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Demoura v. City of Newark

Decided: April 19, 1962.

ANTONE S. DEMOURA, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEWARK, THE NEW JERSEY DEPARTMENT OF CIVIL SERVICE, THE NEW JERSEY DEPARTMENT OF DIVISION OF LOCAL GOVERNMENT, LEO P. CARLIN, MICHAEL A. BONTEMPO, AARON A. HASKIN, JOHN ARTHUR, JAMES KELLY, VINCENT P. TORPPEY, MARIANO J. RINALDI, SAMUEL B. FINKELSTEIN, JOHN T. MAHONEY, WILLIAM J. GRIFFIN, JOHN SALERNO, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff appeals from an order of the Law Division denying his motion for summary judgment and granting defendants'.

I.

The action was initiated by a complaint in lieu of prerogative writs, filed April 11, 1961. Its 53 counts presented a welter of generalities, vague and obscure, which failed fairly to apprise defendants of the claims they were

called upon to meet. See R.R. 4:8-1; Jardine Estates, Inc. v. Koppel , 24 N.J. 536, 542 (1957); Jersey City v. Hague , 18 N.J. 584, 610 (1955); Grobart v. Society for Establishing Useful Manufactures , 2 N.J. 136, 151-2 (1949); Ash v. Frazee , 37 N.J. Super. 542, 546 (App. Div. 1955). Although the complaint designates only 14 defendants in its caption, the body of the pleading implicates many dozens of other persons. The named defendants may be grouped into three categories: (1) the municipal defendants, including the City of Newark, Mayor Carlin, Municipal Council President Bontempo, Health and Welfare Director Haskin, Division of Inspection Superintendent Arthur (now deceased), Acting Chief Electrical Inspector Kelly, Corporation Counsel Torppey, Business Administrator Rinaldi, Personnel Officer Finkelstein, Budget Officer Mahoney and Finance Director Griffin; (2) the state defendants, Department of Civil Service and Division of Local Government; and (3) Salerno.

On motion of defendants the complaint was on June 27, 1961 dismissed as to all counts, with leave given plaintiff to file an amended complaint within 30 days with respect to the subject matter of counts 1 through 11, 32 and 37, without cost or prejudice. On that date plaintiff and all other parties defendant orally consented to the motion that had been made on behalf of the state defendants permitting the late filing of their answer. See R.R. 4:12-1(c) and (d).

Although no order was entered permitting the filing of an amended complaint, plaintiff nonetheless proceeded to serve (but not file) one, in six counts, along with a notice of motion for summary judgment as to counts 4, 5 and 6. Accompanying the motion was plaintiff's affidavit alleging that the facts contained in the complaint "are true to the best of my knowledge and belief." Such an allegation violated the requirement of R.R. 4:58-6, which provides that on a motion for summary judgment, supporting and opposing affidavits "shall be made on personal knowledge

and shall set forth only facts which are admissible in evidence and to which the affiant is competent to testify." See Ash v. Frazee , above, 37 N.J. Super. , at page 547. Plaintiff's affidavit also alleged that he verily believed that defendants had no meritorious defense to the action. The trial court could well have refused to consider the affidavit.

The municipal defendants filed an answer to the amended complaint which raised the defense, among others, that plaintiff was not a taxpayer of the City of Newark and so not qualified to maintain the action. Accompanying the answer was a notice of motion for summary judgment and to settle the terms of an order to dismiss the original complaint. (Plaintiff had twice refused to consent to such an order prepared by counsel for the municipal defendants, and which would have carried out the determination made by the Law Division judge on June 27, 1961.) The notice of motion, like the defense set up in the answer, asked for the entry of summary judgment in favor of the municipal defendants on the ground that plaintiff was not a taxpayer of the city. The motion was accompanied by a supporting affidavit.

Defendant Salerno filed an answer to the amended complaint setting up the same defense as the municipal defendants had, and accompanied his answer with a notice of motion for summary judgment based on that ground, viz. , that plaintiff was not a taxpayer of the city.

Plaintiff filed no affidavit in opposition to defendants' separate motions for summary judgment. Instead, he submitted two legal memoranda, the first in support of his own motion for summary judgment, and the second opposing defendants' motions. He also filed and served a notice of motion to settle the terms of an order permitting the filing of an amended complaint.

The several motions were noticed for hearing on September 15, 1961. On September 9 the municipal defendants filed a supplemental notice of motion to dismiss the amended complaint and for summary judgment in their favor, accompanied

by supporting affidavits of Finance Director Griffin, Budget Officer Mahoney, City Clerk Reichenstein, Health and Welfare Director Haskin, and one Richman, an electrical contractor mentioned in plaintiff's legal memorandum in support of his motion for summary judgment. Among the grounds advanced in defendants' supplemental notice were that plaintiff "does not appear by the amended complaint to be a person entitled to bring the said action or actions," the alleged actions were not factually established by the amended complaint, and the allegations as to each of the counts were vague, uncertain and indefinite, and lacked essential facts of which defendants were entitled to be apprised. Plaintiff filed no affidavit in opposition to the supplemental motion.

The amended complaint may be summarized as follows:

Count 1 alleged that the 1961 budget of Newark was "an improper and illegal document based on statements and financial computations not predicated on fact," and demanded that (1) the budget be set aside as null and void, (2) the city enjoined from further expenditure of any funds from the budget, and (3) the prosecutor instructed to apprehend such persons as the trial of the case, "shall prove to have committed an infringement of any penal statute of New Jersey." In this count, plaintiff alleges that he "has been a resident of Newark continuously since May 1939, and is a person entitled by right to maintain an action at law in matters of this nature."

Count 2 repeated count 1 and sought the same relief as to "preceding" annual city budgets "for and during such total period of previous time as is allowed by the applicable statute of limitations." The count contains the same general, uninformative allegation about the illegality of those budgets as was made in connection with the 1961 budget in count 1.

Count 3 repeated counts 1 and 2 and charged that "numerous officers, officials, and employees of the City of Newark holding office or position subject to the provisions

of Title 11 [Civil Service] are holding such offices or positions improperly and illegally and are likewise being paid improperly and illegally." Based on this indefinite and uninformative charge, plaintiff demanded that the city cease paying salaries or wages to officers and employees who, at the trial of the cause, were proved to have been illegally appointed or employed; that the court order restitution to the city by persons found to have violated N.J.S.A. 11:22-22, of that portion of monies paid as the court deemed "fit and equitable," reserving to plaintiff 5% of the monies so restored, as authorized by the statute; that defendant Department of Civil Service be ordered to comply with Title 11 (Civil Service), and that the prosecutor be instructed to apprehend such persons as were proved to have violated a penal statute.

Count 4 repeated counts 1, 2 and 3 and charged that improper and illegal appropriations and payments of salaries or wages were made, involving nine named persons "illegally" appointed to the position of Foreman, Parks and Trees, Bureau of Parks and Grounds, Department of Public Works, on and after June 27, 1957 (see, in this connection, Melchionne v. Newark , 60 N.J. Super. 104 (App. Div. 1960), affirmed 34 N.J. 16 (1961)), as well as all persons who were "improperly and illegally" appointed to the Civil Service positions of those nine employees. Plaintiff demanded that all persons responsible for violating Title 11 make restitution of that portion of salaries and wages paid as the court saw fit and equitable, reserving to plaintiff his finder's fee under N.J.S.A. 11:22-22; and that the prosecutor be instructed to proceed against the persons involved, under R.S. 11:26-1.

Count 5 repeated counts 1 and 2 and alleged that plaintiff is an electrician and an electrical contractor, and although the Newark Board of Electrical Examiners had been in operation since 1949 and received license fees from master electricians, it had been illegally constituted since its inception. The allegations in support of this charge go

no further than to state generally that members of the Board must be electrical contractors, and all city officials and employees must have a bona fide legal domicile within the city. Plaintiff demanded that the city be directed to dissolve the existing Board of Electrical Examiners and establish a properly constituted board; that the city issue him a valid license as master electrician; that it repay all master electrician's fees collected from him since 1949; and, finally, that the prosecutor proceed against all persons found to have violated the penal statutes.

Count 6, the final count, repeated counts 1, 2 and 3 and alleged that one Grasso, an investigator for the board of adjustment, was illegally holding that position because of successive temporary appointments, in violation of Title 11. The demands under this count were that Grasso be removed as investigator; that all official actions of the city predicated upon his investigations and reports be declared null and void; that all city personnel found responsible for violating Title 11 make restitution of such salary or wages paid Grasso as the court shall see fit and equitable, reserving plaintiff's 5% finder's fee, and, as in the case of the other counts, that the prosecutor proceed against all violators, under R.S. 11:26-1.

At the hearing of all motions held on September 15, 1961 Assignment Judge Waugh concluded that the amended complaint must be dismissed, "mainly" for the reason that plaintiff was not a taxpayer, and for the further reason that the charges laid in the complaint, as well as the respective demands for judgment, were too general. In the course of the hearing the trial judge addressed specific questions to plaintiff to determine whether he was a taxpayer, pointing out that he nowhere alleged that he was. Plaintiff admitted he did not pay taxes, and had not been assessed for taxes, but "I am subject and ...


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