Yanoff, J.s.c., Temporarily Assigned.
This case involves the interaction between N.J.S.A. 20:1-1 et seq. (hereafter "old statute") and the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 (hereafter "new statute") which replaced it, effective December 21, 1971.*fn1
The issues arise in the following context: On May 7, 1970 an action in eminent domain was instituted by plaintiff ("Authority") pursuant to N.J.S.A. 20:1-36. At the same time Authority deposited $40,000 with the clerk, as required by the statute. Under the statute Authority became entitled to an order for possession "not exceeding twenty days after such filing."
By way of context, I find as facts that before institution of the eminent domain action, Lincoln Electric Products Co., Inc., the tenant, was in possession under a lease at the rate of $1,050 a month; that on August 19, 1970 Authority asked tenant to sign a rental agreement at that rate. The person with whom Authority's representative spoke was Leff, one of the owners, and also an officer of tenant corporation. Leff said he neither would pay the rent nor move, but would take the matter to the Supreme Court. However, thereafter, tenant deposited $1,050 in court in escrow. Authority did not move to evict tenant, and tenant did not physically remove its
property at any time, but did on November 15, 1972, turn over the key to Authority.
Testimony was adduced as to fair rental value. The expert who testified for Authority stated that the property was worth $866.67 a month with utilities, and $546.36 a month without utilities. Owner's expert said the property was not rentable after May 7, 1970. The only evidence in the case was that utilities were not cut off. I find as a fact that the property had a fair rental value of $866.67 a month.
Defendants appealed from Commissioner's award and received a jury award of $54,000.
On January 3, 1972 plaintiff paid an additional $15,085 into court.*fn2
I am told that the interest amounts to $4,074.91. I am told also that during the pendency of the proceedings the owner paid in taxes to the City of East Orange the sum of $8,368.09.
Following the institution of the action, owner and tenant vigorously contested Authority's right to condemn. Owner and tenant lost in all courts and pursued the matter so far as to apply for a writ of certiorari to the United States Supreme Court, which was denied on April 17, 1972, 405 U.S. 1064, 92 S. Ct. 1493, 31 L. Ed. 2d 794.
On November 15, 1972 owner abandoned the personal property remaining on the premises and gave possession to Authority. Authority at no time sought the assistance of the sheriff in obtaining possession. The condemned premises contained a large quantity of personal property which could be classified as either machinery or junk, and which would have cost a large sum to remove. I infer that in light of American Salvage Co. v. Housing Authority of Newark, 14 N.J. 271 (1954), Authority did not want to run the risk of having to pay for its removal, and of being held responsible for its loss
or damage. The net effect of the conduct of the parties was that Authority was delayed in obtaining possession of the condemned land for a period of approximately three years.
Authority now seeks payment to it of the sum of $1,050 plus accrued interest; judgment against tenant in the sum of $28,350 for unpaid rents at the monthly rate of $1,050 for the period October 18, 1970 to November 18, 1972; such other relief as may be necessary to permit it to collect the unpaid rents, including an abatement against the fund in court for the period during which it was deprived of possession.
Defendant's arguments in opposition center upon the following theories:
1. That by reason of sections 11, 19, 22, 23 and 26 of the new statute, Authority had neither title nor right to possession until the United States Supreme Court denied certiorari on April 17, 1972. I determine that the new statute is not applicable to passage of title or right to possession, for reasons stated hereafter, and therefore do not discuss these sections.
2. That there should be no abatement of the funds on deposit because it was not owner, but tenant who was in possession, and the fund is the property of owner. Further, that if there be any ...