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Kirzenbaum v. Paulus

Decided: July 11, 1958.

GABRIEL KIRZENBAUM, LAWRENCE J. MEYERS AND WILLIAM MARMORSTEIN, PLAINTIFFS,
v.
CHESTER W. PAULUS, MAYOR OF THE CITY OF NEW BRUNSWICK, HERBERT J. DAILEY, LUKE J. HORVATH, FELIX N. CANTORE AND JAMES A. MCGARRY, BEING THE BOARD OF COMMISSIONERS OF THE CITY OF NEW BRUNSWICK, N.J., DEFENDANTS



Vogel, J.s.c.

Vogel

The factual situation in this case projecting the legal issue involved arises out of the construction of a sidewalk depository abutting the premises owned by the National Bank of New Jersey.

A brief summary of the facts indicates that the Board of Commissioners of the City of New Brunswick, New Jersey, adopted an ordinance on September 12, 1933 which, in substance, prohibited the encumbrance and obstruction of sidewalks on the streets of the city, and further provided against the maintenance of a nuisance thereon. Thereafter, on December 18, 1951, the mayor and board of commissioners of the city passed a resolution granting the National Bank of New Jersey permission to install a sidewalk or curb depository on Church Street; and in 1953, by virtue of the resolution, the National Bank of New Jersey constructed and erected the curb teller's cage.

The plot plan of the depository was admitted into evidence, and indicates its dimensions. It is 10 inches inside the curb, and on the sidewalk area 24 inches by 28 inches, and 5 feet 8 inches in height. There is an unobstructed sidewalk width between the curb teller and the bank building of 7 feet 4 inches. It has an open window facing toward the street, and accommodates patrons of the bank, who may drive their motor vehicles to the teller and make deposits therein.

The facts further reveal that on November 20, 1956 the Board of Commissioners of the City of New Brunswick

adopted an ordinance amending the 1933 ordinance, and provided in substance for the prevention of an encumbrance of sidewalks dedicated to public use, except "in any case where the Board of Commissioners shall find and determine, by Resolution duly passed and adopted, that the same is necessary or desirable in the interest of the public welfare, public safety, or for the improvement of traffic conditions and the flow and movement of traffic in the City of New Brunswick."

The latter ordinance also provided:

"Prior to the passage and adoption of any Resolution permitting any article whatever to be placed and remain upon any sidewalk as aforesaid, the Chief of Police, the Director of Public Safety, the City Engineer, and the Chairman of the Traffic Commission, shall examine into the facts pertaining to the same and report in writing to the Board of Commissioners the said facts so found by them."

There was a further provision providing for the repeal of all other ordinances or parts thereof inconsistent herewith.

The testimony reveals that the plaintiff, Gabriel Kirzenbaum, appeared before the Board of Commissioners of the City of New Brunswick during one of their executive sessions in 1956, protested, and advised the commission that in his opinion they lacked the authority to make the grant now under review, and that the resolution granting the right to the bank to construct the curb depository was unconstitutional and was tantamount to an interference with a public easement.

In this climate the plaintiff, Gabriel Kirzenbaum, a resident of the City of New Brunswick and a member of the bar of this State, filed a complaint in lieu of prerogative writ, joined by Lawrence J. Meyers and William Marmorstein, who are also residents and taxpayers of the city, on January 29, 1957.

Cross-motions for summary judgment were likewise served by the parties, and arguments thereon heard by the court, which were denied, with a direction for the taking of testimony.

In March 1958 the Board of Commissioners of the City of New Brunswick adopted a resolution in conformance with

the provisions of the ordinance adopted in 1956, which provided among other matters for an inspection by the director of public safety, the chief of police, city engineer, and chairman of the traffic commission to examine into the facts and report in writing to the board of commissioners the facts so found by them.

The record revealed that the examination was made, but one of the authorized officers had failed to sign the investigatory report; and thereafter the Board of Commissioners of the City of New Brunswick adopted a final resolution with respect to the matter under review on May 6, 1958, predicated upon the inspection as provided for in the 1956 ordinance, and signed by the proper officers designated in the ordinance.

Before the taking of testimony on July 7, 1958 the plaintiff, Gabriel Kirzenbaum, on motion directed to the court, sought to foreclose any further consideration by the court of action taken by the board of commissioners after March 1958, on procedural grounds.

The record, however, indicates that the defendant city rested its case in March 1958, but that the plaintiff, Gabriel Kirzenbaum, sought and obtained leave of the court for the taking of additional testimony, and a peremptory trial date was fixed for July 7, 1958. Although the method employed by the city in notifying the court and counsel of the action taken by the board of commissioners in March and May of 1958 was informal, the record reveals that the court and counsel were served with copies of the resolutions, and resulted in no prejudice or surprise to counsel. On this basis the plaintiffs' motion was denied.

The National Bank of New Jersey is located on the corner of George Street where it is intersected by Church Street. George Street is generally regarded as the main business section of the community, and the most important intra-city arterial highway. Church Street, which runs at right angles to George Street, is one of the narrowest of city streets, having a width of approximately 23 feet. The said depository is located on Church Street on the sidewalk adjacent to the

banking building, distant westerly from the northerly line of George Street 80 feet more or less.

The defendant city urges that the complaint be dismissed on the ground that the plaintiffs, having failed to assert a private, direct or material injury beyond that which has been suffered by the public at large, are thereby barred from prosecution of the complaint.

This issue has been resolved in favor of the plaintiffs as residents and taxpayers, in view of the recognition by the Supreme Court of the "broad right in taxpayers and citizens of a municipality to seek review of local legislative action without proof of unique financial detriment to them." Kozesnik v. Montgomery Township , 24 N.J. 154, at page 177 (1957), and cases cited therein.

The court is not unaware that the above-cited case may be differentiated from the case at bar. However, in view of the importance of the question involved, the principle enunciated is extended to qualify the plaintiffs herein.

The defendants' asseveration that the plaintiffs' failure to comply with R.R. 4:88-15, and also that they are guilty of laches, is academic, in view of the fact that the defendant city adopted a resolution as recently as March 18, 1958, ...


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