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Witkowski v. Burke

April 14, 1949

CHARLES S. WITKOWSKI, PLAINTIFF,
v.
FRANCIS X. BURKE, DEFENDANT



Civil Action.

William J. Brennan, Jr. Brennan, Wm. J., Jr., J.s.c.

Brennan

The complaint herein was filed April 8, 1949, as a proceeding under Rule 3:81, superseding prerogative writs, and by motion made under Rule 3:81-4 the plaintiff applies for summary judgment.

While the complaint does not demand the performance of a ministerial act or duty (and there may be doubt of the applicability of Rule 3:81-4) defendant, allegedly because of the public importance of the controversy and defendant's representation in the briefs submitted on his behalf by counsel that there is imperative necessity for a speedy determination hereof, has interposed and interposes no objection to the procedure employed but, rather, makes a countermotion under Rule 3:56-1 for a summary judgment or order in his favor.

Plaintiff is a candidate for the office of Commissioner of the City of Jersey City in the election to be held May 10,

1949. Defendant is the incumbent City Clerk of said city, to which office he was appointed June 17, 1947, by the City Commission.

On April 5, 1949, at defendant's office in the Jersey City City Hall, a drawing was held pursuant to R.S. 40:75-9 to determine the order in which the names of the candidates or groups of candidates shall appear on the ballot to be used at the May 10, 1949, election.

Plaintiff in this proceeding seeks a judgment setting aside the result of said drawing for positions and directing the holding of a new drawing under the supervision of this court.

Defendant's countermotion is that the plaintiff's motion be denied and that a summary judgment be entered in favor of the defendant dismissing the complaint.

The result of the April 5, 1949, drawing was that one Eggers and four others bracketed with him won the first five positions on the ballot. The Eggers group has made timely application under Rule 3:24-1, subdivision (1), to be permitted to intervene. That rule and subdivision allow intervention "when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action." The application has been granted and the Eggers group, through counsel, have participated in these proceedings.

The plaintiff's first ground of challenge of the April 5th drawing is that it was not conducted by the defendant personally in his capacity as City Clerk but by one Rosengard, purporting to be the Acting City Clerk. Defendant, on June 17, 1947, the date of his appointment as City Clerk, designated Rosengard to act as Acting City Clerk during defendant's absence or disability. This was done by a writing addressed to the Board of Commissioners, the original of which was filed with said board and copy of which was filed with Arthur Potterton, Director of Revenue and Finance of the City of Jersey City. This is the only designation at any time made by ...


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