Bor. Of Milltown v. City Of New Brunswick.
| Decision Date | 16 October 1946 |
| Docket Number | 147/21. |
| Citation | 49 A.2d 234 |
| Parties | BOROUGH OF MILLTOWN v. CITY OF NEW BRUNSWICK. |
| Court | New Jersey Court of Chancery |
Suit in equity by the Borough of Milltown against the City of New Brunswick to enjoin defendant from proceeding with its suit against complainant to recover an amount charged for chemical treatment and disposition of sewage discharged into defendant's sewage system by complainant.
Injunction granted.
See also 46 A.2d 562
Syllabus by the Court
.
1. Injunction to restrain an action at law will lie where the subject matter thereof has been considered by the Court of Chancery, and the same issues determined against the defendant.
2. Res judicata by a decree in equity is, doubtless, pleadable in the action at law, but the party holding the decree is not driven to that defense.
Hicks, Kuhlthau, Thompson and Deshler, of New Brunswick (John B. Molineux of New Brunswick, appearing), for complainant.
Paul W. Ewing, of New Brunswick, for defendant.
STEIN, Vice Chancellor.
Complainant, Borough of Milltown, prays injunction against the City of New Brunswick from proceeding with a suit instituted against complainant in the First Judicial District Court of Middlesex County, in which suit the City of New Brunswick seeks to recover at the rate of $35 per million gallons for sewage chemically treated and disposed of by it under an agreement dated June 18, 1914. This agreement the City of New Brunswick undertook on February 20, 1945, to terminate by resolution of its Board of Commissioners, and in which resolution it was provided that commencing June 1, 1945, the sum of $35 per million gallons would be charged for treating and disposing of such sewage. The resolution also recites that since the agreement of June 18, 1914, contained no provision as to its duration the agreement was terminable by either party on reasonable notice.
Heretofore on February 27, 1942, the City of New Brunswick brought its bill of complaint in this Court against the Borough of Milltown in which it sought to have the same agreement of June 18, 1914 declared void and inoperative, set aside and cancelled, and the Borough of Milltown restrained from further discharging sewage into its sewage system. City of New Brunswick v. Borough of Milltown, 135 N.J.Eq. 310, 38 A.2d 288, 290.
On the final hearing of this present cause, the facts not being in dispute, the single question presented was whether City of New Brunswick v. Borough of Milltown, supra, is res judicata. Counsel for the City of New Brunswick concedes that a former judgment involving the identical matter between the same parties will work an estoppel, but contends that the rule of resjudicata is not conclusive as to a question of law.
In City of New Burnswick v. Borough of Milltown, supra, it was contended that the agreement since it contained no provision for its termination was void as against public policy. After the opinion was handed down in that case, on application for rehearing on the ground that since the agreement contained no termination date it had been terminated on reasonable notice, the application for rehearing on this point was denied. So that the matters and things now presented were before the Court in that case and passed upon and decided.
The resolution of the Board of Commissioners of the City of New Brunswick of February 20, 1945, again attempts to terminate and end the contract as of May 31, 1945, notwithstanding the fact that in City of New Brunswick v. Borough of Milltown, supra, this Court decided that the contract is a valid subsisting contract made pursuant to statutory authority notwithstanding its duration is without limitation. We held:
‘* * * The power delegated to the contracting municipalities by the statute contains no limitation with respect to the length of time for which such agreement may be made; hence this agreement made pursuant to such statutory authority may not be condemned because its duration is without limitation.’
And the decree provided ‘that said...
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...of Milltown v. City of New Brunswick, N.J.Ch., 1946, 46 A.2d 562;Borough of Milltown v. City of New Brunswick, 1946, 138 N.J.Eq. 552, 49 A.2d 234. But on appeal the Court of Errors and Appeals, October 27, 1947, reversed this later case, holding the question of terminability was not res jud......
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City of New Brunswick v. Borough of Milltown
...have been uniformly unsuccessful. See New Brunswick v. Milltown, 135 N.J.Eq. 310, 38 A.2d 288 (Ch.1944); Milltown v. New Brunswick, 138 N.J.Eq. 552, 49 A.2d 234 (Ch.1946), rev'd 140 N.J.Eq. 565, 55 A.2d 209 (E. & A.1947); New Brunswick v. Milltown, 3 N.J.Super. 113, 65 A.2d 621 I hold that ......
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Bor. Of Milltown v. City Of New Brunswick.
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