On appeals to Superior Court, Appellate Division, certified to this court of its own motion.
For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
[14 NJ Page 274] In these condemnation proceedings the judge sitting as legislative agent, on motion of the condemnor, issued a writ of assistance authorizing the Sheriff of Essex County to employ a contractor to remove personalty from the lands taken. Subsequently an order entered under R.S. 20:1-15 determining the several interests in the condemnation award directed the payment to the condemnor from the award of the expenses of having the personalty
removed, and also the payment of a counsel fee to the condemnor's attorney. The condemnee appeals.
Appellant operated a salvage, junk and surplus property business, advertised as the "home of 1,000,000 items," on an acre and a quarter tract which was taken in condemnation by the Housing Authority of Newark for a low income public housing project.
Under section 20:1-36 of the Eminent Domain Act a housing authority may acquire title to condemned lands simply by filing a declaration of taking and depositing with the court the estimated compensation for the lands. Thereupon the authority also becomes entitled to possession within 20 days after the filing of the declaration unless "upon good cause shown" the judge designates a later time. The declaration of taking here was filed March 18, 1952, and an order was entered March 2 directing appellant to surrender possession by April 8, 1952.
It was a physical impossibility for the owner to surrender possession by April 8. The premises were filled to overflowing with a great and divers mass of goods, some housed in the few buildings and sheds but most of it lying unsheltered in high piles in the yard. There were tons of scrap metal and other heavy materials, thousands of discarded telephone booths, countless cans of paints, glass, rotted lumber, and great quantities of debris. Much if not most of the aggregate tonnage was worthless, as is common in a salvage business of this type.
The Authority protested that appellant was making no effort to comply with the order for possession but was continuing business, and applied to the judge for a writ of possession directed to the Sheriff of Essex County for execution. The appellant countered with a motion for additional time, supported by affidavits showing that many weeks, "approximately sixty days," were required to complete removal. The affidavits asserted that much of the debris was being burned in a pit on the premises under a permit from the Newark Fire Department, that a trailer, power wagon, dump truck and rack truck were in daily use removing materials,
that after the taking on March 18 upwards of 50 tons of salvageable scrap metal were removed by a purchaser thereof in his own trailers, and that every effort consistent with the nature of the business was being made to remove the salvageable items and ready the premises for the turnover of possession. Appellant was also having difficulty obtaining a new location. Indeed, the salvageable goods when finally removed were spread around among five locations in Newark and Harrison. Appellant admitted that it was still trying to keep its business going, but retail sales of course had the effect of removing goods. Appellant also conceded that some additional goods were being received from time to time, but related these to contracts of purchase which preceded the taking, and in any event the company at that time was without adequate facilities for their storage elsewhere.
Despite the apparent merits of appellant's motion for additional time the judge granted the Authority's motion and a writ of assistance dated May 5, 1952 issued directing the Sheriff of Essex County to deliver possession of the land to the Authority by removal of "the personal property belonging to" appellant. The writ directed the sheriff to permit appellant to remove the property, but provided that if appellant did not proceed "diligently" with the work the sheriff was to apply on May 12, one week later, "for permission to enter into a contract or contracts for the removal of all the remaining personal property, of every nature and description * * * at the proper cost and expense of the said American Salvage Co., the Housing Authority of Newark, however, to advance in the first instance, such sums as may be required by you for the purpose of executing this Writ."
On May 12 the sheriff's officer, without prior notice to or knowledge by appellant, reported to the judge that in his opinion appellant was not proceeding with the removal work with due diligence. The sheriff thereupon received the judge's permission to engage a contractor, and ...