Roberts v. Hetrick, 6.

• Decision Date: 28 January 1941
• Docket Number: No. 6.,6.
• Parties: ROBERTS et al. v. HETRICK et al.
• Court: New Jersey Supreme Court

17 A.2d 589

125 N.J.L. 633

ROBERTS et al.

v. HETRICK et al.

No. 6.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1941.

Syllabus by the Court.

1. In Asbury Park v. Smock, 121 N.J.L. 487, 3 A.2d 607, it was decided that the "Beach Front Commission of Asbury Park," appointed pursuant to the act of 1936 and supplements, R.S. 40:55A, N.J.S.A. 40:55A, ceased to have any control or jurisdiction over the beach front and appurtenant property of that city upon the discontinuance of the municipal government by a municipal finance commission and the resumption of control by the local authorities.

2. A later suit under the "Declaratory Judgments Act", R.S. 2:26-66 et seq., N.J.

5. A. 2:26-66 et seq., brought by the members of the Beach Front Commission of Asbury Park and praying a judicial declaration that they were, as such Commission, entitled to the beach front and connected property of that city, notwithstanding the resumption of municipal government by the local body, held properly dismissed on the ground that the question had already been determined in an action of mandamus by the city against the Commission for the restoration of said property.

Appeal from Supreme Court.

Action under the Declaratory Judgments Act by Carlton M. Roberts and others, as members of the Beach Front Commission of Asbury Park, against Clarence E. F. Hetrick and others for a judicial declaration that the plaintiffs were, as such commission, entitled to beach front and connected property of Asbury Park, notwithstanding the resumption of municipal government by the local body. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

James D. Carton, Jr., of Asbury Park, and Samuel Kaufman, of Newark, for appellants.

Ward Kremer, of Asbury Park, for respondents.

PARKER, Justice.

The present proceeding was instituted and prosecuted as an action under the "Declaratory Judgments Act" first enacted in this State as P.L.1924, Chapter 140 (page 312) now N.J.S.A. 2:26-66 et seq. There was a motion to strike out the complaint, on the ground (among others) that the matters in controversy were res judicata. The motion was argued before Mr. Justice Perskie, who ordered the complaint struck out, and judgment for defendants was entered accordingly. The present appeal is from that judgment. The case is submitted on briefs, and in their brief, counsel for appellants say: "We conceive the sole question to be determined in this appeal is whether the order of December 10th, 1938 which terminated the control of the City of Asbury Park by the Municipal Finance Commission also terminated the life of the Asbury Park Beach Commission created by the Legislature of the State of New Jersey under Revised Statutes 40:55A. [N.J.S.A. 40:55A]" But that was not the issue tendered in the complaint. The issue tendered was not whether the order of December 10, 1938, terminating the jurisdiction in Asbury Park of the Municipal Finance Commission "also terminated the life of the Asbury Park Commission" but whether, in the language of paragraphs 6 and 7 of the complaint, "the office and authority of plaintif...