Braunstein v. Mut. Life Ins. Co. Of N.Y..

• Decision Date: 16 September 1943
• Docket Number: No. 13.,13.
• Parties: BRAUNSTEIN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: New Jersey Supreme Court

130 N.J.L. 629

33 A.2d 888

BRAUNSTEIN

v.MUTUAL LIFE INS. CO. OF NEW YORK.

No. 13.

Court of Errors and Appeals of New Jersey.

Sept. 16, 1943.

Appeal from Supreme Court.

Action by Sonya Braunstein against the Mutual Life Insurance Company of New York. From a judgment of the Supreme Court, 129 N.J.L. 447, 30 A.2d 32, dismissing on the merits a writ of certiorari to review a district court order setting aside a verdict for defendant, defendant appeals.

Appeal dismissed.

Collins & Corbin, of Newark (Edward A. Markley and James J. Langan, both of Jersey City, of counsel), for appellant.

Edward Gaulkin, of Newark, for respondent.

HEHER, Justice.

A verdict for defendant in the Second District Court of the City of Newark was set aside as against the weight of the evidence. The Supreme Court issued a writ of certiorari to review the action thus taken, and, after hearing, the writ was dismissed on the merits. Defendant appeals. It is maintained that ‘there were not present * * * facts warranting the action taken by the trial judge;’ that ‘There was no rule of law which warranted the court in setting aside the verdict;’ and that therefore the trial judge was ‘without jurisdiction’ to take such action, and the Supreme Court erred in dismissing the writ.

The certiorari was issued in the exercise of the Supreme Court's general discretionary supervisory power over proceedings in the District Court, and not in the nature of a common-law writ of error; and that Court properly disposed of the meritorious question. There was jurisdiction of the subject matter and of the parties. Vide R.S.1937, 2:32-120, N.J.S.A.; Degenring v. Kimble, 115 N.J.L. 379, 180 A. 685; Green v. Heritage, 64 N.J.L. 567, 46 A. 634. Appellant fails to differentiate between the utter absence of power and the merely illegal exercise of a granted power.

But no appeal lies from the judgment dismissing the writ. It is not in its essence final, and so is not appealable. The cause has not proceeded to final judgment. Jacquin v. Applegate, 128 N.J.L. 598, 27 A.2d 655. The case of Allgair v. Hickman, 82 N.J.L. 369, 81 A. 752, is directly in point. See, also, Guardian Life Insurance Co. v. State Board of Tax Appeals, 130 N.J.L. 478, 33 A.2d 885; Matthews v. Public Service Interstate Transportation Co., 130 N.J.L. 495, 33 A.2d 886, decided this day; and Vanderbach v. Hudson County Board of Taxation, 130 N.J.L. 490, 33 A.2d 887, likewise decided this day.

The appeal is accordingly...