On defendant's motion for judgment of dismissal upon close of plaintiffs' case.
Drewen, J.c.c. (temporarily assigned).
This is a suit by the estate of Clyde Potts, deceased, against the City of Hoboken to recover the reasonable value of professional engineering services claimed to have been rendered the city by decedent during his lifetime. The facts are more or less extensively stipulated by the parties, and additional testimony was taken upon the trial of the case had before me without a jury.
Previously there had been a motion by defendant for summary judgment under R.R. 4:58-2 based upon the pleadings and the stipulation aforementioned, on the ground that there was presented no genuine issue as to any material fact. In opposing the motion plaintiffs urged the prospective potentialities of the trial proof, and because of that the motion for summary judgment was denied. But now that the trial has been had it can be stated that nothing adduced thereon has altered the legal or factual situation, in my opinion; and had the matter been thus manifested at the time of the motion for summary judgment the motion must have been granted.
On the trial defendant, having rested its cause upon the conclusion of plaintiffs' proofs, asked for a statement by plaintiffs of the theory and grounds of its claimed right to recover. Upon plaintiffs' compliance defendant moved for judgment of dismissal and the motion was duly argued. The decision then reserved is hereby rendered.
At the time of the employment of plaintiffs' decedent the defendant city was under the commission form of government. The employment occurred January 22, 1945 and
is in the form of a letter addressed to plaintiffs' decedent by Thomas J. McAleer, defendant's then Director of Public Works. Decedent died May 19, 1950, and between the two dates last stated the said Clyde Potts, pursuant to his engagement by Commissioner McAleer, rendered services from time to time that were accepted by the city. The services thus rendered, while somewhat extensive, were not, I find, substantial, having in mind the full scope and purpose of the employment.
It is my judgment that this decision is controlled inexorably by N.J.S.A. 40:2-12 and R.S. 40:2-29. The former of the cited statutes reads:
"The governing body of any county or municipality may, and, if any contracts, commitments or payments are to be made prior to the adoption of the budget of any fiscal year, shall, not later than the thirtieth but not prior to the first day of such year, by resolution make appropriations to provide for the period between the beginning of the budget year and the adoption of the budget herein provided. The total of the appropriation so made, exclusive of the amount so appropriated for interest and debt redemption charges and for relief of the poor, shall not exceed one-quarter of the total of the appropriations made for all purposes other than interest and debt redemption charges and for relief of the poor in the budget for the preceding fiscal year. The amounts of all such temporary appropriations shall be included under the correct headings in the amounts appropriated in the budget as finally adopted. Nothing herein contained, however, shall prevent or relieve the governing body of a county or municipality at any time before the budget is adopted, but not earlier than the tenth day preceding the beginning of the budget year, from making appropriations for all interest and debt redemption charges maturing during the budget year."
The latter of the cited statutes reads:
"Except as may be otherwise provided in section 40:2-31 of this title, no officer, board, body or commission shall, during any fiscal year, expend any money (except to pay notes, bonds, or interest thereon), incur any liability, or enter into any contract which by its terms involves the expenditure of money:
a. For any purpose for which no appropriation is provided in the budget or by temporary appropriation pursuant to ...