George Wash. Mem'l Park Cemetery Ass'n v. Mem'l Dev. Co.

• Decision Date: 20 January 1947
• Docket Number: 147/25.
• Citation: 50 A.2d 837
• Parties: GEORGE WASHINGTON MEMORIAL PARK CEMETERY ASS'N v. MEMORIAL DEVELOPMENT CO.
• Court: New Jersey Court of Chancery

50 A.2d 837

GEORGE WASHINGTON MEMORIAL PARK CEMETERY ASS'N

v.MEMORIAL DEVELOPMENT CO.

147/25.

Court of Chancery of New Jersey.

Jan. 20, 1947.

Suit by George Washington Memorial Park Cemetery Association against the Memorial Development Company seeking to have the court decree that certain agreements between the parties be declared void; that title to the lands comprising the cemetery be declared to be indefeasibly in complainant, subject to the equitable obligation to pay the fair and reasonable value thereof; and that a reference be made to a master to determine the fair and reasonable amount complainant should pay. On petition of Realty Affairs, Inc., and Walter S. Wright, Jr., for leave to intervene for the purpose of applying for a stay of the cause until another suit commenced by petitioners had been determined.

Petition denied.

Syllabus by the Court.

An application to intervene should be timely. The granting of such an application is not a matter of absolute right but rests in the sound discretion of the court. One seeking to intervene in a pending cause, or to stay the same, must show a meritorious defense or other good reason in order to induce the court to act.

Chandless, Weller & Kramer, of Hackensack, for petitioners.

Major & Carlsen, of Hackensack, for complainant.

Breslin and Breslin, of Hackensack, for defendant.

Brogan, Hague & Malone, of Jersey City, for intervenor, Frank De Geeter.

Milton, McNulty & Augelli, of Jersey City, for intervening lot owners.

Heine & Heine, of Camden, for intervenor, George E. Meagher.

Walter D. Van Riper, Atty. Gen., and Richard J. Fitz Maurice, of Orange, for the State.

EGAN, Vice Chancellor.

An appeal having been taken from my order of September 23, 1946, denying the application of Realty Affairs, Inc., and Walter S. Wright, Jr., for leave to intervene in a suit instituted in this court by the George Washington Memorial Park Cemetery Association against the Memorial Development Company, for the purpose of applying for a stay of said cause until another suit commenced by them in this court at a later date against the development company had been determined, this opinion is filed in order to set forth my reasons for denying the application.

The petitioners-appellants, Realty Affairs, Inc., and Wright, are stockholders of the Memorial Development Company, a corporation organized under the general corporation law of this state. It had issued and outstanding 10,000 shares of common or voting stock, having a par value of one mill per share. Realty Affairs, Inc., claims to be the owner of 1,000 shares and Wright 250 shares. 3500 shares are owned by George E. Meagher, and the remaining 5250 shares are owned by Frank De Geeter, who is also the owner of all of the preferred stock of the company.

There has been much litigation in this and other courts involving the cemetery association, the development company, and the persons interested in both enterprises. The chancery matters at one time or another have all come before me so that I am familiar with the different phases of the litigation and the conflicting claims and interests of the parties involved.

The cause in which the petitioners-appellants sought to intervene for the purpose of applying for a stay, was one commenced on January 21, 1946, by the cemetery association against the development company, seeking to have the court decree that certain agreements between the complainant and defendant be declared void and against the public policy of the state; that title to the lands comprising the cemetery, including the right of sepulchre, be declared to be indefeasibly vested in complainant, subject to the equitable obligation on the part of complainant to pay defendant, or to the promoters of the cemetery enterprise, the fair and reasonable value of the lands comprising the cemetery; and that a reference be made to a master to determine the fair and reasonable amount complainant should pay for said lands.

The petitioners-appellants knew of the pendency of this suit, and on February 25, 1946, filed their bill of complaint in this court against the development company, seeking the appointment of a statutory or, in the alternative, a custodial receiver therefor. This bill was filed with Vice Chancellor Lewis who, on April 30, 1946, appointed two receivers for the company. However, on June 3, 1946, the Vice Chancellor, on his own motion, vacated the appointment of the receivers, and subsequently the cause was referred to me for final hearing by Chancellor Oliphant. I might add that the final hearing in this case took place on January 14, 1947.

The president of Realty Affairs, Inc., is Albert R. Winans. He was a defendant in one of the suits before me involving a dispute over an election for trustees of the cemetery association (Docket 148/298) and was represented in that litigation by Messrs. Heine & Heine, who have appeared in all of these suits as solicitors for George E. Meagher, the owner of 3500 shares of common stock of the development company. Winans also appeared as a witness for the Meagher interests in other suits involving the cemetery association.

In due course the suit instituted by the cemetery association was referred to me by the Chancellor. In connection with that litigation a committee of lot owners of the cemetery petitioned the court for leave to intervene in the suit. This permission was granted by me on February 28, 1946.

Thereafter, and on May 27, 1946, I directed that the Attorney General be made a party defendant to the suit. This was done and the Attorney General in due time filed an answer and participated actively in the trial of the cause.

Still later, and on June 10, 1946, I permitted Messrs. Heine & Heine to intervene in the suit on behalf of George E....