[59 NJSuper Page 413] Pursuant to the opinion of this court in Grosso v. City of Paterson , 55 N.J. Super. 164 (1959), judgment was entered on April 14, 1959, in favor of plaintiffs and against defendant Board of Health of the
City of Paterson in the sum of $3,169.97 and costs. The judgment remaining unpaid, this action in lieu of the prerogative writ of mandamus to compel payment was instituted on October 20, 1959. Joined as defendants were not only the board of health but also the City of Paterson and its board of finance.
The original action was instituted against the Board of Health and the City of Paterson to recover salary increments due plaintiffs under salary ordinances of the board of health. Both defendants were represented by the City Attorney of Paterson. The action was dismissed as against the city; judgment for salary due was entered only against the board of health, plaintiffs' employer.
The matter is presently before the court on plaintiffs' motion for judgment on the pleadings or, in the alternative, for summary judgment. In view of the proofs which have been submitted, the motion will be treated as a motion for summary judgment, R.R. 4:12-3.
The basic facts are uncontradicted. A copy of the judgment and a demand for payment were served on the defendant board of health and execution issued on the judgment. The board of health took no action to provide for payment of the judgment nor did it appeal therefrom. The time for appeal had long since expired.
Had this judgment been entered against a private individual or corporation, plaintiffs could have caused execution to issue thereon and levied on the judgment debtor's property. But since the judgment debtor is a public corporation, its property cannot be levied on. Lyon v. City of Elizabeth , 43 N.J.L. 158 (Sup. Ct. 1881).
This does not mean, of course, that plaintiffs are without a remedy. On the entry of the judgment it became the duty of the defendant board of health to provide means for payment of the judgment. That duty is enforceable by an order in the nature of a writ of mandamus. Lyon v. City of Elizabeth, supra; Township Committee of Piscataway Township v. First National Bank of Dunellen , 111 N.J.L. 412
(E. & A. 1933); Gowdy v. Board of Education of City of Paterson , 89 N.J.L. 137 (Sup. Ct. 1916). See also, People ex rel. First National Bank of Stevens Point, Wis. v. Village of Stickney , 1 Ill. App. 2 d 177, 116 N.E. 2 d 924 (App. Ct. 1954); Neidhardt v. City of Wood River , 329 Ill. App. 485, 69 N.E. 2 d 345 (App. Ct. 1946).
Where a creditor obtains a judgment against a municipal corporation, "the practice in this state has uniformly been to issue execution against the municipality, not to seize and sell its public property, but for the purpose of laying a foundation of a mandamus proceeding." Township Committee of Piscataway Township v. First National Bank of Dunellen, supra , at page 416 of 111 N.J.L.
The granting of the writ "is not a discretionary matter. Mandamus is the only remedy of the creditor for the enforcement of his [judgment] * * *. This is a well-established doctrine." Hourigan v. North Bergen Township , 113 N.J.L. 143, 146 (E. & A. 1934).
Mandamus lies because the judgment is the "* * * establishment of a valid claim, for which it is the duty of the proper officers to provide means of payment out of the revenues of the defendant." Lyon v. City of Elizabeth , 43 N.J.L. 158, 162 (Sup. Ct. 1881). Since no appeal was taken from the judgment and since the time for appeal has since long passed, it was the clear duty of the defendant board of health to pay plaintiffs' judgment and to take ...