In re Canda Realty Co.

• Decision Date: 02 November 1939
• Citation: 17 N.J.Misc. 346,9 A.2d 305
• Parties: In re CANDA REALTY CO.
• Court: New Jersey Supreme Court

9 A.2d 305

17 N.J.Misc. 346

In re CANDA REALTY CO.

Supreme Court of New Jersey.

Nov. 2, 1939.

Proceeding in the matter of the acquisition of the land and property of the Canda Realty Company, situate in the Borough of Carteret, county of Middlesex, State of New Jersey, in which the Borough of Carteret, John Medvits and the American Oil Company claim some interest, on petition of the Central Railroad Company of New Jersey. On application of the Canda Realty Company for an order directing the Central Railroad Company of New Jersey to pay the costs, counsel fees, expenses and disbursements incurred by the Canda Realty Company in preparing and submitting proofs to the commissioners.

Application denied.

Before CASE, J., pursuant to the statute.

Wall, Haight, Carey & Hartpence, of Jersey City, for Canda Realty Co.

William F. Hanlon, of New York City, for Central R. Co. of New Jersey.

CASE, Justice.

The Central Railroad Company pursued the procedure set up in the Eminent Domain Act (R.S. 20:1-1 et seq., N.J.S.A. 20:1-1 et seq.), to condemn certain real estate of the Canda Realty Company. The proceedings moved regularly to the filing by the commissioners of their report. The owner has taken an appeal from the award; and with that we are not concerned. The owner now applies for an order directing the petitioner in condemnation to pay the owner's costs, counsel fees, expenses and disbursements incurred in, and in preparation for, the submitting of proofs to the commissioners. The application is rested upon two provisions of the Eminent Domain Act, R.S. 20:1-14 and 20:1-30, N.J.S.A. 20:1-14 and 20:1-30, and also the Fees and Costs Act, R.S. 2:27-378, N.J.S. A. 2:27-378.

R.S. 20:1-30, N.J.S.A. 20:1-30, may be quickly disposed of. It relates only to an abandonment of the condemnation, and there has been no abandonment either in whole or in part.

R.S. 20:1-14, N.J.S.A. 20:1-14, likewise, in my opinion, is inapplicable. It provides that "The justice of the supreme court * * * shall, upon application of either party on reasonable notice, tax and allow such costs, fees and expenses of the commissioners, clerks and other persons performing any of the duties prescribed in sections 20:1-1 to 20:1-13 of this title as he shall think proper, which shall be paid by the petitioner". None of the charges for which the owner seeks an allowance is on behalf of a commissioner, clerk or other person performing any duty prescribed in those sections of the statute which precede 20:1-14, N.J.S.A. 20:1-14. The statute further, at 20:1-25, N.J.S.A. 20:1-25, in dealing with the situation which exists when an appeal has been taken and the jury has found an amount to be due, provides that "The persons entitled to receive payment of the amount found by the jury may have execution therefor, and shall also be entitled to the same lien and remedies as are provided in section 20:1-13 of this title for the collection of awards of commissioners"; the provision, it will be observed, conspicuously omits the fourteenth section, supra. In Matter of Bay Creek Railway Company, 18 N.J.Law J. 342, Justice Lippincott, construing a portion of section 100 of the act respecting railroads and canals, Rev. 909 at 929, from which section 14, supr...