Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.
The First National Bank of Somerset County, New Jersey (bank) offered to purchase certain property owned by the Borough of Bound Brook pursuant to N.J.S.A. 40:60-26(c). By resolution of May 7, 1968, published in a local newspaper on May 16, 1968, the borough "approved" the bank's offer, setting May 21, 1968 as the date on which the property would be "offered at public sale to the highest bidder," subject, however, to a number of conditions among which were the following:
"The contract shall provide that the property shall be used solely and exclusively for a banking facility substantially of the type set forth in plans submitted by the First National Bank of Somerset County, N.J. * * * The building shall thereafter be occupied by the successful bidder."
At the meeting of May 21, 1968, no other bids were offered and the borough adopted a resolution accepting the bank's offer.
Plaintiffs brought an action in the Law Division seeking to enjoin the borough from completing the sale, alleging (1) inadequacy of price, (2) unreasonably restrictive conditions of sale, (3) the bank's bid was not accepted at a public sale, and (4) advertisement for the public sale was not made in accordance with N.J.S.A. 40:60-26(c). The bank intervened. Plaintiffs then moved and defendants counter-moved for summary judgment on the single issue of
the legality of one of the allegedly overly restrictive conditions -- that "the building shall thereafter be occupied by the successful bidder." The validity of the broader restriction, that the property be used solely for the described banking facility, was admitted by plaintiffs "for the purposes of [the] motion."
The court denied plaintiffs' motion and granted defendants' counter-motion on this single issue. In other words, the court held that this one condition was not illegally restrictive. The remaining issues were reserved for trial, and plaintiffs intend to press them. Thinking that it could make its ruling immediately appealable under R.R. 4:55-2, the court entered an order for summary judgment on this one issue which recited that it appeared "that there is no just reason for delay and that this court should issue an express direction for the entry of judgment on the issue before the court."
All counsel apparently believed that the above-quoted recital made the order immediately appealable without leave of this court, for they agreed to the form of the order. Plaintiffs then appealed. However, defendant bank now has concluded that such a single issue cannot be made appealable under R.R. 4:55-2, at least not without leave of this court, and it moves to dismiss the appeal. We agree and dismiss the appeal.
R.R. 4:55-2 provides as follows:
"Judgment Upon Multiple Claims
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more, but less than all of the claims, only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the ...