State ex rel. Byron v. Mayor of Bayonne

74 A. 459, 79 N.J.L. 96, 1909 N.J. Sup. Ct. LEXIS 15

• Court: Supreme Court of New Jersey
• Decided: November 16, 1909
• Status: Published

Opinion

The opinion of the court was delivered by

Trenchard, J.

This matter comes before the court upon the relators’ motion to quash the defendants’ return to an alternative writ of mandamus, which writ directs the defendants to pay to tiie relators the sum of $14,500, being the judgment entered in the Hudson County Circuit Court upon an appeal from, the award of the commissioners in condemnation proceedings appointed to condemn certain lands of the relators in the city of Bayonne for park purposes, or to show cause to the contrary thereof and signify the reasons for not complying with the directory portion of the writ.

The defendants’ return admits that they have not paid the sum of money as directed in the writ, and assigns several reasons as an excuse.

The relators move to quash the return upon the ground that it presents no legal excuse, and that it is false, frivolous and calculated to embarrass and delay the remedy sought.

As a question of pleading, merely, the rule is that a return is sufficient if it contains a full and certain answer to all the allegations expressly made in the writ, and discloses a fair legal reason why the mandamus• should not he obeyed. Springfield v. County Commissioners, 10 Pick. 59.

There is no presumption of law or fact against a return unless it fails to answer the material allegations of the alternative writ. But if the return be in such form that the court can see that it is false, frivolous ox calculated to embarrass or delay the remedy sought, a case is made for a motion to quash in a summary way and award a peremptory writ. It is only in such case that the extraordinary power of the court will he used to set aside the return and compel obedience. Slower and more formal methods of procedure must be used where the return offers solid defences and shows good cause for not obeying the mandate of the writ. Where these appear the respondents are entitled to have the material facts pleaded to, and traversed, or tried by demurrer, Gallager v. Board of Public Work of Jersey City, 16 Vroom 465.

Three of the reasons for not obeying the writ, taken together, aver in effect — first, that, after the entry of judgment, the condemnation proceedings were abandoned by mutual consent and the judgment vacated; second, that an agreement of sale was then made between the parties for the sum of $13,000, which the relators have refused to perform, and third, that since the entry of and agreement to vacate the judgment and the agreement to sell, the relators have wasted and spoiled the lands and collected rents.

We think that these reasons present questions of , fact which must be settled by a jury, and which cannot be determined by this court upon the present motion. We do not see that they are either false or frivolous, or that they are designed to embarrass or delay the remedy sought. On the contrary, the evidence taken upon which the writ issued, at which we may look (Pleasantville v. Pleasantville Water Co., 47 Vroom 343), tends to show that the return in this respect is not sham.

We incline to think the allegations of the return referred to, if true, show good cause why the directory part of the writ has not been obeyed. But whether so or not certainly there is thus presented dubious legal questions that ought not to be decided on a motion to quash a return. Silverthorne v. Warren Railroad Co., 4 Vroom 173.

The motion to quash the return will be denied, with costs.