De Muro v. Martini, 215.

• Decision Date: 13 September 1948
• Docket Number: No. 215.,215.
• Parties: DE MURO v. MARTINI et al.
• Court: New Jersey Supreme Court

137 N.J.L. 640

61 A.2d 230

DE MURO

v.MARTINI et al.

No. 215.

Supreme Court of New Jersey.

Sept. 13, 1948.

Certiorari proceeding by Paul G. De Muro, against Nicholas Martini, Julius Cinamon, and Thaddeus A. Barszcz, three of the five members of the Board of Commissioners of the City of Passaic, and the City of Passaic, to review resolution adopted by the three members of the Board purporting to settle a claim for architectural services against the City of Passaic for $37,000.

Writ of certiorari discharged.

May term, 1948, before CASE, C.J., and BURLING, J.

Heller & Laiks, of Passaic (Aaron Heller, of Passaic, of counsel), for prosecutor.

Thomas E. Duffy and Nicholas Martini, both of Passaic, for respondents.

BURLING, Justice.

This writ of certiorari was allowed to review a resolution adopted by a majority vote of the Board of Commissioners of the City of Passaic passed November 18, 1947, which resolution purports to settle the claim for architectural services of one Percy Simon against the City of Passaic for the sum of $37,000 and authorized the proper officials of the City to pay that sum to Simon upon receipt of his release. The prosecutor is the Mayor of the City of Passaic and a member of the Board of Commissioners. The original respondents are the three members of the Board of Commissioners who voted in favor of the said resolution. By an order amending the writ dated April 14, 1948, the Board of Commissioners of the City as a body was added. The City of Passaic is governed by five commissioners under the Walsh Act, R.S. 40:70-1 et seq., N.J.S.A.

The claim in question was made by Simon in the amount of $63,810 for architectural services rendered to the City in connection with a Veterans' Permanent Housing Project estimated to cost $1,433,490 and undertaken by the City and the State of New Jersey, pursuant to Chapter 323 of the Laws of 1946, Sp.Sess., R.S. 55:14G-1 et seq. and the amendments thereof, N.J.S.A. 55:14G-1 et seq. On January 21, 1947 a resolution was adopted by the then Board of Commissioners declaring an emergency existed and proposing the City join with the State in the above project. On the same day a resolution was adopted authorizing the then Mayor and the City Counsel to acquire a site and providing:

‘Resolved that the Mayor and City Counsel be and they are hereby authorized to negotiate for the acquisition of whatever property may be needed to provide the necessary site in the vicinity of River Road and Westervelt Place for the proposed Permanent Veterans' Housing Project, and to report back the results of such negotiations to the Board of Commissioners.

‘Be it further Resolved that the Mayor be and he is hereby authorized to do any and all things necessary to consummate the plan for proposed permanent veterans' housing he submitted to the Public Housing Development Authority in the State Department of Economic Development and the Board of Commissioners; and to obtain the grant of state funds for said project.’

As the Board of Commissioners was constituted, the respondent Martini was the Mayor and Director of Public Works and the prosecutor, De Muro, was Director of Revenue and Finance. Subsequently following an election held in May, 1947, the present Board of Commissioners met and organized on May 20, 1948, at which time the prosecutor was named Mayor and Director of Public Works and the respondent Martini became Director of Public Affairs. The housing project, over which the controversy arose lies within the jurisdiction of the Department of Public Works. In order to qualify for and obtain the grant it became necessary to submit architect's preliminary sketches and final plans and specifications together with other data required by the state agency.

On January 21, 1947, pursuant to the above resolution, the respondent Martini addressed a letter to one Percy Simon, an architect, purporting to engage him for the purpose of preparing preliminary sketches and final plans and specifications for two hundred families, setting forth the compensation to be received by Simon, which compensation was set at five per cent. of the total cost of construction and giving other and further details of the employment. On the same date Simon acknowledged in writing the receipt of the letter and agreed to the terms thereof. Thereafter the work was commenced on the project with Simon in charge.

This letter of employment and acceptance memorandum endorsed thereon, was filed in his office and later on May 20, 1947 and prior to the expiration of the terms of office of the Commissioners filed with the City Clerk.

Subsequent to the re-organization of the Commission an ordinance was adopted authorizing the City's share of financing the project and specifically mentioning the plans and specifications of Simon. This ordinance was voted upon and adopted unanimously, including the affirmative vote of the prosecutor. Bids were received and a report and analysis of the same was filed by the architect with the Commissioners. Contracts for construction were awarded.

The prosecutor now contends that the original contract of employment was all illegal one. It may be mentioned, however, that during the conference of the Commissioners hereinafter referred to in attempting to arrive at the amount of settlement, no such contention was raised by the prosecutor. The City had recognized and accepted the service of Simon....