Botkin v. Mayor and Borough Council of Borough of Westwood, A--45
| Decision Date | 10 November 1958 |
| Docket Number | No. A--45,A--45 |
| Citation | 146 A.2d 121,28 N.J. 218 |
| Parties | Samson BOTKIN, Plaintiff-Respondent, v. MAYOR AND BOROUGH COUNCIL OF the BOROUGH OF WESTWOOD et al., Defendants-Appellants. |
| Court | New Jersey Supreme Court |
Milton T. Lasher, Hackensack, argued the cause for appellant. Alexander Allan, Clerk of Bergen County.
Paul T. Huckin, Englewood, and Thomas P. Cook, Princeton, argued the cause for respondent.
The Appellate Division determined that a non-binding referendum proposed by the Borough of Westwood under R.S. 19:37--1 et seq., as amended by L.1942, c. 50, N.J.S.A., should be removed from the ballot. One judge dissented. The governing body of the borough resolved not to appeal. The county clerk, however, did appeal. Argument was had on short notice in view of the impending election on November 4. On the day of argument we announced our decision that the appeal be dismissed for the reasons herein stated.
The county clerk agreed that he would have no difficulty in complying with the judgment. He, of course, had no interest in the subject matter of the suit, that is, the retention of the referendum on the ballot. Rather, the county clerk sought by his appeal to obtain a declaration for future guidance, and thus, in effect, to convert the appeal into a proceeding for a declaratory judgment.
The sole party to the proceedings in actual interest in these circumstances was the borough. By its resolution not to appeal, the borough indicated its acquiescence in the judgment and in essence a change with respect to its desire to have the referendum on the ballot. The county clerk could not seek a judgment contrary to the wishes of the borough.
Hence we do not reach the merits of the controversy presented to the Appellate Division and of course intimate no view with respect to its determination.
For dismissal: Chief Justice WEINTRAUB, and Justices HEHER, BURLING, JACOBS, FRANCIS and PROCTOR--6.
For reversal: Justice WACHENFELD--1.
This case was argued on its merits and I would decide it accordingly.
I would reverse the judgment of the Appellate Division for the reasons expressed in the dissenting opinion of Judge Gaulkin.
To continue reading
Request your trial
-
Jenkins v. Morris Tp. School Dist.
...v. Hackensack, 63 N.J.Super. 560, 165 A.2d 33 (1960), and Botkin v. Westwood, 52 N.J.Super. 416, 145 A.2d 618, appeal dismissed, 28 N.J. 218, 146 A.2d 121 (1958), he described the non-binding referendum as 'illegal and an improper abdication of the Township Board's responsibility to perform......
-
Resnick v. East Brunswick Tp. Bd. of Ed.
...are similarly limited. See, E. g., Botkin v. Westwood, 52 N.J.Super. 416, 427, 145 A.2d 618 (App.Div.), appeal dismissed, 28 N.J. 218, 146 A.2d 121 (1958). The applicable statute concerning the permissible uses of public school facilities during non-school hours, N.J.S.A. 18A:20-34, provide......
-
Dock Watch Hollow Quarry Pit, Inc. v. Warren Tp.
...provision was so construed. See also, Botkin v. Westwood, 52 N.J.Super. 416, 433, 145 A.2d 618 (App.Div.1958), app. dism. 28 N.J. 218, 146 A.2d 121 (1958). Dock Watch's contention that the statute deprived the citizens of Bridgewater of equal protection of the laws is also without merit. Ne......
-
Roman Catholic Diocese of Newark v. Borough of Ho-Ho-Kus
...300, 303, 188 A.2d 569 (1963); Botkin v. Westwood, 52 N.J.Super. 416, 425 et seq., 145 A.2d 618 (App.Div.), appeal dismissed, 28 N.J. 218, 146 A.2d 121 (1958), there is a community of interest which augurs for good relations between them. Of course the Legislature could place the public sch......