The complaint filed by plaintiff against defendant Holster charged that the offices of City Manager, Director of Public Works and City Engineer of the City of Clifton held by him are incompatible. It sought a judgment requiring defendant to file a written statement as to which one of the three offices he elects to retain and declaring that the other offices are vacant; or alternatively if the defendant fails to file such statement, that the court declare two of the offices to be vacant. Before the pretrial conference, cross motions for summary judgment were made by plaintiff and defendant Holster. Both motions were denied and the court ordered that the City of Clifton be joined as a party to the action.
A pretrial conference was held on September 24, 1964, attended by the attorneys for the plaintiff, defendant Holster and the City of Clifton. There being comparatively little dispute as to the basic facts in the case, the pretrial order embodied, in effect, a stipulation of facts. On the basis of the stipulations in the pretrial order, plaintiff and defendant Holster each moved for summary judgment. Argument on those motions took place on December 18, 1964, and following the argument, the court dictated its conclusions into the record. Holster's motion was granted and plaintiff's motion denied.
An order for judgment, consented to as to form by all the parties, was signed on January 15, 1965. Thereafter, Clifton's attorney moved to modify the form of judgment which he said had been consented to by a member of his staff while he was absent from the city. He contended that the order, in directing that "judgment be entered in favor of the defendant William Holster" not only against the plaintiff Anthony Marini but also against defendant City of Clifton, will prejudice it in a dispute which has arisen as to whether the city is obligated to pay for the legal services rendered by Holster's attorneys. Of course, that issue was not involved in the above litigation. It will have to be dealt with in such proceedings as Holster may bring to enforce that alleged obligation.
In the pretrial order, the City of Clifton contended that the dispute was one between the plaintiff and Holster and that it would abide by whatever the judicial determination of that controversy might be. In view thereof, the concern which the city expresses can be obviated without affecting the determination which I made as to the complaint filed herein by revising the decretal portion of the judgment so that it reads as follows:
"ORDERED that plaintiff's motion for summary judgment be and the same hereby is denied; that defendant Holster's motion for summary judgment be and the same hereby is granted and that the complaint filed herein be dismissed."
An order so providing should be submitted.
A transcript of the court's oral conclusions on the motions for summary judgment was for the first time submitted to the court when it heard argument on the motion to modify the form of the judgment. The transcript leaves much to be desired as far as accuracy is concerned. In view thereof and since the plaintiff, while the motion to modify the form of the order for judgment was pending, filed a notice of appeal, I deem it advisable to file this memorandum so that the following may serve as my opinion in lieu of the confused transcript.
The matter is before the court on cross motions for summary judgment based on the facts set out in the pretrial order.
One of the contentions made by defendant Holster is that he should be permitted to introduce, in addition to the minutes of the meeting, oral testimony as to what transpired at the City Council meeting of December 4, 1956, when the City Council appointed Holster as City Manager. Plaintiff contends that under Campbell v. City of Hackensack, 115 N.J.L. 209 (E. & A. 1935), such oral testimony will not be
admissible. While this is true, this does not mean that the court cannot take into consideration the actual situation which then existed in the municipality. The court must interpret any resolution which was adopted at that meeting on the background of the situation which is revealed by the record in this case.
Paragraph 2 of the pretrial order gives a detailed recital of the facts. I need refer to but some of them. In 1934 the City of Clifton adopted, and since then has been governed by the provisions of, the "municipal manager form of government law," R.S. 40:79-1, et seq. The first City Manager appointed was one William Miller, who was then the City Clerk. On March 4, 1946 he appointed defendant Holster as "Post War Assistant Engineer." Miller continued as City Manager and City Clerk until January 1, 1952, receiving an annual salary of $2,981 per year as City Manager and $8,152.93 as City Clerk.
When he retired in 1951, effective as of January 1, 1952, the City Council appointed as City Manager John Fitzgerald, who was then City Engineer. Fitzgerald's annual salary as City Manager was fixed at $2,981 per year. While serving as City Manager he continued to act as ...