For the prosecutor, Milton M. & Adrian M. Unger.
For the respondent, Harry R. Cooper and Ward Kremer.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. Prosecutor seeks to have this court set aside a resolution of the Borough of Belmar dated March 9th, 1948, authorizing the advertising for bids and leasing of certain concessions on the boardwalk in the borough. He claims to have entered into a valid lease with the borough for the concessions for the period from February 4th, 1947, until February 4th, 1951.
Leon Anschelewitz, a holder of successive leases for beachfront premises of the borough, entered into a three-year lease for the various concessions involved on March 5th, 1945, for a term to expire on November 1st, 1947. He did not personally operate the concessions but sublet them at a handsome
profit. Although the terms of the lease required written approval of the sublessees, prosecutor sought only and was given oral approval by the borough.
In the latter part of 1946 the three borough Commissioners, Abbott, Lyman and Schroeder, and prosecutor discussed terms and conditions for a new lease. In February, 1947, prosecutor, wanting to leave on a vacation, requested the borough to consider signing the new lease. At the suggestion of the then Mayor, he appeared at an open borough meeting on February 4th, 1947, with copies of a new lease for the period from February 4th, 1947, to February 4th, 1951, upon the same terms as the prior unexpired lease but at a total rental of $11,500 instead of $6,500, an increase of only $250 for the year 1947. The old lease covered the 1947 summer season and the borough had ample time to enter into rentals for subsequent seasons. The reason ascribed for the making of the new lease was that Anschelewitz wanted security in order to make improvements upon the concessions and the borough Commissioners feared a possible economic recession. Significantly, however, the new lease did not contain any provision for improvements and was identical to the preceding lease except for amount of rental.
The minute books of the municipality show that on February 4th, 1947, Abbott and Lyman (Schroeder having died the preceding month) passed a resolution authorizing the borough solicitor to draw up a lease with the prosecutor for the concessions at $11,500 for the term commencing February 4th, 1947, and expiring February 4th, 1951. The lease, prepared and signed by Anschelewitz, was signed on the same date by Abbott on behalf of the borough in a side room.
Thereafter the question of letting concessions without advertising for bids became a prominent issue in the local campaigns for election to the Board of Commissioners of the borough.
Abbott publicly stated on various occasions between February 4th, 1947, and the date of election that the concessions held by Anschelewitz were under a three year lease for the period from 1945 through 1947 and ...