Warren v. Hudson County.

• Decision Date: 07 August 1945
• Docket Number: No. 1.,1.
• Citation: 43 A.2d 785
• Parties: WARREN v. HUDSON COUNTY.
• Court: New Jersey Court of Common Pleas

43 A.2d 785

WARREN

v.HUDSON COUNTY.

No. 1.

Court of Common Pleas of New Jersey, Hudson County.

Aug. 7, 1945.

COPYRIGHT MATERIAL OMITTED.

Action by John Warren against County of Hudson to recover for legal services and necessary expenses while acting as special assistant attorney general representing the Hudson county board of taxation as special counsel to obtain possession of its office and records. On plaintiff's motion to strike out defendant's answer as sham and the separate defenses as sham or frivolous and to enter summary final judgment.

Answer and separate defenses stricken.

John Warren, of Jersey City, pro se.

J. Emil Walscheid, Co. Counsel, and Thomas J. Armstrong, Asst. Co. Counsel, both of Jersey City, for defendant.

ROBERSON, Judge.

The plaintiff, and attorney and counsellor at law of this state, sues to recover the sum of $3,500 for legal services and the sum of $275.25 for necessary expenses in connection with such legal services rendered by him as special assistant attorney general appointed by the Attorney General of the State of New Jersey to represent the Hudson County Board of Taxation as special counsel to obtain possession of its office and records. The appointment was made and the amounts of compensation and necessary expenses were fixed in accordance with the provisions of R.S. 52:17-9, N.J.S.A., now repealed. Plaintiff filed verified claims with the defendant for said amounts but payment was refused by defendant.

Defendant has filed an answer, the first part of which makes certain admissions and denials and puts plaintiff to his proof as to other allegations of the complaint and then alleges sixteen separate defenses.

The plaintiff now moves to strike out the answer to the complaint as sham and the separate defenses, some as sham and others as frivolous, and to enter summary final judgment.

The answer to the complaint, being that part which directly answers each allegation of the complaint, consists of certain admissions and denials and statements putting the plaintiff to his proof and depends for its efficacy upon the validity of the remaining separate defenses.

Defendant contends that plaintiff's notice of motion to strike is invalid because it alleges that the answer is both sham and frivolous. The plaintiff's notice in paragraph 1 reads: ‘That the answer to the complaint is sham and all of the services of plaintiff were rendered before R.S. 52:17-9 was repealed, and the claims of plaintiff to compensation for services and reimbursement for expenses under said statute were then vested by the constitutions of New Jersey and the United States, and the repealing statute did not divest plaintiff of his said rights.’ The foregoing statement refers to the defendant's answer to the particular allegations of the complant and not to the several separate defenses all of which are specifically attacked in the later paragraphs of the notice. Therefore, the notice is not invalid.

Although a pleading cannot be both sham and frivolous at one and the same time, Holdman v. Tansey, 107 N.J.L. 378, 379, 151 A. 873, 874; National Surety Co. v. Mulligan, 105 N.J.L. 336, 338, 146 A. 372; but can be either sham or frivolous, parts of the pleading may be sham and other parts may be frivolous.

The fact that the notice to strike out an answer was based upon the ground that the answer was sham and frivolous does not prevent its being struck out on the ground that it was frivolous. Fidelity Mut. Life Ins. Co. v. Wilkes-Barre & H. R. Co., 98 N.J.L. 507, 510, 120 A. 734, 735.

The fact that an answer was stricken out as sham and not, as it should have been, as frivolous, is not cause for reversal. Sculthorpe v. Commonwealth Casualty Co., 98 N.J.L. 845, 848, 121 A. 751, 752.

The first separate defense alleges that there are no funds appropriated to the use of the Hudson County Board of Taxation which could or can be applied to the uses and purposes set forth in the complaint.

R.S. 52:17-9, now repealed, which was in full force and effect when plaintiff was appointed to represent the Hudson County Board of Taxation and remained so till after the completion of his services, provided in part: ‘The compensation of the special counsel, together with the necessary traveling or other expenses, shall be paid out of the funds appropriated to the use of such state board, commission, body or official.’ The affidavit of Charles Kappas presented by the attorneys for the defendant shows that there was appropriated for the use of the Hudson County Board of Taxation in the 1944 budget a total sum of $49,000. If it be a fact that this amount will be inadequate to meet all the obligations for 1944, it can not defeat the plaintiff's right of recovery if his claim is otherwise valid. If the plaintiff's claim was not foreseen at the time of the adoption of the budges or if adequate provision was not made in the budget for this purpose, an emergency appropriation might be made after judgment is entered, R.S. 40:2-31, N.J.S.A. Whether an emergency appropriation is made or not, the amount will have to be provided in next year's budget, R.S. 40:2-31 and R.S. 40:2-21(e)(f), N.J.S.A. In either event the lack of an appropriation will not defeat the plaintiff's right of recovery in this suit. Therefore, this separate defense is frivolous and will be stricken.

The second, third, fourth and fifth separate defenses will be considered together. They allege that the Attorney General had no jurisdiction and no power to appoint the plaintiff as counsel and as Special Assistant Attorney General to represent the Hudson County Board of Taxation. His jurisdiction and power were derived from R.S. 52:17-9, now repealed, which provided in part: ‘The attorney general may, upon the request of any state board, commission, body or official heretofore or hereafter created, appoint special counsel to represent them in his name, either in an advisory capacity or in suits, actions and proceedings of any kind that may be brought by, for or against them, and in conjunction with such state board, commission, body or official, fix the compensation of such special counsel.’

In order to determine whether this statute is applicable it is necessary first to inquire whether the Hudson County Board of Taxation is a state board.

The Hudson County Board of Taxation was created by R.S. 54:3-1, N.J.S.A., which continued the several county boards of taxation created and established, etc., by P.L. 1906, c. 120, p. 210. The latter statute is a supplement to an earlier one entitled ‘An Act for the assessment and collection of taxes' approved April 8, 1903, P.L. 1903, c. 208, p. 394, and established county boards of taxation as a part of the taxing system of the state and directed them to ‘secure the taxation of all property in the various counties of this State at its true value, in order that all property, except such as shall be exempt by law, shall bear its full, equal and just share of taxes.’ P.L. 1906, c. 120, p. 211, par. 2, R.S. 54:3-13, N.J.S.A. Obviously, this duty, imposed upon county boards of taxation, is not only for the benefit of the county in which the board serves but also for the entire state. The proper performance of its duties concerns every property owner in the state, for if any county board fails in its duty as outlined in the statute it would cast an unjust burden of taxation on owners of property in every other county.

The statute among other things provides for the appointment of members of county boards by the Governor by and with the advice and consent of the Senate, P.L. 1906, c. 120, p. 210, par. 1, R.S. 54:3-2, N.J.S.A. It also provides that the salaries of the members of the boards shall be paid by the Treasurer of the State of New Jersey upon warrants drawn by the Comptroller. P.L. 1906, c. 120, p. 211, R.S. 54:3-6, N.J.S.A. The Statute further provides for dismissal of a member of a county board of taxation by the Governor and appointment of a successor by the Governor in case of willful or intentional failure to comply with the constitution and laws of this State relating to the assessment and collection of taxes. P.L. 1906, c. 120, p. 217, par. 12, R.S. 54:3-28, N.J.S.A. All of the foregoing provisions indicate that a county board of taxation is a part of the general system of taxation of the entire state and, therefore, is a state board.

The following are some of the cases in which certain officers and boards, although their duties are restricted to a particular area of the State, usually a county, like the Hudson County Board of Taxation, have been held to be state officers or state agencies: Karp v. High Point Park Commission, 131 N.J.Eq. 249, 24 A.2d 860 (involving a park board governing a section of Sussex County); State ex rel. Board of Police Com'rs of Jersey City v. Pritchard, 36 N.J.L. 101, 118 (relating to a board of police commissioners); State v. Jefferson, 90 N.J.L. 507, 101 A. 569 (county prosecutor); Goldberger v. City of Perth Amboy, 197 A. 267, 16 N.J.Misc. 84 (district court judge); Wilson v. District Court, 93 N.J.L. 103, 107 A. 589, affirmed 95 N.J.L. 265, 111 A. 927 (district court clerk).

In Application of Hudson County Board of Taxation, 128 N.J.L. 574, 27 A.2d 643, 647, Mr. Justice Bodine referred to the members of this board as ‘the duly commissioned officers of the State’ and as ‘those who hold the State's warrant of office.’

The affidavit of Leo Rosenblum, which is undisputed by the affidavits submitted on behalf of the defendant, states that all the members of the Hudson County Board of Taxation requested of the Governor of the State of New Jersey the aid of a law officer of the State to enable the said Board of Taxation to obtain possession of the offices and records of said board; that the Governor then requested the Attorney General of the State of New Jersey to appoint a special assistant as special counsel to said board. This in my opinion was a sufficient request of said board.

Defend...