Opinion
121/259.
01-29-1941
PAMRAPAU CORPORATION v. CITY OF BAYONNE et al.
Charles Rubenstein, of Bayonne (John J. Fallon, of Hoboken, of counsel), for petitioner Edwin L. Watters. Edward A. Markley, of Jersey City (Raymond J. Lamb, of Jersey City, of counsel), for petitioner City of Bayonne. Gross & Gross, of Jersey City, for complainant-respondent Pamrapau Corporation.
Suit by the Pamrapau Corporation against the City of Bayonne and others for the removal of a cloud upon title and other relief. A decree was entered for the complainant, 126 N.J.Eq. 479, 8 A.2d 835, and an application to open decree by the Central District, Inc., was denied, 126 N.J.Eq. 478, 8 A.2d 908, and judgment was affirmed by Court of Errors and Appeals, 127 N.J.Eq. 340, 12 A.2d 860. On motion for leave to intervene and for leave to file a bill of review by Edwin L. Watters, a taxpayer of the City of Bayonne, and on motion of the City of Bayonne to open final decree.
Motions denied.
Charles Rubenstein, of Bayonne (John J. Fallon, of Hoboken, of counsel), for petitioner Edwin L. Watters.
Edward A. Markley, of Jersey City (Raymond J. Lamb, of Jersey City, of counsel), for petitioner City of Bayonne.
Gross & Gross, of Jersey City, for complainant-respondent Pamrapau Corporation.
KAYS. Vice Chancellor.
The two above motions came before me on the return of an order to show cause by the City of Bayonne and on application without notice of one Watters, a taxpayer, for leave to intervene as a party defendant and be permitted to file a bill for review. Since both of the moving parties are in effect seeking the same relief and have appealed to the Court of Errors and Appeals, I have included both matters in one opinion.
The facts are that the above case was before me on a motion by the defendant, The Central District, Inc., and the city to open a decree pro confesso for the purpose of filing an amended answer. I refused the application. An appeal was taken to the Court of Errors and Appeals and the order of this court affirmed on the opinion below. See Pamrapau Corporation v. Bayonne, 126 N.J.Eq. 478, 8 A.2d 908, affirmed 127 N.J.Eq. 340, 12 A.2d 860. 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, 8 A.2d 835, affirmed 127 N.J.Eq. 340, 12 A.2d 860. 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 abovementioned decrees. Commissioners were appointed by his honor, Chief Justice Brogan, on June 5, 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 9, 1940 The application to me was made on December 6, three days before the trial was to take place.
The first motion made, was that Watters, a taxpayer, be allowed to intervene as a party defendant in this action in which a final decree had been entered and affirmed by the Court of Errors and Appeals. I know of no practice which would allow a party to intervene as a party defendant to a decree already entered without application to open the decree. Nevertheless I considered the affidavits and argument of counsel on the application to allow Watters to intervene and found no new matter set up which was not before this court on final hearing. I also denied the request of Watters to file a bill for review as his application was based on the same affidavits. The affidavits, in addition to this, were based on hearsay and did not disclose from whom the information was obtained.
After the motion of Mr. Watters, a taxpayer, was denied, the order to show cause why the final decree (which was entered on October 16, 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 M. 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, 11 A.2d 54, said:
"The appeal is from a decree granting leave to respondent to file a bill to review. The basis for the petition forreview 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.