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Kupper v. Barger

Decided: January 13, 1955.


Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.


[33 NJSuper Page 492] This action was instituted on April 27, 1951. The core of the controversy implicated in general the title to and rights to the use of a parcel of ocean-front land

in a real estate development known as Deauville Beach in the Township of Brick, Ocean County.

Answers and counterclaims were filed on behalf of defendants, and class representatives were designated for the many property owners. The action enveloped a large number of integrant issues, as many as 20 or 25, said the trial judge subsequently. A summary of them contained in the pretrial order occupies eight full pages of the appendix. Many conferences ensued in the endeavor to conciliate the points of conflict, but a complete compromise was never attained as a result of them.

April 15, 1953 was eventually designated for the trial of the action, which was incidentally to be immediately followed by the hearing of another suit instituted by Kupper, Inc., a corporation controlled by the plaintiff in the present action, to foreclose the liens of two mortgages covering the beach lands. A protracted trial was reasonably to be anticipated.

The trial judge in a spirit of mediation recommended on the day for trial that the parties present and their respective attorneys engage in one more conference to ascertain whether the subjects of their oppugnant and divergent contentions could not possibly be compromised. At midday the announcement was made to the court that the negotiations of the parties had been fruitful.

It seems evident that the parties did on that occasion at least agree upon the basement or substructure upon which the more precisely expressed terms and details of a consent judgment would be erected. An oral and extemporaneous declaration of the principal controversial subjects which were said to have been adjusted by the parties was expressed in the ensuing proceedings in open court and stenographically recorded. The concluding remark of the patient trial judge was: "This Court will sign a judgment encompassing all the terms that counsel can agree to," referring undoubtedly to those within the general sphere of the reported settlement.

Suffice to state that counsel for the plaintiff and counsel for some of the defendants who are the present appellants

were unable to concur in the composition of a mutually agreeable judgment. Alternative forms of the proposed conformable judgment were submitted to the court by counsel for those parties, together with supporting and critical correspondence as to each form. Subsequently the oral arguments of those counsel anent the appropriate form and substance of the proposed consent judgment were heard by the court, at which it was recommended by counsel for the present appellants that since the proposed judgment presented on behalf of the plaintiff did not express and adequately embody one or more of the paramount terms of the settlement within the contemplation of the parties, and if that submitted by him were unacceptable, in such event the action should proceed to trial.

The judgment in the tenor proposed by counsel for the plaintiff was adopted and entered by the court. The propriety of the entry of that judgment is here challenged by the defendants-appellants.

It is undoubtedly the policy of our courts to presume unless the contrary appears that a stipulation entered into by the attorneys in open court respecting the terms of the settlement of the pending action is authorized by their clients. Bernstein & Loubet, Inc. v. Minkin , 118 N.J.L. 203 (E. & A. 1937). Assuredly such stipulations and their enforcement are subject to the sound discretion and control of the court. Howe v. Lawrence , 22 N.J.L. 99 (Sup. Ct. 1849); Hygrade Cut Fabric Co. v. United States Stores Corp. , 105 N.J.L. 324 (E. & A. 1929); Martin v. Lehigh Valley R.R. Co. , 114 N.J.L. 243 (E. & A. 1935). However, the enforcement of such stipulations by the judgment of the court is denied where there appears to have been an absence of mutuality of accord between the parties or their attorneys in some substantial particulars, or the stipulated agreement is incomplete in some of its material and essential terms.

We have thoughtfully examined the course of the proceedings in the present case. While it is manifest that the declarations of counsel for ...

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