On appeal from the Superior Court, Law Division, Monmouth County.
For reversal -- Justices Heher, Oliphant, Burling, Jacobs and Weintraub. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Oliphant, J.
This is an appeal from an order of October 18, 1956 denying two motions made for the purpose of compelling the respondent, New Jersey Highway Authority, to pay to the defendant-appellant, Mrs. Ellis, the additional sum of $1,291.36 in full satisfaction of a judgment of condemnation entered against it on February 16, 1956.
The respondent, New Jersey Highway Authority, instituted condemnation proceedings against certain lands owned by the appellant on August 3, 1953. On August 4, 1953, for the purpose of going into possession immediately and pursuant to the statute, N.J.S.A. 27:12 B -7, the Authority filed its declaration of taking and took an order to pay into the Superior Court the sum of $44,275 as estimated compensation for the lands taken. This payment into court entitled the Authority "to the exclusive possession and use of each tract of land or property described in said declaration -- for the purpose or purposes for which the Authority is authorized by law to acquire and condemn such land or other property or interest therein."
As required by the statute and on notice to the parties, including the Authority, the appellant, Mrs. Ellis, on November 15, 1954 applied for the withdrawal of the sum so deposited, and the Superior Court directed payment to her of the sum of $45,105.20, representing the principal of $44,275 plus interest of $1,291.36, less the state commissions of $461.16.
The payment of the principal of the money deposited, in the words of the statute, was "for or on account of the just compensation to be awarded in said action." But the statute goes on and states the following proviso:
"* * * provided, that each person shall have filed with the Clerk of the Superior Court a consent in writing that, in the event the award in the said action shall be less than the amount deposited, the court, after such notice as the court prescribes and hearing,
may determine his liability, if any, for the return of such difference or any part thereof and enter judgment therefor. If the amount of the award as finally determined shall exceed the amount so deposited, the person or persons to whom the award is payable shall be entitled to recover from the Authority the difference between the amount of the deposit and the amount of the award, with interest at the rate of six per centum (6%) per annum thereon from the date of making the deposit. If the amount of the award shall be less than the amount so deposited, the Clerk of the Superior Court shall return the difference between the amount of the award and the deposit to the Authority unless the amount of the deposit or any part thereof shall have theretofore been distributed, in which event the court, on application of the Authority and notice to all persons interested in the award and affording them an opportunity to be heard, shall enter judgment in favor of the Authority for such difference against the party or parties liable for the return thereof." (Italics supplied)
Subsequently the commissioners in condemnation made an award of $48,705, from which the appellant-owner appealed. On February 16, 1956 the matter was apparently settled by agreement and a consent judgment was entered which adjudged "that the sum of $72,000.00, inclusive of interest, is the full, adequate and just compensation for the lands and premises taken * * * and that the full fee simple title in and to said lands is vested in the New Jersey Highway Authority, free and clear of all encumbrances whatsoever on the payment to the parties entitled thereto of the balance of the said sum of $72,000.00, inclusive of interest, not heretofore received by the parties." (Italics supplied)
On February 29, 1956 the appellant executed a satisfaction of such judgment "for SEVENTY-TWO THOUSAND ($72,000.00) DOLLARS without costs," L-9339-52, and forwarded this warrant of satisfaction together with a deed to the closing agent for the respondent. On April 6, 1956 the respondent forwarded a check payable to Mrs. Ellis in the amount of $26,894.80. By this check respondent charged itself with the commissions paid to the Clerk in the sum of $461.16, and credited itself with $1,291.36, the interest earned on the deposit under the rules and statute covering such deposits, which had been paid to the appellant on the order of payment of November 15, 1954.
The appellant immediately questioned the respondent taking credit for the interest earned on the deposit in court, and the respondent Authority took the position that as a matter of law the interest earned by the deposit belonged to the condemning Authority. The appellant then made two motions to compel the respondent to pay her the sum of $1,291.36 which the respondent had not included in the check of ...