On petition for rehearing and cross-motion to vacate ex parte order.
Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
The appeal of defendants Capasso in the above matter resulted in a determination by this court reversing the Law Division judgment and remanding the matter for a full trial to determine the validity of the scavenger contract between the borough and the Capassos. Band's Refuse Removal, Inc. v. Fair Lawn , 62 N.J. Super. 522.
On December 29, 1958, after the Capassos had filed their notice of appeal, this court entered an order staying the Law Division judgment pending the determination of the appeal on the following conditions: that the Capassos continue to perform their contract, the borough to pay them $11,000 a month while the appeal was pending; that they post a supersedeas bond in the sum of $150,000 and, finally, that they be restrained from transferring, hypothecating, encumbering or otherwise disposing of any of their assets, either individually or as a partnership, except in the ordinary course of business or as might be required in connection with the posting of the bond.
After the coming down of our decision on July 27, 1960 the borough applied to this court for an order extending from August 8 to September 19, 1960 the time within which it
could file a petition for rehearing, directing the clerk to withhold issuance of our mandate, and to have us retain jurisdiction of the cause and suspend the effect of our reversal pending the filing of the petition and our determination thereof. An ex parte order to that effect was entered August 8, 1960.
In its petition for a rehearing, the borough pointed out that our opinion had made no provision pending the new trial as to the rights of the several parties in the following particulars:
(1) Whether the Capassos were required to continue to perform the garbage removal contract for the sum of $11,000 a month fixed in our order for a stay pending the appeal;
(2) Whether the $150,000 supersedeas bond filed by the Capassos pursuant to that order should be continued or increased, there having been no reversal of the Law Division judgment on the merits and in view of the fact that the Capassos were monthly being paid monies which the borough ultimately might be entitled to recover; and
(3) Whether, during the period of the retrial and final determination, there was to be continued the restraint upon the Capassos from transferring, hypothecating, encumbering or otherwise disposing of their assets.
The Capassos, in turn, gave notice of a motion to vacate the ex parte order of August 8, 1960 and to vacate the provisions of our order for a stay pending appeal which required the posting of the supersedeas bond and provided for performance by the Capassos of their contract at $11,000 a month. The cross-motions were set down for oral argument on September 12.
The Capassos in the meantime petitioned the Supreme Court for certification to review our judgment, and the borough cross-petitioned. We nonetheless heard oral argument on the date scheduled, and subsequently notified counsel that decision on the motions would be reserved until the Supreme Court had passed on the cross-petitions ...