Koch v. Borough of Seaside Heights

• Decision Date: 17 April 1956
• Docket Number: No. A--766,A--766
• Citation: 40 N.J.Super. 86,122 A.2d 250
• Parties: Edward S. KOCH, Plaintiff-Respondent and Cross-Appellant, v. BOROUGH OF SEASIDE HEIGHTS, a municipal corporation, Defendant-Appellant andCross-Respondent, and Shore Boro's Post 351 American Legion, etc., et al., Defendants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 86

40 N.J.Super. 86

122 A.2d 250

Edward S. KOCH, Plaintiff-Respondent and Cross-Appellant, v. BOROUGH OF SEASIDE HEIGHTS, a municipal corporation Defendant-Appellant andCross-Respondent and Shore Boro's Post 351 American Legion, etc., et al., Defendants.

No. A--766.

Superior Court of New Jersey Appellate Division.

Argued March 12, 1956.

Decided April 17, 1956.

Vincent A. Grasso, Toms River, for defendant-appellant and cross-respondent, Borough of Seaside Heights (Hiering & Grasso, Toms River, attorneys).

Jerome J. Doherty, Toms River, for plaintiff-respondent and cross-appellant (Joseph A. Citta, Toms River, attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiff is a resident and taxpayer of the Borough of Seaside Heights. The pre-trial order indicates that he is also a shareholder and secretary of a corporation which 'occupies' a parcel of land extending from the boardwalk to Ocean Terrace and abutting the southerly side of Lincoln Avenue. The corporation operates a commercial amusement device known as a 'whip' on the property, the entrance being on the boardwalk.

Plaintiff instituted this action in lieu of prerogative writs March 26, 1954 to attack the following transaction of the municipality. On March 3, 1954 the mayor and council of the borough adopted two resolutions, one involving a parcel of land approximately 25 feet square abutting the boardwalk at the easterly end of Lincoln Avenue, and the other a similar parcel at the easterly end of Hamilton Avenue, which lies two blocks north of Lincoln Avenue. Both streets run east-west from Bay Avenue on the west to the vicinity of the boardwalk on the east. The boardwalk runs north-south athwart the ocean beachfront. The resolutions authorized the entry by the borough into leases for the lands, one to defendant Seaside Heights Volunteer Fire Company No. 1, and the other to defendant Shore Boro's Post No. 351 American Legion, each for a ten-year term at a rental of $1. The leases were executed the same day. On or about the same date each of the lessee organizations 'sublet' its leased premises to a particular private individual, different in each case, but in both instances for a consideration of $40,000 for the ten-year period, and contemplating the erection of buildings on the lands, to be used for commercial purposes, fronting on the boardwalk at the foot of the streets mentioned. The complaint charges that the sublessees were selected by the Mayor of the borough in advance and that the entire transactions were effected in bad faith. The structures were actually substantially completed and were standing at the time of trial.

On April 2, 1954 a restraint Pendente lite was entered against further construction of the buildings, use of the properties or payment of rents pursuant to any of the leases. On April 7, 1954 the defendant borough rescinded its leases with the named organizations, and the subleases were cancelled the same day.

Plaintiff made two main contentions of illegality in the actions of the borough in this transaction. The first was that the leases were made without advertisement nor by award to the highest bidder, and for a term in excess of five years; the second that the property leased was in each case part of a public street. At the trial of the cause, the leases having been rescinded but the structures remaining the issues were confined to the questions whether the structures stood on public streets and whether plaintiff had sufficient interest to entitle him to maintain the action. The case was tried before one judge, but its determination, for administrative reasons, transferred to another. We have, for this reason, acceded to the request of the borough that we determine this appeal on the basis of our independent review of the entire record. Cf. Raskin v. Town of Morristown, 21 N.J. 180, 121 A.2d 378 (1956). The trial court held: (1) the lands in question are public streets, the borough being estopped from asserting the contrary because of the continuous use thereof by the public for over twenty years; (2) the plaintiff has status to bring the action as to the Lincoln Avenue parcel because the existence of the structure at that location especially injures him in respect to his use of his own property, but he has no status as to the Hamilton Avenue parcel, his injury with respect thereto being no different in kind from that of the general public. The amended final judgment dismissed the first count of the complaint, which concerned Hamilton Avenue, and granted a permanent injunction against the maintenance of the structure in Lincoln Avenue and an order for its removal.

The court was informed at the argument of these appeals that the structures have been removed from the properties concerned except as to the remnants of the foundations. To that extent the areas affected are still not usable as streets.

The defendant municipality appeals, and the plaintiff cross-appeals the failure of the trial court to extend the scope of relief to the property at Hamilton Avenue. We consider first the matter of plaintiff's status.

The position of the borough is that since the phase of the action concerned with the legality of the leases was moot at the trial herein by reason of the rescission of the leases, plaintiff's status to complain in his interest as a resident and taxpayer no longer supported his action and that it then became incumbent upon him to show that the structures in the street caused him special injury above that sustained by the general public. Poulos v. Dover Boiler & Plate Fabricators, 5 N.J. 580, 76 A.2d 808 (1950). The argument is that he failed in this regard as to Lincoln Avenue as well as to Hamilton Avenue. The ostensible basis for the allegation of special injury to plaintiff in respect to the Lincoln Avenue structure is that it obstructed his business sign from the view of boardwalk passersby approaching the location from the north. The trial court regarded the showing of special injury as sufficient, within such authority as Beecher v. Board of Street & Water Com'rs of City of Newark, 64 N.J.L. 475, at page 478, 46 A. 166 (Sup.Ct.1900), affirmed 65 N.J.L. 307, 47 A. 466 (E. & A.1900), wherein the requisite status was held present on the ground, among others, that business signs on prosecutors' nearby premises were rendered less visible by the street obstruction there complained of. See also Union Towel Supply Co. v. Jersey City, 99 N.J.L. 52, 123 A. 254 (Sup.Ct.1924). But see Attorney General ex rel. Stickle v. Morris & E.R. Co., 19 N.J.Eq. 386 (Ch.1869), reversed sub nom. Morris & E.R. Co. v. Prudden, 20 N.J.Eq. 530 (E. & A.1869) on the frequently assigned ground that the public nuisance there involved was remediable by indictment. The cases touching this subject are in a state of conflict and confusion, both as to legal theory and compatibility of factual result. There is no present profit in citing all of them. A number of the cases are collected in Warren Foundry & Pipe Corp. v. Meriden Stone Co., 32 N.J.Super. 254, 108 A.2d 192 (App.Div.1954); see 21 New Jersey Digest, Nuisance, k No. 72. Mere inconvenience in reaching plaintiff's property is not the kind of special injury which affords status in this kind of case. Poulos v. Dover Boiler & Plate Fabricators, supra, (5 N.J. at page 587, 76 A.2d at page 811). It is there said that the special injury to sustain status to restrain a public nuisance must be 'to a legal right which he (plaintiff) would have in his own lands or in an appurtenance thereto and not to any right which is appurtenant to his land which he enjoys with other members of the public.' (Id.) It appears doubtful whether the holding of special injury could stand in the matter before us as against the foregoing language. We pass the point, however, as we cannot avoid noticing, although it is not argued, that plaintiff is, as an individual, neither the owner nor operator of the 'whip' amusement business. The corporation operator (not even itself owner of the land) in which he is a shareholder is not a party plaintiff. This defect is so obvious and controlling that, without more, we deem it dispositive of plaintiff's lack of status in the sense of special injury to his own peculiar property interests. But we have nevertheless reached the conclusion that a determination of the meritorious questions involved in this litigation was properly entered upon by the trial court.

The action instituted by plaintiff as a taxpayer was founded not only upon an apparent injury to the municipality in a pecuniary sense, thereby implicating the interests of every taxpayer, Scatuorchio v. Jersey City Incinerator Authority, 14 N.J. 72, 100 A.2d 869 (1953); City of Millville v. Board of Education of City of Millville, 100 N.J.Eq. 162, 166, 134 A. 748 (Ch.1926), affirmed 101 N.J.Eq. 303, 137 A. 916 (E. & A.1927), but, of even more significance, raised a question of gross illegality and abuse of their public responsibilities by the officials of the borough. It is now firmly held that an action to vindicate the right of the public to honest and faithful rendition of services by public officials will lie at the instance of a citizen taxpayer totally apart from considerations of pecuniary prejudice to the body politic. Haines v. Burlington County Bridge Commission, 1 N.J.Super. 163, 171, 63 A.2d 284 (App.Div.1949); and see Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474-- 476, 86 A.2d 201 (1952), certiorari denied 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952), rehearing denied 344 U.S. 888, 72 S.Ct. 188, 97 L.Ed. 687 (1952); Garrou v. Teaneck Tryon Co., 11 N.J. 294, 302, 94 A.2d 332, 35 A.L.R.2d 1125 (1953). In our opinion, when an action of this kind is brought by a taxpayer in good faith he is entitled, as a matter of salutary public policy, to maintain it to a finality and to have the judgment of the court not only by...