4:60-5. Order Directing Issuance of Writ

(a) Issuance of Writ on Notice. A writ of attachment shall issue only in cases where the defendant is subject to the exercise of jurisdiction by the State consistent with due process of law. The writ shall issue upon court order on the plaintiff's motion. Except as otherwise provided by paragraph (b) of this rule, the motion shall be heard on no less than three days' notice to the defendant, who shall file and serve any opposing affidavits or cross-motions at least one day prior to the hearing. The motion shall be granted only upon the court's finding, based on the moving papers, any opposing affidavits which may have been filed, and any testimony taken pursuant to R. 1:6-6, that (1) there is a probability that final judgment will be rendered in favor of the plaintiff; (2) there are statutory grounds for issuance of the writ; and (3) there is real or personal property of the defendant at a specific location within this State which is subject to attachment.

(b) Issuance of Writ Ex Parte. An order for issuance of writ of attachment without notice to the defendant may be entered by the court only if the defendant is about to abscond or if the court finds from specific facts shown by affidavit or verified complaint that the giving of such notice is likely to defeat the execution of the writ.

(c) Contents of Order. Upon satisfactory proof of plaintiff's right to the writ, the court by order shall direct the issuance of the writ fixing the amount or value of property to be attached, and providing the manner in which notice of the attachment shall be given to the defendant, and such terms and conditions as the court deems appropriate.

(d) Bond by Plaintiff. Before or after issuance of the writ, the court may, in its discretion, order the plaintiff to post a bond with sufficient sureties and in an amount sufficient to indemnify defendant for all damages resulting from the attachment and for taxed costs, if the writ is vacated, or if the action is dismissed, or if judgment therein is given for defendant.

4:60-4. Attachment and Arrest

No writ of attachment shall issue against a defendant who has been arrested upon a writ of capias ad respondendum or ne exeat in the same action, and no order to hold to bail shall be made as to a defendant whose property shall have been attached under a writ issued in the same action, unless the court shall determine upon proof, with or without notice to the defendant, that the second writ is not oppressive and is required in the interest of justice under the special circumstances of the case. If the second writ is issued without notice, the order therefor shall provide that defendant may move to vacate it on not more than 2 days' notice to the plaintiff.

4:60-3. Attachment and Summons

A writ of attachment may be issued as initial or sole process in the action or as additional process pursuant to R. 4:60-5. A summons against the same defendant and additional summonses against other defendants may issue in the same action before or after issuance of the writ. If a summons or writ of attachment is not issued within 10 days after the filing of the complaint, the action may be dismissed as provided by R. 4:37-2(a).

4:60-2. Commencement of Action; Venue

An action in which a writ of attachment is sought shall be commenced by filing a complaint. Venue in such an action in the Superior Court shall be governed by R. 4:3-2, except that if no mandatory provision thereof is applicable, venue shall be laid in any county in which any of the real or personal property to be attached is situated.

RULE 4:60. ATTACHMENT AND SEQUESTRATION

4:60-1. Definitions

As used in R. 4:60, "plaintiff" includes any party asserting a claim in a complaint, counterclaim, cross-claim, third-party complaint or any other pleading, upon whose application a writ of attachment is issued. "Defendant" includes any party against whom any such claim is asserted. "Applying claimant" includes any person having a claim against the defendant who shall have been admitted as a party by court order.

4:59-3. Process in Behalf of and Against Persons Not Parties

An order made in favor of a person who is not a party to the action may be enforced by the same process as in the case of a party and, if obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as a party.

4:59-2. Judgment for Specific Acts; Writ of Possession

(a) Judgment for Specific Acts. If a judgment or order directs a party to perform a specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of such defaulting party by some other person appointed by the court, and the act when so done shall have like effect as if done by the defaulting party.

(b) Order and Writ of Possession. Where a party by virtue of any judgment or order, or any writ, sale or proceeding thereunder, claims possession of property, but the judgment or order does not provide therefor, the court on motion may make an order for the possession, provided notice of the motion is given to the person in possession and proof is made that such person has failed to deliver possession 10 days after a written demand. If an order or judgment is for the possession of real or personal property, the party in whose favor it is entered is, on application to the clerk, entitled as of course to a writ of possession directed to the sheriff, which may include an execution for costs.

RULE 4:59. PROCESS TO ENFORCE JUDGMENTS

4:59-1. Execution

(a) In General. Process to enforce a judgment or order for the payment of money and process to collect costs allowed by a judgment or order, shall be a writ of execution, except if the court otherwise orders or if in the case of a capias ad satisfaciendum the law otherwise provides. Except with respect to writs issued out of the Special Civil Part, the amount of the debt, damages, and costs actually due and to be raised by the writ, together with interest from the date of the judgment, shall be endorsed thereon by the party at whose instance it shall be issued before its delivery to the sheriff or other officer. The endorsement shall explain in detail the method by which interest has been calculated, taking into account all partial payments made by the defendant. Except with respect to writs issued out of the Special Civil Part, the judgment-creditor shall serve a copy of the fully endorsed writ, personally or by ordinary mail, on the judgment-debtor after a levy on the debtor’s property has been made by the sheriff or other officer and in no case less than 10 days prior to turnover of the debtor’s property to the creditor pursuant to the writ. Unless the court otherwise orders, every writ of execution shall be directed to a sheriff and shall be returnable within 24 months after the date of its issuance, except that in case of a sale, the sheriff shall make return of the writ and pay to the clerk any remaining surplus within 30 days after the sale, and except that a capias ad satisfaciendum shall be returnable not less than eight and not more than 15 days after the date it is issued. A writ of execution issued by the Civil Part of the Law Division shall not be directed to a Special Civil Part Officer except by order of the Civil Presiding Judge and such order shall specify the amount of the Officer’s fee. One writ of execution may issue on one or more judgments or orders in the same cause. The writ may be issued either by the court or the clerk thereof.

(b) Execution to Enforce a Court Order for the Support of Dependents. Income withholding to enforce a judgment or order for the periodic payment of alimony or child support shall be governed by R. 5:7-5(b), (c) and (d). The Presiding Judge of the Family Division in each vicinage may issue a standing or special order authorizing the Probation Division to execute on cash or cash-equivalent assets, as defined herein, to collect child support or alimony judgments payable through the Probation Division, and directing that writs of execution to collect past-due child support or alimony be served on the holder of such assets by the Probation Division. In vicinages where such an order is issued, an execution to enforce an alimony or child support judgment against cash or cash-equivalent assets shall be governed by R. 5:7-5(e) and the Vicinage Chief Probation Officer shall be designated Deputy Clerk of the Superior Court for the limited purpose of certifying writs of execution for alimony or child support judgments payable through the Probation Division. Cash or cash-equivalent assets include bank accounts, retirement accounts, trusts, insurance proceeds, net monetary awards and settlements from civil lawsuits, non-court settlements, proceeds from estates, investments, commissions, bonuses and any other asset from which funds are readily available without the need for seizure, inventory or public sale.

(c) Execution First Made Out of Property of Party Primarily Liable. If a writ of execution is issued against several parties, some liable after the others, the court before or after the levy may, on application of any of them and on notice to the others and the execution creditor, direct the sheriff or other officer that, after levying upon the property liable to execution, he or she raise the money, if possible, out of the property of the parties in a designated sequence.

(d) Wage Executions; Notice, Order, Hearing. Proceedings for the issuance of an execution against the wages, debts, earnings, salary, income from trust funds or profits of a judgment-debtor shall comply with the requirements of paragraph (a) of this rule and shall be on notice to the debtor. The notice of wage execution shall state (1) that the application will be made for an order directing a wage execution to be served on the defendant's named employer, (2) the limitations prescribed by 15 U.S.C.A. §§ 1671-1677, inclusive and N.J.S. 2A:17-50 et seq. and N.J.S. 2A:17-57 et seq. on the amount of defendant's salary which may be levied upon, (3) that defendant may notify the court and the plaintiff in writing within ten days after service of the notice of reasons why the order should not be entered, (4) if defendant so notifies the clerk, the application will be set down for hearing of which the parties will receive notice as to time and place, and if defendant fails to give such notice, the order will be entered as of course, and (5) that defendant may object to the wage execution or apply for a reduction in the amount withheld at any time after the order is issued by filing a written statement of the objection or reasons for a reduction with the clerk and sending a copy to the creditor's attorney or directly to the creditor if there is no attorney, and that a hearing will be held within seven days after filing the objection or application for a reduction. The judgment-creditor may waive in writing the right to appear at the hearing on the objection and rely on the papers. The notice of wage execution shall be served on the judgment-debtor in accordance with R. 1:5-2. A copy of the notice of application for wage execution, together with proof of service in accordance with R. 1:5-3, shall be filed with the clerk at the time the form of order for wage execution is submitted. No order shall be entered unless the form of order was filed within 45 days of service of the notice or 30 days of the date of the hearing. The writ shall include a provision directing the employer immediately to give the judgment-debtor a copy thereof and it shall also include a provision that the judgment-debtor may, at any time, notify the clerk and the judgment-creditor in writing of reasons why the levy should be reduced or discontinued. If an objection from the judgment-debtor is received by the clerk after a wage execution has issued, all moneys remitted by the employer shall be held until further order of the court and the matter shall be set down for a hearing to be held within seven days of receipt of the objection.

(e) Supplementary Proceedings. In aid of the judgment or execution, the judgment creditor or successor in interest appearing of record, may examine any person, including the judgment debtor, by proceeding as provided by these rules for the taking of depositions or the judgment creditor may proceed as provided by R. 6:7-2, except that service of an order for discovery or an information subpoena shall be made as prescribed by R. 1:5-2 for service on a party. The court may make any appropriate order in aid of execution. If the warrant for arrest is not executed within 24 months after the date of the entry of the order authorizing it, both the order and the warrant shall be deemed to have expired and to be of no further effect.

(f) Sheriff's Costs. The sheriff shall file a bill of taxed costs with the final report with the clerk of the court.

(g) Notice to Debtor. Every court officer or other person levying on a debtor's property shall, on the day the levy is made, mail a notice to the person whose assets are to be levied on stating that a levy has been made and describing exemptions from levy and how such exemptions may be claimed. The notice shall be in the form prescribed by Appendix VI to these rules and copies thereof shall be promptly filed by the levying officer with the clerk of the court and mailed to the person who requested the levy. If the clerk or the court receives a claim of exemption, whether formal or informal, it shall hold a hearing thereon within 7 days after the claim is made. If an exemption claim is made to the levying officer, it shall be forthwith forwarded to the clerk of the court and no further action shall be taken with respect to the levy pending the outcome of the exemption hearing. No turnover of funds or sale of assets may be made, in any case, until 20 days after the date of the levy and the court has received a copy of the properly completed notice to debtor.

(h) The forms in Appendices XI-I and XI-L through XI-R, inclusive, shall be used in the Law Division, Civil Part, as well as in the Special Civil Part.

4:58-5. Application for Fee; Limitations

Applications for allowances pursuant to R. 4:58 shall be made in accordance with the provisions of R. 4:42-9(b) within 20 days after entry of final judgment. A party who is awarded counsel fees, costs, or interest as a prevailing party pursuant to a fee-shifting statute, rule of court, contractual provision, or decisional law shall not be allowed to recover duplicative fees, costs, or interest under this rule.

4:58-4. Multiple Claims; Multiple Parties

(a) Multiple Plaintiffs. If a party joins as plaintiff for the purpose of asserting a per quod claim, the claimants may make a single unallocated offer.

(b) Multiple Defendants. If there are multiple defendants against whom a joint and several judgment is sought, and one of the defendants offers in response less than a pro rata share, that defendant shall, for purposes of the allowances under R. 4:58-2 and -3, be deemed not to have accepted the claimant's offer. If, however, the offer of a single defendant, whether or not intended as the offer of a pro rated share, is at least as favorable to the offeree as the determination of total damages to which the offeree is entitled, the single offering defendant shall be entitled to the allowances prescribed in R. 4:58-3, provided, however, that the single defendant's offer is at least 80% of the total damages determined.

(c) Multiple Claims. If a claimant asserts multiple claims for relief or if a counterclaim has been asserted against the claimant, the claimant's offer shall include all claims made by or against that claimant. If a party not originally a claimant asserts a counterclaim, that party's offer shall also include all claims by and against that party.

4:58-3. Consequences of Non-Acceptance of Offer of Party Not a Claimant

(a) If the offer of a party other than the claimant is not accepted, and the claimant obtains a monetary judgment that is favorable to the offeror as defined by this rule, the offeror shall be allowed, in addition to costs of suit, the allowances as prescribed by R. 4:58-2, which shall constitute a prior charge on the judgment.

(b) A favorable determination qualifying for allowances under this rule is a money judgment in an amount, excluding allowable prejudgment interest and counsel fees, that is 80% of the offer or less.

(c) No allowances shall be granted if (1) the claimant's claim is dismissed, (2) a no-cause verdict is returned, (3) only nominal damages are awarded, (4) a fee allowance would conflict with the policies underlying a fee-shifting statute or rule of court, or (5) an allowance would impose undue hardship. If, however, undue hardship can be eliminated by reducing the allowance to a lower sum, the court shall reduce the amount of the allowance accordingly.

4:58-2. Consequences of Non-Acceptance of Claimant's Offer

(a) If the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed, in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later, but only to the extent that such prejudgment interest exceeds the interest prescribed by R. 4:42-11(b), which also shall be allowable; and (3) a reasonable attorney's fee, which shall belong to the client, for such subsequent services as are compelled by the non-acceptance.

(b) No allowances shall be granted pursuant to paragraph (a) if they would impose undue hardship. If undue hardship can be eliminated by reducing the allowance to a lower sum, the court shall reduce the amount of the allowance accordingly.

RULE 4:58. OFFER OF JUDGMENT

4:58-1. Time and Manner of Making and Accepting Offer

(a) Except in a matrimonial action, any party may, at any time more than 20 days before the actual trial date, serve on any adverse party, without prejudice, and file with the court, an offer to take a monetary judgment in the offeror's favor, or as the case may be, to allow judgment to be taken against the offeror, for a sum stated therein (including costs). The offer shall not be effective unless, at the time the offer is extended, the relief sought by the parties in the case is exclusively monetary in nature.

(b) If at any time on or prior to the 10th day before the actual trial date the offer is accepted, the offeree shall serve on the offeror and file a notice of acceptance with the court. The making of a further offer shall constitute a withdrawal of all previous offers made by that party. An offer shall not, however, be deemed withdrawn upon the making of a counter-offer by an adverse party but shall remain open until accepted or withdrawn as is herein provided. If the offer is not accepted on or prior to the 10th day before the actual trial date or within 90 days of its service, whichever period first expires, it shall be deemed withdrawn and evidence thereof shall not be admissible except in a proceeding after the trial to fix costs, interest, and attorney's fee. The fact that an offer is not accepted does not preclude a further offer within the time herein prescribed in the same or another amount or as specified therein.

4:57-5. Notice of Withdrawals; Order

If application is made for the withdrawal of moneys deposited in court where the court has not adjudicated the amount due the applicant, the proceeding shall be by affidavit entitled in the action. Notice of the application shall be given to all parties in interest, including the person who paid the funds into the court and, except deposits for costs, deposits in interpleader actions, or deposits in a matter to abide the final or other judgment therein, and except as otherwise provided by R. 4:64-3 (surplus moneys in foreclosure actions), to the Director of the Division of Taxation, Department of the Treasury. Withdrawal shall be made only by order of the court in accordance with R. 4:57-2.

4:57-4. Income and Interest on Deposits

(a) Superior Court. Income on deposited funds shall be ascertained as of June 30th and December 31st of each year. In calculating income there shall be deducted from the gross revenue the expenses incident to the audit and management of the funds and such further amount as the Chief Justice shall find proper to be set up as a reserve to meet losses, in order safely to protect the principal of the funds. The rate of interest to be paid on deposits shall be fixed by theChief Justice and shall be credited monthly and at the time of withdrawal. Interest shall be credited in the manner prescribed by the Chief Justice with the advice of the Investment Advisory Committee.

(b) Accounts in the Counties. Interest on deposits shall be paid out of interest earned in such manner and at such rate as the Assignment Judge shall determine.

4:57-3. Accounts; Audit; Investment Advisory Committee

(a) Superior Court. Regular books of account shall be kept by such persons and in such manner as the Chief Justice directs, and the Clerk of the Superior Court shall furnish statements and transcripts from said books, showing the condition of an estate or fund to any person interested therein. An audit of funds deposited and the investments thereof shall be made as of June 30th and December 31st of each year by certified public accountants designated by the Chief Justice, who shall make a detailed report thereof to the Chief Justice and the Clerk. The Clerk shall make a report to the Chief Justice as to the funds deposited and the investments thereof as of December 31st of each year. The reports shall be filed as public records. The Chief Justice shall appoint a committee of three persons experienced in the investment of funds to advise and consult as to the investment of all estates and funds held by the court.

(b) Accounts in the Counties. An annual audit of all estate and other funds deposited pursuant to R. 4:57-2(b) shall be made as directed by the Assignment Judge of the vicinage by certified public accountants or Registered Municipal Accountants or licensed Public Accountants designated by the Assignment Judge, who shall make a detailed report of such audit to the Assignment Judge and to the Deputy Clerk of the appropriate division of the Superior Court.

4:57-2. Procedure for Deposit and Withdrawal of Moneys

(a) Superior Court. Deposits with the Superior Court shall be made by check to the order of "Superior Court of New Jersey", and sent to the Clerk, who shall forthwith deposit it in an interest-bearing account in a depository designated by the Chief Justice, to the credit of the "Superior Court of New Jersey"; unless otherwise ordered by the Court as to a specified deposit or deposits, all estate and other funds so deposited with the Court shall be intermingled. No moneys on deposit under this rule shall be drawn, except by a draft or check of the Clerk, countersigned by a judge of the court or person designated by the Chief Justice.

Orders to pay out shall be reviewed by the Clerk, or other person designated by the Chief Justice, prior to payment. No draft or check shall be drawn until the reviewing party has established that:

(1) the order is consistent with the account records as to the amount involved;

(2) all interested parties have received notice of, or have consented to, the application to have the money paid out; and

(3) the order correctly identifies affected parties and those to whom payments are to be made.

Payment pursuant to the order shall be withheld pending the curing of any deficiencies.

Orders to pay out may be made under such terms and conditions as the trial court may, in its discretion, deem appropriate, subject to the above. Such orders may be stayed pending appeal upon application pursuant to R. 2:9-5 or, where necessary, R. 2:9-8.

(b) Accounts in the Surrogate's Court. Moneys paid into the Surrogate's Court shall be deposited in an interest-bearing trust account or accounts in responsible, federally insured banks, savings banks, trust companies or savings and loan associations, provided that no money shall be deposited in such account or accounts in excess of the maximum amount to which such deposits are insured. These funds shall be intermingled pursuant to guidelines promulgated by the Administrative Office of the Courts with the approval of the Chief Justice. The Surrogate shall maintain a record of the amounts deposited in each matter and may keep in a checking account a working reserve in an amount not exceeding that fixed by the Assignment Judge. Payment out of money deposited with the Surrogate's Court shall be made only on order of a Superior Court judge, except that the Surrogate is authorized to issue an order permitting the withdrawal of funds of minors upon their reaching the age of majority.

(c) Construction Lien Law Deposits. If the Clerk of the Superior Court accepted a deposit of Construction Lien Law funds when no litigation was pending, as permitted by R. 4:57-1, the Clerk is authorized, without court order, to withdraw or disburse such funds pursuant to the conditions set forth in N.J.S.A. 2A:44A-31.

RULE 4:57. DEPOSITS IN COURT; DEPOSITS IN LIEU OF BOND; WITHDRAWALS

4:57-1. Deposit in Court

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money, a party, on notice to every other party, and by leave of court, may deposit with the Superior Court Trust Fund all or any part of the sum. The Clerk of the Superior Court, however, may accept money submitted under the Construction Lien Law, N.J.S.A. 2A:44A-31, whether or not there is litigation pending with respect thereto.

4:56-2. Order to Show Cause to Approve Plan; Service

Upon the filing of the complaint, the court shall make an order returnable in not less than 14 days after its service, directing the depositors, other creditors and stockholders of the bank, and the Commissioner, if not the plaintiff, to show cause why the proposed plan or such modified plan as may be prepared under the direction of the court, should not be approved. Within one week after the entry of the order a copy thereof, together with a copy of the proposed plan, shall be mailed to each depositor, other creditor, and stockholder at the address appearing in the bank's records and to the Commissioner, if not the plaintiff. If, however, the class of stockholders or other class appears in the action by representation pursuant to R. 4:32, in addition to such service on the representatives, the order or a summary thereof approved by the court shall be printed once at least 10 days before the return day in a newspaper generally circulated in the municipality in which the bank has its principal office. The judgment of the court shall then be binding upon the persons so represented.

RULE 4:56. ACTION TO APPROVE A PLAN OF BANK REORGANIZATION

4:56-1. Summary Action; Complaint

Actions in the Superior Court to approve a plan of bank reorganization shall be summary unless the court otherwise orders. The written approval of the Commissioner of Banking and Insurance shall be annexed to the complaint unless the Commissioner or the bank is the plaintiff.

RULE 4:55. DISCHARGE OF INSOLVENT DEBTORS

An action by an insolvent debtor for discharge from imprisonment shall be brought pursuant to R. 4:67 (summary actions). The complaint shall set forth a just and true account of the debtor's full real and personal estate, a full and true inventory of all the debtor's deeds, bonds, notes, books of account, vouchers and securities whatsoever, and a list of all creditors, with the moneys due and owing to each of them, to the best of the debtor's knowledge. Service of the order to show cause shall be made on the plaintiff or plaintiff's attorney at whose suit the insolvent debtor is imprisoned or was arrested, and also on each of the creditors, in the manner provided by R. 4:67-3.

RULE 4:54. ASSIGNMENTS FOR BENEFIT OF CREDITORS

The practice relating to assignments for the benefit of creditors under N.J.S. 2A:19-1 et seq. shall conform as nearly as practicable to the procedure relating to insolvent corporations. Accounts of assignees for the benefit of creditors shall be settled pursuant to R. 4:87-1 and 4:87-2.

4:53-9. Destruction of Records

When an order is entered discharging a permanent or temporary custodial or statutory receiver or trustee, or thereafter, the court may authorize all of the books, records and papers of the corporation or partnership for which such receiver or trustee acted, and all financial papers and records in the hands of the trustee or receiver relating to the administration to be destroyed on or after a date to be fixed in such order. If the need appears, the court may require, as a condition of such destruction, that microfilm copies of said documents be prepared before the documents may be destroyed. No destruction shall be authorized, however, unless it appears that notice of the application has been given to all parties in interest, to the Commissioner of Internal Revenue of the United States and to the Division of Taxation, Department of the Treasury.

4:53-8. Accounting Upon Liquidation of a Financial Institution

Upon accounting proceedings in connection with the liquidation of a financial institution, service may be made pursuant to R. 4:56-2 (action to approve a plan of reorganization of a bank) upon the class representative in the action.

4:53-7. Inventory and Account; Audit

(a) Filing of Inventory and Periodic Accounts. Every receiver and trustee in liquidation appointed by the court shall, within three months after appointment, file with the Clerk of the Superior Court a just and true inventory, under oath, of the whole estate committed to the appointee's care, and of the manner in which the funds under the appointee's care, belonging to the estate, are invested, stating the income of the estate, and the debts contracted and expenditures made on account thereof. The appointee shall on each April 1 and October 1 thereafter, so long as any part of the estate, or of the income or proceeds thereof, remains to be accounted for, file with the Clerk of the Superior Court an account, under oath, of the amount remaining or invested, and of the manner in which the same is invested. The accountant shall be charged with the balance shown in the last previous account (or with the amount of the inventory in the case of a first accounting) and with all amounts collected in addition thereto; state the expenditures and other credits and the balance remaining and the manner in which the same is invested; and set forth all changes (either by way of addition or diminution or change of form) in the assets with which the accountant is charged which have occurred during the period covered by the account.

(b) Audit by Clerk; Countersignatory. The deputy clerk of the Superior Court shall audit the account of the receiver or trustee unless the court appoints a countersignatory to make the audit. An appointed countersignatory shall also countersign the checks of the receiver or trustee, keep a record of the purpose of each check, obtain a duplicate monthly bank statement of all checking accounts in the receiver's name, and shall be allowed, except in special circumstances a fee for services not exceeding that allowed by law to the clerk or surrogate for auditing fiduciaries' accounts.

(c) Duties of Fiduciary's Attorney. The attorney authorized by court order to represent a receiver or trustee in liquidation and the clerk of the court shall report to the court in writing any failure of the fiduciary to file the inventory or account in accordance with this rule. The account shall be settled in accordance with R. 4:87 on proceedings in the action in which the receiver or trustee was appointed.

(d) Order Approving Account. The order approving the account shall make a finding that the continuance of the receivership or trusteeship is necessary and shall continue it for a fixed period; but when a final account is approved by order, the order shall provide for the discharge of the fiduciary.

4:53-6. Partnership Receivers and Liquidating Trustees

Receivers appointed or directed to wind up the affairs of a partnership or pay its debts, and trustees in liquidation of trust estates, shall give notice of their appointment and notice to creditors to present their claims; and unless otherwise ordered by the court, the notices shall be similar to the notices required to be given by assignees by N.J.S. 2A:19-8 and published and mailed in the same manner. Except as otherwise ordered by the court, the receiver or trustee shall, at the expiration of 3 months from the time of appointment, file a list of the claims presented and proved; and the receiver or trustee, or any creditor or other person interested, may except to the allowance of the whole or any part of any claim presented, of which exception notice shall be given to the claimant, and thereupon such order shall be taken for adjudication upon the claim as the court directs. Unless otherwise directed by the court, this rule does not apply to receivers directed to continue a partnership business.

4:53-5. Attorney for the Plaintiff

Unless a receiver applies for, and until the receiver obtains leave to employ, an attorney, the plaintiff's attorney may proceed with the conduct of the cause, but shall not be allowed by the court any compensation for services rendered after the appointment of the receiver unless thereafter appointed the receiver's attorney by the court.

4:53-4. Allowances to Receivers and Attorneys

(a) Fixing of Allowances. The court in making allowances to receivers shall consider the extent and value of the actual services rendered and the pains, trouble and risk incurred by them in the discharge of their duties relative to the conduct and settlement of the receivership, having regard also to the avails secured for the trust estate. In making allowances to attorneys, the court shall consider the extent and value of their actual services to the receiver, having regard to the avails secured for the receiver through their efforts. The court may examine the receiver or attorney on oath or otherwise, to ascertain the facts upon which the allowances should be made to depend.

(b) Sharing of Compensation. A receiver, attorney for receiver, appraiser, auctioneer or accountant appointed by the court in connection with dissolution, liquidation or insolvency proceedings, who seeks or received compensation for services rendered therein, shall file with the court an affidavit stating that the applicant shall not in any form or guise share and has not agreed to share any compensation with any person or firm, other than with partners and persons regularly employed by the applicant or by the firm by which the applicant is employed, without express approval of the court. If there is such an agreement or understanding as to such a sharing requiring such approval, the applicant shall set forth in the petition for allowance the name or names of the person or persons to share in the compensation and the general nature of the contributing services rendered.

4:53-3. Employment of Attorney or Accountant

A receiver may employ an attorney or accountant only if the court determines that such employment is necessary to the proper conservation and administration of the estate. No order authorizing such employment shall be entered until after a hearing on the fiduciary's sworn application setting forth facts to support the need therefor, except that where necessary to prevent immediate and irreparable damage such employment may be authorized by the court until an application for authorization of such employment can be made pursuant to this rule. Notice of the application together with a copy of affidavit shall be mailed by ordinary mail, not less than 15 days prior to the date for hearing fixed thereon to all creditors or such of them as the court shall direct and, by certified mail, return receipt requested, to the District Director of Internal Revenue for the Internal Revenue District in which the proceedings are commenced, to the United States Attorney for the District of New Jersey, and to the Attorney General for the State of New Jersey. The court shall authorize such employment if satisfied of the necessity of the employment andthat the attorney or accountant is not interested in the litigation or in any of the parties thereto in such a way as would disqualify the attorney or accountant from properly serving the receiver as a fiduciary for all the stockholders and unsecured creditors of the estate. On request by an interested party, the court shall require the receiver to be examined under oath on these issues. The employment of more than one attorney may be authorized, but the total fees allowed them shall not be increased because of the number of attorneys employed.

4:53-2. Venue

The venue in actions in the Superior Court for the appointment of a receiver of a corporation or partnership shall be laid in the county where the principal place of business of the corporation or partnership is located.

RULE 4:53. RECEIVERS AND LIQUIDATING TRUSTEES

4:53-1. Notice; Dismissal; Appeal

No order appointing a custodial receiver under the general equity power of the court shall be granted without the consent of or notice to the adverse party, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result to the applicant before notice can be served and a hearing had thereon. Such an order granted without notice shall give the adverse party leave to move for the discharge of the receiver on not more than 2 days' notice; and shall direct a corporation or a partnership for whom a custodial receiver has been appointed to show cause why a receiver should not be appointed under the power conferred by statute. No statutory receiver shall be appointed for a corporation without giving it notice and an opportunity to be heard; and an order appointing a statutory receiver for a corporation shall give the stockholders and creditors of the corporation leave, at a specified time and place, to show cause why the receiver should not be continued. An action in which a receiver of a corporation has been appointed, or applied for shall not be dismissed except by order of the court. An order appointing a statutory or liquidating receiver shall be deemed final for the purposes of appeal.

4:52-7. Labor Disputes

These rules do not supersede N.J.S. 2A:15-51 to 58 (Injunctions in Labor Disputes).

4:52-6. Stay of Action in Superior Court

No injunction or restraint shall be granted in one action to stay proceedings in another pending action in the Superior Court, but such relief may be sought on counterclaim or otherwise in the pending action.

4:52-5. Denial of Application

A statement of the denial of an application for a temporary restraining order or an interlocutory injunction shall be made on the complaint or affidavit which shall then be filed.

4:52-4. Form and Scope of Injunction or Restraining Order

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon such parties to the action and such of their officers, agents, employees, and attorneys, and upon such persons in active concert or participation with them as receive actual notice of the order by personal service or otherwise.

4:52-3. Security

The court, on granting a temporary restraining order or interlocutory injunction or at any time thereafter, may require security or impose such other equitable terms as it deems appropriate.

4:52-2. Temporary Restraint and Interlocutory Injunction-During Pendency of Action

During the pendency of an action, either a temporary restraint or an interlocutory injunction may be applied for either by motion or by order to show cause. The order to show cause shall be applied for and proceeded with in accordance with the provisions of R. 4:52-1, insofar as applicable.

RULE 4:52. INJUNCTIONS

4:52-1. Temporary Restraint and Interlocutory Injunction-Application on Filing of Complaint

(a) Order to Show Cause With Temporary Restraints. On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action. The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available. The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon. If the order to show cause includes temporary restraints or other interim relief and was issued without notice to the defendant, provision shall be made therein that the defendant shall have leave to move for the dissolution or modification of the restraint on 2 days' notice or on such other notice as the court fixes in the order. The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period. The order to show cause may be in the form in Appendices XII-G and -H to the extent applicable.

(b) Order to Show Cause as Process; Service. If the order to show cause issues upon the filing of the complaint, no summons shall issue in the action if the order contains the name and address of plaintiff's attorney, if any, otherwise plaintiff's address; the time within which defendant shall serve and file an answer upon plaintiff or plaintiff's attorney as provided by these rules; and a notice to defendant that upon failure to so file and serve an answer, judgment by default may be rendered against the defendant for the relief demanded in the complaint. The order shall be served upon defendant together with a copy of the complaint and any supporting affidavits at least 10 days before the return date and in the manner prescribed by R. 4:4-3 and 4:4-4 for service of summons, unless the court orders a shorter or longer time or other manner of service.

(c) Hearing; Briefs. Oral testimony may be taken in the court's discretion on the return date of the order to show cause and on the return date of defendant's motion to dissolve or modify the temporary restraint. Briefs shall be submitted in support of the application for an interlocutory injunction.

4:51-5. Effect of Prior Writ of Attachment

A writ of ne exeat or a writ of capias ad respondendum shall not issue against a defendant whose property shall have been attached under a writ issued in the same action, except as provided in R. 4:60-4 (attachment and arrest).

4:51-4. Capias; Fraud in Inception of Contract

If defendant in an action on a contract has been held to bail upon the ground of fraud in the inception of the contract, the fact of the fraud may be inquired into at the trial of the action, and if the court then determines from the evidence and certifies on the record that there was no fraud, defendant's bail shall be discharged or defendant shall be released from custody.

4:51-3. Motion to Discharge Writ

(a) Motion to Discharge Before Trial. The defendant may attack an arrest made under a writ of ne exeat or capias ad respondendum by a motion to discharge on such short notice as the court directs. Upon such motion the court shall determine the sufficiency, in fact and law, of the proof upon which the writ was issued, the plaintiff bearing the burden of proof. The defendant may cause the testimony of any person to be taken either before the court on the hearing of the motion or as provided in these rules for the taking of depositions. The court, if satisfied that the writ should not have issued, shall upon terms make such order for defendant's discharge and the discharge of the bail or bond, if any, as the circumstances require. If the writ was issued as original process, however, the action shall not abate but shall, unless otherwise ordered by the court, proceed as if commenced by summons.

(b) Discharge at Trial. If a defendant has been held to bail or bond and on the trial the court is satisfied that the writ should not have issued it may make a like order of discharge.

4:51-2. Execution; Bond

(a) Release on Bond or Cash Deposit. A defendant who is arrested either on a writ of capias ad respondendum or ne exeat and who fails or refuses to furnish a bond or cash deposit as is hereinafter described shall be brought immediately before the judge who issued the writ or the judge named therein, who shall forthwith advise defendant of the right to be released on bond with such sureties, if any, as the court shall by order direct, hear the defendant as to the amount of bail and fix the same by order, and advise defendant of the right to challenge the basis for the issuance of the writ pursuant to R. 4:51-3.

(b) Condition of Bond; Cash Deposit. The sheriff shall release the defendant upon the furnishing of a bond conditioned upon obeying the orders and process of the court pending the action and to such process as shall be issued to compel the performance of the judgment therein and that defendant shall appear before the court, or any officer thereof, when so required by court order. The sheriff may in lieu of bond accept a deposit in cash in the amount of the bail. The making of such deposit shall not prevent defendant from moving to set aside the order for bail. If the order for bail is later set aside or the defendant recovers judgment in the action, the money deposited shall be returned to the person who made the deposit; but if the plaintiff recovers judgment and the money is the defendant's, it shall be applied toward the satisfaction of the judgment.

(c) Exceptions or Objections to Bond or Bail. Exceptions or objections to bail or to the bond may be made by motion served upon the parties and the bail or the obligor on the bondwithin 20 days after bail or bond has been filed or posted. Upon such motion the court may approve the bail or bond or order new or additional bail or bond. If such new or additional bail or bond is not filed or posted and approved within the time specified in the order, the court shall order the bail to surrender the defendant at a specified time. The court may at any time, on notice of motion to the plaintiff and upon terms, reduce the bail or the bond to an amount deemed just under the circumstances.

RULE 4:51. NE EXEAT; CAPIAS

4:51-1. Issuance; Service

The writ of ne exeat or capias ad respondendum, serving as original or mesne process, shall issue only on court order after application supported by affidavit and, if the court directs, by the taking of oral testimony. The writ may issue against one or more of the defendants and shall be returnable at such time as the court directs. If issuing as original process it shall be served with the complaint and the defendant arrested and the writ shall state that the defendant's answer shall be served within 35 days after the arrest or within such further time as is permitted by these rules where a summons is served. The court shall fix the amount of bail, which shall be stated on the writ and shall direct the executing officer to release the defendant upon furnishing the officer with a bond or cash deposit in the amount of the bail as provided by R. 4:51-2(b) and shall further direct the executing officer that in the event the defendant is unable or refuses to furnish said bond or deposit, to bring defendant forthwith to the judge issuing the writ or to any other judge therein named. R. 4:51 does not supersede the ne exeat provisions of N.J.S.A. 49:3-45 (Real Estate Syndication Offerings Law).

4:50-3. Effect of Motion

A motion under R. 4:50 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment, nor does this rule limit the power of a court to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding.

4:50-2. Time of Motion

The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.

RULE 4:50. RELIEF FROM JUDGMENT OR ORDER

4:50-1. Grounds of Motion

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

4:49-2. Motion to Alter or Amend a Judgment or Order

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing orreconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

RULE 4:49. NEW TRIALS; AMENDMENT OF JUDGMENTS

4:49-1. Motion for New Trial

(a) Grounds of Motion. A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. On a motion for a new trial in an action tried without a jury, the trial judge may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.

(b) Time for Motion, Cross-Motion; Affidavits. A motion for a new trial shall be served not later than 20 days after the court's conclusions are announced in nonjury actions or after the return of the verdict of the jury. The motion shall be noticed for hearing and argued no later than the second regular motion day following the service thereof, unless the court for good cause shown orders the hearing fixed for either an earlier or a later date. The opposing party may, within 10 days after service of the motion, serve a cross-motion for a new trial returnable at the same time and place as the motion. If a motion for a new trial is based upon affidavits they shall be served with the motion; opposing affidavits shall be served within 10 days thereafter which period may be extended for an additional period not exceeding 20 days either by written stipulation of the parties or court order. The court may permit reply affidavits. Except in special circumstances the motion shall be decided by the judge on trial notes without awaiting a transcript of the testimony.

(c) On Initiative of Court. Not later than 20 days after entry of judgment the court on its own motion may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter the court may grant a motion for a new trial timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

(d) Motion for New Trial as Not Barring Appeal. A motion for a new trial or any action or adverse determination on the motion shall not bar an appeal or the review of any matter on appeal.

RULE 4:48A. JUDGMENTS FOR MINORS AND MENTALLY INCAPACITATED PERSONS

(a) Minor. In the event of a judgment for a minor after trial or settlement, the court shall dispense with the giving of a bond and, except as otherwise ordered by the court, shall direct the proceeds of the judgment, if it does not exceed $5,000 to be disposed of pursuant to N.J.S.A. 3B:12-6, and if it exceeds the same, then to be deposited in court pursuant to N.J.S.A. 3B:15-16 and 17. A copy of the order directing deposit of the proceeds shall be furnished by the court to the surrogate on its entry.

(b) Mentally Incapacitated Persons. If a judgment is in favor of a mentally incapacitated person, the court shall by order either dispense with the giving of a bond by the guardian and direct that the proceeds of the judgment be deposited in court to be handled in the same manner as in the case of a minor, or make such other provision for the disposition of the proceeds of the judgment as may be in the best interest of the mentally incapacitated person.

(c) Withdrawals. Withdrawal of funds deposited pursuant to this rule shall be sought by notice of motion supported by an affidavit explaining the necessity for the requested withdrawal of funds and filed in the Superior Court, Chancery Division, Probate Part. The proceeding shall be ex parte unless there are adverse interests or unless the court otherwise orders.

4:48-4. Recourse by Some Judgment Debtors Against Other Judgment Debtors

If a judgment is recovered against 2 or more persons, one of whom, liable thereon secondarily or equally with any other, satisfies the judgment, or when bail in a civil action is compelled to pay a judgment against a defendant, the person paying the judgment may on motion and notice to the other persons in interest, excluding the judgment creditor, apply to the court for an order allowing the paying party the full benefit and control of the judgment and any outstanding execution. The court may make such order, on terms, and may direct that new execution issue for the purpose of compelling payment or contribution by any party liable in the amount fixed by the court. If the motion is granted the judgment shall be revived to the extent only of a judgment effective as of the date of such revival in favor of the person or persons applying as against the co-defendant or co-defendants or the person for whom bail was given. The clerk of the court in which the judgment is entered shall enter upon the margin of the record of the judgment the notation of revival of the judgment to the extent aforesaid and the date and docket number of the order of revival so entered; or, if the said judgment is docketed, the transcript shall include said notation, and the clerk of the court in which the same is docketed shall make like marginal entry. The order of revival shall be indexed by the clerk as a revived judgment.

4:48-3. Entry of Satisfaction on Payment of Moneys Into Court

(a) Motion for Payment. If a judgment or order for the payment of money is rendered or docketed, or the records thereof are in the custody of the court, the court shall on motion order the clerk of the court to accept payment of the amount thereof, with interest and costs, and, upon receiving payment, to enter satisfaction thereof on the record, if it shall appear upon the motion that:

(1) A tender of the amount due thereon, with interest and costs, has been made to the holder thereof, who refuses to accept the tender or to execute a satisfaction or warrant insatisfaction therefor; or

(2) The whereabouts of the holder thereof is unknown and an investigation, the results of which shall be set forth by affidavits on the motion, has been made to discover the holder's whereabouts; or

(3) An appeal is pending or the time limited for taking an appeal has not expired and the moving party intends to appeal; or

(4) A motion for relief from the judgment or order or for a new trial is pending, or the time limited for making such motion has not expired and the moving party intends to so move, but in that event the moving party shall, with the payment to the clerk, deliver a bond to the clerk in such amount and form and with such sureties as the court approves, as security for the payment of the costs on such motion.

(b) Terms of Motion; Effective Payment. A motion under R. 4:48-3(a) shall state the court in which the judgment or order was recovered or docketed, the parties thereto, the date and amount thereof, and the book and page of record and of the docketing. Payment to the clerk of the amount due upon judgment or order shall not be deemed to affect the right of any party to the action to appeal or to move for relief or for a new trial. The clerk shall hold moneys so paid into court subject to the further order of the court.

4:48-2. Entry of Satisfaction

(a) By Clerk. On the filing of a warrant, or the return, fully paid or satisfied, by the sheriff or other officer of any execution issued on any judgment, the clerk shall forthwith enter satisfaction on the record, provided, however, that satisfaction of a judgment in favor of a minor for more than $5000 shall not be entered except on court order, unless a guardian has been appointed for the minor's property or the minor has come of age. The clerk may enter satisfaction on the record as to any co-defendant filing a warrant stating that the party has paid the full share of the judgment even though a portion of the total judgment remains unsatisfied.

(b) By Order of Court. If a party receiving full satisfaction of a judgment fails to enter satisfaction on the record or deliver a warrant to satisfy, the court may on motion by the party making satisfaction, order satisfaction of the judgment to be entered of record.

RULE 4:48. SATISFACTION OR CANCELLATION OF JUDGMENT

4:48-1. Execution and Delivery of Warrant of Satisfaction

Upon satisfaction of a judgment duly entered and docketed, a warrant shall be executed and delivered to the party making satisfaction or to the party's representative, guardian or attorney, or to the clerk of the court, stating the judgment docket number or book and page where it is recorded and directing the clerk to satisfy the same of record. The warrant shall be executed by anyone entitled to receive satisfaction or by the attorney of record in the action. If executed by anyone other than the attorney of record the warrant shall be duly acknowledged. If executed by the attorney of record the attorney's certification shall suffice.

RULE 4:47. ENTRY OF JUDGMENT

Subject to the provisions of R. 4:42-2 (judgment on multiple claims) judgment shall be entered as follows:

(a) Unless the court otherwise orders, the clerk shall forthwith prepare, sign and enter the judgment in the Civil Docket without awaiting further direction by the court: (1) upon a general verdict of a jury; (2) upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, and (3) upon a special verdict or general verdict accompanied by answers to interrogatories which is forthwith convertible by the court into a money judgment or a judgment that relief shall be denied. Upon payment by the proponent of the judgment of the fee prescribed by N.J.S.A. 22A:2-7, the judgment shall be entered in the Civil Judgment and Order Docket in accordance with R. 4:101-2.

(b) Where the decision of the court grants other than monetary relief, or is reserved or where a special verdict or a general verdict accompanied by answers to interrogatories is not convertible pursuant to paragraph (a), the court shall promptly approve the form of judgment and the clerk of the court shall enter it.

The notation of a judgment in the Civil Docket constitutes the entry of the judgment, and the judgment shall not take effect before such entry unless the court in the judgment shall, for reasons specified therein, direct that it take effect from the time it is signed, but no such direction shall affect the lien or priority of the judgment. The entry of the judgment shall not be delayed for the taxing of costs.

4:46-6. Attorneys Fees

In an action tried to conclusion in which the prevailing party had made a pretrial motion for summary judgment or partial summary judgment that was denied, the court may, on motion, award counsel fees to the prevailing party if it finds that the denial of the motion was based on a factual contention raised in bad faith by the party opposing the motion with knowledge that it was a palpable sham or predicated on facts known or which should have been known to be false. The motion shall be made to the trial court and shall be decided on the basis of the record made in the summary judgment motion and the trial of the cause. The award of counsel fees shall be limited to those legal services rendered on the motion for summary judgment and for such subsequent services as were compelled by its denial.

4:46-5. Affidavits

(a) Specific Facts Required of Adverse Party Unless Affidavits Are Unavailable. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits meeting the requirements of R. 1:6-6 or as otherwise provided in this rule and by R. 4:46-2(b), setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered unless it appears from the affidavits submitted, for reasons therein stated, that the party was unable to present by affidavit facts essential to justify opposition, in which case the court may deny the motion, may order a continuance to permit additional affidavits to be obtained, depositions to be taken or discovery to be had, or may make such other order as may be appropriate.

(b) Affidavits Made in Bad Faith. If the court is satisfied, at any time, that any of the affidavits submitted pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses resulting from the filing of the affidavits, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

4:46-4. Leave to Proceed Upon Terms

Leave to proceed may be given unconditionally, or upon such terms as to giving security, or time or mode of trial, or otherwise, as is deemed just.

4:46-3. Case Not Adjudicated on Motion

(a) Order Limiting Factual Controversy. If on motion under this rule judgment is not rendered upon the whole action or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall, if practicable, ascertain what material facts, including facts as to the amount of damages, exist without substantial controversy and shall thereupon make an order specifying those facts and directing such further proceedings in the action as are appropriate. Upon trial of the action the facts so specified shall be deemed established.

(b) Order for Trial. If after the inquiry prescribed by paragraph (a) of this rule it appears to the court at the hearing of the motion that the case may be fully or partially adjudicated upon limited testimony, with or without specific further discovery, the court shall, if practicable, enter an order fixing a date certain for the trial of specifically identified disputed factual issues and, if appropriate, fixing the subject, mode, and time for completion of discovery.

4:46-2. Motion and Proceedings Thereon

(a) Requirements in Support of Motion. The motion for summary judgment shall be served with briefs, a statement of material facts and with or without supporting affidavits. The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on. A motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.

(b) Requirements in Opposition to Motion. A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.

(c) Proceedings and Standards on Motions. The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. The court shall find the facts and state its conclusions in accordance with R. 1:7-4. A summary judgment or order, interlocutory in character, may be rendered on any issue in the action (including the issue of liability) although there is a genuine factual dispute as to any other issue (including any issue as to the amount of damages). Subject to the provisions of R. 4:42-2 (judgment upon multiple claims), a summary judgment final in character may be rendered in respect of any portion of the damages claimed.

RULE 4:46. SUMMARY JUDGMENT

4:46-1. Time for Making, Filing, and Serving Motion

A party seeking any affirmative relief may, at any time after the expiration of 35 days from the service of the pleading claiming such relief, move for a summary judgment or order on all or any part thereof or as to any defense. Said motion, however, shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown, and if the decision is not communicated to the parties at least 10 days prior to the scheduled trial date, an application for adjournment shall be liberally granted. A party against whom a claim for such affirmative relief is asserted may move at any time for a summary judgment or order as to all or any part thereof. Except as otherwise provided by R. 6:3-3 (motion practice in Special Civil Part) or unless the court otherwise orders, a motion for summary judgment shall be served and filed not later than 28 days before the time specified for the return date; opposing affidavits, certifications, briefs, and cross-motions for summary judgment, if any, shall be served and filed not later than 10 days before the return date; and answers or responses to such opposing papers or to cross-motions shall be served and filed not later than four days before the return date. No other papers may be filed without leave of court.

4:45-2. Procedure to Confess Judgment

No judgment shall be entered on warrant of attorney in any action on a bond or other instrument for the payment of money, except on motion after notice to the defendant served in lieu of summons in accordance with R. 4:4-4 or by registered or certified mail. On the return day of the motion, the attorney at law, confessing judgment pursuant to the warrant, shall produce to the court the warrant therefor, the bond or instrument, and the affidavit of the plaintiff or plaintiff's attorney or agent, to which is attached a copy of the warrant and instrument, stating the true consideration for the liability stated in the instrument, the amount then justly due the plaintiff, and that the judgment is not confessed with a fraudulent intent or to protect the property of the defendant from creditors. The court may require additional proof in such form as it directs that the warrant was duly executed, the person liable is living and was notified of the application, and the debt or a part thereof is unsatisfied. The court shall then, if satisfied with the proofs, order entry of a judgment for such amount as it finds to be due.

RULE 4:45. JUDGMENT BY CONFESSION

4:45-1. Warrant of Attorney

A judgment by confession shall not be entered upon a warrant of attorney which is included in the body of a bond or other instrument for the payment of money

4:44–3. Hearing; Order; Expenses

All proceedings to enter a judgment to consummate a settlement in matters involving minors and mentally incapacitated persons shall be heard by the court without a jury. The court shall determine whether the settlement is fair and reasonable as to its amount and terms. In the case of a structured settlement providing for deferral of all or part of the proceeds thereof, the court shall also satisfy itself, based on the financial security of the obligor or surety and such other relevant facts as may be adduced, of the reasonable certainty that all future payments will be made as proposed by the settlement. If the court approves the settlement it shall enter an order reciting the action taken and directing the appropriate judgment in accordance with R. 4:48A, whose provisions shall also apply to deferred payments under structured settlements. The court, on the request of the claimant or the claimant's attorney or on its own motion, may approve the expenses incident to the litigation, including attorney's fees. If the fees of the attorney representing the guardian ad litem are to be paid by the defendant, the defendant shall upon the court's request make available to it defendant's complete file in the action.

4:44-2. Medical Testimony

Medical testimony as to the injuries of a minor or mentally incapacitated person given in proceedings to obtain the approval of a settlement shall be that of the attending or consulting physician and may be submitted by affidavit unless the court, for good cause shown, permits the testimony of other medical experts or in its discretion requires the physician's personal appearance.

RULE 4:44. PROCEEDINGS TO APPROVE SETTLEMENTS

4:44-1. Venue; Filing

Actions brought in the Superior Court on behalf of a minor or mentally incapacitated person, instituted without process, for the purpose of obtaining the court's approval of a settlement shall be brought in any county in which the venue might be laid under R. 4:3-2, and in such actions in the Superior Court, the papers shall, unless the court otherwise orders, be filed with the deputy clerk of the Superior Court in the county of venue before the hearing on the application for approval.

4:43-4. Plaintiffs, Counterclaimants, Cross-Claimants

The provisions of R. 4:43 apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim.

4:43-3. Setting Aside Default

A party's motion for the vacation of an entry of default shall be accompanied by (1) either an answer to the complaint and Case Information Statement or a dispositive motion pursuant to Rule 4:6-2, and (2) the filing fee for an answer or dispositive motion, which shall be returned if the motion to vacate the entry of default is denied. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 4:50.

4:43-2. Final Judgment by Default

After a default has been entered in accordance with R. 4:43-1, except as otherwise provided by R. 4:64 (foreclosures), but not simultaneously therewith, a final judgment may be entered in the action as follows:

(a) By the Clerk. If the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant, if not a minor or mentally incapacitated person. If prejudgment interest is demanded in the complaint the clerk shall add that interest to the amount due provided the affidavit of proof states the date of defendant's breach. If the judgment is based on a document of obligation that provides a rate of interest, prejudgment interest shall be calculated in accordance therewith; otherwise it shall be calculated in accordance with Rule 4:42-11(a). If the claim is founded upon a note, check or bill of exchange or is evidenced by entries in the plaintiff's book of account, or other records, a copy thereof shall be attached to the affidavit. If the application for entry of default judgment is made after the expiration of six months following the entry of default, notice thereof shall be given to the defendant by ordinary mail, and proof of service thereof shall accompany the application.

(b) By the Court. By the Court. In all other cases, except Family Part matters recognized by Part V of these Rules, the party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R. 1:6, served on all parties to the action, including the defaulting defendant or the representative who appeared for the defaulting defendant. No judgment by default shall be entered against a minor or mentally incapacitated person unless that person is represented in the action by a guardian or guardian ad litem who has appeared therein. If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant’s representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate. The notice of proof hearing shall be by ordinary mail addressed to the same address at which process was served unless the party entitled to judgment has actual knowledge of a different current address for the defaulting defendant. Proof of service of the notice of motion and notice of any proof hearing shall certify that the plaintiff has no actual knowledge that the defaulting defendant’s address has changed after service of original process or, if the plaintiff has such knowledge, the proof shall certify the underlying facts. In tort actions involving multiple defendants whose percentage of liability is subject to comparison and actions in which fewer than all defendants have defaulted, default judgment of liability may be entered against the defaulting defendants but such questions as defendants' respective percentages of liability and total damages due plaintiff shall be reserved for trial or other final disposition of the action. If application is made for the entry of judgment by default in deficiency suits or claims based directly or indirectly upon the sale of a chattel which has been repossessed, the plaintiff shall prove before the court the description of the property, the amount realized at the sale or credited to the defendant and the costs of the sale. In actions for possession of land, however, the court need not require proof of title by the plaintiff. If application is made for the entry of judgment by default in negligence actions involving property damage only, proof shall be made as provided by R. 6:6-3(c).

(c) Conformance of Judgment With Pleading; Service of Judgment. Whether entered by the clerk or the court, the final judgment shall not be different in kind nor exceed the amount demanded in the pleading, except that in continuing causes, installments coming due after the filing of the pleading but before entry of judgment may be added to the amount of the demand stated in the pleading. Within seven days after receipt of the executed judgment from the court, the proponent of the judgment shall serve a copy thereof on the defaulting defendant as required by R. 1:5-2 except that service may be made by ordinary mail alone.

(d) Failure to Apply for Judgment Within Four Months. If a party entitled to a judgment by default fails to apply therefor within four months after the entry of the default, the court shall issue a written notice in accordance with R. 1:13-7(a).

RULE 4:43. DEFAULT

4:43-1. Entry of Default

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party. Except where the default is entered on special order of the court, the moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.

RULE 4:43. DEFAULT

4:43-1. Entry of Default

If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party. Except where the default is entered on special order of the court, the moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.

4:42–11. Interest; Rate on Judgments; in Tort Actions

(a) Post Judgment Interest. Except as otherwise ordered by the court or provided by law, judgments, awards and orders for the payment of money, taxed costs and counsel fees shall bear simple interest as follows:

(i) For periods prior to January 2, 1986, the annual rate of return shall be as heretofore provided by this rule, namely, 6% for the period prior to April 1, 1975; 8% for the period between April 1, 1975 and September 13, 1981; and 12% for the period between September 14, 1981 and January 1, 1986.

(ii) For judgments not exceeding the monetary limit of the Special Civil Part at the time of entry, regardless of the court in which the action was filed: commencing January 2, 1986 and for each calendar year thereafter, the annual rate of interest shall equal the average rate of return, to the nearest whole or one-half percent, for the corresponding preceding fiscal year terminating on June 30, of the State of New Jersey Cash Management Fund (State accounts) as reported by the Division of Investment in the Department of the Treasury.

(iii) For judgments exceeding the monetary limit of the Special Civil Part at the time of entry: in the manner provided for in subparagraph (a)(ii) of this Rule until September 1, 1996; thereafter, at the rate provided in subparagraph (a)(ii) plus 2% per annum.

Post-judgment interest may be included in the calculation of an attorney's contingency fee.

(b) Tort Actions. Except where provided by statute with respect to a public entity or employee, and except as otherwise provided by law, the court shall, in tort actions, including products liability actions, include in the judgment simple interest, calculated as hereafter provided, from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest. Prejudgment interest shall not, however, be allowed on any recovery for future economic losses. Prejudgment interest shall be calculated in the same amount and manner provided for by paragraph (a) of this rule except that for all periods prior to January 1, 1988 interest shall be calculated at 12% per annum. The contingent fee of an attorney shall not be computed on the interest so included in the judgment.

4:42-10. Search Fees

(a) Fees Allowable. In an action for the foreclosure of a mortgage or tax certificate or for partition and sale of realty, the court or the clerk may, as a matter of discretion, tax as part of the taxable costs all legal fees and reasonable charges necessarily paid or incurred in procuring searches relative to the title of the subject premises, provided that the minimum fee shall be $75 and the maximum fee shall be $500. If, however, 1% of the amount found due plaintiff is more than $75 and less than $500, such 1% shall be the maximum fee. In tax foreclosure actions brought to foreclose tax sale certificates on more than one parcel, the fees herein prescribed shall apply to each separate parcel, except, however, that in in rem tax foreclosure actions pursuant to R. 4:64-7, the fee shall be $75 for each separate parcel, and the maximum fee herein prescribed shall not apply. The court or the clerk may also authorize inclusion of all legal fees and charges necessarily incurred for searches required for unpaid taxes or municipal liens and for searches required to enable the officer making public sale to insert in the notices, advertisements and conditions of sale, a description of the estate or interest to be sold and the defects in title and liens or encumbrances thereon, as authorized by law.

(b) Affidavit of Fees; Limitations. Fees for searches shall not be taxed, unless prior to the taxing thereof the plaintiff or plaintiff's attorney has filed an affidavit setting forth an itemized statement of the fees and charges for which taxation is asked, and including only such fees and charges as were actually and necessarily paid or incurred for the purpose of the action. Without court order no search fees shall be certified or taxed for searches respecting the state ofthe title or encumbrances thereon prior to the commencement of the co-tenancy in partition actions, or prior to the date of the mortgage in foreclosure actions. In tax foreclosures where the plaintiff is other than a municipality a notice similar to that required by R. 4:42-9(a)(5) shall be sent where search fees are to be applied for.

4:42-9. Counsel Fees

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

(1) In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5(c).

(2) Out of a fund in court. The court in its discretion may make an allowance out of such a fund, but no allowance shall be made as to issues triable of right by a jury. A fiduciary may make payments on account of fees for legal services rendered out of a fund entrusted to the fiduciary for administration, subject to approval and allowance or to disallowance by the court upon settlement of the account.

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate. In a guardianship action, the court may allow a fee in accordance with R. 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem.

(4) In an action for the foreclosure of a mortgage, the allowance shall be calculated as follows: on all sums adjudged to be paid the plaintiff amounting to $5,000 or less, at the rate of 3.5%, provided, however, that in any action a minimum fee of $75 shall be allowed; upon the excess over $5,000 and up to $10,000 at the rate of 1.5%; and upon the excess over $10,000 at the rate of 1%, provided that the allowance shall not exceed $7,500. If, however, application of the formula prescribed by this rule results in a sum in excess of $7,500, the court may award an additional fee not greater than the amount of such excess on application supported by affidavit of services. In no case shall the fee allowance exceed the limitations of this rule.

(5) In an action to foreclose a tax certificate or certificates, the court may award a counsel fee not exceeding $500 per tax sale certificate in any in rem or in personam proceeding except for special cause shown by affidavit. If the plaintiff is other than a municipality no counsel fee shall be allowed unless prior to the filing of the complaint the plaintiff shall have given not more than 120 nor fewer than 30 days' written notice to all parties entitled to redeem whose interests appear of record at the time of the tax sale, by registered or certified mail with postage prepaid thereon addressed to their last known addresses, of intention to file such complaint. The notice shall also contain the amount due on the tax lien as of the day of the notice. A copy of the notice shall be filed in the office of the municipal tax collector.

(6) In an action upon a liability or indemnity policy of insurance, in favor of a successful claimant.

(7) As expressly provided by these rules with respect to any action, whether or not there is a fund in court.

(8) In all cases where counsel fees are permitted by statute.

(b) Affidavit of Service. Except in tax and mortgage foreclosure actions, all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought. If the court is requested to consider the rendition of paraprofessional services in making a fee allowance, the affidavit shall include a detailed statement of the time spent and services rendered by paraprofessionals, a summary of the paraprofessionals' qualifications, and the attorney's billing rate for paraprofessional services to clients generally. No portion of any fee allowance claimed for attorneys' services shall duplicate in any way the fees claimed by the attorney for paraprofessional services rendered to the client. For purposes of this rule, "paraprofessional services" shall mean those services rendered by individuals who are qualified through education, work experience or training who perform specifically delegated tasks which are legal in nature under the direction and supervision of attorneys and which tasks an attorney would otherwise be obliged to perform.

(c) Statement of Fees Received. All applications for the allowance of fees shall state how much had been paid to the attorney (including, in a matrimonial action, the amount, if any, received by the attorney from pendente lite allowances) and what provision, if any, has been made for the payment of fees to the attorney in the future.

(d) Prohibiting Separate Orders for Allowances of Fees. An allowance of fees made on the determination of a matter shall be included in the judgment or order stating the determination.

4:42-8. Costs

(a) Parties Entitled. Unless otherwise provided by law, these rules or court order, costs shall be allowed as of course to the prevailing party. The action of the clerk in taxing costs is reviewable by the court on motion.

(b) Defendants in Certain Actions. Costs shall be allowed against a defaulting defendant in a replevin action only if the defendant has refused to deliver the subject goods and chattels pursuant to written demand therefor made before commencement of the action. Costs shall not be allowed against a defendant in a quiet title action who defaults or files an action disclaiming any right in the subject property, and a defendant in such action who denies in the answer claiming or ever having claimed any right in the subject property may, by court order, be allowed costs.

(c) Proof of Costs. A party entitled to taxed costs shall file with the clerk of the court an affidavit stating that the disbursements taxable by law and therein set forth have been necessarily incurred and are reasonable in amount, and if incurred for the attendance of witnesses, shall state the number of days of actual attendance and the distance traveled, if mileage is charged. Such costs may include fees paid to a private person serving process pursuant to R. 4:4-3, but not in an amount exceeding allowable sheriff's fees for that service.

(d) Effective Date. If a court allows costs to be taxed later than 6 months after entry of a judgment or order, or when the judgment or order becomes the subject of review or further litigation later than 6 months after it has been finally disposed of, the judgment for costs shall not take effect before the entry in the civil docket.

4:42-7. Damages in Continuing Cause

If damages are to be determined in respect of any continuing cause of action, they shall be determined to the time of the trial or assessment.

4:42-6. Effect of Demand for Judgment

Every final judgment, except final judgments by default, shall grant the relief to which the party in whose favor it is rendered is entitled even though that party has not demanded such relief in the pleadings, provided the parties have been given an adequate opportunity to be heard as to the relief granted.

4:42-5. Effect of Judgment for Possession

A plaintiff who has obtained a judgment for possession of real property, or the plaintiff's personal representative, is not precluded from bringing a subsequent action for the recovery of mesne profits and damages.

4:42-4. Effect of Unsatisfied Judgment Against One or More of Several Persons Jointly Liable

A judgment against a person jointly liable with another person shall not, unless it is satisfied, bar a judgment against the latter.

4:42-3. Declaratory Judgment

A judgment for declaratory relief, if appropriate, is not precluded by the existence of another appropriate remedy.

4:42-2. Judgment Upon Multiple Claims

If an order would be subject to process to enforce a judgment pursuant to R. 4:59 if it were final and if the trial court certifies that there is no just reason for delay of such enforcement, the trial court may direct the entry of final judgment upon fewer than all the claims as to all parties, but only in the following circumstances: (1) upon a complete adjudication of a separate claim; or (2) upon complete adjudication of all the rights and liabilities asserted in the litigation as to any party; or (3) where a partial summary judgment or other order for payment of part of a claim is awarded. In the absence of such direction, any order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice. To the extent possible, application for reconsideration shall be made to the trial judge who entered the order.

RULE 4:42. JUDGMENT; ORDERS; DAMAGES; COSTS

4:42-1. Form; Settlement

(a) Form; Contents. A judgment or order shall not contain a recital of the pleadings or the record of prior proceedings. It shall, however, include the following:

(1) A designation of the subject of the judgment or order (i.e., Summary Judgment Dismissing Complaint, Order Modifying Alimony);

(2) The date or dates on which the matter was heard or submitted;

(3) The appearances of counsel and parties appearing pro se;

(4) A separate numbered paragraph for each separate substantive provision of the judgment or order;

(5) The effective date of the judgment or order or of each provision if the effective date of any provision is different from the date of entry;

(6) A notation of whether the matter was opposed or unopposed as required by R. 1:6-2(a); and

(7) The notation prescribed by R. 1:6-2(f) respecting findings and conclusions and the annexation of a statement of reasons if required by that rule or by R. 1:7-4.

(b) Settlement by Motion or Consent. Except as otherwise provided by paragraphs (c) and (d) of this rule, by other rule or by law, and except for ex parte matters, no judgment or order shall be signed by the court unless the form thereof has been settled on motion on notice to all parties affected thereby who are not in default for failure to appear, or unless the written approval of such attorneys or parties to the form thereof is endorsed thereon. Formal written judgments or orders shall be presented to the court for execution within 10 days after its decision is made known, unless such time is enlarged for good cause.

(c) Settlement on Notice. In lieu of settlement by motion or consent, the party proposing the form of judgment or order may forward the original thereof to the judge who heard the matter and shall serve a copy thereof on every other party not in default together with a notice advising that unless the judge and the proponent of the judgment or order are notified in writing of specific objections thereto within 5 days after such service, the judgment or order may be signed in the judge's discretion. If no such objection is timely made, the judge may forthwith sign the judgment or order. If objection is made, the matter may be listed for hearing in the discretion of the court.

(d) Form of Consent Judgments and Orders. The court may enter a consent judgment ororder without the signatures of all counsel of record and parties pro se who have filed a responsive pleading or who have otherwise entered an appearance in the action, provided the form of judgment or order contains the recital that all parties have in fact consented to the entry of the judgment or order in the form submitted. If any party to be bound by the consent judgment has not filed a responsive pleading or entered an appearance in the action, the consent judgment must bear the signature of each such party or such party's attorney, indicating consent to the form and entry of the judgment. No supporting papers shall be required for the entry of a consent judgment unless the court specifically finds good cause to require the filing of such submissions. Consent judgments may be entered in accordance with this rule at any time following service of the complaint, whether or not an answer or any other responsive pleading has been served or filed.

(e) Submission and Filing of Orders and Judgments. An original and one copy of all forms of orders and judgments shall be submitted to the judge together with a self-addressed, stamped envelope. The judge signing the order or judgment shall file the original in accordance with R. 1:5-6(b), and the copy shall be returned by the judge to the attorney submitting the order or judgment. The proponent may transmit the copy to the Clerk of the Superior Court, together with the fee prescribed by N.J.S.A. 22A:2-7, for appropriate disposition pursuant to R. 4:101. In matrimonial matters such additional copies of the orders shall be submitted as required by the court.

4:41-5. Report

(a) Contents and Filing. The master shall prepare a report upon the matters submitted including any findings of fact and conclusions of law required by the order. The master shall file the report with the court within 10 days after the conclusion of the hearings, unless the court extends the time within such 10-day period by order reciting the unusual circumstances requiring such extension. The court shall forthwith notify all parties by mail of the filing of the report. Unless otherwise ordered, the master shall file the original transcript of the proceedings and the original exhibits with the deputy clerk of the Superior Court in the county where the case is to be tried, who shall, if the reference was made in an action pending in the Superior Court, transmit them to the Clerk of the Superior Court 3 years after the filing of the complaint, unless the court otherwise directs.

(b) In Non-jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless contrary to the weight of the evidence. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties and may move the court for action upon the report and the objections thereto. The court after hearing on the motion may adopt the report, modify or reject it in whole or in part, receive further evidence, or recommit it with instructions. A party failing to object in the trial court to the master's findings shall be precluded from raising objections to the findings on appeal.

(c) In Jury Actions. In an action to be tried by a jury the findings of the master upon the issues submitted are admissible as evidence of the matters found, and may together with the evidence taken before the master be read to the jury, subject to the ruling of the court upon objections to the report or the evidence.

(d) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report may thereafter be considered.

(e) Draft Report. Before filing the report a master may submit a draft thereof to the attorneys for all parties for the purpose of receiving their suggestions.

4:41-4. Proceedings

(a) Meetings. Upon the entry of an order of reference the court shall forthwith transmit a copy thereof to the master who shall, unless the order otherwise provides, forthwith set a timeand place for the first meeting of the parties or their attorneys to be held within 10 days after the date of the order and notify the parties or their attorneys thereof. The hearings shall thereafter be held continuously on all regular court days unless otherwise ordered by the court due to unusual circumstances stated at length in the order. Any party, on notice to the parties and master, may apply to the court for an order requiring the master to expedite the proceedings and to make a report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(b) Witnesses. The parties may compel the attendance of witnesses before the master by the issuance and service of subpoenas as provided by R. 1:9. A witness failing to appear or give evidence may be punished as for a contempt and subjected to the sanctions provided by R. 1:9 and R. 4:23-1 to 4:23-4, inclusive.

(c) Statement of Accounts. When matters of accounting are in issue, the master may prescribe the form in which the accounts shall be submitted and may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs.