On appeal from the Supreme Court.
For the appellant, Nicholas S. Schloeder.
For the respondent, William H. Speer.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal, as is said, from a judgment entered upon the striking out of a complaint.
The state of case before us sets out no such judgment but simply the order of the Circuit Court judge sitting as a Supreme Court commissioner. However, we pass by this technicality and deal with the appeal upon its merits.
The complaint sets up that the township committee of Saddle River township adopted an ordinance by the terms of which it was authorized to enter into a contract with the respondent for the laying of gas mains and house service connections in certain streets of the municipality and under which it was to pay and did pay respondent $17,667, which was to be repaid by the latter to the former under certain conditions and in certain amounts as specifically provided for in such contract.
The ordinance contemplates, and, in fact, specifically provides for, an assessment of the cost of such work against the lands specially benefited.
The work was completed, the money paid to the respondent; assessments made and reported to the township committee for confirmation, when a thought seems to have come to and was entertained by the committee that the payment of the money to the respondent and the whole proceeding was null and void and the present suit was instituted, the complaint sounding, and admitted by the appellant so to be, as for money had and received.
Upon this appeal three grounds for reversal are urged and argued and they may be shortly state as follows:
1. That the municipality had no power to enter into the contract ...