536 Brd. St. v. Valco Mortg. Co.
| Decision Date | 09 December 1943 |
| Docket Number | No. 206.,206. |
| Citation | 34 A.2d 801 |
| Parties | 536 BROAD STREET v. VALCO MORTG. CO. et al. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Court of Chancery.
Suit in equity by 536 Broad Street, a corporation, against the Valco Mortgage Company and others for discovery, accounting, and injunction on grounds of fraud and breach of trust in purchasing a mortgage on complainant's realty for the purpose of enforcing it against complainant. From an order, 133 N.J.Eq. 240, 32 A.2d 179, denying defendant's petition to vacate an order of reference to a vice chancellor and strike out the bill of complaint, defendants appeal.
Affirmed.
1. Under the Chancery rules, where a cause has been referred to a Vice Chancellor for hearing, a motion to strike out or dismiss the bill should properly be made before the Vice Chancellor to whom the cause is referred.
2. Political, business, or social relations do not per se disqualify a judge.
3. Laches, standing alone, has not in equity the binding force of a statute of limitations.
4. After five continuances of date for final hearing, the court refused further continuance. Held, not unreasonable in that refusal.
John Warren, of Jersey City, for appellants.
Benjamin M. Weinberg, of Newark, for respondent.
The appeal is from an order by the Chancellor in person denying the prayers of a petition filed on March 8, 1943. The first prayer was that a previous order of reference in the cause to a Vice Chancellor be vacated. A second prayer was that, notwithstanding that an answer had been filed in due season, the bill of complaint be struck, first, for alleged technical insufficiency; secondly, because of the alleged spoliation or concealment of certain records; and thirdly, alleged control of the litigation by political influence.
[1] [2] The appellants (defendants below) are John Warren, his wife, and a corporation called the Valco Mortgage Company. The case made out by the averments of the bill indicates a sort of constructive trust, or which the complainant corporation known as ‘536 Broad Street’ claims to be in equity the beneficiary, and which the averments of the bill claim to have arisen in this way: A corporation called ‘536 Broad Streed’ was organized to take over and operate a piece of real estate at that address which was subject to a mortgage for $150,000. The defendant John Warren and associates owned one-third of the stock of ‘536 Broad Street’ and Warren was its attorney, treasurer and practical manager. The bill charges that Warren, in the execution of a plan to acquire the property in his own interest and to deprive the corporation ‘536 Broad Street’ of its ownership therein, organized the defendant corporation Valco Mortgage Company, and procured from the owners of the $150,000 mortgage an assignment of that mortgage for $55,000 to the Valco Mortgage Company and in the name of that Company made a claim upon the complainant ‘536 Broad Street’ for the full face amount of the mortgage and interest. The bill prays the usual remedies of discovery, accounting, injunction, and so on. So that, quite apart from the technical questions of Chancery procedure, it is entirely clear that a case for a court of equity is presented by the bill, to which answer was filed in due course. It was claimed below, and it is claimed here, that, assuming the merit of the bill, it should have been dismissed on the ground of laches which was set up in the answer. But the doctrine of laches has not the binding force of a statute of limitations. Cases are not infrequent in which our courts, where the defence of laches was interposed, declined to dismiss the bill as in case of sustaining a demurrer, but allowed the matter to go to final hearing at which the facts might be fully inquired into. Sobota v. Shaffer, 105 N.J.Eq. 459, 148 A. 196, Commercial Trust Co. v. Belhall Co., 119 N.J.Eq. 30, 34, 181 A. 63.
The appeal is presented under seven points.
The first point is that the refusal to dismiss the bill was erroneous and an abuse of discretion because ‘the petition disclosed’ that the bill was filed as an instrument of blackmail. But at best the allegation of the petition in this regard would not be finally dispositive of the facts. The facts would have to be ascertained by a suitable trial.
The second point is that ‘the petition disclosed that the suit in the Court of Chancery was politically...
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536 Broad Street Corporation v. Valco Mortgage Co.
...filing of a bill in Chancery on March 4, 1942. Earlier court decisions in the cause are reported in 133 N.J.Eq. 240, 32 A.2d 179; 134 N.J.Eq. 224, 34 A.2d 801; 135 N.J.Eq. 361, 38 A.2d 903; 135 N.J.Eq. 581, 39 A.2d 700; 136 N.J.Eq. 513, 42 A.2d 704; 138 N.J.Eq. 431, 48 A.2d 191 and 330 U.S.......
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536 Brd. St. Corp.. v. Valco Mortg. Co. Inc.
...of the payment of a bond and mortgage on premises held by complainant subject to such mortgage. Decree for complainant. See also 134 N.J.Eq. 224, 34 A.2d 801. Benjamin M. Weinberg, of Newark, for complainant. John Warren, of Jersey City, pro se (Julius Lichtenstein, of Hoboken, of counsel),......
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536 Brd. St. Corp.. v. Valco Mortg. Co. Inc.
...33 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, affirmed 134 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 ha......
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536 Broad St. Corp. v. Valco Mortg. Co., A--73
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