The opinion
ON MOTION FOR REHEARING
PER CURIAM.
In a motion seeking modification of our opinion (or in the alternative a rehearing) respondent requests the court to rule on the question of whether he should be given credit for attorney’s fees and expenses in the determination of the sum to be deducted in mitigation of back pay under the rule of avoidable consequences. His motion states that he has employed counsel and will claim a credit for attorney’s fees and expenses in the hearing to be held by the Personnel Advisory Board for the purpose of determining the net amount of compensation due respondent. He points out that if the issue of whether he is entitled to such credit is not settled in this opinion, a new series of appeals likely would result from whatever action is taken by the Personnel Advisory Board with reference to such claimed credits.
This issue was not considered or resolved in the foregoing opinion as it was neither briefed or argued by the parties. At the time this case was submitted, respondent opposed completely the idea that the rule of avoidable consequences should be applied. However, the application of that rule now having been settled, it appears certain that the issue on the deducti-bility of attorney’s fees and expenses will arise when the hearing is held before the Personnel Advisory Board. Under those circumstances, we have concluded that it is better for us to resolve the issue now instead of postponing it for consideration in subsequent appeals.
This question has been considered on three occasions by the Supreme Court of New Jersey. In addition to the cases referred to in Judge Seiler’s concurring opinion, the court expressly resolved the question in the case of Perrella v. Board of Education, 51 N.J. 323 , 240 A.2d 417, 428 (1968) wherein the court said:
“In Mastrobattista [Mastrobattista v. Essex County Park Comm’n, 46 N.J. 138 , 215 A.2d 345 ] it was held that when a public employee with tenure was improperly dismissed, he was entitled to recover his lost back pay less his earnings in outside employment between the date of dismissal and date of restoration to his position. We recognized, however, that such an employee might well have been obliged to incur expenses and attorney’s fees in order to vindicate his right to the position. In this event, whenever his back-pay award was to be mitigated by his outside earnings, it seemed just and equitable to give him a credit against the sum to be applied in mitigation of the reasonable counsel fee and expenses which he had paid or obligated himself to pay in the successful prosecution of his action. Thus his interim outside earnings less such fee and expenses would represent the factor to be applied in diminution of his back-pay recovery. This is the purport of Mastrobattista, as well as of Mason v. Civil Service Comm’n, 51 N.J. 115 , 238 A.2d 161 , supra.”
We agree with the reasoning in the foregoing quotation from Perrella. Ac *148 cordingly, we hold that an improperly dismissed merit system employee is entitled in the determination of the amount by which his back-pay award is to be mitigated under the rule of avoidable consequences to have credited against such amount the counsel fee plus expenses which the employee has paid or obligated himself to pay in vindicating his right to reinstatement of his position, provided that the amount of such credit is limited to what is determined to be a reasonable fee and reasonably necessary expenses. The judgment of the circuit court should direct the Board to allow such credit in determining the sum to be deducted in mitigation of the amount of back pay which respondent shall receive.
Respondent’s motion for rehearing is overruled.
DONNELLY, C. J., and SEILER, MORGAN, BARDGETT and FINCH, JJ., concur in per curiam.
HOLMAN, J., dissents to per curiam.
HENLEY, J., dubitante as to per curiam.