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Drake v. Town of Boonton

Decided: June 9, 1969.

ROBERT DRAKE AND DOROTHY E. DRAKE, HIS WIFE, PLAINTIFFS,
v.
TOWN OF BOONTON, DEFENDANT-THIRD-PARTY PLAINTIFF, V. CATHERINE D. PHELAN, THIRD-PARTY DEFENDANT



Gascoyne, J.c.c. (temporarily assigned).

Gascoyne

This matter comes on before the court by way of a complaint in lieu of prerogative writs to compel defendant municipality to supply plaintiffs with water. There appears to be little or no factual dispute. The parties have stipulated the following facts:

(1) Plaintiffs are the owners of Lots 12, 13 and 14 as they appear on the tax map of the town of Boonton. These lots front on Green Street.

(2) On June 4, 1956 a resolution was duly adopted by the municipal governing body authorizing the entry into a contract with James W. and Catherine D. Phelan for the construction of a water main along Green Street.

(3) Pursuant to this resolution a contract was ultimately entered into by and between the parties. The contract is attached to the complaint. The Phelans constructed the water main and the main was accepted by the town pursuant to the resolution and the agreement, so that the town is presently the owner of this main.

(4) Plaintiffs filed an application in the proper form requesting that they be supplied with water. They were advised that before such application could be honored that they would have to pay their proportionate share of the cost of installation, in accordance with the terms of the contract.

(5) Plaintiffs refused to make such payment.

(6) There are other properties which face on Green Street.

It further appears from the undisputed facts that another property owner has complied with the terms of the contract and has paid a pro rata share.

Procedurally, Boonton, by leave of the court, has joined Catherine D. Phelan, as a surviving party to the contract, as a third-party defendant. Mrs. Phelan has filed an answer and counterclaimed, asking that the court declare the contract valid and binding on the Drakes. In the alternative, should the contract be held to be invalid, she asks the court to enter judgment against Boonton in the sum of $3,500, the agreed cost to the Phelans for the construction of the main. If the court refuses to do any of the foregoing, Mrs. Phelan requests that the ownership of the main be declared in her.

The legal questions as framed are: (1) Is the contract between the town and the Phelans valid? If so, is the contract entered into between the Phelans and the town enforceable against a third party, such as the Drakes? (2) Can the town be compelled to supply water to the Drakes? (3) ...


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