Plaintiff has moved for summary judgment and to amend the ad damnum clause with respect to the first count of the complaint.
By the first count, plaintiff sues for reimbursement of the cost of water mains which it installed to serve houses it constructed on lands owned by it in the township. It is alleged as the basis of the cause of action that it was the obligation and duty of defendant to install the mains, since it operates a municipal water system, and that plaintiff was required to do so at its own cost because of improper and unlawful demands of defendant amounting to duress, with resulting unjust enrichment of defendant. It is not alleged that plaintiff requested defendant to make the installation and the latter refused, although plaintiff's affidavit on the motion so stated.
The second count of the complaint alleged an analogous cause of action with reference to the construction of certain roads by plaintiff, but this motion does not concern that count.
Defendant's original answer amounted to a denial of any unlawful demands or duress on its part and a denial of any legal obligation or duty to install the mains at the municipality's rather than plaintiff's expense.
On the same day plaintiff's present motion was returnable, defendant also moved to file an amended answer and counterclaim. This motion was heard first. The proposed amendment to the answer consisted of two separate defenses,
the first being basically a factual elaboration of the general denial of obligation or duty and of unlawful demands and duress contained in the original answer, and the second expressing a contention to the effect that even if the municipality might have a general legal obligation to install mains, nonetheless, factually it would be unable to do so here, since it has neither funds nor a labor supply available for the purpose and since there are numerous other houses in the township not now served with municipal water and which are entitled to priority of installation over plaintiff. I granted defendant's motions to so amend.
The proposed counterclaim sought a declaratory judgment on the applicability of the Municipal Planning Act of 1953 and a municipal ordinance adopted pursuant thereto, to plaintiff and its building operations. Since this issue is essentially raised by the first separate defense of the amended answer, I denied the motion to file the counterclaim.
Proceeding, then, on the same day to the argument on plaintiff's motion, it clearly appeared from the affidavits filed and the arguments of counsel that the entire case, on the first count, even without the additional issue introduced by the second separate defense, could not be decided on the motion because of the lack of complete facts in the affidavits and the presence of factual issues.
However, it also appeared that the defense (except with respect to the second separate defense), as shown by defendant's general denial in its original answer of any legal obligation to install water mains at municipal rather than plaintiff's expense, by the allegations of the first separate defense introduced by the amended answer, and by its affidavit in opposition to plaintiff's motion, is fundamentally based on the legal contention that there is legislative warrant for a municipality operating its own water system to require a developer or subdivider such as plaintiff to bear the expense of installing water mains. Plaintiff, by the allegations of the complaint and the affidavit submitted on this motion, takes the position that no such legislative sanction to charge a developer with any portion of the cost of mains exists
with respect to a municipality having its own water system, whatever the situation may be when water in the area is supplied by a private water company. When this became apparent, in order to determine this basic legal question, I treated plaintiff's motion as directed solely to this defense (R.R. ...