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State v. Lanza

Decided: March 6, 1959.


Goldmann, Conford and Haneman.

Per Curiam

[60 NJSuper Page 131] This appeal will be dismissed as to the defendant Silvio A. Lanza by the court, on its own motion, for his failure to appear or be represented when the cause

was called for argument. R.R. 1:8-5(b). The appeal of Vito F. Lanza is dismissed for failure to argue the merits when the case was called, R.R. 1:8-5(c), and for failure to file an adequate brief and appendix. R.R. 1:7-9(a); 1:7-1(f).

This is a condemnation action commenced July 3, 1957 by the plaintiff State of New Jersey to acquire lands of defendant Silvio A. Lanza situated in the area commonly known as Round Valley, for purposes of constructing a water supply reservoir, pursuant to L. 1956, c. 60, N.J.S.A. 58:20-1 et seq. Among other defenses interposed by that defendant (hereinafter referred to as Silvio) was the contention that the enabling act was unconstitutional. This question was determined adversely to him in the Supreme Court on June 27, 1958. State v. Lanza , 27 N.J. 516 (1958). The United States Supreme Court dismissed an appeal from that ruling for lack of a substantial federal question. Lanza v. State , 358 U.S. 333, 79 S. Ct. 351, 3 L. Ed. 2 d 350 (1959).

Final judgment was entered in favor of the State in the Law Division on November 27, 1957. Condemnation commissioners made an award for Silvio's interest in the sum of $38,425 on February 27, 1958. An appeal from this award has been filed by Silvio, and a hearing thereof, originally fixed for July 10, 1958 but adjourned several times since, is presently proceeding in the Law Division, some 20 to 25 court sessions having already been held in the matter. We are advised by appellant Vito F. Lanza (hereinafter referred to as Vito) that the landowner asserts a valuation for the property of some $350,000, the principal dispute revolving about the quantity and value of certain nursery evergreen stock.

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. 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 determine the question, in view of the present disposition of the appeals.

On the basis of the deed referred to, Vito filed and on July 1, 1958 served on the Attorney General a notice dated June 25, 1958, entitled "Notice of Appearance and Demand of All Papers," reciting his deed interest in the property, demanding service upon him at his New York office of all papers in the cause, and joining in Silvio's answer and pending appeals, so that his "interest" might be "adjudicated to the extent of an undivided one-tenth share and interest in and to any proceeds," etc. On June 30, 1958 the State moved to expunge this "appearance" and on July 3, 1958 Vito filed an "Application and Cross-Motion" to dismiss the State's motion and to be allowed to intervene under R.R. 4:37. He filed another motion on July 19, 1958 for discovery and inspection in preparation for trial of the valuation appeal. On July 15, 1958 the State moved to be permitted to deposit in court the sum awarded by the condemnation

commissioners on the ground that the assertion of Vito's interest and the unpaid state lien for costs made it unsafe to pay the money to Silvio, then a non-resident. Vito moved to stay the application.

The various motions referred to above were heard in the Law Division and disposed of by two orders dated August 1, 1958, which are the subject matter of the present appeals. The first of these expunged the appearance of Vito and denied his application for service of all papers upon him, as well as his application for discovery and to stay the deposit in court. The second order directed the plaintiff to pay the amount of the condemnation award into court.

Thereafter, by a paper dated August 2, 1958 and designated "Notice of Appeal, etc.," signed by Vito in the style of "Claimant-Defendant and Attorney in Person Appearing Pro Se," and by Silvio as "Defendant-Appellant, Appearing as Attorney Pro Se," the Lanza brothers gave notice of appeal to the Appellate Division from the entirety of the two August 1 orders aforementioned. The document also purported to give notice of an application for leave to appeal from the said orders, if necessary, and for stay pending the appeal. A subsequent notice, signed by both Lanzas in the style aforesaid and dated August 8, 1958, purported to apply for leave to appeal from the August 1 orders and for stay. Both the applications for stay and for leave to appeal were denied by order of the Appellate Division dated August 29, 1958. Nevertheless, briefs and appendices have been filed by both sides, and the appeals came on to be heard on February 24, 1959. A single "Brief and Appendix" was filed on behalf of the Lanzas, Vito ...

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