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Stack v. Borelli

Decided: June 13, 1949.

WILLIAM J. STACK, PLAINTIFF,
v.
MICHAEL BORELLI, DIRECTOR OF PUBLIC SAFETY AND ALBERT J. SHEA, DEFENDANTS



Proctor, J.s.c.

Proctor

[3 NJSuper Page 547] Plaintiff, a taxpayer of the City of Hoboken, brings suit to compel the defendants to file with the city clerk for public inspection a report made by the defendant Shea to the defendant Borelli, Director of Public Safety, of an investigation made by the defendant Shea as investigator to the Director of Public Safety. Plaintiff also seeks to compel the above-named defendants to make a complete discovery of their actions in connection with the resolution of the governing body appointing the said defendant Shea as investigator and the subsequent resolution appropriating funds in payment of the investigation. Plaintiff further demands that the payment of $2,000 made to Shea pursuant

to the aforesaid resolutions be declared illegal and that Shea be made to return the money to the city treasurer; that Shea account for all moneys paid him; that Shea be restrained from taking any action against the City of Hoboken for additional compensation; that defendants be restrained from altering, destroying or secreting the aforesaid report.

The complaint alleges that on September 2, 1947, the Board of Commissioners of the City of Hoboken adopted a resolution whereby the defendant Shea was appointed special counsel to the defendant Borelli as Director of Public Safety,

"to probe the affairs and conditions of the Police Department, to investigate the acts of the Police Department regarding the suppression or protecting of gambling, to investigate the efficiency of the Police Department, and whatever other steps are necessary to the protection of merchants and business men as well as other matters that are necessary for the best interests of the people of the City of Hoboken."

The complaint further alleges that a subsequent resolution was adopted by the Board of Commissioners whereby the sum of $2,000 was appropriated and paid to the defendant Shea.

The complaint further asserts that the defendant Shea undertook to probe certain conditions in the City of Hoboken regarding the conduct of officers and employees of the city and took statements and affidavits in connection therewith, all of which were incorporated in a report made to the defendant Borelli; that the report sets forth conditions in the city which adversely affect the taxpayers of the municipality; that no copy of the report was filed with the city clerk; that defendant Borelli has arbitrarily and without just reason refused to file the report with the city clerk or to release the report for examination or publication, although demand has been made of him; that defendants are conspiring to prevent the taxpayers and citizens of Hoboken from learning of the state of affairs which exist in the city, and public funds have been illegally appropriated and wasted thereby.

The complaint further alleges that Shea intends to make a claim for additional compensation by reason of said probe although no public benefit has been derived therefrom.

There are three motions now before the court. The defendant Shea is prosecuting one motion seeking a dismissal of the complaint against him on the ground that the complaint fails to state a claim upon which relief may be granted. He contends that his acts were as special counsel of the city, that he is accountable only to the city for his actions, that the plaintiff does not charge him with failure to perform the terms of his agreement, and that the complaint is barred by the statute. R.S. 2:80-7 (chapter 381, P.L. 1948). The defendant Borelli has move for summary judgment based on an affidavit that on January 18, 1949, he submitted a memorandum to the Board of Commissioners which was received by that board and which reads as follows:

"After careful study and analysis of the Official Probe Report submitted to me by Special Probe Counsel Albert J. Shea, I find that no offense or wrongdoing was committed by any official or citizen which would warrant any action on my part."

The third motion is by the plaintiff whereby he seeks an order to take depositions of both defendants pursuant to Rule 3:26-1.

Defendants Borelli and Shea contend that the suit is in the nature of a mandamus and that the mandamus will never lie to compel an act unless the duty to do so is clear and specific, and further, that the filing of the report is not a ministerial act ...


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