Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants Motor-Rail Co. and Daniel W. Durkin, its president and stockholder, appeal from an order of the Superior Court, Chancery Division, restoring to the trial calendar an action previously instituted by plaintiff Cardinale Trucking Corp. which that court had dismissed. The order was entered March 6, 1959. Defendants filed their notice of appeal March 13, 1959 without first moving for leave to appeal under R.R. 2:2-3(a).
Although the question of the final or interlocutory character of the order was not raised by either side, we noted the matter on our own motion and requested supplementary briefs and oral argument on the point. Since we consider the order under appeal interlocutory, the appeal must be dismissed.
We cannot extend the time for leave to appeal under the relaxation provisions of R.R. 1:27 B because no motion was made within 30 days after the expiration of the ten days from the date of the order complained of, nor has any such motion ever been made. In re Old Colony Coal Co. , 49 N.J. Super. 117, 123 et seq. (App. Div. 1958). But even had such an application been made, we would have denied it. Although R.R. 2:2-3(a) grants us comprehensive power to permit, in our discretion, an appeal from any interlocutory order or judgment, or from an interlocutory decision or action of any state administrative agency, when the grounds of appeal are substantial, the power is sparingly exercised. We grant leave under the rule only "in the exceptional case where, on a balance of interests, justice suggests the need for a review in advance of final judgment." Appeal of Pennsylvania R.R. Co. , 20 N.J. 398, 409 (1956); Romano v. Maglio , 41 N.J. Super. 561 (App. Div. 1956).
Defendants suggest that the Chancery Division was without jurisdiction to restore the case to the active list after previously having entered a final judgment of dismissal, and therefore its order was final and appealable, and
the appeal was prosecuted within time. The argument is without merit, for the matter clearly rested in discretion. The same trial judge was involved and he was completely justified in restoring the case to the calendar in the circumstances hereinafter set forth.
Plaintiff is a common carrier by motor vehicle, and defendant a freight forwarder. On May 8, 1952 they executed a contract calling for plaintiff to do certain interstate shipping for defendant. This contract was filed with the Interstate Commerce Commission, in accordance with the requirements of the Interstate Commerce Act. Written agreements supplementing or modifying the 1952 contract were entered into by the parties on June 23, 1953 and July 9, 1954, but defendant failed to file them with the Commission.
On May 27, 1955 plaintiff instituted an action against defendants and others in the Chancery Division, based on the 1953 and 1954 agreements and making reference to the filing of the basic 1952 contract. Plaintiff sought to recover damages for services rendered under the contracts, as well as on an account stated; injunctive relief, and certain other relief against other parties with whom defendant Motor-Rail Co. had done business. Defendants moved for and obtained a stay of the proceedings pending determination by the Interstate Commerce Commission of the validity of the agreements. The Commission held the 1953 and 1954 contracts illegal, but expressly refused to rule on the substantive rights of the parties thereunder, holding that such matters were beyond its jurisdiction and for the courts.
The case was then restored to the Chancery Division calendar and defendants moved to dismiss. There was no stenographic transcript of the argument on the motion. However, the briefs indicate that a judgment of dismissal in the nature of a consent judgment was entered. The judgment, dated June 4, 1958, declared that action was dismissed without prejudice to the filing of any action in the Law Division by plaintiff against defendant Motor-Rail Co. for sums allegedly due upon the May 8, 1952 contract.
Defendants' attorney was to accept service if the action were brought within 60 days. The judgment further ordered that "pursuant to the stipulation made in open court by the attorney for the defendant Motor-Rail Co., the said defendant shall not be permitted to set up as a defense to the contract dated May 8, 1952 the Statute of Limitations."
Plaintiff then instituted a Law Division action against Motor-Rail Co. in four counts to recover $14,658.43 for services rendered (1) under the 1952 contract; (2) on a book account; (3) on an account stated; (4) on quantum meruit. Defendant answered, and by way of third separate defense alleged that the Interstate Commerce Act "constitutes a bar to the maintenance of this action by plaintiff, which bar defendant cannot legally waive." The reference is to §§ 304a and 1006a of the act, 49 U.S.C.A. , which provide a three-year period of limitations in actions for transportation charges by and against carriers who are subject to the jurisdiction of the Interstate Commerce Commission. Midstate Horticultural Co. v. Pennsylvania R.R. Co. , 320 U.S. 356, 64 S. Ct. 128, 88 L. Ed. 96 (1943), held that this bar cannot be waived by agreement of the parties. The court there said that the statute not only bars the ...