On appeal from the Monmouth County Circuit Court.
For the appellants, Applegate, Stevens, Foster & Reussille (Lester C. Leonard, of counsel).
For the respondent, Maurice A. Potter.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the plaintiffs below from a judgment entered upon a directed verdict in favor of the defendant borough.
At the trial these matters of fact appeared without substantial dispute: The two plaintiffs, West and Joline, without any advertisement for bids, offered to rent from the borough "the Monmouth Beach bathing pavilion and adjoining beach" for the season of 1928 for $650. The offer was
accompanied by a check for $325. The matter was submitted to the municipal council and it was voted that the offer be accepted and the borough solicitor authorized "to draw up a contract covering the rental of the Monmouth Beach bathing pavilion." Later, without a lease having been signed, an employe of the borough named Goodell gave the keys to the pavilion to the plaintiffs and they took possession. Thereafter a lease was tendered to the plaintiffs containing a clause that "all residents and taxpayers of the borough of Monmouth Beach shall have access to and from the public beach," which they refused to sign, but kept possession of the pavilion. Thereupon the borough council passed a resolution reciting that all residents and taxpayers of the borough "shall have the right to use the borough bathing beach, showers and parking space at the small bathing pavilion free of charge." Pursuant to that resolution many people during the season used the beach and showers and parking space, against the protests of the plaintiffs and without paying them anything for the privilege. Again, later, the borough demanded execution of the tendered lease or surrender of the premises in question, and obtained neither. It then sued in the District Court for the use and occupation of the premises and the case was settled before trial by the defendants therein (the present plaintiffs) paying the borough.
After all which plaintiffs brought this suit against the borough for damages for interference with the alleged leasehold rights of plaintiffs, the first count averring interference with a leasehold, and the second interference in breach of a "contract for rental."
We think that the direction of a verdict for the borough was proper.
We pass over certain incidental, but not vital questions, interestingly discussed in the briefs, and go directly to the fundamental question raised by the record and thoroughly argued.
We think that the proofs disclose no corporate power legally employed.
The premises in question were owned, held and used by the borough for ...