Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Plaintiffs describe their action as one "in lieu of prerogative writ * * * and for injunctive relief under the general jurisdiction of the Superior Court. * * *." Their principal demand is that a sale of about an acre of land by West New York to defendant Westower Corporation's predecessor in title, consummated about 3 1/2 years before the filing of the complaint, be set aside.
When the complaint was filed on March 6, 1963 Westower was constructing a multimillion dollar 22-story apartment house on this acre and neighboring land which had been
acquired from private owners. Plaintiffs also attacked the building permits under which the construction was going forward (the first of the permits had been issued in 1960) and demanded that further construction be enjoined. Judge Pindar, sitting in the Law Division, granted defendants' motion for summary judgment and plaintiffs appeal.
Plaintiffs contend that the land in question was a park and, as such, R.S. 40:60-27 forbade its sale. R.S. 40:60-27 provides:
"The provisions of section 40:60-26 [the general statute permitting the sale of any lands * * * not needed for public use] * * * shall not apply to the sale of park lands or streets. No municipality shall sell or dispose of any park lands or streets, except in exchange for other lands, contiguous to such park lands or streets, in area equal to or greater than the lands conveyed, and only for the purpose of straightening or rendering symmetrical the boundary or boundaries of said park lands or streets."
Plaintiffs do not charge fraud or bad faith. The town was intent upon ratables, and the buyers believed they had the right to build.
Judge Pindar held that, although West New York had acquired the land ostensibly with the intention of establishing a park, the municipality had never taken any steps to carry out that intent, and therefore the land was not "park land" and section 27 did not apply. Plaintiffs challenge this holding.
Defendants argue, with ample justification, that West New York never really intended to make a park of this acre. They point out, and it is admitted, that the land was acquired in 1941 to prevent Eastern Boulevard Corporation, the then owner, from building a small apartment house on it. In 1938 West New York had passed an ordinance to prevent that construction but, after three years of litigation, the ordinance was declared invalid. Eastern Boulevard Corp. v. Willaredt , 123 N.J.L. 269 (E. & A. 1939), 125 N.J.L. 173 (Sup. Ct. 1940), affirmed 125 N.J.L. 511 (E. & A. 1941).
Immediately after the last-cited decision, West New York adopted an ordinance to acquire the acre "by purchase or condemnation" for the establishment of a park. (Parenthetically, the large home of the then mayor of West New York was next door to the acre in question. The mayor died, Westower's predecessors acquired his property and tore down the home to make way for the present construction, which covers both parcels.)
West New York was unable to purchase the acre from Eastern Boulevard Corporation, so it proceeded with condemnation. The judgment in condemnation was entered November 13, 1941, for $14,500. On December 9, 1941 West New York adopted an ordinance "for the issuance of bonds and bond ...