Goldmann, Freund and Conford.
Plaintiff appeals from a judgment of the Law Division striking his complaint in lieu of prerogative writ because the action was not commenced within the 30-day period fixed by R.R. 4:88-15(b)(3) for a review of any decision of a board of adjustment. The appeal must be dismissed.
R.R. 1:2-10 requires that in all civil appeals the appellant shall within 30 days after filing notice of appeal deposit with the clerk of the appellate court $100 to answer the costs of the appeal. In default of making such deposit
the appeal may, on application of the respondent, be dismissed by the appellate court with costs. This rule is made applicable to the Appellate Division by R.R. 2:2-5. Notice of appeal to this court was filed December 18, 1954. Plaintiff has not yet deposited the required monies to answer costs. There has been no application for enlargement of time, R.R. 1:27 B , even though plaintiff, as late as March 16, 1955, knew that his appeal was in danger when defendant served its notice of motion to dismiss it for failure to deposit security for costs. There is not even the shadow of a suggestion of excusable neglect here. Plaintiff's failure to deposit security for costs is of a piece with his conduct of the litigation from the very beginning.
There are two other reasons why the appeal should be dismissed, both of them evidenced on the face of the record: (1) plaintiff failed to institute his action in lieu of prerogative writ within time, and (2) he failed to serve his briefs upon defendant's attorney within time. A brief review of the history of the action makes evident these deficiencies.
In 1945 plaintiff bought certain premises on Ridge Avenue, Neptune City, and in 1953 he applied to the zoning board of adjustment for permission to alter them so as to accommodate five families. The local ordinance prohibits the use of a dwelling house by more than one family in the zone where plaintiff's property is located. There was a hearing on the application, resulting in its denial. The resolution of denial was filed in the office of the board of adjustment and notice of the board's action mailed to plaintiff on or about March 20, 1954. Plaintiff admits receipt of this notice on April 9, 1954. Plaintiff then filed a "Notice of Appeal" to the "Law Division, Essex County" on April 17, 1954. An amended notice of appeal to the "Superior Court of New Jersey," entitled "In the Nature of Certification Petitioner Demands Trial De Novo by Jury, and Demand of Damages to be Assessed," was filed April 21, 1954. Defendant's motion to strike this "appeal" was granted on June 11, 1954, the judgment of dismissal stating that the proceeding had not been undertaken in the manner provided by R.R. 4:88-3.
On June 17, 1954 plaintiff filed his complaint in lieu of prerogative writ in the Clerk's Office of the Superior Court, service being effected upon defendant that day. Defendant's answer reserved the right to move at or before trial to strike the complaint. Thereafter defendant served and filed its notice of motion to strike the complaint, returnable July 6, 1954, together with affidavits annexed. One of the reasons assigned for striking the complaint was that plaintiff had not commenced his proceeding in lieu of prerogative writ within the 30-day period from the filing of the decision of the local board of adjustment and notice thereof to plaintiff, as required by R.R. 4:88-15(b)(3). The motion was continued several times. Finally, a new notice of motion to strike, returnable November 19, 1954, was served and filed. On that day judgment striking the complaint was entered on the ground that the action was not commenced within the period prescribed by the cited rule. Plaintiff then obtained an order to show cause why this judgment should not be set aside. The order to show cause was discharged on December 17, 1954.
Plaintiff served his notice of appeal from the judgment striking the complaint on November 23, 1954, and filed it in the Superior Court Clerk's Office on December 18, 1954. R.R. 1:7-12(a) requires that "Within 30 days after the filing of the notice of appeal, * * * the appellant shall file with the clerk of the appellate court 12 copies of his brief and serve 3 copies on the attorney of each of the opposing parties." This rule is made applicable to the Appellate Division by R.R. 2:7-3, which rule provides that in the Appellate Division only six copies of the brief need be filed with the clerk of the court. The last day on which plaintiff could file and serve his briefs was January 17, 1955, computing the 30-day period pursuant to R.R. 1:27. Plaintiff left his briefs at the office of defendant's attorney by placing them upon his desk at about 9 P.M. on Tuesday, January 18, 1955, when no one was there. They were found there by the attorney when he came to his office the next morning. Defendant thereupon served its notice of motion to suppress
plaintiff's brief returnable before this court on February 28, 1955. The grounds stated in the notice were based upon failure to observe the requirements of R.R. 1:7-1 (a), (b), (c), (d) and (f), and also failure to serve the brief and appendix in accordance with R.R. 1:7-12. On March 1, 1955 this court ordered plaintiff's brief suppressed, directed him to file proper and adequate briefs within ten days after entry of the order, and reserved the question of dismissing the appeal for plaintiff's failure to serve his brief upon defendant's attorney within the time prescribed by R.R. 1:7-12(a). This was done because the court had before it little more than defendant attorney's oral representation as to how plaintiff served his brief.
We now have before us affidavits by defendant's attorney, his secretary, his associate and his secretary, and the cleaning woman in the office premises, which clearly and uncontrovertably show that plaintiff did not serve his briefs on defendant's attorney or anyone associated with his office during the regular office hours of January 17, 1955, but placed them upon the attorney's desk about 9 P.M. Tuesday evening, January 18, where they were found by the attorney the next morning. Plaintiff filed no affidavit in contradiction. The appeal should ...