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Prostak v. Prostak

Decided: June 11, 1992.

HELEN PROSTAK, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
JOHN AND SOPHIE PROSTAK, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County.

Petrella,*fn1 R.s. Cohen and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

The opinion of the court was delivered by

ARNOLD M. STEIN, J.A.D.

Defendants appeal the Chancery Division's order of partition adopting the recommendation of the commissioner appointed pursuant to R. 4:63-1. Plaintiff cross-appeals the denial of interest on the delayed payment of owelty, the valuation difference after partition. She also appeals the granting to defendants of a life estate for the use of a shale road placed on her side of the partition line.

We reverse because the trial Judge did not conduct an evidentiary hearing to permit defendants to challenge the commissioner's recommended partition line and the real estate valuations contained in the appraisals attached to his report. We also reverse the denial of interest for the delayed payment of owelty.

Plaintiff Helen Prostak is the sister-in-law of defendant John Prostak. She is a tenant in common with John and his wife

Sophie in the disputed property. John and Sophie are tenants by the entirety as to their one-half interest.

The property consists of 175 acres in Clinton Township. It is divided by County Road 629. The parties agreed to the sale of the land on the west side of the road, but could not agree on a partition line for the remaining property on the other side, where the residences of both parties are located. Each party wanted to retain seven to ten acres surrounding the homestead and outbuildings. Each residence has access from the county road by a driveway. A shale farm road leads from the county road to an open field behind the buildings, dividing each residence and approximately one-half of the outbuildings.

Because the parties could not agree upon a dividing property line, the Judge appointed a commissioner pursuant to R. 4:63-1:

If in an action for partition . . . the court shall be satisfied that a division of the real estate can be made without great prejudice to the owners thereof, it may appoint one or more persons as commissioners to ascertain and report in writing the metes and bounds of each share . . . .

The order of appointment directed the commissioner

to divide the part or share of lands and premises allotted to the Plaintiff and Defendants as aforesaid into two equal parts or shares, each equal in value to the other, quantity and quality being respectively considered and to allot one of said parts or shares to the Plaintiff and to be held and enjoyed by her and the other such part or share to the Defendants ...


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