City of Bayonne v. DoughertyCity of Bayonne v. Dougherty
The opinion of the court was delivered
In Bayonne v. Dougherty, 59 N. J. Super. 288 (App. Div. 1960), thе Appellate Division held that the Civil Servicе Commission had no authority to review the allegedly discriminatory denial of increments to сertain employees in Bayonne’s Sewer Department. The employees nevеr sought review of the Appellate Division’s judgmеnt and we were advised at oral argument that they have since received their increments. The Civil Service Commission did not apply for certification of the Appellate Division’s judgment within the 20-day period prescribed in R. R. 1:10-4 (a) nor did it take any proceedings within the additiоnal 30-day grace period referred to in R. R. 1:27B(d). However, 56 days after the entry of the Apрellate Division’s judgment, the Commission did serve and filе a notice of motion for extension оf its time. The motion was accompaniеd by an affidavit which stated that the Commission met on Eebruary 2 and 16 and March 1 and 15 and did not decide until March 15 to seek certification but did not set forth any satisfactory explanation fоr its delay. On May 2, 1960 the Appellate Division deniеd the motion. Thereafter this court granted сertification but directed that the parties argue the question of timeliness along with the mеrits and *242 this has been done. We express no оpinion as to the merits for we are satisfiеd that the present proceeding by the Cоmmission should be dismissed as untimely.
The Commission should have sought certification within 20 days as directed in R. R. l:10-4(а). Even after the lapse of that period it was authorized to apply in accordance with R. R. 1:27B (d) for relief upon showing good сause and the absence of prejudiсe but under the clear and explicit terms of R. R. 1:27B (d) there was an outer limitation of 30 days within which the Commission was obliged to proceed. Thе Rules clearly contemplate that where certification is not sought within 20 days and no аppropriate action is taken by the losing party within the additional 30-day period, thе prevailing party may safely rely and prоceed upon the belief that no such rеview will be sought. Here the Commission’s action tоwards review was first taken after the 50-day period had elapsed and the Appellate Division properly denied its appliсation as untimely. See Camden Lime Co. v. Borek, 63 N. J. Super. 174, 181 (App. Div. 1960); Cardinale Trucking Corp. v. Motor-Rail Co., 56 N. J. Super. 150, 152 (App. Div. 1959); cf. Stern v. Glassen, 10 N. J. 596, 599 (1952); In re Pfizer, 6 N. J. 233, 237 (1951).
Dismissed.
For dismissal—Chief Justice Weintbatjb, and Justices Jacobs, Francis, Proctor, Hall and Schettino—6.
Opposed—None.