Fritz, Seidman and Milmed. The opinion of the court was delivered by Fritz, P.J.A.D.
This is an appeal from an order eventuating on the hearing of a motion styled, quite improperly, as one seeking "an Order holding the defendant in contempt for failure to abide by the terms of an injunction issued out of this Court." (Emphasis added.) A countermotion by defendant sought an order "dissolving the injunction previously issued in this matter." A subsequent judgment, also quite improperly, "adjudged [defendant] guilty of contempt of this Court by violation of the aforesaid injunction." Further, it "reaffirmed" the injunction "with the same force and effect as heretofore." This entire end product was the result of a summary hearing on affidavits. Defendant appeals. We reverse and remand.
The litigation commenced prior to July 3, 1965, on which date the judge sitting in the Chancery Division for Ocean County, at the behest of Peter Lusardi, whose successors in title are the real plaintiffs here, entered an order enjoining
On April 8, 1974 plaintiff filed a motion seeking an order of contempt. On May 9, 1974 defendant filed its motion
seeking to be relieved from the injunction, principally on the basis that the "public trust" doctrine pertaining to tidal lands (see Neptune City v. Avon-by-the-Sea , 61 N.J. 296 (1972)) excused it from the 1965 order by the very terms of that order which limited its operation to that period "while the zoning laws of the State of New Jersey and Brick Township, affecting the subject matter of this cause, remain as they are at the time of entry of this judgment."
As noted above, the matter was determined on affidavits and argument, during which the attorney for the successors in title to plaintiff reiterated this to be "an action for contempt." At the conclusion of the argument the trial judge announced, "I feel that the plaintiff here, Mrs. Sisto, is entitled to an order enforcing the judgment [entered in 1965]." He concluded by saying:
So, I'll grant the plaintiff's motion holding the defendant in contempt, and it should be merely to prevent the defendant or any of their members from using Lot 7, Block 64, in Brick Town as a recreational or bathing area.
Now, if there is any question that some of these people were not the members of the club or were not actually parties to it, then you would have to serve, I think, a copy of this judgment on the individuals who have violated this, but as far as the defendant itself is concerned or its members I think this judgment of Judge Leonard, and my order, should prevent them from using this Lot 7, Block 64, as a recreational area.
As far as the defendant's cross motion to vacate the injunction, I'm not satisfied from the affidavits that have been filed that it really raises any factual dispute, or there is any legal grounds to do this. And I will therefore deny the cross motion as submitted. I will make that without costs to either party.
Several considerations mandate a reversal and remand for plenary trial.
We begin with the procedural deficiencies. This is not in order to exalt technicality, but because matters of substance may well be directly affected.
With reference to "contempt" of court, we have tried to distinguish sharply between (1) the public offense, i.e. , "contempt," for which the court may punish the ...