On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
On January 26, 1954 the Board of Commissioners of the City of Long Branch adopted a resolution authorizing the proper city officials to convey "lands owned by the City * * * known as the 'Button Factory' and adjacent land" to the Nash Aluminum Window Corporation and its affiliate, Seacoast Terminal Company, in exchange for a tract of land then owned by Seacoast. Both tracts of land involved in the exchange, that which the city was to convey and receive, were improved with buildings.
In addition to the land to be received by the city, the resolution recited Nash's agreement to pay a cash consideration in the sum of $20,000 and to forego a claim which it had against the city in the amount of $5,744 for repair work which Nash had done on behalf of the city. The resolution further recited that the lands to be conveyed to the city were of greater value to the municipality for public use than the lands which it was conveying, and that the exchange of lands was "in the public interest." The resolution also included many conditions to the contemplated exchange which are not here pertinent.
Less than 30 days following the adoption of the foregoing resolution the plaintiff, Basil Bruno, a resident and taxpayer of the City of Long Branch, commenced this action in lieu of prerogative writ endeavoring to have the resolution declared
void and to enjoin the exchange of properties contemplated therein. His complaint listed four counts, the first two of which, in substance, alleged the same cause of action, to wit, that the statute under which the city purportedly acted in adopting the resolution, N.J.S.A. 40:60-51.1, did not authorize the city to exchange lands and buildings but only vacant or unimproved lands. In the third and fourth counts the plaintiff alleged, in substance, that the city was getting the worst of the bargain and that the claim which Nash waived, which formed part of the consideration for the exchange, was not in fact a valid claim.
Summary judgment dismissing the complaint was granted on the motion of the defendants by the Superior Court, Law Division. Plaintiff filed a notice of appeal to the Appellate Division from the judgment, but prior to argument he died. On the oral argument of the appeal, application was made by plaintiff's counsel to substitute his widow as the party-plaintiff. The Appellate Division, while stating a question existed as to the widow's standing to maintain the action as a substituted party, nevertheless disposed of the appeal on its merits and reversed the action of the Law Division by reinstating the complaint as to its third and fourth counts and directed a trial thereon.
The widow, acting in the name of the deceased plaintiff, petitioned this court for certification to review that part of the judgment of the Appellate Division which affirmed the dismissal of the first and second counts of the complaint and certification was granted. 19 N.J. 331 (1955). No cross-petition for certification was filed by the defendants.
In view of the failure of the defendants to seek certification from the judgment of the Appellate Division, the question of the abatement of the action by virtue of the plaintiff's death is not properly before us, see Liberty Title & Trust Co. v. Plews, 6 N.J. 28 (1950), and we express no opinion as to the propriety of the continuation of the action in the name of the plaintiff by his widow-administratrix. That matter will be left, as directed by the Appellate Division, for the determination of the Law Division on remand.
The only question before us is whether N.J.S.A. 40:60-51.1 authorizes a municipality to enter into an exchange of lands on which buildings are located. The statute 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 ...