Citro v. Reilly, L--27577

• Decision Date: 05 February 1968
• Docket Number: No. L--27577,L--27577
• Citation: 99 N.J.Super. 215,239 A.2d 38
• Parties: Frank F. CITRO, George Harvey, Joseph Palaia, Alan D. Sugarman and William Van Middlesworth, Plaintiffs, v. John J. REILLY, Donald Crosta, John Beekman, Forrest Gillespie, Harry B. Tumen, all individually and as Councilmen of the Township of Ocean, Frederick W. Miller, Treasurer of the Township of Ocean, and Jack Sweitzer, Township Manager of the Township of Ocean, Defendants. John J. REILLY, Donald Crosta, John Beekman, Forrest Gillespie, Harry B. Tumen, all individually and as Councilmen of the Township of Ocean, Third-Party Plaintiffs, v. James J. GARRITY, Weston L. Dangler, Amos E. Kraybill, Harold D. Shannon, Alfred M. Woolley, Lee F. Mitchell and the Estate of E. Melvin Goddard, deceased, all individually and as former Committeemen of the Township of Ocean, Third-Party Defendants. Frederick W. MILLER, Treasurer of the Township of Ocean, Jack Sweitzer, Township Manager of the Township of Ocean, and the Township of Ocean, in the County of Monmouth, a municipal corporation of the State of New Jersey, Third-Party Plaintiffs, v. James J. GARRITY, Weston L. Dangler, Amos E. Kraybill, Harold D. Shannon, Alfred M. Woolley, Lee F. Mitchell and the Estate of E. Meivin Goddard, Deceased, all individually and as former Committeemen of the Township of Ocean, Third-Party Defendants.
• Court: New Jersey Superior Court

Page 215

99 N.J.Super. 215

239 A.2d 38

Frank F. CITRO, George Harvey, Joseph Palaia, Alan D.

Sugarman and William Van Middlesworth, Plaintiffs, v. John J. REILLY, Donald Crosta, John Beekman, Forrest

Gillespie, Harry B. Tumen, all individually and as

Councilmen of the Township of Ocean, Frederick W. Miller,

Treasurer of the Township of Ocean, and Jack Sweitzer,

Township Manager of the Township of Ocean, Defendants.

John J. REILLY, Donald Crosta, John Beekman, Forrest

Gillespie, Harry B. Tumen, all individually and as

Councilmen of the Township of Ocean, Third-Party Plaintiffs, v. James J. GARRITY, Weston L. Dangler, Amos E. Kraybill, Harold D. Shannon, Alfred M. Woolley, Lee F. Mitchell and the Estate of E. Melvin Goddard, deceased, all individually and as former Committeemen of the Township of Ocean,

Third-Party Defendants.

Frederick W. MILLER, Treasurer of the Township of Ocean,

Jack Sweitzer, Township Manager of the Township of Ocean, and the Township of Ocean, in the County of Monmouth, a municipal corporation of the State of New Jersey, Third-Party Plaintiffs, v. James J. GARRITY, Weston L. Dangler, Amos E. Kraybill, Harold D. Shannon, Alfred M. Woolley, Lee F. Mitchell and the Estate of E. Meivin Goddard, Deceased, all individually and as former Committeemen of the Township of Ocean,

Third-Party Defendants.

No. L--27577.

Superior Court of New Jersey

Law Division.

Feb. 5, 1968.

William R. Blair, Red Bank, for plaintiff (Parsons, Canzona, Blair & Warren, Red Bank, attorneys).

John Halleran, Middletown, for defendants and third-party plaintiffs Reilly, Crosta, Beekman, Gillespie and Tumen (Giordano, Giordano & Halleran, Middletown, attorneys).

David Resnikoff, Long Branch, for defendants and third-party plaintiffs Miller, Sweitzer and Township of Ocean.

Joseph F. Mattice, Asbury Park, for third-party defendants Garrity, Dangler, Kraybill, Shannon and estate of E. Melvin Goddard, decd.

Edward F. Juska, Long Branch, for third-party defendant Woolley.

SIMMILL, J.S.C.

This suit arises as a part of the political turmoil which has beset the Township of Ocean during the past several years. There is no question that a pattern was evolved whereby the members of the governing body were reimbursed for expenses which they allegedly incurred in connection with their official duties. A system for such reimbursement consisted of submission of a voucher for expenses which did not detail or itemize them but merely set down an amount which evidently had been agreed upon beforehand, ranging from $50 to $100 a month. These vouchers stated that they were 'for reimbursement of various out of pocket expenses, meetings, conferences, etc.' for the month named, and slight variations thereof. During the year 1964 defendant Reilly received $100 a month. During 1963 he received $50 a month. The same holds true as to defendants Crosta, Gillespie and Tumen. Defendant Beekman received $100 a month during 1964. It is significant that some of the vouchers were presented and paid in the beginning of the month for which the expenses were allegedly incurred--an obvious impossibility because the councilman could not determine his expenses until the month was over.

Plaintiffs instituted an action in lieu of prerogative writs, first, to compel defendants to reimburse the township for these monies, alleged to have been illegally received; and second, to compel the township treasurer and manager to demand such reimbursement from defendants. Plaintiffs are residents, citizens and taxpayers of the Township of Ocean and brought the suit on their own behalf and on behalf of all other citizens and taxpayers of the township. Defendants then filed a third-party suit to compel their predecessors in office to do likewise. Defendants, in answer to the complaint, alleged compliance with all applicable laws and further urge that their predecessors in office established a procedure which they followed as the established procedure. Third-party defendants contend they submitted properly itemized vouchers.

The court finds factually that not one of the vouchers complies with N.J.S.A. 40A:5--16. They are clearly violative thereof and were unlawful. O'Donnell v. Board of Chosen Freeholders of the County of Morris, 31 N.J. 434, 158 A.2d 1 (1960), is factually directly on point with the instant case. In that case he county treasurer had been directed by resolution of the freeholder board to pay to each freeholder '$100 per month payment for travel and incidental expenses.' The court held 'The resolutions here challenged authorized a framework of expenditure of county funds inconsistent with the salutary requirements of the above (i.e., R.S. 40:5--1, predecessor of 40A:5--16) statute, in that they authorized payment for expenses not yet incurred and without the presentation of an itemized voucher and approval certification. For these reasons we hold that the resolutions are invalid and should be set aside. * * *

The statutory provision for itemization and certification was not complied with. Hence, the payments were unlawful.' (at p. 443, 158 A.2d at p. 6)

N.J.S.A. 40A:5--16 provides:

'The governing body of any local unit shall not pay out any of its moneys

a. unless the person claiming or receiving the same shall first present a detailed bill of items or demand, specifying particularly how the bill or demand is made up, with the certification of the party claiming payment that it is correct. The governing body may, by resolution, require an affidavit in lieu of the said certification, and the clerk or disbursing officer of the local unit may take such affidavit without cost, and

b. unless it carries a certification of some officer or duly designated employee of the local unit having knowledge of the facts that the goods have been received by, or the services rendered to, the local unit.'

There is no question in the court's mind that upon failure of defendants and some of the third-party defendants to comply with the statute above set forth, they are liable in a properly instituted action.

The lapse of time and the intervention of the statute of limitations rescues some of the third-party defendants. Shannon's vouchers were dated in the years 1956, 1957, 1958, 1959 and 1960. Goddard's were for the years 1955, 1956 and 1959. Kraybill's were for the years 1955 through 1960. No vouchers were submitted as to ...