Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
The individual defendants appeal from a summary judgment of the Superior Court, Law Division, which ordered a hearing by the Zoning Board of Adjustment of the Borough of Madison of plaintiffs' application for a variance. The board has taken no part in this appeal.
On November 19, 1957 plaintiffs filed an application under N.J.S.A. 40:55-39(d) for a variance to permit the construction of a garden apartment upon land which they have contracted to buy. A hearing thereon was held on December 17, 1957 before four members of the board. One vacancy existed on the board due to the death of a member. After plaintiffs submitted their evidence, the hearing was adjourned to January 21.
On January 13, 1958 Ernest Mazzarissi was appointed to fill the vacancy. On January 21 the adjourned hearing took place before all five members. The only testimony then heard was that of three independent witnesses called by the board. Decision was reserved until February 18, 1958.
At a regular meeting of the board held on that date Mr. Mazzarissi announced "that since he had not been a member of the board at the time the application was originally presented and, therefore, had not heard full testimony, he would have to disqualify himself from decision." The minutes show that Chairman Stockfleth "inquired of Mr. Applegate [the board's counsel] if Mr. Mazzarissi's action was legally correct. Mr. Applegate replied that it was." The chairman then made a statement for the board, during the course of which he said (emphasis ours):
"* * * of the four members that are entitled to vote on this matter, we find ourselves evenly divided without any opportunity of obtaining a majority in either direction. Therefore, a recommendation is not to be made to the Mayor and Council, and I suppose that takes the same position as if it is denied; at least temporarily."
Almost a year later, on January 12, 1959, a new application was filed by the same plaintiffs asking for the same variance. Plaintiffs' counsel said at the oral argument that the delay was due to the fact that the time allowed plaintiffs in the purchase contract to obtain the variance expired soon after the tie vote, and the new application was made as soon as the contract was renegotiated. On January 26 Mr. Applegate advised the board by letter that in his opinion "under the facts of the instant case, the applicants should be heard on the merits." On February 9 counsel for the objectors wrote the board as follows:
"I intend to appear at the stated time of the meeting to argue (1) the application is illegal, and (2) the Board is without authority to hear it. If my motion for the dismissal of the application is denied then I intend to immediately test the validity of the proceedings in the Superior Court. Consequently it is my suggestion that a hearing on the merits of the application itself be not commenced until either the Board or the Superior Court has disposed of the original question."
On February 16 plaintiffs appeared before the board ready to introduce testimony in support of the application. Counsel for the objectors then moved to dismiss the application on the ground "that this board, having once heard this application, cannot now re-hear it again. It has exhausted its jurisdiction over this particular subject matter."
After lengthy argument by counsel for plaintiffs and for the objectors the board went into recess to consider the motion. When the members returned, the chairman announced "we will not be in a position to reach any decision one way or the other tonight" and stated that the motion would be decided on March 3. For reasons which will appear later, we deem the following colloquy which then ensued significant:
"The Chairman: This decision, as the board sees it, is merely one of whether we agree to hear it again or not agree to hear it again. From that point on, I ...