On appeal from the Supreme Court.
For the appellant, Francis A. Gordon.
For the respondent, Donald W. Waesche.
The opinion of the court was delivered by
WELLS, J. This is an appeal from an order of the Supreme Court made by Mr. Justice Perskie setting aside a levy made in behalf of the plaintiff on certain real estate situate in the city of Asbury Park.
In consequence of certain injuries sustained by Mrs. Martin, a judgment was obtained against the city of Asbury Park, said judgment being upheld by this court in 111 N.J.L. 364. A writ of execution was duly issued out of the New Jersey Supreme Court, by virtue of which the sheriff of Monmouth county levied upon certain land of the defendant lying between Ocean avenue and the boardwalk. The land levied upon has been leased by the defendant to one Edward T. Mitchell for the purpose of maintaining thereon a bathing establishment previously erected by the defendant city. The injuries for which the judgment was given were sustained by Mrs. Martin while a patron of this bathing establishment.
Upon motion of the defendant the question of the propriety of this levy was raised before the Supreme Court, as a result of which the order setting aside the levy was made. This appeal is based upon the sole ground that the land involved was used by the defendant for private and proprietary purposes, and as such was subject to the levy made.
It has long been a settled rule in this state that property used by a municipal corporation in the exercise of its function of government cannot be taken in execution upon a
judgment against the corporate body. Lyon v. City of Elizabeth, 43 N.J.L. 158.
Although no cases appear on appellant's brief precisely in point with the instant case, there is authority, both statute and case, that property held by a municipal corporation for private and proprietary purposes can be taken in execution upon a judgment entered against such corporation. Executions act, 2 Comp. Stat., p. 2255; Rahway v. Munday, 44 N.J.L. 395.
The pertinent question, therefore, is as to the status of the land taken under the levy here contested.
The land in question was purchased by the defendant under authority of "An act to authorize cities bordering on the Atlantic ocean to purchase the lands in any such city bordering on the ocean and adjacent lands thereto in such city for public purposes and to improve the same, and to issue bonds for such purposes." Laws of 1900, chapter 99. Reade v. Asbury Park, 101 N.J.L. 319; affirmed, 102 Id. 221. To the legislative declaration has been added the opinion ...