Bd. of Tenement House Supervision of N.J. v Schlechter

• Decision Date: 25 June 1912
• Citation: 83 N.J.E. 88,83 A. 783
• Parties: BOARD OF TENEMENT HOUSE SUPERVISION OF NEW JERSEY v. SCHLECHTER.
• Court: New Jersey Supreme Court

83 A. 783

83 N.J.E. 88

BOARD OF TENEMENT HOUSE SUPERVISIONOF NEW JERSEY

v. SCHLECHTER.

Supreme Court of New Jersey.

June 25, 1912.

(Syllabus by the Court.)

Appeal from District Court.

Action by the Board of Tenement House Supervision of New Jersey against Mary J. Schlechter. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued February term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

Josiah Stryker (Edmund Wilson, Atty. Gen., on the brief), for appellant.

Hugh B. Reed, for appellee.

PARKER, J. We take up first the motion to dismiss the appeal. This is urged on several grounds. The first ground is that no bond was entered into as required by Act 1902, p. 565, as amended in 1910 (2 C. S. 2016, pl. 213a).

But it is plain that the appellant is a state agency. 4 C. S. p. 5354, § 203. Consequently the usual rule as to costs does not apply. See 30 N. J. Eq. 667, note.

Section 242 of the Practice Act (3 C. S. p. 4126) is no doubt applicable under section 68 of the District Court Act. (2 C. S. p. 1977.)

As there is no money judgment for defendant, there is nothing for a bond to secure.

The next ground is that the judge was without jurisdiction to settle the state of the case. The judgment was rendered on September 8th and normally the case should have been settled by September 23d. 2 C. S. p. 2017, pl. 213c. Under the power given by that section to extend the time, Judge Day of the district court of Morris county as acting judge of the court when the case was tried (2 C. S. p. 1959, § 19) granted an extension until October 20th; and on October 17th Judge MacLear of the trial court granted a further extension until November 24th. The case was settled by Judge Day on November 17th. The point made is that the extension by Judge MacLear was Invalid, as he did not try the case, but this is not essential; for it should be remembered that primarily the case is to be settled by the parties or their attorneys, and there is no reason why the power to extend the time for them to agree on a case, if possible, should be confined to the judge that tried the case. The extension of time may properly be granted by the judge conducting the court for the time being, and in granting this extension Judge MacLear was manifestly attending to the business of his own court. The ultimate settlement of the case properly devolved on the trial judge.

The last ground is that the appeal was not heard in this court at the next term after the judgment below, and that more than 20 days intervened between such judgment and the next term of this court. 2 C. S. 2017, pl. 213d. This is another section of the appeal act of 1902 (page 566). All the sections of that act should be read together; and clearly the Legislature never meant to cut off appeals in cases where the court below by extensions of time, perhaps at request of parties, puts it out of the power of appellant to bring the appeal on for hearing according to the course of practice in this court. In the present instance, when the case was settled on November 17th, this court had closed its regular session for oral argument of eases some days previously. Inasmuch as this appeal is classified as litigated common business, being in the nature of a certiorari (Green v. Heritage. 64 N. J. Law, 567, 46 Atl. 634), it cannot be brought on except by giving 10 days' notice and for the beginning of a term. Rule 76. The appeal act should not be construed to require impossibilities, and the requirement that the appeal should be heard at the next term after judgment is plainly inapplicable to cases where the state of the case is lawfully delayed so long as to render it impracticable under the law and rules of court to bring the appeal on for oral argument during the session of the court at such next term. The motion to dismiss the appeal will be denied; and this brings us to the merits.

The action was brought to recover a penalty for violation of the Tenement House Act (4 C. S. 5321, 5351, § 190) against appellee as owner in failing to provide the house owned by her and described in the proceedings with fire escapes as required by the act. The requirement in question is in section '35, which reads in part as follows: "Every now existing nonfireproof tenement house, more than three stories high, unless provided with outside fireproof stairways directly accessible to each apartment, shall have fire escapes located and constructed as hereafter described. * * *" The building in question had no fire escapes or outside fireproof stairways, and the decision turned upon the...