N.J. Constitutional Convention: Vol. 4, Page 73

Wednesday, June 25, 1947 (Morning session)

not be lawyers - and the lawyers may or may not be Chancery specialists.

The fact of the matter is that the law of New Jersey has been made by a court which is an outstanding example of lack of specialization. I think it can fairly be said that if the Court of Chancery originated in an historical accident, to survive where it does today is an historical anachronism. Whatever the theoretical advantage of a high degree of specialization may be, I do not think it can be said that any such benefit has been realized by an independent Court of Chancery. Nor do we believe that an independent Court of Chancery has proved itself to be an efficient, economical, or superior instrument for the administration of justice.

MR. HENRY W. PETERSON: May I ask one or two questions? Regarding the nuisance case which you cited, was that merely an error of the counsellor to go into Chancery for an injunction? Wouldn't the correct place for remedy have been in the law court, and had they found there was a nuisance of smoke and that they had suffered pecuniary damages, wouldn't the law court determine that fact and award damages without three separate actions?

MR. SCHNITZER: It is true that in actual practice there is perhaps more fractional litigation than need be, and the case you refer to may be an illustration of it. I have this in mind - we have a Transfer of Causes Act. What it means is that if you find you have chosen the wrong forum in the first instance, a new case need not be started. The very same case may be transferred from one judge to another and yet, in actual practice, the Transfer of Causes Act is resorted to about as seldom as examinations before trial are awarded in law courts. In the federal courts or in the New York courts, where a total merger has occurred, examinations before trial and interrogatories are commonplace, and the occasion for transfer of causes simply does not exist.

MR. PETERSON: Yes, but I raised the question regarding New Jersey. In New Jersey I am an aggrieved property owner who suffered a nuisance from a factory. Isn't my remedy, if I have proper counsel, to go to the law court without first going to the Court of Chancery and then to the law court?

MR. SCHNITZER: It isn't that - the law court could award damages once you had an injunction, but it would have no power to abate the nuisance.

MR. PETERSON: Can they issue a cease and desist order and award the damages at the same time?

MR. SCHNITZER: They certainly can award damages. I don't know the basis for their authority to abate the nuisance specifically - and yet I notice Mr. Simandl's vigorous nod. They have to have the authority, and perhaps the Chief Justice will confirm this.

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