On appeal from the Supreme Court.
For the prosecutor-respondent, Fredrick J. Waltzinger and Victor Samuel, pro se.
For the respondents-appellants, Edward J. Santoro (John T. Keefe, of counsel).
The opinion of the court was delivered by
WACHENFELD, J. This appeal is from the determination of the Supreme Court that an agreement executed pursuant to a resolution of December 4th, 1946, of the Common Council of the Borough of South Plainfield approving and authorizing the execution of a contract with Victor Samuel for the liquidation of approximately one thousand tax title liens held by the borough constituted a valid and enforceable contract and that a subsequent resolution of January 2d, 1947, repealing and rescinding the former was void.
Victor Samuel is an attorney-at-law of the State of New Jersey. In November, 1946, the Borough of South Plainfield held 1,029 tax title liens on lands within its municipal limits. The governing body of the municipality consisted of six councilmen and a mayor. On November 5th, 1946, three new members were elected to the council, resulting in changed control of the council from one political party to another, effective January 1st, 1947.
On November 20th, 1946, the councilmen, voting four to two, by resolution approved a form of contract submitted by Samuel in which he was to liquidate the tax title liens, and at the same time the resolution authorized the mayor and the clerk to execute and deliver said contract to Samuel. The mayor vetoed the resolution on several grounds, one of which was that the Department of Local Government had not first approved the contract. On December 4th, 1946, the same resolution was reconsidered, and despite public opposition expressed at the hearing, was passed over the mayor's veto. The newly constituted council on January 2d, 1947, by a four to two vote, rescinded the resolution of December 4th and directed Samuel to return the tax lien certificates which had been placed in his possession.
To pay Samuel under the terms of the proposed agreement the borough would become financially obligated to expend the sum of $45,000, to be met by annual appropriations for the years 1947, 1948 and 1949 in the amount of $4,000 each year, and the balance owing at the end of the fiscal year 1949 was to be paid off in three annual payments in the years 1950,
1951 and 1952 by making suitable appropriations in each of said years. No payment was to be made for the year 1946.
The proposed agreement in its final paragraph recites the affixation of the corporate seal of the borough and the signature of the mayor, but neither was ever placed on or affixed to the document. Signatures of the borough clerk, Victor Samuel and four members of the council as witnesses appear on the draft. The agreement was not submitted to the Department of Local Government for approval.
The Supreme Court determined that after the resolution of the municipality on December 4th, 1946, and the execution of the agreement by Samuel and the four councilmen, a binding contract was formed, evidenced by the delivery of the tax sale certificates to Samuel to enable him to carry out the contract. Relying on DeBow v. Lakewood, 131 N.J.L. 291, the court therefore held that the resolution of January 2d, 1947, was invalid and of no effect.
The resolution of November 20th, 1946, approving the draft agreement submitted by Samuel was a mere authorization to the mayor and borough clerk to execute, seal and deliver the proposed form of contract on ...