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State v. Lanza

Decided: February 23, 1960.


Goldmann, Conford and Freund.

Per Curiam

[60 NJSuper Page 140] On October 8, 1959 a notice of appeal was filed by Silvio A. Lanza as "defendant and attorney in person pro se ," and Vito F. Lanza, as "intervening defendant and attorney in person pro se ," from a final judgment entered September 29, 1959 by Judge Mintz, then temporarily assigned to the Law Division, Hunterdon County, directing plaintiff to pay Silvio A. Lanza $57,623.93 for his property taken in condemnation in the Round Valley area of Hunterdon County. The judgment followed upon a comprehensive opinion filed by the trial judge on August 7, 1959, whose findings were incorporated in the judgment by reference. The notice of appeal sought a review of not only the adequacy of the award but also, among other things, certain constitutional questions raised in the course of the 22 days of hearings held between October 30, 1958 and July 6, 1959, the denial of a new trial, and the court's refusal to permit Vito F. Lanza to intervene as a party at the hearing.

The Lanzas subsequently filed a "supplemental and amended notice of appeal" on October 14, 1959, seeking to review two orders by Judge Mintz. The first, dated September 29, 1959, denied defendant Silvio Lanza's motion for a new trial, his oral applications to take certain additional testimony and to have the entire proceedings declared invalid under the State and Federal Constitutions, as well as his application for additional and amended findings of fact. It also denied Vito Lanza's oral application for intervention. The second order, entered October 9, 1959, directed plaintiff to pay the condemnation monies into court.

Plaintiff has filed a notice of cross-appeal challenging the amount of the award.

The matter is before us on plaintiff's motion to dismiss the appeal on the ground that defendant Silvio had not complied with the jurisdictional requirements of R.R. 1:2-8(a) and (e), in that he failed to include in his notice of appeal a certification that he had deposited with the stenographic reporter a sum sufficient to pay the required fee for the preparation of a transcript, as well as for the further reason that he had in fact failed to deposit such sum with the reporter. Silvio and Vito Lanza thereupon filed their affidavit in opposition and for instructions, seeking to explain therein the reason for the delay in ordering and paying for the transcript. It is implicit in these papers that Vito considers himself a party to these proceedings in their entirety.

The first matter to be considered is the right of Vito Lanza to be heard on this appeal. He claims that he has a 10% interest in the lands condemned, as evidenced by a deed from his brother Silvio, dated June 24, 1958 and recorded in the Hunterdon County Clerk's Office on June 30 following, and therefore not only has a right to appear on this appeal but also was entitled to intervene as a party in interest in the court below. The claim is not a new one. It was first made when the matter was before the Law Division for full trial, on appeal from the award of the condemnation

commissioners. At that time Vito, claiming a status in the proceedings, filed his appearance, demanded that copies of all papers be served upon him, and also demanded discovery. Upon plaintiff's motion, Vito's appearance was expunged and his applications for service of all papers upon him and for discovery denied, all as set out in an order entered by Superior Court Judge Waugh on August 1, 1958. Judge Waugh's order was appealed (Docket A-640-57) and was the subject of a per curiam opinion filed by this Part on March 6, 1959, resulting in a dismissal of the appeal. That opinion reviews the condemnation proceedings and, in particular, Vito Lanza's participation therein. It is now being published. State v. Lanza , 60 N.J. Super. 130; petition for certification dismissed, May 25, 1959.

At the oral argument on the present motion to dismiss the appeal we inquired initially as to the right of Vito Lanza, a New York attorney, to appear pro se , having in mind Judge Waugh's order, just referred to, and the unsuccessful appeal therefrom. We were not informed that in the order entered by Judge Mintz on September 29, 1959 there was a specific provision denying Vito Lanza's oral application for leave to intervene, and we therefore mistakenly directed that he apply to Judge Mintz for the entry of an order formally denying intervention. Such an order is clearly unnecessary in view of the September 29, 1959 order which, we now learn, memorialized not only the denial of Vito's application made at the start of the hearings in the Law Division, but again at the conclusion thereof.

The right of Vito Lanza to appear and argue the pending appeal involves only the question of whether intervention was properly denied in the Law Division. It would seem that this issue should be determined before we consider the main appeal, since Vito has no status if the order below was proper. We accordingly direct the parties to appear before this Part, sitting in Newark on March 14, 1960, to argue the question of why an order should not be entered that the appeal of Vito Lanza from the denial of intervention

be considered and disposed of prior to the hearing of the issues on the main appeal dealing with the legality and adequacy of the condemnation award.

We are faced with the additional question of whether Vito Lanza should be permitted to represent his brother Silvio. As noted in our March 6, 1959 opinion, Vito has advised and collaborated with his brother throughout the case since its very inception. He has been in regular attendance at every argument in this court, and he sat alongside Silvio's attorney during the valuation trial in the Law Division. He has also participated in engaging and dealing with the several New Jersey attorneys who represented Silvio ...

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