Opinion
Submitted February 14th, 1941.
Decided April 25th, 1941.
On appeal from an order of the Court of Chancery, advised by Vice-Chancellor Kays. The Vice-Chancellor filed an opinion ( 129 N.J. Eq. 3), which set forth his reasons for advising the order now under review and which also dealt with matters not presently before this court. That portion of his opinion which concerns the order appealed from reads as follows:
"The facts are that the above case was before me on a motion by the defendant, The Central District, Inc., to open a decree pro confesso for the purpose of filing an answer. I refused the application. An appeal was taken to the Court of Errors and Appeals and the order of this court was affirmed on the opinion below. See Pamrapau Corp. v. Bayonne, 126 N.J. Eq. 478; affirmed, 127 N.J. Eq. 340. The case then came before me on final hearing. A decree of this court was entered from which an appeal was taken and affirmed by the Court of Errors and Appeals on the opinion below. See 126 N.J. Eq. 479; affirmed, 127 N.J. Eq. 340. Both decrees of this court were entered more than a year before the above applications were presented. After the decree of the Court of Chancery was affirmed condemnation proceedings were begun by the petitioner, the City of Bayonne, for the purpose of acquiring all the right, title and interest of the complainant, Pamrapau Corporation, in the lots Nos. 7 and 13, the lands in question in the above mentioned decrees. Commissioners were appointed by his Honor, Chief-Justice Brogan, on September 12th, 1940, and a return was made by said commissioners making an award. An appeal was then taken to the Hudson County Circuit Court and set down for trial for December 9th, 1940. The application to me was made on December 6th, three days before the trial was to take place.
* * * * * * *"After the motion of Mr. Watters, a taxpayer, was denied, the order to show cause why the final decree (which was entered on October 16th, 1939, and affirmed by the Court of Errors and Appeals) should not be opened, was argued. The main contention of the petitioner was that the sale of the premises by the City of Bayonne to one Thomas W. O'Brien was not confirmed by resolution of the governing body of that city. The deed to O'Brien and the resolution were before me and were also before the Court of Errors and Appeals on the appeal. Counsel for the City of Bayonne before the Court of Errors and Appeals argued extensively the question of validity of said deed and also the resolution of the governing body confirming the sale. It, therefore, cannot be said that the question was not before the court in the former proceedings. The resolution in question is not denied by either party. There was some point made of the fact that the proceedings of the City of Bayonne relative to the sale of the property and the delivery of the deed in 1923 was not known to the petitioner at the time of final hearing in this court. While I do not agree that such was the situation, the petitioner is now estopped from claiming the same because such evidence was available to it at the time of final hearing. The proceedings here claimed to be irregular were the proceedings on behalf of the petitioner itself by its own governing body. A record of those proceedings was ascertainable at the time of the hearing. The Court of Errors and Appeals in the case of Norcross v. 1016 Fifth Avenue Co., Inc., 126 N.J. Eq. 625, said:
"`The appeal is from a decree granting leave to respondent to file a bill to review. The basis for the petition for review was alleged newly discovered evidence.
"`It is well settled that it is necessary in order to obtain relief of this kind to establish not only newly discovered evidence but that it is competent, material to the issue, likely to change the result and that by due diligence it was not ascertainable at the time of trial.'
"The order to show cause was, therefore, discharged, with costs."
Mr. Edward A. Markley, Mr. William Rubin and Mr. Raymond J. Lamb, for the appellant.
Messrs. Gross Gross, 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, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.
For reversal — None.