ROBERT N. ERRINGTON, PLAINTIFF-RESPONDENT, v. MANSFIELD TOWNSHIP BOARD OF EDUCATION IN THE COUNTY OF WARREN, DEFENDANT-APPELLANT, 42 N.J. 320

Pee Ctjeiam. After being subjected to the publication in newspapers of the plaintiff’s letters attacking the board of education, the president of the board published a letter which the plaintiff alleges to be defamatory. On November 7, 1962 the plaintiff filed a libel action against Catherine D. Harsha, president of the board, and when a majority of the other members of the board adopted a resolution dated November 15, 1962 stating that Mrs. Harsha was acting on behalf of the board and authorizing her legal defense by the board’s counsel, the plaintiff filed a libel action against them.

On December 13, 1962 a motion wa,s adopted that they also be defended by board counsel. Answers have been filed in both libel actions and they are now awaiting trial. On February 8, 1963 the plaintiff filed a complaint in lieu of prerogative writ against the board. It alleged that there was no authority for the board to expend public funds in defense of the libel suits and sought a restraint against such expenditures. The Law Division granted

summary judgment for the plaintiff and the Appellate Division affirmed. Errington v. Mansfield Tp. Bd. of Ed., 81 N. J. Super. 414 (1963). We granted certification. 41 N. J. 519 (1964). The record before us is meagre and the issue presented is of public importance. It appears to us that the sound course would have been to permit the libel actions to proceed to trial and thereafter the issue could have been fairly determined below upon the basis of a full record.

Counsel for the board has expressed his agreement that such course now be taken, has represented that the board received reimbursement of its expenditures to date, and has agreed that no public funds would be expended in defense of the libel suits pending ultimate determination of the issue raised in this action. Reversed and remanded for further proceedings not inconsistent with this opinion. For reversal and remandment — Chief Justice Weintraub, and Justices Jacobs, Fraitcis, Proctor, Hall, Sci-iettifo and Haneman — 7. For affirmance■ — None.