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Atlas Fence Co. v. West Ridgelawn Cemetery

New Jersey Superior Court, Appellate Division


Decided: September 7, 1949.

ATLAS FENCE COMPANY ET AL., PLAINTIFFS-RESPONDENTS,
v.
WEST RIDGELAWN CEMETERY ET AL., DEFENDANTS-APPELLANTS

Donges, William A. Smith and Brown. The opinion of the court was delivered by Donges, J.A.D.

Donges

[4 NJSuper Page 543]

Application was made by Abraham M. Herman, as attorney for the defendant West Ridgelawn Cemetery and for himself as a lot owner, for an allowance to him of $15,000 for services and $3,500 for disbursements in the proceedings between the parties. Judge Kays, under date of March 30, 1949, made an order approving the report of the receiver, and of other acts performed in the pending litigation, and made allowances to the receiver, several attorneys who had served in different capacities and discharged the receiver. Notice of this application was mailed to Mr. Herman, but he did not appear at the hearing. On April 27, 1949, he filed a petition seeking to have the allowances to the receiver and his counsel set aside and allowances made to him. An order to show cause was allowed and hearing was had thereon on May 20, 1949, when an order was signed by Judge Freund dismissing the order to show cause, of April 27, 1949. Notice of appeal by West Ridgelawn Cemetery and Abraham M. Herman from the final judgment entered on March 30, 1949, and from the order of dismissal of the order to show cause, filed May 23, 1949, was served on June 3, 1949.

Judge Freund denied the application on the merits and because of a failure to comply with Rule 3:59-6, requiring notice to alter or amend a judgment shall be served within ten days after the entry of the judgment. The order for judgment was entered March 30, 1949, and no action was taken thereon until April 27, 1949, a period of twenty-eight days.

Apart from the failure to comply with the rule as to time, the record amply supports the determination of Judge Freund that it does not appear that appellant Herman performed any services or made disbursements for which he was entitled to be paid from the funds in the hands of the receiver. Mr. Herman was allowed the sum of $1,500 by order dated October, 1946. The receiver's affidavit stated that Mr. Herman performed no service after 1941. This was not overcome by

[4 NJSuper Page 544]

any proof that the service of the petitioner warranted the payments sought.

The judgment under review is affirmed.

19490907


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