Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant appeals from a Chancery Division order awarding plaintiff a counsel fee of $175 in its tax foreclosure action. Although the notice of appeal also challenged the allowance of $70.68 for search fees, defendant does not press the matter and is apparently satisfied that this allowance was proper.
On December 16, 1958 the Bridgewater Township Collector of Taxes sold defendant Nasso's premises on Route 29 at Greenbrook for taxes remaining unpaid for the year 1957, in the sum of $228.25. The property was struck off and sold to plaintiff for the sum of $267.96, representing the unpaid taxes, together with interest and costs, subject to redemption at the rate of 8%. The tax collector's certificate of sale was duly recorded.
On March 21, 1960 plaintiff's present counsel sent notice to defendant by certified mail, addressed to 413 Halsey Street, Newark, N.J., the address given on the tax duplicates, notifying him of plaintiff's intention to institute a tax
foreclosure action. N.J.S.A. 54:5-86 provides that such an action may be brought at any time after the expiration of two years from the date of tax sale. Defendant appeared at the attorney's office in response to the notice and was informed as to the statutory redemption period. Defendant explained that he was heavily involved in real estate investments and short of cash, and would pay the amount due on the tax sale certificate before the two-year period expired. He did not do so, with the result that plaintiff filed its complaint on May 16, 1961.
Defendant not having contested the action, plaintiff's attorney in regular course filed his affidavit and request for entry of default by the Superior Court Clerk. He then proceeded to obtain an order fixing the sum due plaintiff and the time and place for defendant to redeem. Such an order was advised by Standing Master Donnelly on August 3, 1961. The amount due on the tax sale certificate was fixed at $344.59, based on an affidavit filed by plaintiff's vice-president, setting out in detail the amount paid for the certificate, interest from date of sale, statutory fees and expenses incurred, and a 2% statutory penalty. See R.S. 54:5-61.
We take special note at this point in our factual exposition that there was nothing in the vice-president's affidavit or in any of the pleadings to show that written notice had been given defendant of the intention to institute a tax foreclosure action. Under R.R. 4:55-7(f), adopted March 19, 1953, no counsel fee may be allowed a plaintiff other than a municipality unless, prior to the filing of the complaint, plaintiff "shall have given 30 days' written notice to the interested owners and mortgagees whose interests appear of record, by registered or certified mail, * * * of intention to file such complaint." The notice must contain the amount due on the tax lien as of the date of the notice.
R.R. 4:55-9(b) similarly provides that a notice like that required by R.R. 4:55-7(f) be sent where a non-municipal plaintiff seeks allowance for search fees.
The function of processing tax foreclosures has been assigned, under R.R. 4:82-1, to the standing master appointed by the Supreme Court. Hundreds of tax foreclosures pass across his desk in the course of a year. The regular practice has been for an attorney, on an application for the order of redemption, to submit proof to the standing master of the amount due on the tax sale certificate, including interest, statutory fees and expenses, and the 2% statutory penalty, as here, and also to request that he fix allowances for a counsel fee, under R.R. 4:55-7(f), and search fees, under R.R. 4:55-9.
Had plaintiff's attorney, by affidavit or otherwise, called to the standing master's attention that he had given the 30-day notice required by the rule, the counsel fee and allowance for searches would have been fixed in the order entered August 3, 1961. The practice of the standing master, as reflected in the court files, has been to allow only a $50 counsel fee in tax foreclosure actions, except in an occasional case where the foreclosure required unusual services, when a larger fee was granted. This practice accords with R.R. 4:55-7(f), which reads:
"In an action to foreclose a tax certificate or certificates, the court may award a counsel fee not in excess of $50 except for ...