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Township of Wayne v. Kosoff

Decided: February 14, 1977.

TOWNSHIP OF WAYNE IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN KOSOFF AND LEON A. CONSALES, DEFENDANTS-APPELLANTS



For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

[73 NJ Page 10] Certification was granted in this condemnation proceeding to review the judgment of the Appellate Division

(see 136 N.J. Super. 53 (1975)), which held that there can no longer be any doubt but that a trial court possesses the inherent power to appoint an independent expert in a condemnation case as an aid in its "quest for the elusive truth of the matter," and that the trial court herein mistakenly exercised its discretion in denying plaintiff's motion for the appointment of such an expert. We affirm the Appellate Division holding as to a trial court's inherent power to appoint an independent expert, but disagree with its finding that the trial court abused its discretion in the circumstances presented. We therefore reverse the judgment of the Appellate Division and reinstate the judgment of the trial court, including its computation of interest.

The basic facts of the case were summarized by the Appellate Division as follows, 136 N.J. Super. at 55-56:

Plaintiff instituted condemnation proceedings on June 7, 1970 in order to acquire a 3.3-acre portion of a larger tract of vacant land owned by defendants and located within the Township of Wayne in an area designated as an urban renewal plan by the township and the Department of Housing and Urban Development. On April 15, 1971 the condemnation commissioners filed their report awarding defendants $372,250 for the taking, which amount included damages to the remaining tract, a parcel slightly in excess of four acres. Plaintiff and defendant both appealed this award to the Superior Court, Law Division. Several months after the matter was first listed for trial, the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq., became effective. The new act afforded the property owner, subjected to a partial taking, the right to compel condemnation of the remaining property where the remainder has "little or no economic value." N.J.S.A. 20:3-37. In the exercise of this new right defendants, in April 1972, obtained an order requiring plaintiff to acquire the remaining four-acre parcel. The Department of Housing and Urban Development, however, expressed reluctance to finance this additional purchase since the four-acre parcel fell outside the boundaries of the urban renewal plan. As a result plaintiff attempted, through a series of applications, to delay trial of the condemnation suit until some decision was made by the Department of Housing and Urban Development as to payment therefor. An unsuccessful attempt at relief in the federal courts was made.

At any rate, shortly before the case was finally tried plaintiff filed a motion for an order appointing an independent appraiser inasmuch as there was nearly a half million dollars difference between the amount offered by plaintiff and the amount sought by defendants.

Plaintiff's motion was denied on the ground that it had been interposed primarily for purposes of further delay. Moreover, the trial judge expressed concern as to the proper procedure in presenting the testimony of an independent or court-appointed appraiser to a jury. It is the denial of the motion that provides one of the principal grounds of this appeal.

At the time the motion was made, and for a substantial period of time prior thereto, the parties were aware of a wide disparity between the appraisals made by the parties' respective expert witnesses. Plaintiff's appraiser placed a value of $490,000 on the subject property. Defendants' appraiser valued it at $937,250, the precise value accepted by the jury in its verdict. * * *

We note only these additional facts. On July 29, 1971 plaintiff had filed a declaration of taking as to the original 3.3 acres and deposited in court $134,300, the estimated value of the land taken. Thereafter, on August 23, 1972 plaintiff deposited in court an additional $237,950 in order to bring the amount of the deposit up to the award of $372,250 made by the condemnation commissioners. Defendants promptly obtained court orders allowing them to withdraw these deposits.

It is obvious that because of the enlarged taking ordered by the trial court in April 1972, plaintiff experienced considerable difficulty in securing federal financing for the additional acreage. However, for a substantial period of time prior to making its motion plaintiff had been aware of the wide disparity between the appraisals as to value made by the parties' respective experts. Nevertheless, it took no steps towards having an independent expert appointed by the court until the very eve of a final, peremptory trial date. The granting of this motion would, of course, have required further adjournment of the case.

The action of the trial court in denying plaintiff's motion must be viewed in light of the circumstances existing at the time. The case was four years old. It had received numerous trial dates, many of them on a peremptory basis in an effort to bring the matter to trial. Finally, when it was rescheduled for April 23, 1974, again on a ...


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