Fisher v. Harrington Co. , 125 N.J. Eq. 357 ( 1939 )

The decree appealed from is in a suit to foreclose a tax sale certificate for tax lien on real property purchased by the city of Hackensack and assigned by it to the complainant-respondent.

The learned vice-chancellor to whom the case was referred found that the proceedings were valid.

We have carefully considered the evidence, the arguments of counsel and the memorandum of the vice-chancellor and conclude that his findings of fact and conclusions of law are proper except as to search and counsel fees allowed counsel. The allowance for the search fee was $50 and for the counsel fee $250.

The statute, R.S. 54:5-96, limits the search fee to $10 and allows no counsel fee except upon ninety-day written notice to the owner of record of intention to file a complaint of foreclosure. No such notice was given. The vice-chancellor found that because the defendant-appellant denied the validity of the tax lien and contested it, such action waived the statutory condition as to search and counsel fees.

We conclude that such action did not constitute a waiver. It follows that the search fee will be limited to $10 and there will be no allowance for counsel.

The order appealed from will be modified accordingly.

For modification — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.