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Mistretta v. City of New Ark

Decided: November 9, 1954.


Cafiero, J.s.c.


This is a proceeding in lieu of prerogative writs wherein it is claimed that the action of the Board of Commissioners of the City of Newark in granting a variance of its zoning ordinance was arbitrary, capricious and unreasonable.

The variance would permit the defendant, the Berkeley Savings and Loan Association, to establish a restricted noncommercial parking area on vacant land in the rear of its building at 86-88 Lyons Avenue, Newark, New Jersey. The building is in a business zone and the proposed parking area is located in a first residence district or zone, and is known as 81-87 Weequahic Avenue.

The variance was granted by the city commissioners after a public hearing, and upon recommendation of the board of adjustment which had also held public hearings. The action of each being pursuant to N.J.S.A. 40:55-39(d).

The resolution of the board of commissioners, which was unanimously adopted, contained the following proviso:

"* * * providing parking be stricted to the hours between 8 a.m. and 5 P.M. on Tuesday, Wednesday, Thursday and Friday of each week and between the hours of 8 A.M. and 7 P.M. on Mondays and that the gates at the Lyons Ave. entrance to the station be locked between the closing and opening hours and on week ends; and further provided there shall be no entrance or exit on Weequahic Ave."

The pretrial order provides that the case is to be submitted on stipulation and briefs; and at the time of its preparation, plaintiff's counsel complained that at the hearing before the board of adjustment he had not been afforded the same opportunity which was given to the defendant, Berkeley Savings and Loan Association, to offer evidence as

to parking and traffic conditions; and requested that if the matter of street parking and traffic becomes a vital issue in the case, that he be given an opportunity to produce evidence as to parking and traffic conditions. Leave was granted to him to file a traffic report, to which defendants objected; but counsel has not done so, nor has he explained its absence.

Briefs were submitted, but before the court had announced its opinion in the matter, Sidney G. Goldberg, Esq., who claimed that he represented the plaintiff, Philip Mistretta, filed with the court an affidavit made by Philip Mistretta wherein he stated:

"1. I reside at 93 Weequahic Avenue, Newark, New Jersey, and am the purported plaintiff in the above case.

2. I never authorized Abraham Alboum to institute the above action on my behalf. I never retained Mr. Alboum. Mr. Alboum instituted this action in my name without my knowledge or consent. I have never authorized any attorney or any other person to institute this action.

3. The purpose of this affidavit is to inform the court of the true facts and to have this case dismissed insofar as I am concerned."

In an attempt to avoid confusion on this point, and to have it settled amicably, if possible, the court discussed the matter privately with Mr. Alboum, and it was apparent that Mr. Alboum was familiar with the contents of the affidavit and that he was interested in the litigation beyond his position as attorney for plaintiff. Mr. Alboum stated that he also resided in the area and was strongly opposed to the granting of the variance; whereupon the court suggested that he communicate with Mr. Goldberg and with the attorneys for the defendants, and it was probable that they might consent to have him substituted as the plaintiff in order that the matter could proceed to conclusion on its merits.

Mr. Alboum prepared an order to that effect which was consented to by Mr. Goldberg, as attorney for Philip Mistretta; but it was not consented to by the other parties; and upon learning thereof, the court requested all of the parties to attend in open court.

Philip Mistretta, through Mr. Goldberg, his attorney, reiterated his previous position, and stated that his primary

interest was to be removed as the plaintiff in the case; and if consenting to a substitution of plaintiffs would accomplish such result, he was willing to consent that Mr. Alboum or any one else be substituted.

Mr. Alboum filed an affidavit in which he denied what Philip Mistretta had said in his affidavit, and continued by stating:

"3. In fact, Philip Mistretta and the other interested property owners on Weequahic Avenue authorized me to institute this suit, and they were informed by me of every step taken by me in the case."

He further stated that Philip Mistretta was merely a nominal plaintiff and that said Philip Mistretta was acting in behalf of other persons residing in the area, also that this was a class suit and conceding that Mr. Mistretta could withdraw, that he or some other interested person should be permitted to continue the case so that their rights could be safeguarded and legally determined. He stated this had been provided for in the complaint wherein it was alleged in paragraph 8 that:

"8. Plaintiff, for himself and other interested owners, charges that said action of approving said application and appeal is arbitrary, capricious and unreasonable."

Mr. Goldberg called upon Mr. Alboum to produce a copy of a letter which Mr. Alboum had sent to persons whom Mr. Alboum claimed were the "other interested persons." This letter had been sent several days previous and in sufficient time for Mr. Alboum to have received replies; but he stated that he had not received any. The closing paragraph of that letter being as follows:

"Now, I do not know whether you attended the meeting to which Mr. Mistretta referred. All that I do know is that the best thing for a neighbor to do is to be neighborly, which means that we must stick together against the common enemy. The health and well being of our children and the maintenance of the high value of our property is surely worth the few dollars it will cost to fight this case. Therefore, I must ask you to please let me know by letter, as soon as

possible, whether you intend to stick to the original agreement to pay your share of this case, or whether you want to quit the battle. I sent Mr. Mistretta a bill showing a balance of $816.00 due me. I was and am still willing to wait for my money until all the owners have paid their enrollment and dues. However, I have taken lickings before and another licking will not freighten me. I do hope, however, that we will not let this case have any effect upon us as neighbors, which is infinitely more important than money. I was depressed by the ...

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