed a consent to a reduction of the statutory salary, authorizing the fiscal authority of the county of Bergen to make the deduction in question. By its terms, however, this consent or authorization was limited to that year and was neither renewed nor extended to subsequent years. The consent is, in substance, an unequivocal waiver of the difference in salary as fixed by the legislature and the salary as reduced by the governing body in the county. There can therefore be no recognition, legally, of this part of the plaintiff's claim.

As to the remainder of the claim, however, the situation is quite different, factually and legally. For the balance of the term in question, the plaintiff accepted a reduced salary apparently without objection. I am unable to agree that the acceptance of an amount less than the salary fixed by the legislature raises an estoppel against the plaintiff so that as a matter of law he may be held to have waived the difference. Whether a waiver came into being was a fact question under the circumstances of this case and should have been submitted to a jury for determination. The acceptance of a lesser amount than the salary fixed by law does not, without more, create a waiver, estoppel or an accord and satisfaction, as a matter of law.Kehn v. State of New York, 93 N.Y. 291; Clark v. Clark,142 N.Y. 101; Grant v. Rochester, 79 A.D. 460;affirmed, 175 N.Y. 431; Pitt v. Board of Education, 216Id. 304. This likewise is the rule of the Federal Supreme Court: Glavey v. United States, 182 U.S. 595; UnitedStates v. Andrews, 240 Id. 90, 93.

The defendant, claiming a waiver in its separate defense, had the burden of proving it. There is no proof whatever to support the pleading except a stipulated exhibit or receipt which sets forth the annual statutory salary, the reduced salary basis, the amount due (a semi-monthly installment) and the signature of the plaintiff, payee.

The facts in this case do not come within the principal laid down in Love v. Jersey City, 40 N.J.L. 456; but compareMuhlenbeck v. West Hoboken, 99 Id. 198, 199, where it was held by this court to be a question of fact as to whether submitting bills for salary for a lesser amount than the sum fixed by ordinance amounted to a waiver. Waiver depends upon the intention of the party against whom it is charged. It must be an unequivocal, intentional relinquishment of a known right, and it must be proved. If the waiver be proved by an express, incontrovertible declaration which admits of but one conclusion (as in this case, for the reduction in salary for 1933) then the question of waiver is one of law; but when the defense of waiver, as here, rests solely upon the receipt of a lesser sum than the statutory salary for 1934-1936, and is unsupported by any proof that the act of receiving the lesser sum was the voluntary, intentional donation or relinquishment of part of his salary by the plaintiff, the issue as to whether this amounts to waiver is a fact question.

Mr. Justice Perskie, Judges Dear, WolfsKeil, Rafferty and Walker, are in accord with the view here expressed, which would result in a reversal and the award of a venire de novo. For affirmance — None.

For reversal (on the opinion of Justice Case) — THE CHANCELLOR, PARKER, CASE, BODINE, DONGES, HEHER, HETFIELD, WELLS, JJ. 8.

For reversal (on the opinion of Brogan, Chief Justice) — THE CHIEF JUSTICE, PERSKIE, DEAR, WOLFSKEIL, RAFFERTY, WALKER, JJ. 6.