536 Brd. St. Corp.. v. Valco Mortg. Co. Inc.

• Decision Date: 03 November 1944
• Docket Number: 139/547.
• Citation: 39 A.2d 700
• Parties: 536 BROAD STREET CORPORATION v. VALCO MORTG. CO., Inc., et al.
• Court: New Jersey Court of Chancery

39 A.2d 700

536 BROAD STREET CORPORATION

v.VALCO MORTG. CO., Inc., et al.

139/547.

Court of Chancery of New Jersey.

Nov. 3, 1944.

COPYRIGHT MATERIAL OMITTED.

Suit by 536 Broad Street Corporation against Valco Mortgage Company, Inc., and others.On defendant's application seeking to have the Vice Chancellor recuse himself on ground of prejudice and bias.

Application denied.

See also135 N.J.Eq. 361, 38 A.2d 903.

John Warren, of Jersey City, pro se, and for other defendants.

KAYS, Vice Chancellor.

The defendant, John Warren, made an informal application to me on October 24th last, the object of which was to induce me to recuse myself.He did not state the particulars but limited himself to a general objection in the following language:

‘* * * the reasons for my position was (sic) my confirmed conviction that, because of things which had occurred since the hearing, that your Honor was politically influenced in the making of that decision, and that, in any event, that you are so personally hostile to me that, consciously or unconsciously, it is impossible for you, and was impossible for you, in deciding the case to be impartial with respect to myself.’

A judge must determine the question of his prejudice from his own consciousness.SeeHungerford v. Cushing, 2 Wis. 397.I knew of nothing which could be said to be susceptible of establishing the accuracy of the assertion made by the said defendant, and wrote him as follows:

‘The grounds of your oral application requesting me to disqualify myself from any further proceedings in the above cause, are not true, in fact.

‘I, therefore, deny your application, and will not entertain any further application based on such grounds.’

I had decided this case as per an opinion released by me on August 28th last and marked filed by the Clerk in Trenton on August 29th last.

On October 30th, the defendant appeared in open court and filed the pleadings styled ‘Challenge to the Honorable Henry T. Kays, Vice Chancellor.’This pleading is in the form of an affidavit.I have disregarded the technical objection that the application should have been by petition and affidavit.

The only statute which touches upon the disqualification of a trial judge is R.S. 2:26-193 et seq., N.J.S.A.The grounds stated in the statute are, in effect, as follows:

1.Relationship to a party.

2.Former representation of a party.

3.Expression of an opinion upon a matter in question.

4.Interest in the event of the action.

This statute was intended to provide the practice in the courts of law.It was said, however, in Curtis v. Joyce, 90 N.J.L. 47, 99 A. 932, 933, affirmed91 N.J.Law 685, 102 A. 1053, that ‘it enacts a rule which should govern in all courts,’ and Chancellor Walker, in Re Hague, 103 N.J.Eq. 505, at page 512, 143 A. 836 at page 839, said that, by analogy, it should be held to apply to proceedings pending in this court.He pointed out that it should only be given effect in this court upon a showing that the objections ‘fall directly within the provisions of the statutory rule.’

Rule 297 of this court, N.J.S.A. tit. 2, provides that no judge of this court shall entertain, hear or determine any matter if he‘has any personal interest therein, or is of close kin to, or has any important business relations with any party thereto or any solicitor or counsel of any party.’The affidavit filed in this matter discloses that none of the above stated situations exist.

It is claimed, however, that I am ‘personally biased, prejudiced and maliciously hostile’ to the defendantJohn Warren et al. and that I am politically biased and prejudiced against the defendantJohn Warren.

It has been repeatedly stated that prejudice growing out of business, political or social relations is not sufficient to disqualify a judge.See33 C.J., Judges, Sec. 154;In re Hague, supra;536 Broad St. Corp. v. Valco Mortgage Co., 133 N.J.Eq. 240, 32 A.2d 179, affirmed134 N.J.Eq. 224, 34 A.2d 801.

The averments of the affidavit which relate to an alleged bias and prejudice arising from political grounds and which are said to have influenced me on the merits of the controversy between the complainant and the defendants(135 N.J.Eq. 361, 38 A.2d 903) have already been determined adversely to the contention of the defendants.See536 Broad St. Corp. v. Valco Mortgage Co., 134 N.J.Eq. 224, 34 A.2d 801.The objection, even if it were meritorious, is not timely.Mr. Justice Colie, in the case of Vanderbach v. Hudson County Board of Taxation, 130 N.J.L. 3, 30 A.2d 907, 909, reiterating the common law rule in Curtis v. Joyce, supra, said:

‘It would be intolerable to allow a litigant to speculate on the result of a case, and raise a question of jurisdiction only after the decision.’

The affidavit also charges that because the defendants petitioned the Chancellor to disqualify me before final hearing I was ‘personally biased, prejudiced and maliciously hostile’ to the defendantJohn Warren with the result that I have not acted ‘and cannot act in the future herein, as an unbiased, unprejudiced, impartial and independent jurist,’ and that I ‘did not give faith and credit to the uncontradicted testimony of the defendants and Rose Heller and did not apply and enforce the established equitable rules and the decisions applicable to this action.’This allegation is, in fact, false and is also out of time for the reasons above stated.

The next charge relates to the release of the opinion.The allegations relative to this matter (paragraphs 20 to 23 inclusive) are mere unsupported conclusions of the pleader.

The opinion is dated August 15, 1944, which is the date on which the first draft was typed.Several changes were made in the first draft and after such changes it was released for filing on August 28th.It is further alleged that the opinion was withheld until ‘exactly one week before’John Warren was to begin the hearing of his charges against the State Board of Tax Appeals whom he had charged were ‘oppressing’ him and his clients.The contention is that the opinion was filed at that particular time in order to disparage Warren in the eyes of the public and that by so doing I ‘caused a more widespread publication of (the) news.’How the release of the opinion or its publication would be material or relevant to determine the fitness of officials connected with the executive department of the state is beyond comprehension.

While I deem it unnecessary to answer such an allegation, I will, nevertheless, satisfy the curiosity of the defendant.I directed the opinion to be mailed to the Clerk on Monday, August 28th, and after the opinion had been mailed, I allowed the newspaper reporters to inspect copies.This practice has been followed by me in all cases concerning local matters.I invoked this practice a number of years ago at the request of the newspaper reporters who cover the Chancery cases in Jersey City.The opinion was apparently received by the Clerk in Chancery on August 29, 1944, and the decision...