State by Bontempo v. Lanza

• Decision Date: 23 April 1963
• Docket Number: No. A--110,A--110
• Citation: 190 A.2d 374,39 N.J. 595
• Parties: STATE of New Jersey, by Salvatore A. BONTEMPO, Commissioner of Conservation and Economic Development, Plaintiff-Respondent, v. Silvio A. LANZA et al., Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 595

39 N.J. 595

190 A.2d 374

STATE of New Jersey, by Salvatore A. BONTEMPO, Commissioner of Conservation and Economic Development Plaintiff-Respondent, v. Silvio A. LANZA et al., Defendants-Appellants.

No. A--110.

Supreme Court of New Jersey.

Argued April 2, 1963.

Decided April 23, 1963.

Jacob Green, Newark, for defendants-appellants (Donald M. Legow, Newark, on the brief).

Philip Lindeman, II, Newark, for plaintiff-respondent (Arthur J. Sills, Atty. Gen., attorney, Bernard Hellring, Sp. Counsel, Norman Bruck, Newark, and Philip L. Chapman, Palisade, on the brief).

The opinion of the court was delivered

PER CURIAM.

In July 1957 the State of New Jersey instituted these condemnation proceedings to acquire 146.39 acres of land owned by defendant Silvio A. Lanza in Round Valley, Clinton Township, Hunterdon County, New Jersey. The tract, and others in the vicinity, were to be used in the construction of the Round Valley reservoir. The Law Division of the Superior Court appointed commissioners in November 1957 to value the land to be taken. State by McLean v. Lanza, 48 N.J.Super. 362, 137 A.2d 622 (Law Div.1957). Lanza appealed claiming, among other things, that the legislation authorizing the acquisition of the Round Valley area was unconstitutional. This court held against him. State by McLean v. Lanza, 27 N.J. 516, 143 A.2d 571 (1958), appeal dismissed, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed.2d 350 (1959), rehearing denied, 359 U.S. 932, 79 S.Ct. 606, 3 L.Ed.2d 634 (1959).

The commissioners awarded Lanza $38,425. He appealed and after a 22-day trial without a jury in the Law Division, compensation for the taking was fixed at $57,623.93. The Appellate Division affirmed, 74 N.J.Super. 362, 181 A.2d 390 (App.Div.1962); his appeal followed to this court.

About a year after the institution of this action, on June 24, 1958, Silvio Lanza executed a deed for an undivided one- tenth interest in the land to his brother, Vito Lanza, a member of the bar of the State of New York, and a resident of that state. The deed was recorded on June 30, 1958. By notice dated June 23, 1958 (one day before the execution of the deed), Vito signed and subsequently served a 'Notice of Claim and Notice of Appearance and Demand on Intervention' in the proceedings, alleging ownership of a one-tenth interest in the land. The notice simply alleged that he was a 'co-owner and tenant in common of a one-tenth right, title and interest in and to all the property encompassed' in the condemnation proceeding. There was no reference to the date when, or the deed by which, the alleged interest was acquired. It was not supported by any affidavit or any pleading under R.R. 4:37--4. The State moved to expunge the appearance; Vito then sought to support his application to intervene by an affidavit which did no more than recite the execution of the deed. No facts were detailed as to the dates of execution or recording of the deed, the circumstances attending Silvio's giving of the deed, or the reason for, or the consideration for, the deed at that late date in the progress of the cause. In the argument of the matter the Law Division judge inquired of Vito whether the facts surrounding the transaction were set out in affidavit form. Since Vito had been very much in evidence at all stages of the previous proceedings, particularly in regard to difficulties with Silvio's New Jersey counsel, obviously the court was seeking light as to whether the deed was merely a sham, a device to enable Vito to act as attorney in the case. Vito conceded the facts concerning the deed were not in affidavit form, but did not then or at any later time thereafter during the lengthy proceedings, when his application to intervene was renewed, present such an affidavit. On denial of the application for intervention, Vito appealed. On March 6, 1959 the Appellate Division dismissed the appeal for failure to file an adequate appendix and brief. State by McLean v. Lanza, 60 N.J.Super. 130, 158 A.2d 351 (App.Div.1959).

In discussing the matter, the Appellate Division said:

'The present appeal was precipitated by the following circumstances. Vito, a New York lawyer and resident, has been advising and collaborating with Silvio, his brother, in connection with every phase of this case since its inception, including regular attendance at the current valuation trial. This has included participation in the engagement of and dealings with various New Jersey counsel who have represented Silvio in the matter since the beginning. There have been three or four of these in succession, and disagreements with counsel have been frequent. On June 30, 1958 (three days after the decision of the New Jersey Supreme Court cited above) there was recorded in the Hunterdon County Clerk's office a deed by Silvio, dated June 24, 1958, purporting to convey an undivided one-tenth interest in the lands in question to Vito. The revenue stamps on the deed indicate a consideration of $10,000. (In the brief filed in this court on the present appeal, in the 'Statement of Facts' explaining the consideration for the deed, Vito says that over a period of time in connection with Silvio's alleged nursery business on the land, he advanced various sums 'which eventually aggregated in excess of $4,000.' He asserts that he expended time and effort in the management and improvement of the business. Again, the allegation is not in testimony or affidavit form. (Interpolation ours.)) Vito has told the court the consideration for the transfer consisted of past advances to Silvio. The representative of the Attorney General suggests that the conveyance is actually a subterfuge to enable Vito, a lawyer having no standing at the bar of this State, in effect to represent Silvio in this case through the guise of appearances Pro se as a party. The past history of these proceedings, and even the papers filed in the present appeal, lend substantial color to the assertion, but we need not...