Daniel J. Brennan, J.s.c.
This is a proceeding in lieu of prerogative writ. Plaintiff seeks judgment that the defendants be directed to accept his offer in the amount of $1,300 for the purchase of premises known as 624-630 Burnside Street in the City of Orange, urging that he is the highest bidder and the one offering the best terms therefor.
Examination of the complaint discloses that the plaintiff asserts that he is a taxpayer in the City of Orange; that by public advertisement in the Orange Transcript , a newspaper published in the City of Orange, in the issue of July 12, 1951, the city offered to sell the aforementioned property, the sale being scheduled to be held before the defendants, on July 17, 1951, at 4 p.m.
The complaint contains the allegation that on July 17, 1951, Joseph C. Cassini, an attorney of this State, retained by the plaintiff to represent him in the purchase of the property, appeared at the place specified in the public advertisement for and in behalf of the plaintiff, and that the acting chairman of the Board of Commissioners of the City of Orange stated that he was now willing to sell the property
which had been advertised by the City of Orange for sale, and that the City of Orange had been offered the sum of $1,200 by the Fifth Ward Civic Association and asked if any one wished to bid any higher price; that thereupon Joseph C. Cassini, representing the plaintiff herein, stated publicly that he offered the sum of $1,300 for and in behalf of a citizen and taxpayer of the City of Orange (the italics are the court's). Notwithstanding the higher offer made, the Board of Commissioners of the City of Orange refused to accept the offer of $1,300 for the sale of said property unless the plaintiff agreed to use the property for the same purpose that the Fifth Ward Civic Association intended to make use of the property. That "thereafter the Board of Commissioners of the City of Orange voted illegally and unlawfully to accept the offer of $1,200 originally made for the sale of said property by the Fifth Ward Civic Association in violation of R.S. 40:60-26, Laws of 1946, Chapter 106, as well as amendments and supplements thereto." The complaint further asserts that "The said condition or provision that it was represented to the Board of Commissioners of the City of Orange, that this property was to be used as a civic center was only inserted in said public advertisement for the purpose of preventing other bidders from appearing and offering to purchase said property at the time of sale. This condition was inserted or created for the purpose of allowing only the Fifth Ward Civic Association to bid on this property." Plaintiff then proceeds to assert that he is entitled to judgment to the extent as hereinbefore indicated.
The defendants, in their answer, while admitting that Mr. Cassini appeared at the place specified in the aforesaid advertisement, deny that he was retained by the plaintiff to represent him in the purchase of the property. The defendants also admit (1) that they considered the offer made by the civic association in the sum of $1,200 for the use and maintenance by the offeror of said premises as a civic center and that the acting chairman of the board asked if there were any higher bids that any one wished to make for the
premises, subject to the same terms and conditions; that (2) Mr. Cassini offered $1,300 stating publicly that said premises would not be used as a civic center; that (3) there being no higher bidder than that tendered by the Fifth Ward Civic Association based on the same terms and conditions, that the defendants thereupon voted to accept the offer of $1,200 made by the association, "on the condition that said premises would be used as a civic center." The defendants denied that this "condition" was created or inserted in the advertisement for the purpose of allowing only the Fifth Ward Civic Association to bid on this property, in their answer, inter alia , indicating that these lands were sold pursuant to section (c) of R.S. 40:60-26 "wherein and whereby the defendants are given statutory leave to consider an offer made by a bidder, but are not obligated to sell the premises to the highest bidder, or to anyone else, including the original bidder * * * Neither Joseph C. Cassini nor the plaintiff herein was the highest bidder, inasmuch as there was a refusal to accept the terms and conditions imposed by the defendants * * * that said lands and premises have never been declared to be surplus or unneeded for municipal purposes by the defendants." The fourth separate defense is of the following exact tenor:
"Said lands and premises have been held by the City of Orange for a municipal purpose and the City of Orange would not sell the said lands and premises unless one or more of its purposes in retaining said lands and premises was to be accomplished by a sale and disposal. In the instant case the creation and maintenance of a civic center would accomplish one of the purposes."
The defendants in their fifth, sixth and seventh separate defenses aver that they have the power to afford protection to the health, safety, morals and general welfare of its inhabitants by the sale and disposal of land to a civic organization for use as a civic center; that in connection with its zoning power it has the right to take other steps and procedure in aid of its zoning power, including the sale and disposal of land to a civic organization for a civic purpose; that
this proposed sale to the civic association constituted protection to the health, safety, morals and general welfare of the inhabitants in the City of Orange, without expense to the taxpayers thereof for the maintenance of said premises. All of these ...