Port of New York Authority v. City of Newark

• Decision Date: 04 January 1952
• Docket Number: No. C--1496,C--1496
• Citation: 17 N.J.Super. 328,85 A.2d 815
• Parties: PORT OF NEW YORK AUTHORITY v. CITY OF NEWARK.
• Court: New Jersey Superior Court

Page 328

17 N.J.Super. 328

85 A.2d 815

PORT OF NEW YORK AUTHORITY v. CITY OF NEWARK.

No. C--1496.

Superior Court of New Jersey, Chancery Division.

Jan. 4, 1952.

Russell E. Watson, New Brunswick, attorney for the plaintiff.

Charles Handler, Newark, attorney for the defendant.

FREUND, J.S.C.

The Port of New York Authority instituted this proceeding to compel the City of Newark and its officials to perform an express agreement to discontinue dumping garbage and refuse upon lands commonly referred to as the Newark Airport area leased by the city to the plaintiff.

The material facts are undisputed. Briefly stated here, later detailed, the proofs establish an unequivocal agreement in the lease whereby the city covenanted to cease dumping not later than July 21, 1949; that it requested, and was granted, extensions of time, the last being until December 31, 1949; that the city breached its agreement by continuing to dump; and that its acts constitute a serious hazard to the operation of the premises as an airport.

The defendant offers no real defense. In an answer setting up ten separate defenses, it challenges the plaintiff's right to relief solely on technical grounds. It asserts that it will be inconvenienced by the necessity of finding other dumping grounds. At the trial the defense offered but one witness; he testified that the defendant was endeavoring to find, but had not yet found, other premises and means for disposal of the garbage.

It is well known that the Port of New York Authority is a bi-state agency of the States of New York and New Jersey, created in 1921 by compact (Laws of New York, 1921, chapter 154, amended Laws of 1930, chapter 419, McKinney's Unconsol. Laws, § 6401 et seq.; Laws of New Jersey, 1921, chapter 151, R.S. 32:1--1 et seq., N.J.S.A.), approved by Congress on August 23, 1921 (42 Stat. 174), and in the interests of the public performs governmental functions projecting beyond state lines. Helvering, &c. v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427 (1938); Miller v. Port of New York Authority, 15 A.2d 262, 18 N.J.Misc. 601 (Sup.Ct.1939); Howell v. Port of New York Authority, D.C., 34 F.Supp. 797 (D.N.J.1940); Commissioner of Internal Revenue v. Shamberg's Estate, 2 Cir., 144 F.2d 998 (C.C.A.2d 1944), certiorari denied 323 U.S. 792, 65 S.Ct. 433, 89 L.Ed. 631 (1945); Sullivan v. Port of New York Authority, 134 N.J.L. 124, 46 A.2d 390 (Sup.Ct.1946).

The States of New Jersey and New York adopted a plan for the development, maintenance and operation of air and marine terminal and transportation facilities in the Port of New York District, and to effectuate it adopted concurrent legislation. New Jersey, chapter 43, Laws of 1947, R.S. 32:1--35.1 to 32:1--35.17, N.J.S.A., relating to air terminals, and chapter 44, relating to marine terminals, R.S. 32:1--35.28 to 32:1--35.36, N.J.S.A., amended by chapters 212 and 214, Laws of 1948, R.S. 32:1--35.1 et seq., N.J.S.A.; New York, chapter 802, Laws of 1947, as amended by chapter 785, Laws of 1948, McKinney's Unconsol.Laws, § 6601 et seq.; chapter 631, Laws of 1947, as amended by chapter 784, Laws of 1948, McKinney's Unconsol.Laws, § 6581 et seq. Pursuant thereto, on October 22, 1947, the plaintiff and the City of Newark entered into a written agreement pertaining to the Newark Airport and Port Newark Marine Terminal. The defendant municipality leased to the plaintiff, and the plaintiff hired from the defendant, under a long-term lease, certain lands and premises particularly described in the agreement and outlined on accompanying maps. The plaintiff has been in possession of the property since March 22, 1948, and in compliance with the terms of the lease has paid to the defendant a minimum annual rental of $100,000. For the rehabilitation and development of the Newark Airport and Port Newark, the plaintiff has issued and sold bonds for $27,000,000 secured by a pledge of the revenues of the two terminals. It has spent and entered into contracts involving expenditures of $20,300,000. The lease made explicit provision for discontinuance of dumping of garbage and refuse upon the demised premises by the defendant not later than 16 months from its effective date, i.e., July 21, 1949. Section 41 provides as follows:

'The City shall terminate as of a date not later than six months after the effective date of the lease, all permits issued to third parties to dump refuse and trade waste on the demised premises.

'The Port Authority agrees, however, to permit the City to continue the dumping of refuse on the demised premises for a period not to exceed 16 months after the effective date of the lease, and the City agrees to cease and discontinue all such operations after that date. * * *'

Cognizant of its obligation to discontinue dumping on July 21, 1949, but finding itself unable to do so, the defendant requested an extension of time in a letter dated June 29, 1949, from Mayor Ralph A. Villani to the plaintiff. He wrote as follows:

'The terms of the lease between the Port of New York Authority and the City of Newark require that within a very short period, the City must discontinue dumping refuse material on the Airport area.

'A study of the City's disposal problem has been made by me and the engineers of the Bureau of Sanitation for a long time and particularly since the signing of the lease. As you know, any change in the method in disposal of the huge volume of waste produced daily requires considerable planning and the expenditure of large capital sums for facilities such as incinerators.

'It is my intention to request the Board of Commissioners to provide the necessary financing for the construction of an incinerator to solve the disposal problem. This request will be made very shortly.

'I would therefore request that the Port of New York Authority approve the continuation of the dumping of City refuse for an additional period of 18 months on such areas as will not interfere with the projected plans of the Authority.'

In reply, the plaintiff called the attention of the municipality to the danger and hazard caused to plane operations by the dumping, but granted an extension of 60 days to September 21, 1949. On September 14, 1949, the mayor by telegram and letter requested a further extension to December 31, 1949. The plaintiff granted an extension to November 21, 1949 and when on that date the city had made no other arrangements, granted a final extension to December 31, 1949. A resolution was adopted by the board of commissioners of the municipality which recited the agreement of the parties and the various extensions, and empowered the mayor to execute the necessary supplemental agreement. Despite these agreements, the defendant has continued to dump refuse on the airport area.

That the dumping of garbage and refuse jeopardizes the safe operation of the airport is charged by the plaintiff and not denied by the defendant. The garbage creates distasteful and odorous fumes, a constant source of spontaneous combustion and attendant smoke, and provides a breeding and feeding ground for flocks of seagulls, which obscure visibility and adversely affect flight operations. Additionally, since the garbage and refuse is not suitable fill for the construction of runways, the plaintiff in enlarging the airport facilities will incur greatly increased costs in removing the accumulated refuse.

The plaintiff has established an unqualified agreement on the part of the defendant to cease dumping on the date specified in the lease. The defendant without any misapprehension or uncertainty whatsoever about its undertaking in this respect and, indeed, in recognition thereof, requested and was granted extensions of time. Yet, in utter disregard of its written obligation, it has continued to dump garbage and to trespass upon the facilties of the airport. That the plaintiff, under these circumstances, is entitled to injunctive relief, even though the defendant is a municipalitiy, cannot be gainsaid, unless the agreement is invalid. Earrusso v. Town of Montclair, 112 N.J.Eq. 520, 164 A. 899, 900 (Ch.1933), modified on other grounds, 114 N.J.Eq. 12, 168 A. 398 (E. & A. 1933). In that case, the court restrained the defendant municipality from dumping garbage on complainant's premises in violation of a contract. In the course of his opinion, Vice Chancellor Backes made the following remarks which the Court of Errors and Appeals quoted in its opinion and which in my judgment are pertinent here: 'There is absolute certainty of contract and there is no doubt of its violation. The town * * * consciously set out to impose on the complainants * * *. The unconscionable conduct is so glaring that milder words would not express the truth.'

The defendant's assertion that it has not yet found other premises for use as a dumping ground and that it will be inconvenienced by the necessity of finding other premises, even if true, offers no justification for denial of relief. Other property for dumping purposes is available to the City of Newark, and it has under consideration other methods of disposing of its garbage and refuse. These may be financially burdensome, but not a reason for withholding relief.

The discretion exercised by courts of equity in refusing injunctions on the ground of greater injury to the defendant, is properly restricted to applications Pendente lite. Tichenor v. Wilson, 8 N.J.Eq. 197; Higgins v. (Flemington) Water Co., supra, (36 N.J.Eq. 538); Simmons v. (City of) Paterson, 60 N.J.Eq. 385, 45 A. 995, 49 L.R.A. 717. But, on final hearing, if the nuisance is clearly established, and it appears that it is causing substantial, material and irreparable injury to the complainant, for which there is no adequate remedy at law, the law is settled in...