On certified appeal from the Law Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiff's appeal from a summary judgment entered in the trial court in favor of the defendant (which should have been designated as the County of Passaic, R.S. 40:18-1 and 3; an amendment should be made accordingly) has been certified by us on our own motion while it was pending in the Appellate Division of the Superior Court.
For many years Broadway (formerly called Bloomfield Avenue) was maintained as a city street by the plaintiff. The street, which is 7,061 feet long, extends from Main Avenue, Passaic, to the line dividing Passaic and Clifton. At one point it crosses the right of way of the Delaware, Lackawanna
and Western Railroad Company by a bridge. On April 2, 1929 the Board of Commissioners of Passaic, pursuant to statute, adopted a resolution:
"RESOLVED: That the Board of Chosen Freeholders of the County of Passaic, are hereby requested, to take over and maintain as a county road, Broadway, from Main Avenue to the City Limits."
On May 8, 1929 the Board of Chosen Freeholders of Passaic County complied with the request of the board of commissioners by unanimously adopting this resolution:
"Resolved that the Board of Chosen Freeholders of the County of Passaic hereby acquire the following road in the City of Passaic under the provisions of an Act of the Legislature of the State of New Jersey, entitled 'An Act concerning Counties,' approved March 4, 1918, which road is designated as follows:
BROADWAY from the West line of Main Ave. to the City of Clifton Line, being 7061 ft. in length and 70' - 60' and 50' in width.
The said road so acquired shall be known as a County Road, and upon the adoption and consenting to this Resolution by the City of Passaic and the filing of a certified copy thereof with maps attached, in the office of the Clerk of the County of Passaic, the duty of keeping said road in repair shall devolve exclusively upon the Board of Chosen Freeholders of the County of Passaic, and all other powers and duties respecting such road shall be imposed and vested in said Board of Chosen Freeholders, as provided in said Act above referred to. * * *"
According to the city, in recent years the bridge has been allowed to fall into such a state of serious disrepair as to necessitate the city calling on the railroad and the county to make the necessary repairs. Both, however, refused to do so, the railroad claiming that it had been relieved of any responsibility for maintenance and repair to the bridge by reason of a contract dated June 30, 1926 with the city, while the county apparently gave no explanation for its failure to make repairs. Its response to the city's demand consisted of a resolution adopted May 7, 1952 relinquishing its jurisdiction and control over the road and returning it to the city:
"WHEREAS the Board of Chosen Freeholders of the County of Passaic, on the 8th day of May, 1929, by ...