For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Handler. For reversal -- None. The opinion of the court was delivered by Handler, J.
[75 NJ Page 86] The main issue in the case is whether a private litigant is entitled to maintain an action for injunctive relief against the Port Authority of New York and New
Jersey under N.J.S.A. 32:1-161 where the Attorney General, although neither commencing the original action nor intending to participate as an active litigant, seeks to intervene after a review of the merits of the controversy in order that the action can be prosecuted by the plaintiff.
On October 5, 1971, plaintiff Evans-Aristocrat, Inc. instituted suit against the City of Newark in the Chancery Division, Essex County, seeking to enjoin a nuisance and to recover damages for flooding injury to its property allegedly resulting from the City's failure to repair and replace elements of its sewer system. A later pretrial order broadened the issues to include questions concerning the aggravation of flooding conditions attendant on the expansion of Newark Airport by the Port Authority. On December 20, 1972, Newark filed a third-party complaint against the Port Authority alleging that any damages suffered by plaintiff as a result of such expansion were attributable to the third-party defendant. In the alternative, Newark demanded contribution from the Port Authority for any damages assessed against it.
On January 14, 1974, plaintiff filed a notice of request for leave of court to amend its complaint to include the Port Authority as a defendant. The proposed amended complaint sought damages and injunctive relief upon the allegations that filling and construction work undertaken by the Port Authority incident to the expansion of Newark Airport adversely affected drainage patterns and caused damage by flooding to plaintiff's property.*fn1 By supplemental letter memorandum, dated May 24, 1974, plaintiff requested that its proposed amendment to the complaint be deemed to include as defendants the principal officers and directors of the Port Authority.
On April 2, 1974, the Attorney General moved to intervene in order to enable plaintiff to maintain its suit for
injunctive relief against the Port Authority. This was intended to satisfy N.J.S.A. 32:1-161. The Port Authority then moved to dismiss the claim for injunctive relief on the ground that the action had not been properly instituted by the Attorney General as required by that statute. In an opinion reported at 129 N.J. Super. 437 (Ch. Div. 1974), the Chancery Division ruled that N.J.S.A. 32:1-161 prohibits suits for injunctive relief against the Port Authority unless brought initially and actively conducted by the Attorney General. The court also rejected plaintiff's attack on the constitutionality of another section of the statute, N.J.S.A. 32:1-165, proscribing injunctive actions against officers of the Port Authority unless brought by the Attorney General. Further, plaintiff's claim as a third-party beneficiary for specific performance of an alleged contract between the Port Authority and Newark for the construction of a pumping station designed to facilitate drainage was denied.
Following an appeal, the Appellate Division reversed the trial judge's denial of the Attorney General's motion to intervene for the purpose of enabling plaintiff to bring its action for injunctive relief against the Port Authority. 140 N.J. Super. 226 (App. Div. 1976). There being a dissent, this appeal was brought before us as of right. R. 2:2-1(a).
The factual allegations, which crystallize the issue, are sufficiently sketched in the opinions below. As alleged, plaintiff is the owner and occupant of a manufacturing establishment on Frelinghuysen Avenue in the Waverly District of Newark. Subsequent to the expansion of Newark International Airport by the Port Authority, the plant was flooded, resulting in extensive damage and business interruption. Plaintiff attributes this to negligent alterations of the established drainage patterns in the Waverly District and negligent construction and maintenance by the Port Authority in connection with the extension of the airport. It is alleged that marshland serving as a drainage basin for the Waverly District of Newark was filled by the Port Authority without providing in-kind replacement and that obstructive
culverts were constructed, aggravating the risk of floods in the vicinity of plaintiff's property. A further assertion is that the Port Authority contracted with the City of Newark to pay for the cost of a pumping station to replace drainage capacity attendant upon the airport expansion or, alternatively, for the installation of sufficient pumping capacity to prevent deterioration of the Waverly District. It is admitted that no pumping station has been built.*fn2
Counsel for Evans-Aristocrat, by letter dated February 4, 1974, requested the State of New Jersey to intervene in the pending suit as a plaintiff. Such intervention was sought pursuant to N.J.S.A. 32:1-161 in order to permit Evans-Aristocrat to maintain its action for injunctive relief against the Port Authority. Pleadings and various supporting documents were submitted for review by the Attorney General. After the Attorney General moved to intervene, he ...