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Grogan v. Desapio

Decided: September 6, 1951.

JOHN J. GROGAN, EDWARD J. BORRONE AND CARMELA FINIZIO, PLAINTIFFS,
v.
FRED M. DESAPIO, MICHAEL M. BORELLI, THOMAS A. GALLO, THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF NEW JERSEY, AND THE BOARD OF COMMISSIONERS OF THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, N.J., DEFENDANTS



Motion to dismiss for failure to state a cause of action.

Hartshorne, J.c.c. (temporarily assigned).

Hartshorne

Plaintiffs, two of the members of the Board of Commissioners of the City of Hoboken, together with a taxpayer, have filed the above complaint against the three other Hoboken city commissioners, plus the board itself and the municipality as a body corporate, asking that the resolutions passed at the so-called organization meeting of the board on May 15, 1951, distributing the city departments and subordinate administrative functions between the individual commissioners, be set aside as illegal and void. After the filing of the complaint, plaintiffs, under the order of the court, took lengthy depositions of defendants for discovery before trial. As a result of such discovery, plaintiffs thereupon obtained the authority of the court to amend their complaint in order to amplify the charges therein contained.

Defendants move to strike the amended complaint for failure to state a cause of action. Rule 3:12-2. We accordingly turn to the allegations of such complaint, which, for the purpose of this motion, the court must take as true.

After charging that the defendants, the majority of the Hoboken commissioners, met previous to the organization meeting, without notice to the plaintiff minority members, and in their absence agreed to strip the minority commissioners of practically all the powers and functions usually vested in the departments to which they were to be assigned, the amended complaint adds:

"By said agreement made privately as set forth in Paragraph 9, each individual defendant irrevocably bound himself to vote for said resolutions A, B, C, D, and E, at the public organization meeting and to do so notwithstanding anything which the plaintiff commissioners might urge in opposition thereto at said public meeting. The

said individual defendants severally and jointly determined prior to said public meeting that they would not at the public meeting listen to, consider or deliberate upon any objections which the plaintiff commissioners might advance at the public meeting in opposition to said distribution of powers and duties, and at the said public meeting the individual defendants did refuse to enter into any discussions of the subject with the plaintiff commissioners. The said resolutions were not the product of the joint deliberation of all of the members of the Board of Commissioners, nor the product of joint deliberation of the members of the Board at a meeting held on notice to all members of the Board, but in fact were the product of a private meeting held by the individual defendants alone without notice to the plaintiff commissioners and without opportunity to them to participate as members of the Board therein."

This substantially charges that, at least as to the resolutions in question, the organization meeting called for by the statute (R.S. 40:72-6) was a mere sham, the entire administration of the City of Hoboken having been irrevocably decided upon at a preceding private gathering of the majority commissioners, meeting as individuals and in the absence of, and without notice to, the minority commissioners.

In further paragraphs of the complaint detailed allegations are made which need not be recited at length, charging that, instead of these resolutions having been adopted for public purposes and by a method "appropriate" to the public welfare, within the discretion of the commissioners (R.S. 40:72-5), said resolutions were not "appropriate" to the public welfare, according to facts specifically alleged, but were in fact "adopted in bad faith and constitute an abuse of discretion and fraud upon the statute."

Defendants' motion to strike the amended complaint thus, in essence, poses the questions:

(1) Can the administrative set-up of a city government, operating under the commission form, be finally determined upon by the majority of the board, meeting privately as individuals, in the absence of the minority; or must same in fact result from the regular organization meeting, participated in freely and with an ...


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