Atlas Fence Co. v. West Ridgelawn Cemetery
| Citation | 61 A.2d 55 |
| Decision Date | 29 November 1948 |
| Docket Number | 83/379. |
| Parties | ATLAS FENCE CO. et al. v. WEST RIDGELAWN CEMETERY et al. |
| Court | New Jersey Court of Chancery |
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See 62 A.2d 212.
Suit by Atlas Fence Company and others against West Ridgelawn Cemetery, a corporation, and others. On application of Ernest Kurzrok for an order directing the receiver or Crest Haven Cemetery Association, Inc., to account for lands of the West Ridgelawn Cemetery sold and for all monies received.
Application denied.
See also 58 A.2d 267.
Ernest Kurzrok, pro se, petitioner.
John J. Clancy, of Newark, for receiver, Alfred L. Kirby.
KAYS, Vice Chancellor.
Ernest Kurzrok, a lot owner of the West Ridgelawn Cemetery, presented his petition and notice of motion praying for an order directing the receiver and/or Crest Haven Cemetery Association, Inc., to account for all lands of the West Ridgelawn Cemetery sold by them and for all monies received therefor.
The Crest Haven Cemetery Association, Inc., is not a party to this proceeding and is, therefore, not in court.
The petition recites that by an order of this court, dated October 29, 1938, the Crest Haven Cemetery Association, Inc., was designated as the sales agent for the West Ridgelawn Cemetery to sell all the lands of the cemetery then remaining unsold and that neither the receiver nor the Crest Haven Cemetery Association, Inc. ‘has accounted at anytime for the sale of said cemetery lands.’ No proof was offered on the return day of the motion other than the filing of the petition.
The order referred to in the petition of October 29, 1938, was appealed to the Court of Errors and Appeal and its opinion is reported in 125 N.J.Eq. 353, 5 A.2d 685.
The receiver filed his final account long before the petition, now under consideration, was presented. Mr. Kurzrok filed many exceptions to the receiver's report and has appeared each time on hearings relative to the exceptions. The report of the receiver accounts for the full purchase price received from the Crest Haven Cemetery Association, Inc.
I see no merit in the application and it is, therefore, denied.
In 1931 the West Ridgelawn Cemetery was placed in receivership in a suit instituted by the Atlas Fence Company and other creditors. The above entitled causes involve appeals from seven interlocutory orders of the former Court of Chancery made in the course of the receivership proceedings, and having been argued together, will now be disposed of in that manner. It seems appropriate to observe that the present appeals are the latest examples of the internecine legal warfare that has been waged by contending factions involved in the proceedings over the past seventeen years during which upwards of seventeen cases are reported wherein the West Ridgelawn Cemetery appeared as either plaintiff or defendant, and during which time the receiver has rendered seventeen intermediate accountings.
The situation with respect to the cemetery so far deteriorated that on October 29, 1938, the receiver was ordered to conclude a contract with the Cresthaven Cemetery Association obligating the latter to sell the remaining lands of the West Ridgelawn Cemetery for burial lots within a period of seven years and guaranteeing to the receiver the sum of $85,000, with interest, as the total sales price. Additionally, said association obligated itself to spend $25,000 for the improvement of the cemetery property, to erect thereon or remove thereto a chapel and to establish a ‘perpetual maintenance fund’ of at least six cents per square foot of all burial lots sold. On October 8, 1945, the stipulated price of $85,000 having been paid, the receiver executed a deed to King Solomon Cemetery, Inc., as nominee of Cresthaven Cemetery Association, for the lots remaining unsold as of that date, as provided in the agreement.
On November 25, 1946, the receiver filed his final account, covering his entire administration, and it was referred for audit to a special master who found it correct. In the meantime exceptions to the account were filed by the defendants, Adam Frank and Ernest Kurzrok, which, by orders of December 31, 1946, and July 11, 1947, were referred by the court to another special master to hear and report.
At the hearing on the exceptions the receiver was sworn, took the stand, and, after identifying and introducing his account, testified that it contained a complete and accurate record of his receivership and that nothing material to the receivership was omitted therefrom. The exceptants did not cross-examine but insisted that the receiver should proceed further to substantiate and prove in detail each and every item of his report. The master ruled that the receiver had established a prima facie case as to the correctness of his account and called upon the exceptants to proceed. This they refused to do, but applied instead to the court for an order reviewing this procedure and directing the course to be thereafter followed at future hearings on the exceptions. This resulted in an order of the court under date of January 7, 1948, N.J.Ch., 58 A.2d 267, affirming the method of procedure adopted by the master and refusing to direct a different method.
This order is the subject of appeal in the first of the above causes. In view of the situation before the master, as shown by the above recited facts, we think the court reached the right conclusion. The exceptants apparently failed to distinguish between mere procedure and the rule pertaining to the burden of proof. The time had not yet arrived for the application of the...
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