
    SAMSON BOTKIN, PLAINTIFF-RESPONDENT, v. MAYOR AND BOROUGH COUNCIL OF THE BOROUGH OF WESTWOOD, ET AL., DEFENDANTS-APPELLANTS.
    Argued and Decided November 3, 1958
    Opinion Filed November 10, 1958.
    
      
      Mr. Milton T. Lasher argued the cause for the appellant, Alexander Allan, Clerk of Bergen County.
    
      Mr. Paul T. Rucian and Mr. Thomas P. Ooolc argued the cause for the respondent.
   Pee Cubiam.

The Appellate Division determined that a non-binding referendum proposed by the Borough of Westwood under B. S. 19:37-1 et seq., as amended by L. 1942, c. 50, should be removed from the ballot. One judge dissented. The governing body of the borough resolved not to appeal. The county clerk, however, did appeal. Argument was had on short notice in view of the impending election on November 4. On the day of argument we announced our decision that the appeal be dismissed for the reasons herein stated.

The county clerk agreed that he would have no difficulty in complying with the judgment. He, of course, had no interest in the subject matter of the suit, that is, the retention of the referendum on the ballot. Rather, the county clerk sought by his appeal to obtain a declaration for future guidance, and thus, in effect, to convert the appeal into a proceeding for a declaratory judgment.

The sole party to the proceedings in actual interest in these circumstances was the borough. By its resolution not to appeal, the borough indicated its acquiescence in the judgment and in essence a change with respect to its desire to have the referendum on the ballot. The county clerk could not seek a judgment contrary to the wishes of the borough.

Hence we do not reach the merits of the controversy presented to the Appellate Division and of course intimate no view with respect to its determination.

Jacobs and Eeancis, JJ., in concurring, state that they are inclined to agree with the views expressed in the dissent in the Appellate Division, but for the reasons set forth in the per curiam opinion join in the dismissal of the appeal.

Waohefeeld, J.

(dissenting). This case was argued on its merits and I would decide it accordingly.

I would reverse the judgment of the Appellate Division for the reasons expressed in the dissenting opinion of Judge Gaulkin.

For dismissal—Chief Justice Weiftraub, and Justices Hbher, Burling, Jacobs, Francis and Proctor—6.

For reversal—Justice Waohefeeld—1.  