Giordano v. City Comm'n Of City Of Newark

• Decision Date: 30 June 1949
• Docket Number: Nos. A-303, M-177.,s. A-303, M-177.
• Citation: 67 A.2d 454
• Parties: GIORDANO v. CITY COMMISSION OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

67 A.2d 454

GIORDANO

v.CITY COMMISSION OF CITY OF NEWARK et al.

Nos. A-303, M-177.

Supreme Court of New Jersey.

Argued June 6, 1949.

Decided June 30, 1949.

Appeal from Superior Court, Appellate Division.

Certiorari proceeding by Stefano Giordano to review a determination of the Board of Adjustment of the City of Newark recommending, and a resolution by the City Commission granting, a variance from a city zoning ordinance to permit the United American Clubs, Inc., to extend its building beyond the average set back line on a certain street. Judgment setting aside the determination and resolution, 2 N.J.Super. 45, 64 A.2d 462, and defendants appeal.

Motion to dismiss appeal denied; judgment affirmed.

Nicholas Conover English, Newark, argued the cause for respondent (McCarter, English & Studer, Newark, attorneys).

Joseph A. Ward, Newark, argued the cause for appellants City Commission of the City of Newark and others (Thomas L. Parsonnet, Newark, attorney).

Lawrence Friedman, Newark, argued the cause for appellants United American Clubs, and others (Mario V. Farco, Newark, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

This appeal involves a variance from a provision of a zoning ordinance respecting a set back line, and we conclude the judgment of the Superior Court, Appellate Division, should be affirmed for the reasons expressed in its opinion, 2 N.J.Super. 45, 64 A.2d 462, supplemented as follows.

Appellants argued orally before us and in their briefs that the Board of Adjustment, having made an inspection of the premises in question and the properties in its immediate neighborhood, the members thereof were therefore, from the personal knowledge obtained from that inspection, entitled to grant the variance asked for.

We approve of the practice, where practical, of a board of adjustment making an inspection of the site and the neighborhood generally. Amon v. City of Rahway, 117 N.J.L. 589, 190 A. 506, (Sup.Ct.1937). Such first hand knowledge is invaluable in the determination of zoning cases but the knowledge thus gained cannot be made the basis, in whole or in part, for the award of a variance or a change in a zoning ordinance unless there appears in the record the facts respecting the physical situation disclosed by the inspection.

No determination can be permitted to rest upon undisclosed findings or information dehors the record. If such could be the parties would be denied the essence of a hearing, they would be kept in ignorance of the things controlling the action of the board, and due process would be flouted. The rights of the parties can only be protected, both in the trial tribunal and on review, by a full disclosure on the record of the facts relied upon for the board's findings. Scaduto v. Bloomfield, 127 N.J.L. 1, 20 A.2d 649 (Sup.Ct.1941); P.R.R. Co. v. N.J. State Aviation Comm., et al., 2 N.J. 64, 65 A.2d 61.

A motion was made before us by prosecutor-respondent to dismiss this appeal on the ground that the judgment appealed from is not such a judgment from which an appeal can be taken to this Court under the Constitution, the statutes or the Supreme Court rules.

This motion was held pending argument on the merits and while not necessary for the disposition of this particular case we deem the question of such importance to the bar, and particularly as it has caused much confusion, we will dispose of it.

The writ of certiorari in this case issued on May 26, 1948. The cause was transferred to the Appellate Division of the Superior Court by the operation of Art. XI, sec. IV, paragraph 8(b), Constitution (1947), N.J.S.A. and P.L.1948, chap. 367, sec. 14, N.J.S.A. 2:16-83. The cause was argued on January 31, 1949 before the Appellate Division of the Superior Court and was decided March 15, 1949.

The respondent argues that an appeal does not lie to this Court from such a judgment of the Appellate Division under Art. VI, sec. V, Paragraph 1, Constitution (1947). Clearly this would be so if this proceeding was instituted subsequent to September 15, 1948, since the judgment of the Appellate Division would be on appeal from the Law Division of the Superior Court, Art. VI, sec. V, paragraph 4, Rules 3:81-1 and 3:81-14.

It is implicit and within the spirit and concept of Art. VI of the Constitution (1947) that an aggrieved party is entitled to and granted one appeal to a higher tribunal as a matter of right, and to an appeal to the Supreme Court in the instances designated in Art. VI, sec. 5, paragraph 1.

The cause was instituted in the old Supreme Court, which was the successor to the Court of Kings Bench and as such was vested with inherent and constitutional civil jurisdiction in three classes of causes (1) actions in the usual course of law between parties, (2) appeals from the Pleas and all other inferior courts, and (3) prerogative writs which latter jurisdiction entailed the supervision and control of all inferior jurisdictions or tribunals. Dufford v. Decue, 31 N.J.L. 302, 306 (Sup.Ct.1864).

An appeal or writ of error did lie from a final judgment of the old Supreme Court to the Court of Errors and Appeals. Art. VI, sec. 1, Constitution (1844); R.S. 2:27-345, 349, 350 and 351, N.J.S.A. However, many judgments of the Supreme Court in causes cognizable by means of the prerogative writs, could not be reviewed by writ of error or otherwise, they were absolutely final. Dufford v. Decue, supra, 31 N.J.L. at page 306. For example orders in certiorari granting or refusing the writ, the refusal or vacating an allecatur, or setting aside decisions of lower tribunals in interlocutory matters. State v. Wood, 21 N.J.L. 682 (E. & A. 1847); Post v. Anderson, 111 N.J.L. 303, 168 A. 622 (E. & A. 1933); Deniel B. Frazier Co. v. Twp. of Long Beach, etc., 110 N.J.L. 221, 164 A. 278 (E. & A. 1933); Braunstein v. Mutual Life Ins. Co., 130 N.J.L. 629, 33 A.2d 888 (E. & A. 1943); Guardian Life Ins. Co. v. State Board, etc., 130 N.J.L. 478, 33 A.2d 885 (E. & A. 1943). Likewise in mandamus an appeal or writ of error would not lie from an order or judgment granting a writ or discharging a rule to show cause, except in those cases covered by the Mandamus Act, R.S. 2:83-11, 15, N.J.S.A. Neptune Township v. Mannion, 73 N.J.L. 816, 65 A. 440 (E. & A. 1907); Morris & Cummings Dredging Co. v. Bayonne, 76 N.J.L. 573, 70 A. 134 (E. & A. 1908); Trinkle v. Donnelly, 98 N.J.L. 298, 118 A. 417 (E. & A. 1922); Reed v. Board of Canvassers Essex County, 119 N.J.L. 115, 194 A. 280 (E. & A. 1937).

Only a final judgment of the Supreme Court on certiorari was reviewable in the Court of Errors and Appeals, either on writ of error or appeal, Hoxsey v. Paterson, 39 N.J.L. 489 (E. & A. 1877); Moran v. Jersey City, 58 N.J.L. 653, 35 A. 284 (E. & A. 1896). We hold the judgment in this cause entered in the Appellate Division is such a final judgment which, if entered in the old Supreme Court, would have been subject to review in the Court of Errors and Appeals by writ of error or appeal.

The Constitution (1947) by Art. XI, sec. 4, paragraph 8(b) thereof transferred from the old Supreme Court to the Appellate Division of the Superior Court ‘All causes and proceedings of whatever character pending on appeal or writ of error * * * and all pending causes involving the prerogative writs', and by paragraph (c) thereof all pending civil causes in the usual course of law between parties other than those stated were transferred to the Superior Court. By this section all causes heretofore cognizable under the three types of civil jurisdiction defined in Dufford v. Decue, supra were effectively transferred.

Art. VI, sec. 5, paragraph 1(e) contains an omnibus grant of power to the legislature to provide appeal ‘in such causes as may be provided by law.’ The purpose of this paragraph was to insure a flexibility necessary to deal with problems inherent in the transition, with the least possible loss of rights by litigants which might incidently occur in such transition, and to meet the future problem of case loads as they would arise, in a manner consistent with the spirit and purpose of the section, viz., to expedite the hearing and final disposition of appeals.

Pursuant to the constitutional grant of power, the legislature enacted P.L.1948, chap. 367, N.J.S.A. 2:16-70 et seq. The statute is consonant with the purpose of the constitutional power. Section 16 provides it is remedial and shall be liberally construed to prevent surprise or injustice to the litigants concerned. Section 2 of the act states that its purpose is ‘to facilitate the transfer of causes and proceedings pending in the courts on September fifteenth, one thousand nine hundred and forty-eight * * * according to the provisions * * * of the Constitution so as to obviate doubts, advance justice and expedite the further prosecution of said causes and proceedings, and to fully protect the rights and interests of the parties to such causes and proceedings.’ The language of the section generally follows a statute, P.L.1845, p. 157 enacted to implement the Constitution of 1844.

Section 12 preserves the right of appeal from the old Supreme Court to the Court of Errors and Appeals by providing appeals taken from the old Supreme Court prior to September 15, 1948 would be heard by the new Supreme Court and that appeals from adjudications made prior to that date would likewise be taken to and heard by the new Supreme Court if taken within the time limited. Cf. Plahn v. Givernaud, 85 N.J.Eq. 143, 96 A. 40 (E. & A. 1915); Oliver v. Oliver, 127 N.J.Eq. 367, 13 A.2d 310 (E. & A. 1940) and section 6 of the act.

Section 13 likewise preserves the right of appeal in any...