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Shea v. Ellenstein

Decided: July 27, 1937.

THOMAS J. SHEA, PROSECUTOR,
v.
MEYER C. ELLENSTEIN ET AL., DEFENDANTS



On writ of certiorari.

For the prosecutor, Gilhooly & Yauch.

For the defendants, Frank A. Boettner, Jules E. Tepper, Joseph A. Ward and Lum, Tamblyn & Fairlie.

Before Justices Parker, Lloyd and Donges.

Donges

The opinion of the court was delivered by

DONGES, J. The prosecutor, a taxpayer of the city of Newark, seeks a review of action of the board of commissioners of the city of Newark in adopting a certain resolution, dated August 26th, 1936, accepting an offer of lease of property, known as "Army Base," made on behalf of Newark Tidewater Terminals, Incorporated; in adopting an ordinance, dated October 14th, 1936, providing for the letting of said property; and in executing a lease, dated November 12th, 1926, for said property between the city of Newark, as lessor, and Newark Tidewater Terminals, Incorporated, for a period of fifteen years. After the allowance of a rule to show cause why a certiorari should not issue, a writ of certiorari was allowed and the matter is now before us on that writ.

The property consists of a tract of land, comprising 136.171 acres, acquired by the city by contract of sale from the United States, dated September 1st, 1926, upon condition that the purchase price of $2,000,000 be paid in annual installments.

The property is known as the Army Base, and consists of lands fronting on Newark Bay, a private waterway constructed and owned by the city of Newark, and certain structures and railroad tracts, all constituting an industrial and tidewater terminal.

Prosecutor urges that the proceedings of the city commissioners approving and accepting the offer of Tidewater corporation, and the subsequent leasing of the property to that corporation are invalid, as in contravention of paragraph 9 of article XXVIII of chapter 152 of the laws of 1917, page 424, because therein it is provided that leases of storage facilities, wharves, piers, bulkheads, docks, slips and basins belonging

to a municipality shall be for a period not to exceed ten years, and that all leases of such property shall be exposed to public sale, and sold to the highest bidder at public sale and vendue or outcry.

On behalf of respondents it is urged that chapter 213 of the laws of 1928, page 386, which provides:

"1. Every city of the first class of this state may lease to any person or persons any land or building of the municipality not needed for public use for a fixed term not exceeding fifty (50) years," authorized Newark, a city of the first class, to lease any land or building without ...


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