On appeal from the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
Plaintiff appeals from a judgment of the Superior Court dismissing the complaint in this action ex contractu as deficient in the statement of a cause of action. The complaint is in two counts: the first alleges that on January 24, 1947, the City of Newark, "by its Mayor, Vincent J. Murphy, and its Corporation Counsel, Thomas L. Parsonnet, engaged the plaintiff as an expert economist, for the agreed compensation of $15,000," to act on its behalf in the telephone rate case then pending before the Board of Public Utility Commissioners of New Jersey, and upon performance of the service paid $5,000 on account of the contract price, and demanded judgment for the balance; the second seeks recovery of the reasonable value of the service thus rendered, fixed at the same sum. By answer, Newark denied the allegations of both counts of the complaint and set up by separate defenses (a) an obligation to pay but $5,000 for the service, and full payment, and (b) want of authority in the mayor and corporation counsel to act for it in the premises. Therein, Newark reserved the right to move at the trial for a judgment of dismissal for failure of the complaint to declare a cause of action. The pretrial order included the same reservation.
On the trial, the motion to dismiss the complaint was renewed. There was a stipulation of facts which, by consent of counsel, was submitted for consideration on the motion "as part of the complaint or a modification of it." The motion was granted on the ground that the mayor and the corporation counsel, either singly or together, did not have authority to obligate the municipality to pay for such service, and there was no ratification of the purported
employment. The judge found that the resolution "negatived any ratification"; also that "the complaint is not based on any theory of ratification, and nothing showing ratification is presented in the pleadings." In that view he deemed it unnecessary to decide whether the asserted contract was unenforceable for want of an appropriation to pay for the service, save as provided in the resolution.
Plaintiff's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.
It is now stipulated that the sole question for decision on the appeal is whether the complaint states a cause of action; and that "in order to determine this question, it is necessary to consider only the complaint itself, a stipulation considered by the trial court upon argument" of the motion to dismiss, and the deliverance of the trial court in granting the motion.
The essence of the stipulation submitted on the motion to dismiss is that plaintiff performed the service in suit; that on October 22, 1948, Newark paid him $5,000 "out of a contingent fund," which "was subsequently charged to an appropriation" in its budget for 1950; that this payment was authorized by a resolution adopted by Newark on February 26, 1947, and there was no other resolution or ordinance "authorizing the payment of any moneys to the plaintiff"; that "no further sum was expressly fixed by annual budget" of Newark "to meet any obligation due plaintiff," and no other sum "was paid the plaintiff by the defendant or charged to any contingent fund of the defendant for payments due the plaintiff"; and that plaintiff, after performance of the work, "billed" Newark for $10,000, Camden for $2,000, and Elizabeth for $2,000. The resolution of February 26, 1947, recited the governing body's "duty and responsibility" to protect the citizens of Newark "against unfair and unreasonable rates," its invitation to Jersey City, Paterson, Elizabeth, Trenton and Camden "to join as intervenors in the further hearings" before the Utility Commission in the service of
the common cause, the need for a rate expert whose employment would require "an expenditure of $15,000, which the municipalities mentioned would pay in proportion to their respective populations," and then authorized the mayor and corporation counsel of Newark "to join with the cities abovementioned in intervening in the hearings," and appropriated $5,000 "as and for the expenses of such intervention, representing the share of the City of Newark in the cost of the said rate expert." The stipulation included the 1949 population of the cities invited to intervene, and sufficient to indicate the performance of the service within the budget year. Of this, more hereafter.
It is contended that "there was nothing in the limited stipulation concerning the authority of the Mayor or Corporation Counsel to employ the plaintiff," and it was error to determine this question "as a matter of law," thus barring plaintiff from showing "as a matter of fact" that these officers "were acting within their authority." It is suggested that, even though the subject matter be deemed wholly "non-departmental" and so within the sole jurisdiction of the local governing body, there is available evidence to prove that at an "executive session" attended by plaintiff, the governing body employed him as a rate expert in the pending proceeding and undertook to pay him $15,000 for the service, the whole to be Newark's burden if there were no intervening municipalities who would share the expense, and that, at all events, Newark ratified the contract by acceptance of the service. The case of De Muro v. Martini, 1 N.J. 516 (Sup. Ct. 1949) is invoked.
The sufficiency of the complaint is a defense that may be made by motion or answer, at the option of the pleader. If, on a motion to dismiss the complaint for failure to state a cause of action, matters aliunde are presented to and not excluded by the court, the motion shall be treated as one for summary judgment, and all parties shall be given reasonable opportunity to present ...