Civil action in lieu of prerogative writ.
By this action plaintiffs seek judgment adjudging that the sale of lots 5 to 12 inclusive, Block 139, as designated on the tax map of the City of Cape May to Adolph M. Koch, Evelyn Koch, his wife, Lionel Friedberg and Nan Friedberg, his wife, Hessel Friedberg and Zipporah Friedberg, his wife, and Harry A. Mann and Beatrice Mann, his wife, as tenants in common, is null and void and that the title to said lands and premises vests and remains in the City of Cape May.
The court has gleaned from the pleadings, stipulations, depositions, affidavits, testimony and exhibits on file the following facts: That the defendants Koch, Friedberg and Mann were desirous of erecting and operating a beach front motel in the City of Cape May and for that purpose early in 1953, contacted a realtor in Cape May and at his suggestion made inquiry of the commissioners as to city owned lots which might be available. It appears that the property to be purchased by Koch and his associates "hinged on the fact of whether or not they could acquire other ground to go with it." Time, too, was an element. Therefore, it was early in April 1953, after negotiations for several other privately
owned tracts had fallen through, that Koch notified the commissioners that he and his associates were interested in purchasing the land described in the complaint provided that title could be obtained at an early date in order that construction might be completed before the summer resort season started. In the course of previous discussions Koch had exhibited to and filed with the commissioners certain plans for his proposed motel. Accordingly, the commissioners on April 17, 1953 adopted a resolution pursuant to R.S. 40:60-26(a), which we quote in full:
"BE IT RESOLVED by the Board of Commissioners of the City of Cape May, a municipal corporation of the State of New Jersey, that:
1. The following described lands and/or buildings are hereby determined to be not needed for public use, and are hereby authorized and directed to be sold in the manner and subject to the terms and conditions prescribed herein.
2. The Collector is hereby authorized and directed to advertise such sale in the Cape May Star and Wave for two consecutive insertions, to wit, on the 23rd day of April 1953 and the 30th day of April 1953, and thereafter to conduct such sale at the Municipal Building on [Monday] Friday, May 1, 1953, and to sell such property to the highest bidder, bidding at least the minimum price hereafter determined.
3. The properties to be sold, and the minimum prices fixed for each, are as follows:
LOT BLOCK LOCATION MINIMUM PRICE
5 to 12 139 Beach Ave. Between $800.00 for the
Trenton & Pittsburgh Aves. eight lots
4. Unless otherwise provided herein, the successful bidder shall pay the full purchase price at the conclusion of the bidding, and the Municipality shall deliver a deed without general warranties, which deed is hereby authorized to be executed and delivered immediately after the purchase price is fully paid.
5. The special terms and conditions of such sale are as follows: Building to start within twenty-four (24) hours from date of sale, completion within Ninety (90) days.
6. The Building to contain at least twenty units such as efficiency apartment or hotel rooms construction to be of concrete block and stucco, each unit to contain a private bath. Ground to be landscaped and have circular drive. Floor of building to be thirty (30) inches above grade. Off Street Parking area to be furnished by buyer two story center portion. Building to conform in every detail to plans filed at City Hall."
The notice of sale prepared for publication set forth the same provisions and used the same language as the resolution adopted on April 17. However, when the April 23, 1953 issue of the Cape May Star and Wave appeared in the newsstands, one was purchased by Dr. Koch about noon on that date and he discovered that the notice of the sale of the lots in which he was interested did not appear. The omission was called to the attention of the commissioners who immediately endeavored to rectify the omission and directed the publisher to print and issue a special edition which became available to the public between 4:30 and 5:00 in the afternoon of April 23. This second run was the same as the original edition except that on page 7, in the place and stead of an article titled: "Cape Woman is Kissed by Mamie," there appeared the "Notice of Public Sale of Lands." The evidence revealed that page 7 of the supplemental edition was an additional page 7 insert with the substitution just mentioned.
The affidavit of F. Mervyn Kent, editor of the Cape May Star and Wave , states that "on April 23, 1953 the first press run was 2,450 copies, of which 1,142 were mailed to subscribers, both inside and outside of Cape May City, 900 copies were delivered to newsdealers and 400 copies were retained for sales from the office, replenishing supplies, advertisers' copies, reserve supply and file copies." In the second press run "approximately 400 additional copies were printed. Of these additional copies few were mailed to regular subscribers, other than to advertisers, and the whole number would not exceed 100. No accurate figures are available for the mailing, or for additional newsstand sales, but again I would estimate not to exceed 100, probably substantially less. The remainder of 200 or more copies were retained for current sales at the office, future retail sales and checking and file copies. A large number of copies were sold, leaving in our possession approximately 25 copies."
At any rate, the circulation of the "second press run" in no substantial way covered the ...