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In re Appeal of Pennsylvania Railroad Co.

Decided: January 16, 1956.

IN RE APPEAL OF PENNSYLVANIA RAILROAD COMPANY, CLASS II ASSESSMENTS, 1953


For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division dismissed an appeal from an order of the Division of Tax Appeals refusing to quash or limit a subpoena duces tecum which had been served on Charles E. Adams, president of Harborside Warehouse Co., Inc. We granted certification under R.R. 1:10-2. 19 N.J. 325.

The City of Jersey City appealed to the Division of Taxation from 1953 assessments against certain Class II railroad [20 NJ Page 402] lands owned by the Pennsylvania Railroad Company. A warehouse building leased by the Pennsylvania to Harborside is situated on part of the lands; the city's tax appeal does not relate to the building but does relate to the land on which the building is located. On May 6, 1954 the city served a subpoena duces tecum upon Charles E. Adams, president of Harborside, directing that he appear in deposition proceedings, and produce "all leases in force from October 1, 1949, until the present time, including leases now in force, between Harborside Warehouse Co., Inc., as landlord, and others, as tenants, for portions of premises in the building of the Harborside Warehouse Company, Inc., at 34 Exchange Place, Jersey City, New Jersey, together with all amendments thereof and supplements thereto." On May 11, 1954 Harborside filed notice that it would move before the Division of Tax Appeals to quash the subpoena or, in the alternative, for an order restricting its scope. No affidavits supporting the motion were ever filed but the city filed an affidavit by Charles F. Evans in opposition. Mr. Evans stated that he was a qualified real estate appraiser and had been retained by Jersey City for the purpose of making appraisals upon various second-class railroad lands in connection with 1953 railroad tax appeals; included in such lands were those upon which had been erected "the Harborside Warehouse and two piers known as Piers D and F"; he was engaged in his study of "said and other property and related data, for the purpose of reaching an opinion with respect to the true value thereof as of January 1, 1952"; he considered it essential to secure all available data concerning any leases now in force for the rental of the piers and "all of the rental data concerning the Harborside Warehouse"; he believed that such data was important for two reasons: "First, in order to obtain all economic data having application to said lands within a reasonable time before and after the assessment date of January 1, 1952, and second, in order to determine a pattern or trend of rentals and rental values upon and in connection with second class railroad lands which are the subject matter of the appeal herein."

R.S. 54:2-21 provides that the Division of Tax Appeals may, by special order or general rule, permit the taking of depositions in the manner prescribed in the Superior Court. General Rule XII of the Division provides that depositions may be taken "without first obtaining leave of the Division, and at any time after the petition of appeal is filed"; it provides further that the practice shall conform with that prescribed by the rules of civil practice for the Superior Court and specifically adopts R.R. 4:16-2 to 6, incl.; R.R. 4:18-1 to 4, incl.; R.R. 4:19; and R.R. 4:20-1 to 7, incl. The Superior Court rules broadly provide for examination on any matter not privileged "which is relevant to the subject matter involved in the pending action" and that "it is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." See R.R. 4:16-2; R.R. 4:46-4. They embody adequate protective means against unwarranted deposition proceedings; thus R.R. 4:20-2 provides that "upon notice and for good cause shown" an order may be entered that the deposition shall not be taken; and R.R. 4:46-2 provides that on motion made before the time specified in a subpoena duces tecum for compliance therewith, the subpoena may be quashed "if it is unreasonable and oppressive." Cf. R.R. 4:20-4.

On October 14, 1954 the Division entered an order denying Harborside's motion to quash or limit the subpoena. Harborside then sought leave to appeal from the Division's order but its application was denied by the Appellate Division. It also filed notice of appeal to the Appellate Division which Jersey City moved to dismiss; decision on this motion was originally reserved but, after full argument, the motion was granted in an opinion by Judge Clapp which determined that (1) the Division's order was interlocutory and not appealable as of right under R.R. 2:2, and (2) in any event, the data sought by the subpoena was not irrelevant to the subject matter involved in the tax appeal and was therefore the proper subject of inquiry in the deposition proceedings,

See In re Pennsylvania R. Co., 34 N.J. Super. 103 (1955). An appeal to this court, taken without leave, was dismissed on the ground that the case did not fall anywhere within R.R. 1:2; however, we did grant certification on petition by Harborside and its president Charles E. Adams. See In re Appeal of Pennsylvania R. Co., 19 N.J. 325 (1955).

The problems incident to intermediate appeals, in advance of the complete and final disposition of the proceedings below, have given rise to much discussion in the cases and legal periodicals. See Frankfurter, J., in Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940); Frank, J., in Pabellon v. Grace Line, 191 F.2d 169, 179 (2 Cir. 1951); Hart and Wechsler, The Federal Courts and The Federal System, 1344 (1953); Note, Proposals for Interlocutory Appeals, 58 Yale L.J. 1186 (1949). Cf. Crick, The Final Judgment as a Basis for Appeal, 41 Yale L.J. 539 (1932); Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S. Ct. 249, 99 L. Ed. 233 (1955); City of Morgantown, W. Va., v. Royal Ins. Co., 337 U.S. 254, 69 S. Ct. 1067, 93 L. Ed. 1347 (1949). There are two obviously competing forces -- one lays its stress upon the inconvenience and expense of piecemeal reviews and the strong public interest in favor of a single and complete trial with a single and complete review -- the other lays its stress upon the dangers of individual injustices which may result from the denial of any appellate review until after final judgment at the trial level. Cf. Jackson, J., in Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S. Ct. 322, 94 L. Ed. 299, 302 (1950). Some jurisdictions, including our neighboring State of New York, have chosen the course which permits intermediate appeals as of right from most interlocutory orders. See N.Y. Practice Act, § 609 (Cahill-Parsons, 2 d ed. 1955). Others, including the Federal Government, have chosen the course which denies the right to appeal from most interlocutory orders. See 28 U.S.C.A. §§ 1291, 1292 (1955 supp.). The English Judicature Act provides, as do the statutes of some of our states, that interlocutory appeals may be entertained with leave of the appellate court.

Judicature Act, 1925 (15 & 16 Geo. 5, c. 49) § 31(1)(i), 5 Halsbury's Statutes of England (2 d ed. 1948), 360. See Note, Proposals for Interlocutory Appeals, supra, at 1189. Cf. Moore & Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1, 45 (1949).

In Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686 (1906), witnesses were directed to appear and produce documents before a special examiner designated by the circuit court to hear testimony in a suit brought by the United States under the Sherman Act. They appealed to the Supreme Court but their appeals were dismissed for lack of any final judgment. In the course of his opinion for the court Justice McKenna pointed out that although orders holding witnesses in contempt for refusing to answer were final, prior orders addressed to them were interlocutory and not appealable under prevailing federal practice. In Cobbledick v. United States, supra [309 U.S. 323, 60 S. Ct. 541], the District Court for the Northern District of California denied motions to quash subpoenas duces tecum which directed certain witnesses to appear and produce documents before a grand jury. Their appeals to the Circuit Court of Appeals were dismissed as interlocutory and this action was sustained in a unanimous opinion for the Supreme Court by Justice Frankfurter. He pointed out that Congress had denied "to the appellate courts the power to review rulings at nisi prius, generally, until after the entire controversy has been concluded"; that its requirement that appeals be taken from final rather than interlocutory judgments was "not a technical concept of temporal or physical termination" but was "the means for achieving a healthy legal system"; that the requirement of ...


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