Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a Law Division judgment holding that the Clerk of the Superior Court was not entitled to receive commissions upon the condemnation award which plaintiff had paid into court.
On January 8, 1960 the State of New Jersey, acting by and through the Commissioner of the Department of Conservation and Economic Development, instituted condemnation proceedings to acquire 850 acres of land owned by defendants Pellini. Condemnation commissioners were appointed and they eventually made an award of $83,550. The State appealed (N.J.S.A. 20:1-16), but before trial by jury (N.J.S.A. 20:1-20) the Pellinis agreed to a settlement of $74,200 as just compensation for the taking. After hearing an expert witness testify that the amount agreed upon was fair and proper under the circumstances, the Law Division judge on January 26, 1961 entered judgment against the State for $74,200.
Thereafter the deputy attorney general in charge of the case applied for an order to pay the award into court. The notice of application and supporting affidavit revealed that the reason for this step was that the interested parties could not agree how the award was to be distributed, the property was encumbered by liens whose amount had not been determined and, finally, the monies could not safely be paid to any person. Plaintiff tendered a $74,200 check in open court payable to the Superior Court Clerk, requesting that it be received for deposit in full satisfaction of the condemnation judgment. An order reciting these facts was entered by the Law Division judge on February 17, 1961, directing that the check be deposited with the Clerk to await the further order of the court. The order vested an absolute fee simple title in the State to the lands in question.
On February 28, 1961 an order, consented to by the attorney for the Pellinis, the attorney representing the first mortgagee, a judgment creditor and a second mortgagee, and the attorney for the township, which had a claim for
taxes, was entered directing the Superior Court Clerk to disburse the full sum of $74,200 on deposit with him to the several parties in interest in the amounts set out in the order. The Clerk refused to honor that order since it made no provision for payment of his commissions of $747.50, to which he considered himself entitled under N.J.S. 22A:2-20.
The question as to who would be responsible for the Clerk's commissions was informally presented to the Law Division judge on March 17, 1961. After hearing argument he requested that briefs be submitted, and directed that further argument be heard on March 30. On that day the judge concluded that the February 28, 1961 judgment required no amendment or supplement, and had to be obeyed. He pointed out that N.J.S. 22A:2-20, dealing with commissions payable to the Superior Court Clerk, did not apply since such commissions could be charged only in the Chancery Division, and the condemnation case was entitled in the Law Division. He also stated that since the condemnation had been instituted by a department of the State of New Jersey, and that department had applied for permission to pay the monies into court, the service rendered by the Clerk had been rendered to the State and therefore, under N.J.S. 22A:2-22 (referred to below), the Clerk could make no charge for his services. The court thereupon, on the same day, entered an order adjudging that the Clerk was not entitled to receive any commissions and directing that the fund in court be distributed in accordance with the order for distribution theretofore made.
The Pellinis had meanwhile assigned all their interest in the condemnation award to a certain Pennsylvania corporation. The attorney for the two mortgagees and judgment creditor gave notice on April 3, 1961 of a motion to be relieved from, and to have vacated, the order of distribution entered February 28, 1961 because it was incomplete and could not be filed in its present form, and for an order including all necessary provisions with respect to distribution.
The attorney for the Pellinis also gave notice of a motion to amend the February 28 order so as to provide for the distribution of the funds on deposit without deduction for any commissions to the Clerk, any monies due the Pellinis to be paid to the assignee Pennsylvania corporation. Both motions were returnable April 10. The deputy attorney general (a person other than the deputy who had prosecuted the condemnation) appeared on that date, stating that he was representing the Clerk, the State acting as condemnor no longer being in the case. The parties in interest heretofore mentioned also appeared by their respective counsel. Following argument the court entered an amended order for distribution, directing that the $74,200 be disbursed by the Clerk (without deduction for any commissions or fees) to the township, the first mortgagee, the judgment creditor, the second mortgagee, and the assignee corporation, in that order, in the amounts set out.
On the same day, April 10, the court ordered that the enforcement of that portion of the judgment it had just entered, declaring that the Superior Court Clerk was not entitled to receive commissions, be stayed pending a determination of plaintiff's appeal to this court. The stay order further directed that the Clerk pay out the sums cited in the amended order of distribution except for $747.50, the Clerk's commissions, which was to be deducted from the sum due to the assignee corporation and retained pending determination of the appeal about to be taken. This appeal was filed the next day. We granted the Clerk leave to intervene.
The State paid the condemnation award into court in accordance with N.J.S.A. 20:1-15 which reads, in part:
"* * * if several parties being interested in the fund shall not agree and the court shall not have made a determination as to the distribution thereof, or if the lands or other property taken are encumbered by a mortgage, judgment or other lien, or if for any other reason the plaintiff cannot safely pay the amount ...