Starego v. Soboliski
| Decision Date | 22 December 1952 |
| Docket Number | No. A--58,A--58 |
| Parties | STAREGO v. SOBOLISKI et al. |
| Court | New Jersey Supreme Court |
Paul C. Kemeny, Perth Amboy, for plaintiff-appellant.
Matthew F. Melko, Perth Amboy, for defendants-respondents (Melko, Goldsmith & Pollack, Perth Amboy, attorneys; David Goldsmith, Perth Amboy, on the brief).
The opinion of the court was delivered by
Plaintiff instituted an action against the defendants in the Superior Court, Chancery Division, Middlesex County, seeking damages and an injunction for an alleged trespass by reason of water pipe lines having been laid under and across his premises to the lands of the defendants.
The matter came on for hearing in the Superior Court and was there dismissed and summary judgment entered for the defendants on the grounds that the pleadings failed to state a claim upon which relief could be granted and that there was no genuine issue as to any material fact. An appeal from the judgment of the Superior Court to the Appellate Division resulted in an affirmance.
Rule 1:2--1 provides the bases for an appeal to this court. There was no dissent in the Appellate Division and the cause was not certified by us. Moreover, while the defendants contended that the plaintiff had shown no ground for appeal from the Appellate Division the plaintiff made no reply thereto, nor was there a constitutional question raised in his 'Statement of Questions Involved', Rule 1:3--2(c). From the citation of several cases in the brief submitted by the plaintiff to this court and from the oral argument it is apparent that he claims he is being deprived of his property without due process and that the acts of the defendants offend the Fifth Amendment of the Federal Constitution.
The mere allegation that a cause involves a constitutional question gives no right to an appeal under the rule. There must be a showing that a Substantial constitutional question is involved and this must be set out with particularity. If it were to be held to be adequate that a mere allegation as to deprivation of property rights in a trespass case is sufficient to satisfy the requirements of Rule 1:2--1(a), then every case involving real property can be appealed to this court by the inclusion in appellant's brief of the open Sesame--due process.
While the appeal might therefore be dismissed, we will determine the case on its merits.
The plaintiff was the owner of a lot of land fronting on the southerly side of Hall Avenue in Perth Amboy and the defendants respectively owned lots of land lying immediately to the east thereof. The defendants, previous to 1944, had requested the City of Perth Amboy to connect their properties with existing water mains and for water service, which request was complied with and paid for by the defendants. In 1944 they complained to the city of inadequate water pressure and as a result thereof the water department of the city installed a new water line by connecting a 1 1/4 pipe or sub-main to the 4 main running down Hall Avenue. This 1 1/4 pipe was laid underground in the area between the sidewalk and curb of plaintiff's property, running thence to defendants' lots, and to this pipe were connected 1 service pipes with defendants' properties.
Under this set of facts it is clear these defendants committed no trespass on plaintiff's land. After...
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Yanhko v. Fane
...Saco v. Hall, 1 N.J. 377, 382, 63 A.2d 887 (1949); Starego v. Soboloski, 21 N.J.Super. 389, 392--393, 91 A.2d 263 (1952), aff'd 11 N.J. 29, 93 A.2d 169 (1952). In legal contemplation, the easement of public passage renders the sidewalk an integral part of the public highway. Id. 21 N.J.Supe......
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State v. De Meo
...were no constitutional questions involved which are reviewable in this court as of right under R.R. 1:2--1(a). In Starego v. Soboliski, 11 N.J. 29, 32, 93 A.2d 169 (1952), State v. Pometti, 12 N.J. 446, 450, 97 A.2d 399 (1953), and State v. Greenberg, 16 N.J. 568, 571, 109 A.2d 669 (1954), ......
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News Printing Co. v. Borough of Totowa
..."curbside teller" to serve those in automobiles); cf. Starego v. Soboloski, 21 N.J.Super. 389, 91 A.2d 263 (App.Div.1952), aff'd 11 N.J. 29, 93 A.2d 169 (1952) (municipality may grant to third parties right to place objects such as watermains in the public easement so long as the public is ......
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State v. Colson
...court determined in the early days of the new system that a constitutional question * * * must be 'substantial,' Starego v. Soboliski, 11 N.J. 29, 32, 93 A.2d 169 (1952), cert. denied 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953), and not 'merely colorable', State v. Pometti, 12 N.J. 446......