Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
In this proceeding in lieu of prerogative writ plaintiff attacked the validity of a resolution of the City of Long Branch providing for the exchange of certain pieces of realty between the city and the two corporate defendants. From a summary judgment for the defendants on the pleadings, plaintiff appeals.
During the pendency of the appeal Bruno died and an application was made at the oral argument to substitute his widow as party plaintiff. It was suggested that in the absence of a showing that the widow in some way has a personal standing or interest which would permit her to maintain the action, the appeal should be dismissed. R.R. 4:38-1. The problem was not briefed by the parties and we have concluded to pass it in order to decide the basic questions presented. In view of the conclusion reached, the issue of her standing from a factual as well as legal viewpoint can be the subject of action in the trial court.
N.J.S.A. 40:60-51.1 permits a municipality to exchange lands owned by it for other lands under certain conditions. The Act provides:
"The governing body of any municipality may exchange any lands owned by or hereafter to be acquired by such municipality, or any right or interest therein, for other lands desired for public use , and may exact and receive a cash consideration in addition to such other lands desired for public use; provided, that such exchange shall have been or shall hereafter be authorized, by resolution of the governing body of such municipality, and such governing body has determined or hereafter shall determine that the lands to be conveyed to such municipality and the cash consideration, if any, to be paid to such municipality, are of greater value to the municipality for public use than the lands to be conveyed by the municipality , and that it is deemed in the public interest that such exchange of lands be consummated." L. 1942, c. 199. p. 570, as amended L. 1946, c. 157, p. 720. (Emphasis ours)
The parties are in agreement that on January 26, 1954 the city adopted the resolution which resulted in this action. It is attached to the complaint and incorporated therein by reference; the answer of the city admits its adoption.
From the recitals contained therein, it appears that the city owned certain adjoining properties. On one parcel a building is located which is said to require extensive and expensive repairs, the making of which is not justified for any contemplated use thereof. Nash Aluminum Company, or its affiliate Seacoast Terminal Company, owns premises with a building thereon on the same street which the governing body wishes to acquire for needed garage and storage space.
The governing body then authorizes the conveyance of the city's premises to Nash or Seacoast (as they wish the title to be taken) in exchange for the described premises of Nash or Seacoast and the payment by Nash of $20,000 in cash, plus the waiver of a sum due it from the municipality in the amount of $5,744. There are incidental stipulations also, largely dealing with an agreement by Nash to cause the construction of another substantial building on the land being acquired; these need not be considered.
It is recited and resolved among other things that the lands being acquired by the city "for the reason set forth above are
of greater value to the City of Long Branch for public use" than those being transferred and that "it is in the public interest that the exchange of lands be consummated."
Plaintiff's complaint consisting of four counts challenges the validity of the resolution. Answers were filed by the defendants to which certain motions were directed. Some time after they were disposed of adversely to the plaintiff the city moved formally "that the cause be advanced for hearing, trial and disposition" pursuant to R.R. 4:88-6 and "for summary ...