Galler v. Slurzberg , 39 N.J. Super. 89 ( 1956 )

The opinion of the court was delivered by

Clapp, S. J. A. D.

Defendants appealed to this court from a judgment in the Chancery Division. The judgment was reversed here (31 N. J. Super. 314), and the Supreme Court affirmed for the reasons stated by this court (18 N. J. 466).

Plaintiff then made a motion before the Supreme Court, asking it to recall its mandate and amend it so as to preserve a finding of the Chancery Division, which appears as a recital in the Chancery Division judgment, namely:

“that the individual defendants were not ‘locked out’ by the plaintiffs on March 6th and 7th, 1952.”

The Supreme Court ordered the matter remanded to this court for “a decision on the merits.” Though the parties take different views as to the purport of this order, we understand it to be merely a referral to us of the motion to amend the mandate.

We deny the motion. We think that the above-quoted recital in the judgment should fall with the judgment.

However we may add that in reaching our conclusions (31 N. J. Super. 314) we did not pass upon or give any consideration to the alleged lock-out. The Chancery Division judgment and our opinion on appeal dealt only with a certain portion of the case; other portions of it are yet to be determined. Under the circumstances, notwithstanding the mandate herein, we see no reason why the trial court hereafter should not again make the finding it has heretofore made, or make such other finding as it may deem proper with respect to the matter of lock-out, whether the finding is based on proofs heretofore or hereafter presented to it.