Teaneck Tp., Bergen County v. Mercer

• Decision Date: 25 January 1940
• Docket Number: No. 32.,32.
• Citation: 11 A.2d 103,124 N.J.L. 120
• Parties: TEANECK TP., BERGEN COUNTY v. MERCER, County Clerk, et al.
• Court: New Jersey Supreme Court

11 A.2d 103

124 N.J.L. 120

TEANECK TP., BERGEN COUNTY

v. MERCER, County Clerk, et al.

No. 32.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1940.

Syllabus by the Court.

1. R.S. 20:1-30, N.J.S.A. 20:1-30, in conjunction with R.S. 20:1-31, N.J.S.A. 20:1-31,

confers upon a justice of the supreme court who sits in condemnation proceedings the authority to direct a public body which initiated and thereafter abandoned a condemnation proceeding to pay reasonable costs, expenses and counsel fees.

2. An attorney, there being no conflict in the matter between him and his owner-client, may petition directly for the granting of allowances under R.S. 20:1-30, N.J.S.A. 20:1-30.

3. The measure of an allowance under R.S. 20:1-30, N.J.S.A. 20:1-30, is not the amount which an owner has paid or that which in strict law he would upon suit be obliged to pay an attorney or other claimant, but rather that which, under all of the circumstances, is reasonable.

4. Proceedings to condemn under R.S. 20:1-1, et seq., N.J.S.A. 20:1-1 et seq., instituted before a justice of the supreme court are before the justice as a statutory tribunal and are not in the Supreme Court; the papers should be entitled accordingly.

5. Under the facts of the case the services of the petitioning attorneys are not, with respect to statutory allowances, presumed to be gratuitous.

Appeal from Supreme Court.

Condemnation proceedings by the Township of Teaneck, in the County of Bergen, N. J., against James Binkov and Eva Binkov. The condemnation proceedings were abandoned, and thereafter Arthur A. Donigian, Edward O. West, Frank W. Ellig, George Heftier, and James Boyd, who rendered services to the property holders, petitioned for the allowance of costs, expenses, and counsel fees against the Township of Teaneck. To review an order directing James W. Mercer, Clerk of Bergen County, N. J., to pay costs, expenses, and counsel fees, the Township of Teaneck brought certiorari to the Supreme Court. From a judgment of the Supreme Court, 122 N.J.L. 546, 6 A.2d 658, affirming the order, the Township of Teaneck appeals.

Judgment affirmed.

Donald M. Waesche, of Hackensack, for prosecutor-appellant.

Frank W. Ellig and Ellig & Donigian, all of Hackensack, for defendants-respondents.

CASE, Justice.

The Townshipol Teaneck instituted, before Mr. Justice Bodine, proceedings under R.S. 20:1-1, et seq., N.J.S.A. 20:1-1 et seq., to condemn the property of James Binkov and Eva Binkov, husband and wife, for park purposes. The proceedings moved regularly to the filing of the report by the commissioners in condemnation. Thereafter the township, by action of its governing body, resolved that the condemnation proceedings be abandoned, that the notice of lis pendens, filed in accordance with the statute, should be discharged and that "any costs, expenses and counsel fees of the owners, as fixed and determined by a Justice of the Supreme Court, be paid as required by law". The directions of the resolution were carried out with the exception of the payment of costs, expenses and counsel fees. Messrs. Ellig and Donigian, attorneys at law, who, on the appearance of its Mr. Donigian, had represented (with others hereinafter mentioned) the owners in the condemnation, applied for and were allowed, by order of Justice Bodine, the sum of $550 "costs, expenses and counsel fees * * * be paid by the Township of Teaneck". The Supreme Court, under its writ of certiorari, reviewed and affirmed the order.

The township appeals and presents as its first point that Justice Bodine had no jurisdiction to make the order. The proceeding is statutory. The authority of a justice under the present statute is not exhausted by the appointment of commissioners. Aside from the powers set up in R.S. 20:1-30, N.J.S.A. 20:1-30, infra, the justice has authority, R.S. 20:1-14, N. J.S.A. 20:1-14, to tax and allow costs, fees and expenses of commissioners, clerks and other persons performing any of the duties prescribed in the first thirteen sections of the chapter and, R.S. 20:1-31, N.J.S.A. 20: 1-31, to make such further orders and direct such further proceedings and permit such amendments as may appear reasonable or as may promote the public purposes for which the power to condemn was conferred.

R.S. 20:1-30, N.J.S.A. 20:1-30, provides: "Any proceedings to condemn taken under this chapter may be abandoned at any time before the filing of the report of the commissioners, or at any time within twenty days after filing of said report, or if the issue is tried by jury, within twenty days after the rendering of the verdict of the jury, upon payment to the owners and other parties who have appeared before the commissioners or the jury of their reasonable costs, expenses and counsel fees to be determined by a justice of the supreme court or a judge of the circuit court, and upon filing a...