Barclay v. Linden Flight Service, Inc., s. 9182

• Decision Date: 30 June 1959
• Docket Number: Nos. 9182,9183,s. 9182
• Citation: 153 A.2d 400,56 N.J.Super. 434
• Parties: Olga T. BARCLAY, administratrix ad prosequendum, Petitioner-Respondent, v. LINDEN FLIGHT SERVICE, INC., Respondent, and Ayer Lease Plan, Inc., added respondent, pursuant to order of Deputy Director, Respondent-Appellant. Barbara B. VERNER, Petitioner-Respondent, v. LINDEN FLIGHT SERVICE, INC., and Ayer Lease Plan, Inc., Respondent-Appellant.
• Court: New Jersey County Court

Page 434

56 N.J.Super. 434

153 A.2d 400

Olga T. BARCLAY, administratrix ad prosequendum, Petitioner-Respondent, v. LINDEN FLIGHT SERVICE, INC., Respondent, and Ayer Lease Plan, Inc., added respondent, pursuant to order

of Deputy Director, Respondent-Appellant.

Barbara B. VERNER, Petitioner-Respondent, v. LINDEN FLIGHT SERVICE, INC., and Ayer Lease Plan, Inc.,

Respondent-Appellant.

Nos. 9182, 9183.

Monmouth County Court, Law Division, New Jersey.

June 30, 1959.

Joseph Tuso, Vineland, for petitioner-respondent Olga T. Barclay, administratrix ad pros.

Wise, Wise & Wichmann, Red Bank, for petitioner-respondent Barbara B. Verner.

Shanley & Fisher, Newark, for respondent Linden Flight Service, Inc.

Edward E. Kuebler, Newark, for respondent-appellant Ayer Lease Plan, Inc.

ASCHER, J.C.C.

Notices of appeal have been filed in each of the above entitled cases, April 9, 1959, by the respondent Ayer Lease Plan, Inc.

It appears that as a result of a motion the deputy director of the Division of Workmen's Compensation on March 30, 1959 directed that the respondent Ayer Lease Plan, Inc., be added pursuant to the order of the court.

The appeals of the respondent Ayer Lease Plan, Inc., are from the aforementioned interlocutory order adding Ayer Lease Plan, Inc., as a respondent, and for the failure of the deputy director to dismiss the amended petitions filed in the above entitled matters, insofar as they referred to the respondent Ayer Lease Plan, Inc.

All appeals from the Workmen's Compensation Division are controlled by the rules of the court, and in this instance are controlled by R.R. 5:2--5.

Ordinarily, an order would be made fixing the date for the hearing of the oral argument on the appeal; however, the matters presently before the court are in the nature of appeals from an interlocutory order, and not a final judgment. Therefore, the literal application of this section indicates that no appeals are permitted, except from a final judgment, and that interlocutory orders will not be considered. In support of this position it will be found that appeals from interlocutory judgments, orders, or determinations are dealt with under R.R. 2:2--3(a) of the Appellate Division, which provides as follows:

'This court shall have the power to permit in its discretion an appeal to be taken from any interlocutory order or judgment or from an interlocutory decision or action of any state administrative agency (other than those governed by Rules 5:2--5 and 5:2--9) * * *.'

Further authority for this position will be found in the Rules of the Supreme Court, and particularly in the rule controlling appeals to the County Court, under R.R. 1:2--12(a), which provides:

'Appeals to the county court from an order for determination of the Division of Workmen's Compensation shall be governed by Rule 5:2--5.'

Again, referring to R.R. 5:2--5(a) and its sub-sections, it will be found that no reference is made to an appeal being made to the County Court from anything other than a judgment of the Workmen's Compensation Division.

Counsel for the respondent Ayer Lease Plan, Inc., cites the case of Nemeth v. Otis Elevator Co., Inc., 52 N.J.Super. 373, 45 A.2d 525 (Law Div.1959), as authority for the appeal from an interlocutory order of the Division. In that decision Judge Duffy takes the position that from this exception in R.R. 2:2--3(a) it may be presumed that the unqualified term 'judgment,' as used in R.R. 5:2--5, embraces both final and interlocutory determinations. With this, this...