Michels, Morgan and Milmed. The opinion of the court was delivered by Milmed, J.s.c., Temporarily Assigned.
Plaintiff, a tenant in an apartment building in Newark owned by Roy L. Management Corporation, appeals from the denial by the Law Division of her claim for relief under N.J.S.A. 26:3-31, subsection (p). The court there held that it was "without jurisdiction to compel the relief prayed for by the plaintiff." We accelerated the time schedule of the appeal pursuant to R. 2:9-2.
The facts are not in dispute. Plaintiff is a tenant in the apartment building located at 448 Fairmount Avenue in Newark. She seeks the furnishing of heat and hot water to her apartment in accordance with the terms of her tenancy. To this end she seeks to compel defendant to act as agent for the landlord to engage repairmen and order parts necessary to restore the boiler at the premises to operating condition, the repairmen and materialmen to bill the landlord directly for the costs and to file a notice, approved by defendant, with the county clerk, resulting in a lien on the premises in their favor, all pursuant to N.J.S.A. 26:3-31(p).
On and after October 1, 1974 plaintiff notified the landlord, Roy L. Management Corporation, that there was no heat and no hot water in the building because the boiler at the premises was broken. She also informed the Division of Inspections of the Department of Health and Welfare of the City of Newark of the situation. An inspection was made; the boiler at the premises is broken; the landlord claims that it is financially unable to make the necessary
repairs; although the outside air temperature has been under 55 degree F., no heat or hot water has been provided and no action to remedy the situation has been taken by the landlord or defendant Director of Health and Welfare. At the time of the hearing in the Law Division plaintiff was the only tenant in the building who was current in the payment of rent.
Defendant contends that the provisions of N.J.S.A. 26:3-1 et seq. are not applicable to him; that his authority is derived from the City Council of Newark in accordance with the provisions of the Faulkner Act, N.J.S.A. 40:69A-1 et seq.;*fn1 that he "is empowered merely to recommend enactment, alteration or amendment of ordinances"; that the powers of a local board of health to adopt ordinances, as set forth in N.J.S.A. 26:3-31, are discretionary only; that the Newark Department of Health and Welfare has not adopted any ordinance on the subject set forth in N.J.S.A. 26:3-31(p); and that, accordingly, plaintiff is not entitled to the relief which she seeks.
We find no merit in defendant's contention. As pointed out in Myers v. Cedar Grove Tp., 36 N.J. 51 (1961):
N.J.S.A. 26:1A-1 defines the terms "local board" or "local board of health" as used in the legislation establishing the State Department of Health in the Executive Branch of the State Government, L. 1947, c. 177, as amended, N.J.S.A. 26:1A-1 et seq., as follows:
"Local board" or "local board of health" means the board of health of any municipality or the boards, bodies or officers in such municipality lawfully exercising any of the powers of a local board of health under the laws governing such municipality, and includes any consolidated local board of health or county local board of health created and established pursuant to law. [Emphasis supplied]
N.J.S.A. 26:3-1 provides that:
There shall be a board of health in every municipality in this State, except in those municipalities which are included within a consolidated local health district, or a county local health district, which board shall consist of members appointed or designated, or both, as provided by this chapter, except that in any municipality operating under laws establishing a form of government for such municipality under which the full powers of a local board of health can not be exercised by a local board of health so appointed or designated, the respective functions ...