Plaintiffs have moved for summary judgment in this action in lieu of prerogative writs. R. 4:46-2 requires that such judgment shall be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact.
Wright, one of the plaintiffs in the instant action, had brought a libel action against Cape May City Mayor Frank A. Gauvry and others. Harry Green, Esq. was retained by the city to represent Mayor Gauvry. Pursuant to a resolution adopted by the city council, Green was paid $2500 as a retainer. In addition, litigation expenses were also paid by the City.
Wright conceived himself to have been libelled as the result of certain declarations made by Gauvry. The libel action was ultimately terminated by a summary judgment entered for all the defendants on a holding by the court which
included a determination that the words used were not defamatory.
The statements attributed to the mayor appeared to have been made as a representative of the city; that is to say, in his capacity as mayor and as a member of city council. The subject matter of the libel suit dealt primarily with the qualifications of the city manager of the City of Cape May.
Plaintiffs' contentions on the merits of the issue may be summed up in the questions of whether Gauvry was acting as mayor when he made the statements, whether he had the right to make statements as such and whether the city, under the circumstances, had the right to pay for his defense.
Plaintiffs rely on N.J.S.A. 40:81-8 which defines the duties of the mayor in the form of government adopted by the city as follows:
The mayor shall preside at all meetings of the municipal council and shall have a voice and vote in its proceedings, but shall not have the power of veto. He shall fill vacancies occurring in the trustees of the public library for such terms of offices as are provided by law. All bonds, notes, contracts and written obligations of the municipality shall be executed on its behalf by the mayor or, in the event of his inability to act, by such councilman as the municipal council shall designate to act as mayor during his absence or disability. The powers and duties of the mayor shall be only such as are expressly conferred upon him by this subtitle.
Plaintiffs argue that the mayor was not authorized to make statements in behalf of the city; that since he allegedly made them as an individual, the city had no legal authority to furnish him with counsel or otherwise indemnify him against loss in defending the resulting suit.
The law is well settled that a public official is entitled to compensation for expenses incurred in the performance of his official duties. As early as 1874 the Supreme Court of New Jersey held that public funds may be expended for the payment of "expenses honestly incurred by courts, public ...