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Atlas Fence Co. v. West Ridgelawn Cemetery

Court of Errors and Appeals
May 1, 1941
19 A.2d 781 (N.J. 1941)

Opinion

Submitted February 14th, 1941.

Decided May 1st, 1941.

1. Petitioner seeks leave to sue the receiver of the defendant cemetery in the United States District Court, claiming that he sold lands belonging to the cemetery for burials of persons not of the Jewish faith, and should therefore answer in damages to her. Petitioner was a party to the proceedings in which the receiver sold the lands pursuant to an order of the Court of Chancery, which order was affirmed on appeal. She failed to appear on the return of the order to show cause why the sale should not be made and did not appeal the order. She admits receiving notice of the sale. Held, petitioner is now in laches, having allowed more than four years to elapse before taking any action in the premises.

2. Petitioner claims that her property has been taken without compensation and that her right to enjoyment and exercise of religious freedom has been violated by the provisions of the Chancery order pursuant to which the receiver sold the lands in question. There is nothing in this argument. It was first raised at the oral argument on the petition for leave to sue the receiver in the United States District Court, and petitioner is guilty of laches in this respect also.

On appeal from an order of the Court of Chancery advised by Vice-Chancellor Kays, who filed the following opinion:

"This matter comes before me on a petition of Poline Komar for leave to sue the receiver of the West Ridgelawn Cemetery in the United States District Court as one of the parties defendant.

"Petitioner claims that she has an action against the receiver, the Crest Haven Memorial Park, Inc., and the Crest Haven Cemetery Association because the receiver conveyed premises formerly belonging to the West Ridgelawn Cemetery to the Crest Haven's grantor for the burial of persons who were not of the Jewish faith. Petitioner states that the body of her grandson is interred in a plot located in the tract now owned by the Crest Haven Cemetery Association.

"The receiver sold the lands pursuant to an order of this court which order was affirmed by the Court of Errors and Appeals. See Atlas Fence Co. v. West Ridgelawn Cemetery, 120 N.J. Eq. 615, 616. The petitioner was a party to the proceedings above mentioned and admits receiving a notice of the sale. She did not appear on the return of the order to show cause why the sale should not be made and did not appeal from the order. She now claims, however, that because the receiver sold lands of the West Ridgelawn Cemetery for burials of persons not of the Jewish faith the receiver should be made a party defendant to answer in damages to her.

"While I think there is no merit to the application on the facts stated, certainly petitioner is now in laches because she has allowed more than four years to elapse before taking any action in the premises.

"Petitioner has attempted to raise certain constitutional questions alleging that her property has been taken without compensation and that her right to enjoyment and exercise of religious freedom has been violated by the provisions of the order of this court which order was affirmed by the Court of Errors and Appeals. I see nothing in this argument. This question was first raised at the oral argument and appears to be an attempt to override a decision of the Court of Errors and Appeals of this state by asking leave of this court to sue the receiver in the United States District Court. Gross laches also applies to this argument. The application is denied."

Mr. William C. Kronmeyer and Mr. Borris M. Komar, for the appellant.

Mr. Louis A. Fast, for the respondent.


The order under review will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Kays.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, HEHER, PORTER, DEAR, WELLS, WOLFSKEIL, HAGUE, THOMPSON, JJ. 11.

For reversal — PERSKIE, COLIE, RAFFERTY, JJ. 3.

For modification — DONGES, J. 1.


Summaries of

Atlas Fence Co. v. West Ridgelawn Cemetery

Court of Errors and Appeals
May 1, 1941
19 A.2d 781 (N.J. 1941)
Case details for

Atlas Fence Co. v. West Ridgelawn Cemetery

Case Details

Full title:ATLAS FENCE COMPANY et al., complainants, v. WEST RIDGELAWN CEMETERY et…

Court:Court of Errors and Appeals

Date published: May 1, 1941

Citations

19 A.2d 781 (N.J. 1941)
19 A.2d 781