119 A.2d 449 (N.J. 1955), A-45, Colacurcio Contracting Corp. v. Weiss

Docket Nº:A-45.
Citation:119 A.2d 449, 20 N.J. 258
Opinion Judge:WILLIAM J. BRENNAN, Jr., J.
Party Name:COLACURCIO CONTRACTING CORPORATION, a corporation of New Jersey, Plaintiff-Respondent, v. Ted WEISS, Defendant-Appellant.
Attorney:Abraham I. Mayer, Newark, for appellant (Mayer & Mayer, Newark, attorneys). Felice Castelli, Jersey City, for respondent (Nathan Blumberg, Jersey City, on the brief).
Judge Panel:Heher, J., dissented. For dismissal: Chief Justice VANDERBILT and Justices OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN-6. Opposed: Justice HEHER-1.
Case Date:December 12, 1955
Court:Supreme Court of New Jersey

Page 449

119 A.2d 449 (N.J. 1955)

20 N.J. 258

COLACURCIO CONTRACTING CORPORATION, a corporation of New Jersey, Plaintiff-Respondent,


Ted WEISS, Defendant-Appellant.

No. A-45.

Supreme Court of New Jersey.

December 12, 1955

Argued Nov. 14, 1955.

Page 450

Action for breach of contract wherein defendant counterclaimed. The court set aside verdict in favor of defendant on counterclaim and on leave of the Superior Court, Appellate Division, defendant appealed. The Superior Court, Appellate Division, affirmed judgment of court and defendant filed notice of appeal to the Supreme Court without seeking certification. The Supreme Court, William J. Brennan, Jr., J., held that where appeal to Supreme Court was based on contention that both the trial court and Superior Court, Appellate Division, should have determined that the case was not one for overthrowing the verdict within the standards provided, such contention, at best, presented a merely colorable question arising under constitutional provision making trial by jury inviolate and did not present constitutional question required for such an appeal.

Appeal dismissed.

Heher, J., dissented.

Page 451

[20 N.J. 260]Abraham I. Mayer, Newark, for appellant (Mayer & Mayer, Newark, attorneys).

Felice Castelli, Jersey City, for respondent (Nathan Blumberg, Jersey City, on the brief).

[20 N.J. 261] OPINION


The issue here is whether a judgment of the Appellate Division unanimously affirming an order of the trial judge setting aside a verdict as against the weight of the evidence presents ‘ a question arising under the Constitution of * * * this State’ appealable to this court of right under Art. VI, s V, par. 1 of the 1947 Constitution, and R.R. 1:2-1(a).

The complaint is for breach of contract to which the defendant counterclaimed. The jury returned a verdict for plaintiff of $544 on the complaint, and, for the defendant, of $5,462.11 on the counterclaim. In setting aside the verdict Judge Proctor stated:

'Gentlemen, I feel this way about this case: I was really shocked when the jury came in and gave the verdict for the defendant. I am fully cognizant in these cases the mere fact the judge does not agree with the verdict of the jury is not any reason for the judge to set aside a jury's verdict. However, the judge is primarily responsible to see that justice is done, and the rules give the judge of the court the power, under the label of mistake, passion, prejudice, or whatever those terms are, to set aside jury verdicts.

'I feel under the evidence before me and before this jury I would be remiss if I didn't set this aside. As I said, I was shocked by the verdict. I didn't expect the plaintiff to get what he was suing for but certainly I never dreamed that the jury would bring in a verdict for the full amount for the defendant on the counterclaim.

'I haven't set many verdicts aside. In fact, I think this will be the second one since last September. Even though I disagree with many verdicts-some verdicts, I don't mean many-I don't feel I should place myself as overlording the jury, except I do have some power in accepting jury verdicts.

'I have less compunction in setting aside this verdict than any I have set aside since I have been on the bench.'

The Appellate Division allowed defendant leave to appeal by order entered April 22, 1955 under R.R. 2:2-3(b), and on September 19, 1955 filed a unanimous Per curiam opinion which has not been published. The ground of the affirmance stated in the opinion is as follows:

'The pattern by which we are to appraise the action of the trial court is disclosed by the decision in [20 N.J. 262] Hartpence v. Grouleff, 15 N.J. 545, 548 (105 A.2d 514) (1954), and further elucidated by Judge Conford in Gallichio v. Gumina, 35 N.J.Super. 442 (114 A.2d 447) (App.Div.1955).

'It is the present decisional precedent that the action of the trial court in the determination of an application for a new trial should not be disturbed on appeal unless it is clearly and unequivocally manifest that the action of the trial court was without basis in

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law or fact, or both, with the result that there was a denial of justice under the law.

'We recognize the superior opportunity of the trial judge ‘ to know and equate all the factors' having pertinency to such an application. We have nonetheless thoughtfully examined the controversial issues implicated in the action and the transcription of the evidence, and we perceive in the record before us a rational basis for the allowance of a new trial.

'The causes of action alleged in the complaint and in the counterclaim are materially interrelated.

'We are not persuaded that the order under review results in a denial of justice under the evidence and the law of the case.'

Defendant filed a notice of appeal to this court without seeking...

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