Deverman v. Stevens Builders, Inc., A--227
| Decision Date | 05 May 1955 |
| Docket Number | No. A--227,A--227 |
| Citation | 114 A.2d 15,35 N.J.Super. 300 |
| Parties | Harry DEVERMAN, Plaintiff-Respondent, v. STEVENS BUILDERS, Inc., a corporation of the State of New Jersey, Defendant, and P. Michelotti & Sons, Inc., a corporation of the State of New Jersey, Defendant-Appellant. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Murray A. Laiks, Passaci, for defendant-appellant P. Michelotti & Sons, Inc. (Aaron Heller and Heller & Laiks, Passaic, attorneys).
Howard Stern, Paterson, for plaintiff-respondent (Peter Hofstra, Paterson, attorney).
Before Judges GOLDMANN, FREUND and CONFORD.
This is an action for damages to growing crops of plaintiff, a commercial nuseryman, resulting from building operations by defendants on nearby property. When first heard, the Chancery Division found the defendant, Stevens Builders, Inc., liable for the destruction of certain rose bushes but denied recovery for lack of proof as to damages. It awarded a judgment against defendant P. Michelotti & Sons, Inc. for damages to barberry bushes in the sum of $1,200, the amount being arrived at after an allowance for salvage. Plaintiff appealed the denial of recovery against Stevens and the amount of the award against Michelotti and Michelotti cross-appealed, claiming error in determining liability and improper assessment of damages.
On appeal the Appellate Division held: (1) plaintiff should be accorded an opportunity to present proof as to the damages to the rose bushes; and (2) the allowance for salvage as to the barberry bushes was not supported by evidence, but that opportunity to make proof of salvage should be accorded. No fault was found with the assessment of the damages by the trial court as to the barberry bushes, aside from the allowance for salvage. In its opinion the court stated the legal formula for admeasuring damages to a growing crop. The cause was remanded 'to allow submission of additional evidence as to damages.' 31 N.J.Super. 347, 106 A.2d 557, 558 (App.Div.1954).
On the remand plaintiff introduced proof as to the damages to the rose bushes and an award on this count was made against Stevens. It does not appeal. After concluding the taking of testimony as to damages to the rose bushes, the trial court said to counsel for the parties: 'Do you desire to offer any proof on the question of salvage as related to the barberry bushes?' Each of the counsel answered in the negative. Counsel for appellant, Michelotti, added: 'If your Honor please, I do not see how we could, except the proof that has already been submitted.' Whereupon, after asking whether any other proof was to be offered, the court concluded the hearing. Subsequently it entered judgment against Michelotti in the sum of...
To continue reading
Request your trial
-
State v. Sidoti
...and are not properly raised here. State v. Cusick, 116 N.J.Super. 482, 485, 282 A.2d 781 (App.Div.1971); Deverman v. Stevens Builders, 35 N.J.Super. 300, 114 A.2d 15 (App.Div.1955). ...
-
Long v. N.J. Tpk. Auth.
...function . . . to allow a collateral review of the first decision of this Division but only to adjudge whether it has been complied with." Ibid. "The ruling on the first appeal is the law of case." Ibid. "It is the peremptory duty of the trial court, on remand, to obey the mandate of the ap......
-
State v. Cusick
...Our decision became the law of the case and was, of course, binding upon the trial court on remand. Deverman v. Stevens Builders, Inc., 35 N.J.Super. 300, 302, 114 A.2d 15 (App.Div.1955). It is next argued that it was error for the trial judge to prohibit defendant from introducing testimon......
-
Campbell v. N.J. Dep't of Corr.
...that has been appealed for a second time, "[t]he ruling on the first appeal is the law of the case." Deverman v. Stevens Builders, Inc., 35 N.J. Super. 300, 302 (App. Div. 1955) (citing Hollister v. Fiedler, 30 N.J. Super. 203 (App. Div. 1954)). In Deverman, a case that was appealed for a s......