Opinion
11-12-1926
ERIE MOTOR CAR CO. v. VANCE et al.
Harry Marelli, of Paterson, for complainant. Azzoll & Krasny, of Newark (Wm. V. Azzoli, of Newark, of counsel), for exceptants.
(Syllabus by the Court.)
Suit by the Erie Motor Car Company against Jennie Vance and others to foreclose a mortgage. On exceptions to the master's report. Exception overruled.
Harry Marelli, of Paterson, for complainant.
Azzoll & Krasny, of Newark (Wm. V. Azzoli, of Newark, of counsel), for exceptants.
BACKES, Vice Chancellor. This is an ordinary foreclosure suit. The owners of the equity of redemption are the widow and five infant children of the deceased mortgagor. The mortgagor died intestate. The widow, as executrix, leased the mortgaged premises for a term of years, not yet expired, to exceptant's assignor. The exceptant filed notice of his claim based on the lease, and the reference directed the master to ascertain his incumbrance and to report the amount due thereon, and the master reported that the lease was void and he had no incumbrance. To this an exception was taken. If the exceptant has a meritorious claim, It is not the subject of a reference, under rule 186. Our rules relating to references in uncontested foreclosure suits and reporting subsequent incumbrances contemplate only incumbrances of liquidated sums. The exceptant's claim is for unliquidated damage not yet suffered by him—he has not been ousted —and it must be disposed of on application for surplus money. The master's report in this respect will be disregarded, and the exception overruled.
In examining the files, it appears that, in the proceedings to appoint the clerk of this court guardian of the five infant defendants, the solicitor of the complainant filed five separate petitions and entered five separate orders of appointment, when one petition and order would have been sufficient. The clerk, whose duty as guardian is to protect his wards, will see to it that costs are taxed as on one petition and order only, and the solicitor will tax the costs accordingly.