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Vanderbeek v. Durham

New Jersey Supreme Court


Decided: January 25, 1940.

HORACE VANDERBEEK, APPELLANT,
v.
HERBERT DURHAM, RECORDER OF SOMERVILLE (FRED KUGLER, JR., COMPLAINANT), RESPONDENT

On appeal from an order of the Supreme Court.

For the appellant, Samuel R. Blaine.

For the respondent, Reger & Smith.

[124 NJL Page 37]

PER CURIAM.

Appellant was convicted of driving a motor vehicle while intoxicated by the recorder of Somerville. Having been so convicted, he made application to the justice holding the Circuit of the Supreme Court in Somerset county for a summary review, and the matter was made returnable before another justice, who sat for the justice holding the Somerset Circuit and affirmed the conviction. This appeal is from such action.

We do not deem it necessary to pass upon the question raised as to the legality of a summary review by a justice of

[124 NJL Page 38]

the Supreme Court other than the justice to whom the application for such review is presented. We are of the opinion that the appeal must be dismissed, because, as was said in Jersey City v. Thorpe, 90 N.J.L. 520:

"It is too plain for argument that such an appeal is without legal foundation, not only for the reason that an appeal has not been substituted for a writ of error in the review of courts of criminal jurisdiction, but for the more substantial reason that a writ of error does not run directly to this court from the orders or judgments of a legislative agency such as the justice of the Supreme Court is under the provisions of the statute under which the proceedings below were had.

"Certiorari is the proper remedy; the constitutionality of the statutory review by a legislative agency is sustainable solely upon the ground that orders or judgments so made may be supervised by the Supreme Court upon certiorari. Newark v. Kazinski, 86 N.J.L. 59."

This appeal, bringing nothing to this court, is dismissed.

For dismissal -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.

19400125


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