Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
[29 NJSuper Page 173] The City of Jersey City, by this action instituted in the Law Division of the Superior Court in lieu of the former practice by means of the prerogative writ of certiorari , seeks to review the legality of a certain order made by Judge Proctor on April 2, 1953 directing a summary investigation into the city's affairs pursuant to the provisions of the statute, R.S. 40:6-1 et seq., and of certain supplemental orders subsequently entered in the cause denying the city's application for a rehearing and for a stay pending appeal; appointing Samuel A. Larner, Esquire, the expert to prosecute the investigation; directing the city officials to make available to the expert and his accountants all financial and legal records and documents of the city for the years 1949 to 1953, both inclusive; and designating Fredrick J. Waltzinger, Esquire, and Joseph M. Nolan, Esquire, as attorneys authorized to appear for defendants on any application by the city for a stay of any order or
judgment entered in the said proceedings and in connection with any appeal that might be taken by the city.
Based upon the provisions of R.R. 4:88-7 (formerly Rule 3:81-7), defendants gave plaintiff notice of an application for entry of a judgment in favor of defendants, and plaintiff served upon defendants notice of a motion for an order staying enforcement of the various orders theretofore entered in the proceeding directing a summary investigation into the city's affairs, and in support of its motion annexed to and served with the notice of motion numerous and rather voluminous affidavits controverting and attacking the charges contained in the affidavits originally filed by the defendants with Judge Proctor and upon the basis of which the order for summary investigation was made.
These motions were heard before Judge Joseph L. Smith, sitting in the Law Division of the Superior Court in which this suit was filed, and resulted in two orders, namely, (1) an order dated June 26, 1953 granting defendants' motion for judgment and (2) an order dated July 10, 1953 dismissing Haydn Proctor, assignment judge of the Superior Court in Hudson County, as a party defendant in the city's suit. The first of the two orders was based on the court's opinion "that the pleadings, affidavits and admissions on file in this action show palpably that there is no genuine issue as to any jurisdiction in this court for the filing of such a complaint, and that defendants have a right to such a judgment as a matter of law." The second of the said two orders recites that Judge Proctor was not either a necessary or proper party defendant in these proceedings.
From both of these two orders the city appeals.
At the outset it should be noted that upon the making of the order for a summary investigation into the city's affairs, the city appealed to the Appellate Division of the Superior Court and the Supreme Court certified the appeal on its own motion. In an opinion handed down November 9, 1953, 13 N.J. 478, the Supreme Court affirmed the order directing a summary investigation into the city's affairs and in its opinion dealt with and rejected the following contentions
made by the city, namely: (1) That the assignment judge was without jurisdiction over the application and that the power to act in the premises was vested solely in the Chief Justice of the Supreme Court; (2) that the trial court (Judge Proctor) committed error in refusing to conduct an inquiry into the extent of the actual knowledge of the applicants for the summary investigation; (3) that Judge Proctor erred in failing to conduct an inquiry into the charges made by the city of fraud and connivance in the recruiting for political purposes of the taxpayer applicants for the investigation; (4) that the assignment judge erred in declining to make a preliminary inquiry into the manner of the execution of the affidavits by the 49 applicants for the investigation; (5) that the court should have made findings of fact before making the order for summary investigation, and (6) that the assignment judge should have required the applicants for the investigation to furnish a larger bond to cover the expenses of the investigation than the bond for $10,000 he did in fact require.
On this appeal the city argues the following points:
1. That a review of the order made by the assignment judge for a summary investigation, and the supplemental orders above mentioned, should be permitted in this suit in lieu of the prerogative writ of certiorari in the Law Division of this court under R.R. 4:88-2 (formerly Rule 3:81-2).
2. That Judge Proctor was a necessary and proper party defendant in this suit and should not have been ...