Opalach v. Cebulah.
| Decision Date | 01 April 1949 |
| Docket Number | No. A-216.,A-216. |
| Citation | 65 A.2d 67 |
| Parties | OPALACH v. CEBULAH. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Action by Paul Opalach against Harry Cebulah to obtain possession of certain premises. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.
Samuel J. Davidson, of Hoboken, and DeFazio, Davidson & DeFazio, for plaintiff-respondent.
Theodore Rabinowitz, of Jersey City, and Bernard S. Glick, of Hoboken (G. Earl Brugler, of Hoboken, of counsel), for defendant-appellant.
This is an appeal by the tenant from a judgment for possession rendered by the Hoboken District Court in a proceeding under R.S. 2:32-265 et seq., N.J.S.A. The first question presented is what matters can be considered on the appeal. Prior to September 15, 1948, it was entirely clear, from the express terms of the statute, that such a judgment for possession was not appealable and could not be reviewed on certiorari save on the ground that the District Court lacked jurisdiction in the particular case. R.S. 2:32-273, N.J.S.A.; Fowler v. Roe, Sup. 1856, 25 N.J.L. 549; Montalvo v. Levinston, Sup. 1920, 94 N.J.L. 87, 110 A. 128. The ban against a broader review stood as an exception to section 204 of chapter 32 which, in general terms, allowed an appeal to the Supreme Court, ‘in any action or proceeding in any district court of this state.’ The dispossess proceeding in the District Court was unique in that the judgment was not conclusive; if the tenant was aggrieved by it, his remedy was an action against the landlord for damages. Van Vlaanderen Machine Co. v. Fox, Sup. 1920, 95 N.J.L. 40, 111 A. 687.
Under our present Constitution, appeals to the Appellate Division do not lie from courts inferior to the county courts unless the appeal be given by act of the Legislature. N.J.S.A.Const. 1947, Article VI, sec. V, par. 2. The District Court Act that was passed last summer, P.L. 1948, ch. 385, N.J.S.A. 2:32-10.1 et seq., contains a provision that ‘in civil actions appeals may be taken from final judgments or determinations of the District Courts to the Appellate Division of the Superior Court within the time and in the manner prescribed by the rules made and promulgated by the Supreme Court.’ And also that ‘The review of any judgment or determination of the district court, which would formerly have been had by certiorari, may be obtained by appeal to the Appellate Division.’ The same statute expressly repeals section 204 and most of the other sections of chapter 32 related to the review of District Court judgments by appeal or certiorari, but it does not expressly repeal section 273 which is the section forbidding appeals in landlord and tenant cases.
In our opinion, chapter 385 of the Laws of 1948 does not, by implication, repeal section 273. Implied repealers are not favored. Borgquist v. Ferris, 1933, 112 N.J.Eq. 557, 165 A. 417, Berry, V.C.; Modern Industrial Bank v. Taub, Err. & App. 1946, 134 N.J.L. 260, 47 A.2d 348. The express repealer of certain sections of chapter 32 is, in itself, an indication that the Legislature intended no implied repealer of other sections of the chapter. The words giving an appeal, which are contained...
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