American Salvage Co. v. Housing Authority of City of Newark

• Decision Date: 11 January 1954
• Docket Number: No. A--59,A--60,A--59
• Parties: AMERICAN SALVAGE CO. v. HOUSING AUTHORITY OF CITY OF NEWARK. Application of HOUSING AUTHORITY OF CITY OF NEWARK.
• Court: New Jersey Supreme Court

Page 271

14 N.J. 271

102 A.2d 465

AMERICAN SALVAGE CO. v. HOUSING AUTHORITY OF CITY OF NEWARK.

Application of HOUSING AUTHORITY OF CITY OF NEWARK.

No. A--59, A--60.

Supreme Court of New Jersey.

Argued Nov. 30, 1953.

Decided Jan. 11, 1954.

Irving Siegler, Newark, for appellant (Siegler & Siegler, Newark, attorneys).

Samuel Roessler, Newark, for respondent (Augustine J. Kelly, Newark, attorney).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.

In these condemnation proceedings the judge sitting as legislative agent, on motion of the condemnor, issued a writ of assistance authorizing the Sheriff of Essex County to employ a contractor to remove personalty from the lands taken. Subsequently an oder entered under R.S. 20:1--15, N.J.S.A. determining the several interests in the condemnation award directed the payment to the condemnor from the award of the expenses of having the personalty removed, and also the payment of a counsel fee to the condemnor's attorney. The condemnee appeals.

Appellant operated a salvage, junk and surplus property business, advertised as the 'home of 1,000,000 items,' on an acre and a quarter tract which was taken in condemnation by the Housing Authority of Newark for a low-income public housing project.

Under section 20:1--36 of the Eminent Domain Act a housing authority may acquire title to condemned lands simply by filing a declaration of taking and depositing with the court the estimated compensation for the lnds. Thereupon the authority also becomes entitled to possession within 20 days after the filing of the declaration unless 'upon good cause shown' the judge designates a later time. The declaration of taking here was filed March 18, 1952, and an order was entered March 2 directing appellant to surrender possession by April 8, 1952.

It was a physical impossibility for the owner to surrender possession by April 8. The premises were filled to overflowing with a great and divers mass of goods, some housed in the few buildings and sheds but most of it lying unsheltered in high piles in the yard. There were tons of scrap metal and other heavy materials, thousands of discarded telephone booths, countless cans of paints, glass, rotted lumber, and great quantities of debris. Much if not most of the aggregate tonnage was worthless, as is common in a salvage business of this type.

The Authority protested that appellant was making no effort to comply with the order for possession but was continuing business, and applied to the judge for a writ of possession directed to the Sheriff of Essex County for execution. The appellant countered with a motion for additional time, supported by affidavits showing that many weeks, 'approximately sixty days,' were required to complete removal. The affidavits asserted that much of the debris was being burned in a pit on the premises under a permit from the Newark Fire Department, that a trailer, power wagon, dump truck and rack truck were in daily use removing materials that after the taking on March 18 upwards of 50 tons of salvageable scrap metal were removed by a purchaser thereof in his own trailers, and that every effort consistent with the nature of the business was being made to remove the salvageable items and ready the premises for the turnover of possession. Appellant was also having difficulty obtaining a new location. Indeed, the salvageable goods when finally removed were spread around among five locations in Newark and Harrison. Appellant admitted that it was still trying to keep its business going, but retail sales of course had the effect of removing goods. Appellant also conceded that some additional goods were being received from time to time, but related these to contracts of purchase which preceded the taking, and in any event the company at that time was without adequate facilities for their storage elsewhere.

Despite the apparent merits of appellant's motion for additional time the judge granted the Authority's motion and a writ of assistance dated May 5, 1952 issued directing the Sheriff of Essex County to deliver possession of the land to the Authority by removal of 'the personal property belonging to' appellant. The writ directed the sheriff to permit appellant to remove the property, but provided that if appellant did not proceed 'diligently' with the work the sheriff was to apply on May 12, one week later, 'for permission to enter into a contract or contracts for the removal of all the remaining personal property, of ever nature and description * * * at the proper cost and expense of the said American Salvage Co., the Housing Authority of Newark, however, to advance in the first instance, such sums as may be required by you for the purpose of executing this Writ.'

On May 12 the sheriff's officer, without prior notice to or knowledge by appellant, reported to the judge that in his opinion appellant was not proceeding with the removal work with due diligence. The sheriff thereupon received the judge's permission to engage a contractor, and after consultation with the Housing Authority employed a contractor at rates of from $54 to $56 per day per truck and $20 per day per man, with overtime to be computed on the basic rates. The contractor employed as many as ten trucks and trailers and up to 35 men in doing the work.

The contractor's work was begun on May 15 and was completed June 27, some six weeks later, when the land was entirely cleared. From the day the work began the sheriff's officer in charge consulted appellant's wishes as to what was to be abandoned as worthless and taken to dumping grounds and what was to be kept as salvageable and delivered to appellant's new locations. What the contractor moved was largely the abandoned materials, something over 250 of its truck and trailer loads going to dumping grounds. In the same time appellant also employed its own four trucks in the work and hired two others and a crane to assist, and the buyer of the scrap metal removed 22 trailer loads of scrap metal.

The contractor's charges aggregated $27,614.25 and were paid by the Housing Authority. The Authority also paid a charge of $250 for rental of a storage ware house where some of the salvageable materials were temporarily stored, and a charge of $1,949 made by the County of Essex, representing the proportionate part of the salaries of the sheriff's officers for the time given by them in supervising the work.

A jury awarded appellant compensation of $100,000 for the land at a trial held September 25, 1952, several weeks after the removal work was completed. The money was deposited with the Clerk of the Superior Court under an order entered October 20, 1952, which order also provided that the Housing Authority 'be and it is hereby granted, a lien against and upon the said fund * * * for the moneys which may be found to have been expended by it in the execution of the writ of May 5 * * *.' Appellant appealed on November 3 from this provision of the order, and also from the writ of May 5.

The Housing Authority thereafter filed a petition in the Chancery Division under R.S. 20:1--15, N.J.S.A. for distribution of the fund, asserting a claim for the total of $29,813.25 expended by it. After hearing, the Chancery Division on January 23, 1953 entered a judgment which, among other things, allowed the claim in full and also allowed a counsel fee of $1,000 to the attorney of the Housing Authority and directed both to be paid from the deposit. On January 30, 1953 appellant filed a notice of appeal from those provisions of the judgment.

The appeals were consolidated by order of the Appellante Division, and while awaiting argument they were certified here of our own motion.

A previous appeal from the writ of May 5, taken by appellant about June 1, 1952...