For the relator, Edward William Siedler, and for the mortgages Sarah A. Wilde and Flora DeVaul, Augustus S. Goetz (E.G.C. Bleakly, of counsel).
For the respondents, Andrew C. Boswell and French B. Loveland.
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
CASE, J. This matter comes up on alternative writ of mandamus.
Although there are several respondents named in the writ, all of these except the corporate respondent are named because of their official position in connection with the city, and for convenience the city of Ocean City will be herein referred to as the respondent.
Amongst the stipulated facts that constitute the inducement of the writ are the following: Land of the relator, Edward William Siedler, was taken by the city of Ocean City, a municipal corporation of this state, by condemnation proceedings for a public highway, and there was awarded to the relator by the condemnation commissioners damages of $3,850 and interest thereon from May 28th, 1930. That award is admitted to be conclusive upon all the parties in interest. F. Stanley Kreps, the city solicitor of Ocean City, was the authorized agent of that city for the purpose of making payment. Siedler was not entitled to the entire award inasmuch as a mortgage in the amount of $900 held by Sarah A. Wilde and a further mortgage in the amount of $3,000 held by Flora DeVaul were liens on the land. The city of Ocean City paid over to Kreps its check drawn to the order of F. Stanley Kreps, solicitor of the city of Ocean City, in the amount of $4,081, being the entire award plus interest, to be disbursed by him to the persons entitled. Kreps deposited the check to the account of "F. Stanley Kreps, trustee." Thereupon, on Kreps' demand, as a prerequisite to the payment of any of the money, there were delivered to Kreps as city solicitor a deed from Siedler to the city for the property and a release (which contained a named consideration of $750) of the condemned property from the mortgage held by Flora DeVaul, and the Sarah A. Wilde mortgage for $900 was delivered up to Kreps endorsed for cancellation. The deed and the DeVaul release were recorded and the Wilde mortgage was canceled of record. Thereafter, on September 23d, 1931, Kreps gave his check payable to Augustus S. Goetz, attorney of Siedler, in the amount of $2,422. The
check was worthless for lack of funds. On September 22d Mr. Kreps forwarded by mail to Mrs. DeVaul a check for $750, which also was worthless for the same reason. After demand had been made upon the city for payment of the award, Andrew C. Boswell, then city solicitor, under date of October 6th, 1931, advised the city in writing that in view of the facts the city of Ocean City should not make settlement unless the city's liability be determined by a court of competent jurisdiction. Meanwhile Kreps had been arrested charged by William H. Campbell, commissioner of revenue and finance of the city, with the embezzlement of approximately $14,000 of the city funds. Nothing has been paid to either Siedler, DeVaul or Wilde.
The first argument advanced against the writ is that relator has a proper and adequate remedy by virtue of the provisions of the statute commonly known as the Eminent Domain act and bearing the title "An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use (Revision of 1900)," (2 Comp. Stat., p. 2182), of which we shall presently speak with greater particularity.
The writ of mandamus is the proper remedy to enforce public rights and to compel officers to do their duty. Miller v. Township Committee of Bridgewater, 24 N.J.L. 54. It has long been recognized as a proper remedy to compel payment for lands taken for road purposes where another specific remedy is not provided. Miller v. Township Committee of Bridgewater, supra; Barber v. Delaware, 76 Id. 371. In Mayor and Aldermen of Jersey City v. Gardner, 33 N.J. Eq. 622, Mr. Juticse Knapp, speaking for the Court of Errors and Appeals, said (on page 628) with respect to lands condemned by a municipal corporation for street purposes:
"When the conditions have arisen on which it is made the duty of the city to pay, and the right of the owner to be paid, an ascertained amount of compensation, the owner may have a suit at law for its recovery, or, at his instance, payment may be enforced by mandamus. And such right ...