City of Trenton v. Lenzner

• Decision Date: 08 February 1954
• Docket Number: No. A--75,A--75
• Citation: 103 A.2d 13,29 N.J.Super. 514
• Parties: CITY OF TRENTON v. LENZNER et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 514

29 N.J.Super. 514

103 A.2d 13

CITY OF TRENTON v. LENZNER et al.

No. A--75.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 1, 1954.

Decided Feb. 8, 1954.

John A. Hartpence, Jersey City, argued the cause for appellants (David Frankel, Trenton, attorney).

Louis Josephson, Trenton, argued the cause for respondent.

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

Accommodations for the parking of motor vehicles on the public streets in or in reasonable proximity to the mercantile sections of urban municipalities have in recent years been exhausted or justifiably restricted or forbidden in order to relieve the vehicular traffic on such streets of congestion. Consequently the subject attained the proportions of a problem of public interest. An answer was determined to be the establishment and maintenance by the municipality of off-street parking facilities. Vide, De Lorenzo v. City of Hackensack, 9 N.J. 379, at page 384, 88 A.2d 511 (1952).

To effectuate that public purpose the Legislature in 1942 empowered any municipality of the State to provide by ordinance for the acquisition by condemnation or by other stated means of lands therein for the public parking of vehicles. L.1942, c. 138, p. 427; R.S. 40:60--25.1, N.J.S.A.

On May 29, 1952 the City of Trenton adopted an ordinance pursuant to the authority conferred by the statute to acquire by purchase or condemnation for the public parking of vehicles certain land on East Hanover and Academy Streets in the city owned by the defendants Isadore Lenzner and Freda Lenzner and in which the other named defendants have an interest. On June 23, 1952 the owners instituted an action in lieu of Certiorari in the Law Division of this court against the city in which the plaintiffs requested judgment that the 'Ordinance be declared illegal, invalid, null and void and that the same be vacated, set aside, made void and for nothing holden,' and for restraint against the prosecution by the City of any proceedings to acquire the property of the plaintiffs by eminent domain.

More than a dozen reasons were alleged in the complaint, among which one implicated the import of the statute and its violation of the constitutional rights of the plaintiffs, and another alleged that the city commissioners had by a resolution adopted January 6, 1949 created a parking authority of the city and thereby divested the city governing body of all the powers and functions conferred upon the parking authority.

It is of preliminary significance to recognize the issues encompassed by the allegations of the complaint in that action and to observe that the action was instituted within the requisite period of time deemed by R.R. 4:88--15(b)(4) to be in protection of the public interest.

On November 6, 1952 the judge of the Law Division granted a summary judgment in favor of the city. Lenzner v. City of Trenton, 22 N.J.Super. 415, 91 A.2d 896 (Law Div.1952). No appeal was prosecuted by the plaintiffs from that judgment. Undisturbed, the judgment remains the adjudicated law of the case pertaining to the issues which were and could have been projected affecting the validity of the ordinance.

On August 4, 1953 the City of Trenton instituted the present action to acquire the land by condemnation in accordance with the terms and provisions of R.S. 20:1--1 et seq., N.J.S.A. The amendment obliging a party seeking the acquisition of land by eminent domain to commence an action for such a purpose in the Superior Court was then in effect. L.1953, c. 20. Cf. Borough of Little Ferry v. Bergen County Sewer Authority, 9 N.J. 536, 89 A.2d 18 (1952), certiorari denied 344 U.S. 865, 73 S.Ct. 105, 97 L.Ed. 670 (1952). The amendment conferred complete jurisdiction upon the court in such action 'including jurisdiction to determine the right to exercise the power of eminent domain.'

In such an action service of an order to show cause is substituted for the service of a writ of summons, R.R. 4:92--1, 4:85--3, and the court is permitted by the statute to proceed in a summary manner or otherwise. R.S. 20:1--2 as amended, N.J.S.A. The provisions of the statute in that regard should be interpreted with R.R. 4:85--5, which states:

'* * * If no objection is made by any party or the defendants have defaulted in the action, or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, the render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment. Where so provided in an applicable statute, the action shall be tried by jury, unless waived by the parties in writing.'

We are not aware of any applicable statute which directs a trial by jury to determine the right of the plaintiff to exercise the alleged power of eminent domain. A jury trial was not sought by the defendants in the present action. Answers were filed on their behalf challenging the right of the city to acquire the land by eminent domain. Affidavits and depositions were taken. Efforts to compose a prehearing order were abortive. An appendix of 315 pages discloses the...