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Kirzenbaum v. Paulus

Decided: August 12, 1959.

GABRIEL KIRZENBAUM, LAWRENCE J. MEYERS AND WILLIAM MARMORSTEIN, PLAINTIFFS-APPELLANTS,
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-RESPONDENTS



Goldmann, Conford and Haneman. The opinion of the court was delivered by Conford, J.A.D.

Conford

Judge Vogel, sitting in the Superior Court, Law Division, held that the City of New Brunswick had acted within the purview of valid and appropriate legislative authorization in granting permission by resolution to the National Bank of New Jersey to install and use for its business purposes a curb depository for motorist-customers on the sidewalk on Church Street, alongside its bank building. From that determination the plaintiffs, citizens and taxpayers of the municipality, prosecute this appeal.

The opinion of the trial judge succinctly states the factual background of the controversy, Kirzenbaum v. Paulus , 51 N.J. Super. 186, 189-194 (Law Div. 1958), and is to that extent adopted for purposes of the present opinion. We need only add that the final (amendatory) resolution of the City

Commission, adopted May 6, 1958, expressly finds and determines that the granting of the application for the curb depository (referred to therein as a "sidewalk teller") "is necessary and desirable in the interest of the public welfare, public safety and for the improvement of traffic conditions and the flow and movement of traffic, and in the City of New Brunswick, N.J." The resolution thus comports, on its face, with the criteria fixed in the ordinance.

Neither the argument portion of the plaintiffs' brief nor the "Statement of Questions Involved" therein impugns the good faith of the city officials in the adoption of the resolution, and plaintiffs are therefore not entitled to make that point, as they undertook to do at the argument. R.R. 1:7-1(c). In any case, the proofs taken before the trial court satisfy us that there was sufficient relationship between the objective of traffic amelioration and the use of the depository to preclude any condemnation of the resolution as not founded on the standards set forth in the ordinance. If there was legal power to adopt the ordinance and resolution, the motives of the members of the governing body in doing so, absent fraud, personal interest or corruption, are immaterial. American Grocery Co. v. Bd. of Com'rs. of City of New Brunswick , 124 N.J.L. 293, 297 (Sup. Ct. 1940), affirmed 126 N.J.L. 367 (E. & A. 1941). No such elements are even suggested here.

We proceed to the points developed in plaintiffs' brief.

I.

It is urged that there is no statutory authorization for the municipal action here challenged. Defendants aver that direct sanction is to be found in N.J.S.A. 40:67-1, subd. d , dealing with municipal legislation concerning projections and encroachments in, over and upon streets and highways; and that alternative or correlative empowerment arises from R.S. 40:48-2, authorizing municipal legislation to subserve good government, order and the preservation of the public

health, safety and welfare. As we find the instant ordinance and the administrative application of it here complained of amply grounded in the statute first mentioned, we pass the question as to the pertinence of the other.

N.J.S.A. 40:67-1 derives from article XXII, "Streets and Public Places," of L. 1917, c. 152, commonly known as the Home Rule Act. That statute was a broad attempt to codify and enact general legislation pertaining to municipal corporations. Section 1 of article XXII thereof, authorizing municipal regulatory legislation, inter alia , over a wide variety of subjects pertaining to the use and abuse of streets and public places, is substantially reconstituted in N.J.S.A. ...


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