Kirzenbaum v. Paulus

• Decision Date: 12 August 1959
• Docket Number: No. A--54,A--54
• Citation: 153 A.2d 847,57 N.J.Super. 80
• Parties: Gabriel KIRZENBAUM, Lawrence J. Meyers and William Marmorstein, Plaintiffs-Appellants, v. Chester W. PAULUS, Mayor of the City of New Brunswick, Herbert J. Dailey, Luke J. Horvath, Felix N. Cantore and James A. McGarry, being the Board of Commissioners of the City of New Brunswick, N.J., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 80

57 N.J.Super. 80

153 A.2d 847

Gabriel KIRZENBAUM, Lawrence J. Meyers and William Marmorstein, Plaintiffs-Appellants, v. Chester W. PAULUS, Mayor of the City of New Brunswick Herbert J. Dailey, Luke J. Horvath, Felix N. Cantore and James A. McGarry, being the Board of Commissioners of the City of New Brunswick, N.J., Defendants-Respondents.

No. A--54.

Superior Court of New Jersey

Appellate Division.

Argued May 25, 1959.

Decided Aug. 12, 1959.

Gabriel Kirzenbaum, New Brunswick, argued the cause as attorney pro se and for plaintiffs-appellants (Perry J. Martin, New Brunswick, on the brief).

Frederick F. Richardson, New Brunswick, argued the cause for defendants-respondents.

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

Judge Vogel, sitting in the Superior Court, Law Division, held that the City of New Brunswick had acted within the purview of valid and appropriate legislative authorization in granting permission by resolution to the National Bank of New Jersey to install and use for its business purposes a curb depository for motorist-customers on the sidewalk on Church Street, alongside its bank building. From that determination the plaintiffs, citizens and taxpayers of the municipality, prosecute this appeal.

The opinion of the trial judge succinctly states the factual background of the controversy, Kirzenbaum v. Paulus, 51 N.J.Super. 186, 189--194, 144 A.2d 25 (Law Div.1958), and is to that extent adopted for purposes of the present opinion. We need only add that the final (amendatory) resoltuion of the City Commission, adopted May 6, 1958, expressly finds and determines that the granting of the application for the curb depository (referred to therein as a 'sidewalk teller') 'is necessary and desirable in the interest of the public welfare, public safety and for the improvement of traffic conditions and the flow and movement of traffic, and in the City of New Brunswick, N.J.' The resolution thus comports, on its face, with the criteria fixed in the ordinance.

Neither the argument portion of the plaintiffs' brief nor the 'Statement of Questions Involved' therein impugns the good faith of the city officials in the adoption of the resolution, and plaintiffs are therefore not entitled to make that point, as they undertook to do at the argument. R.R. 1:7--1(c). In any case, the proofs taken before the trial court satisfy us that there was sufficient relationship between the objective of traffic amelioration and the use of the depository to preclude any condemnation of the resolution as not founded on the standards set forth in the ordinance. If there was legal power to adopt the ordinance and resolution, the motives of the members of the governing body in doing so, absent fraud, personal interest or corruption, are immaterial. American Grocery Co. v. Bd. of Com'rs of City of New Brunswick, 124 N.J.L. 293, 297, 11 A.2d 599 (Sup.Ct.1940), affirmed 126 N.J.L. 367, 19 A.2d 696 (E. & A. 1941). No such elements are even suggested here.

We proceed to the points developed in plaintiffs' brief.

I.

It is urged that there is no statutory authorization for the municipal action here challenged. Defendants aver that direct sanction is to be found in N.J.S.A. 40:67--1, subd. d, dealing with municipal legislation concerning projections and encroachments in, over and upon streets and highways; and that alternative or correlative empowerment arises from R.S. 40:48--2, N.J.S.A., authorizing municipal legislation to subserve good government, order and the preservation of the public health, safety and welfare. As we find the instant ordinance and the administrative application of it here complained of amply grounded in the statute first mentioned, we pass the question as to the pertinence of the other.

N.J.S.A. 40:67--1 derives from article XXII, 'Streets and Public Places,' of L.1917, c. 152, commonly known as the Home Rule Act. That statute was a broad attempt to codify and enact general legislation pertaining to municipal corporations. Section 1 of article XXII thereof, authorizing municipal regulatory legislation, Inter alia, over a wide variety of subjects pertaining to the use and abuse of streets and public places, is substantially reconstituted in N.J.S.A. 40:67--1. Insofar as the question before the court is concerned, the following is the portion thereof requiring construction:

'The governing body of every municipality may make, amend, repeal and enforce ordinances to:

'd. Prevent or regulate the erection and construction of any stoop, step, platform, window, cellar door, area, descent into a cellar or basement, bridge, sign, or any post, erection or projection in, over or upon any street or highway, and for the removal of the same at the expense of the owner or occupant of the premises where already erected; * * *.'

Substantially the same language (as well as that of other of the subparagraphs of N.J.S.A. 40:67--1) was to be found in various municipal charters dating back as far as the middle of the 19th Century. See, e.g., Beecher v. Board of Street & Water Com'rs of City of Newark, 64 N.J.L. 475, 479, 46 A. 166 (Sup.Ct.1900), affirmed 65 N.J.L. 307, 47 A. 466 (E. & A. 1900) (Newark: 1857); Ivins v. Inhabitants of City of Trenton, 68 N.J.L. 501, 504, 53 A. 202 (Sup.Ct.1902), affirmed 69 N.J.L. 451, 55 A. 1132 (E. & A. 1903) (Trenton: 1874).

In Domestic Telegraph & Telephone Co. v. Newark, 49 N.J.L. 344, 347, 8 A. 128, 129 (Sup.Ct.1887), the Newark charter provision mentioned was held confined in its scope of authorization to such objects 'as are appurtenant to the adjoining property, and used within the public street for its convenience,' and therefore not to constitute a basis for municipal permission to erect on public streets the wires and poles of a telephone company. The statutory provision must be appraised for intent in the light of the apparently long-established public custom of permitting abutting property owners to make the kinds of encroaching uses of sidewalks and streets mentioned in subparagraph d of the statutory section cited, as evidenced by the comments in such cases as Weller v. McCormick, 47 N.J.L. 397, 400, 1 A. 516, 518 (Sup.Ct.1885), (referring to 'the peculiar privilege usually accorded to the owner of the land * * *'); Halsey v. Rapid Transit Street Ry. Co., 47 N.J.Eq. 380, 388, 20 A. 859 (Ch.1890); Scheinman v. Bloch, 97 N.J.L. 404, 406, 117 A. 389 (Sup.Ct.1922), affirmed 98 N.J.L. 571, 119 A. 926 (E. & A. 1923). Independently of the question of the extent of municipal power to authorize sidewalk obstructions under appropriate legislative delegation, however, the courts have been sensitive to the need for protection of nearby property owners especially injured as a result of a municipally sanctioned street obstruction, whether or not allowed at the instance of the immediate abutter. See Beecher v. Board of Street & Water Com'rs of Cit of Newark, supra; Pennsylvania R.R. Co. v. Angel, 41 N.J.Eq. 316, 7 A. 432 (E. & A. 1886); McDonald v. Newark, 42 N.J.Eq. 136, 7 A. 855 (Ch.1886); Traphagen v. City of Jersey City, 52 N.J.L. 65, 18 A. 586, 696 (Sup.Ct.1889); Union Towel Supply Co. v. Jersey City, 99 N.J.L. 52, 123 A. 254 (Sup.Ct.1924); George W Armbruster, Jr., Inc. v. City of Wildwood, 41 F.2d 823 (D.C.N.J.1930); State v. Londrigan, 4 N.J.Misc. 574, 133 A. 702 (Sup.Ct.1926); Faulks v. Borough of Allenhurst, 115 N.J.L. 456, 180 A. 877 (E. & A. 1935).

None of the plaintiffs in the case at hand complains of an impairment of his property rights by the maintenance of the structure here involved. The issues, therefore, are confined to the scope of legislative delegation of power to the municipality and constitutional requirements relevant thereto.

II.

Plaintiffs argue that the statute cited above does not contemplate municipal ordinances affirmatively authorizing the creation of particular kinds of street or sidewalk obstruction. However, it is well settled that the inclusion ofthe term 'regulate,' in a statute concerning this type of subject matter, operates to sanction municipal authorization of the things to be regulated. 64 C.J.S. Municipal Corporations § 1708, p. 109; Hoey v. Gilroy, 129 N.Y. 132, 29 N.E. 85 (Ct.App.1891). None of the New Jersey cases cited by plaintiffs is to the contrary. The implications of all of them are in accord with the proposition stated. This is also true of Beecher v. Board of Street & Water Com'rs of City of Newark, supra, which plainly assumed that the municipality was authorized by the statute to permit the maintenance or erection of any structure properly held to come within the legislative designation. The dispute was only as to the scope of the latter. See III, infra. The point argued is patently devoid of merit.

III.

Plaintiffs further argue that where a sidewalk obstruction, like that here involved, is for the use and convenience of a private business concern, it should not be deemed intended to be included for municipal authorization by a statute such as N.J.S.A. 40:67--1, subd. d, which does not mention it expressly. However, the private character of those kinds of obstructions expressly referred to in the statute (stoops, windows, cellar doors, signs, etc.), is obvious. There is therefore no rational basis for construction of the statute on the differentiation of the private or public character of the user of the structure. In the case of abutting owners, as distinguished from others, there has never been any doubt expressed in the cases as to the validity of or justification for legislative delegation to the municipalities of the right to authorize obstructions of sidewalks by abutting landowners on a revocable basis, provided they neither substantially impaired the primary right of the general public to passage thereover nor adversely affected the property interests of other landowners. See Benton v. City of Elizabeth, 61 N.J.L. 411, 415, 39 A. 683, 906 (Sup.Ct.1...