536 Broad St. Corp. v. Valco Mortg. Co.

• Decision Date: 29 March 1950
• Docket Number: No. A--73,A--73
• Citation: 72 A.2d 367,7 N.J.Super. 147
• Parties: 536 BROAD STREET CORPORATION v. VALCO MORTGAGE CO., Inc. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 147

7 N.J.Super. 147

72 A.2d 367

536 BROAD STREET CORPORATION v.VALCO MORTGAGE CO., Inc. et al.

No. A--73.

Superior Court of New Jersey Appellate Division.

Argued March 13, 1950.

Decided March 29, 1950.

John Warren, Jersey City, argued the cause for the defendants-petitioners-appellants(Theodore D. Parsons, Red Bank, of counsel).

Raymond J. Lamb, Jersey City, argued the cause for the complainant-respondent(Markley & Broadhurst, Jersey City, attorneys, Edward A. Markley, Jersey City, on the brief).

Before Judges JACOBS, EASTWOOD and JAYNE.

The opinion of the court was delivered by JAYNE, J.S.C.

A brief historical narrative in chronological style will be serviceable to freshen the recollection of the march of events in this imperishable litigation.

This action originated in the former Court of Chancery on March 4, 1942.Issues were ultimately joined on July 15, 1942, and the cause was referred to Vice Chancellor Kays for hearing and determination.Several adjournments were thereafter granted.On March 8, 1943, the defendants addressed a petition to the Chancellor to strike the complaint and to vacate the order of reference.The petition was dismissed on April 28, 1943.536 Broad St. Corp. v. Valco Mortgage Co., 133 N.J.Eq. 240, 32 A.2d 179(Ch.1943).The order of the Chancellor denying the prayer of the petition was reviewed on appeal by the Court of Errors and Appeals and affirmed.134 N.J.Eq. 224, 34 A.2d 801(E. & A.1943).The hearing of the cause before the Vice Chancellor occupied about 28 days interspersed over a period of five months.On August 15, 1944, the Vice Chancellor rendered an opinion in favor of the complainant.135 N.J.Eq. 361, 38 A.2d 903(Ch.1944).

On October 24, 1944, the defendantJohn Warren made an informal application to persuade the Vice Chancellor to recuse himself, which the Vice Chancellor resolved to deny.135 N.J.Eq. 581, 39 A.2d 700(Ch.1944).The propriety of that determination was transported to the Court of Errors and Appeals for review and the order affirmed.136 N.J.Eq. 513, 42 A.2d 704(E. & A.1945).

On December 18, 1944, the final decree was entered.It was subjected to consideration on appeal and affirmed.138 N.J.Eq. 431, 48 A.2d 191(E. & A.1946).A petition for reargument in the Court of Errors and Appeals having been dismissed, the defendants next presented a petition to the United States Supreme Court for a writ of certiorari, which was disallowed.Valco Mortgage Co. v. 536 Broad St. Corp., 330 U.S. 821, 67 S.Ct. 772, 91 L.Ed. 1272.

The defendants failed to obey the terms of the final decree and on May 11, 1948, an order was made directing the defendant Warren to appear and make discovery of his assets before one of the special masters in Chancery.An appeal from that order was prosecuted and on July 2, 1948, a motion to dismiss the appeal was granted.

Then on July 14, 1948, the defendantsValco Mortgage Company and John Warren filed in the Court of Chancery a petition for review of the final decree of December 18, 1944, and of the order dated May 14, 1945, confirming the report of the special master which established the amount due to the complainant.The basis of the petition for review is the alleged recent discovery of certain written evidence which is claimed to be of cogent and crucial significance and which, it is said, has heretofore been cunningly concealed by the representatives of the plaintiff.

Judge Grimshaw of the Chancery Division of the present Superior Court, having considered the allegations of the petition, the supporting and counter affidavits, the testimony and exhibits, announced in an explanatory opinion his conclusion that the petition for review should be dismissed.5 N.J.Super. 547, 68 A.2d 652(Ch.1949).It is the judgment entered on October 10, 1949, in accordance with that decision that has supplied the subject matter of the present appeal.

We are not at liberty to ignore the firmly established rules and principles by which the review of such a determination is circumscribed on appeal.

The power to grant or deny a petition for review in Chancery has always abided in the sound discretion of the Chancellor acting for himself or through his Vice Chancellors.New Jersey Zinc Co. v. New Jersey Franklinite Co., 14 N.J.Eq. 308(Ch.1862);Brumagim v. Chew, 19 N.J.Eq 337(Ch.186...