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City of Englewood v. Veith Realty Co.

Decided: June 6, 1958.

CITY OF ENGLEWOOD, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VEITH REALTY CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. CITY OF ENGLEWOOD, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. ELLEN T. MCQUILLIN, DEFENDANT-APPELLANT



Price, Haneman and Schettino. The opinion of the court was delivered by Schettino, J.A.D.

Schettino

[50 NJSuper Page 370] This was a condemnation proceeding wherein separate complaints were filed against defendants. Veith Realty and McQuillin, seeking to condemn adjoining parcels of land for use as a municipal parking

lot. Condemnation commissioners were appointed by the Superior Court and awards were made to Veith Realty in the sum of $13,500 and to McQuillin of $19,500. Plaintiff appealed and defendants separately cross-appealed.

On December 6, 1957 plaintiff, pursuant to N.J.S.A. 20:1-30, elected to abandon all proceedings. This statute provides in part:

"Any action or proceeding under this chapter may be abandoned at any time before the filing of the report of the commissioners, or within twenty days thereafter, or in the event of an appeal therefrom, before the entry of the judgment on the appeal or within twenty days after the entry thereof, provided there is paid to the owner and any other party who appeared in the action or proceeding, their reasonable costs, expenses and attorney fees as determined by the court, and provided a discharge of the notice of lis pendens is filed."

The trial court, after a hearing that same day, fixed the reasonable costs, expenses and attorney's fees against plaintiff in the amount of $925 for each action -- representing $600 attorney's fee and $325 experts' fees. Defendants appeal on the grounds that the amount of attorney's fee fixed in each case was inadequate and an abuse by the trial court of the exercise of its discretion.

The record discloses the following undisputed facts.

The attorney appeals the reasonableness of the award of his counsel fees. He represented both defendants. The course of both trials took a day and one-half. Although from the record it is difficult to break down the exact number of hours spent in conference, it would seem that 12 hours would be a generous allowance. The trial court said at least six or seven, and appellants' attorney did not contest his addition. The record shows that the trial court considered the time counsel had spent in prosecuting his case and his disbursements, the amounts of the commissioners' awards (and although the record indicates that the court considered the McQuillin award to be $9,500 instead of the actual $19,500, appellants' attorney took no exception to this misunderstanding of fact), both attorneys' estimates of what

they thought the reasonable cost of expenses should be, the standing of the attorney, the importance of the litigation, the success achieved and the amount involved. Having considered all the circumstances enumerated, the trial court made its awards.

At the oral argument appellants raised for the first time the claim that N.J.S.A. 20:1-30 is unconstitutional under the New Jersey Constitution and the Constitution of the United States if it is not construed to provide for the payment of all the reasonable costs, expenses and attorney's fees of a property owner by the condemning authority. Appellants quote the Constitution of New Jersey, Article I, par. 20, which provides as follows:

"Private property shall not be taken for public use without just compensation. Individuals or private corporations shall not be authorized to take private property for public use ...


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