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Fortugno Realty Co. v. Schiavone-Bonomo Corp.

Decided: March 4, 1963.

FORTUGNO REALTY COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
SCHIAVONE-BONOMO CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND HERMAN T. STICHMAN, TRUSTEE OF HUDSON & MANHATTAN RAILROAD COMPANY, A CORPORATION OF NEW JERSEY IN BANKRUPTCY, DEFENDANT-CROSS-RESPONDENT



As to Schiavone-Bonomo Corporation: For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. As to Herman T. Stichman: For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

Plaintiff filed suit seeking recovery for damage caused to its platform scale by defendants in connection with the weighing of a truck owned by Schiavone-Bonomo Corporation (Schiavone) and loaded with scrap metal being purchased by Schiavone from Herman T. Stichman, Trustee of Hudson & Manhattan Railroad Company (H. & M.). The suit sounded in negligence.

During the trial, plaintiff "offered into evidence" N.J.S.A. 39:3-84, which, at the time of the incident in issue, read in pertinent part:

"Subject to the provisions of section 39:3-82 and the axle weight limitations of this section, no commercial motor vehicle, tractor, trailer or semitrailer shall be operated on any highway in this State having

a combined weight of vehicle and load of more than (a) 30,000 pounds in the case of a 2-axle 4-wheeled vehicle, (b) 40,000 pounds in the case of a 3-axle 6-wheeled vehicle, (c) 60,000 pounds in the case of a tractor and semitrailer combination, and (d) 60,000 pounds in the case of a truck and trailer combination.

The gross weight imposed on the highway by the wheels of any 1 axle of a vehicle shall not exceed 22,400 pounds."

The trial court sustained defendants' objection to the "exhibit." At the close of plaintiff's case, defendants moved for involuntary dismissal. The trial court reserved decision. Defendants then rested without submission of proof and moved for judgment, which the court granted. On plaintiff's appeal the Appellate Division unanimously affirmed as to H. & M., but reversed as to Schiavone and remanded for trial on the issue of its alleged negligence (one judge dissenting). Fortugno Realty Co. v. Schiavone-Bonomo Corp., 75 N.J. Super. 23 (App. Div. 1962). Schiavone appeals as a matter of right. R.R. 1:2-1(b). Plaintiff, without seeking certification, cross-appeals the affirmance of the judgment in favor of H. & M., and the direction of the Appellate Division that costs should abide the outcome of the event of a new trial.

The issues before this court encompass (1) the right of plaintiff to cross-appeal against H. & M. without special leave; (2) the propriety of the trial court's refusal to recognize the relevancy of N.J.S.A. 39:3-84; (3) the propriety of the Appellate Division's reversal of the judgment in favor of Schiavone; (4) the propriety of the Appellate Division's affirmance of the judgment in favor of H. & M., and (5) the failure of the Appellate Division to award costs to plaintiff.

I.

At the outset, we shall consider the contention of H. & M. that plaintiff cannot appeal as a matter of right.

Schiavone appeals against plaintiff as of right, because of the dissenting opinion in the Appellate Division. R.R. 1:2-1(b). Plaintiff, the sole respondent in that appeal, cross-appeals against H. & M., codefendant with Schiavone, without

prior grant of a petition for certification. The cross-appeal is from that portion of the judgment favorable to H. & M., entered pursuant to a unanimous decision of the Appellate Division. The narrow question is: Where one of several parties to a civil action appeals to this court as a matter of right, may the respondent cross-appeal against any other party to the litigation as a matter of right?

This problem invokes the interrelation of R.R. 1:2-1(b), which reads,

"Appeals may be taken to this court from final judgments: * * *

(b) In causes where there is a dissent in the Appellate Division of the Superior Court; * * *."

and R.R. 1:2-6, which reads,

"Any respondent may appeal from a judgment, order, or determination by serving and filing a notice of cross appeal, which shall be governed by the rules relating to notice of appeal."

R.R. 1:2-1(b) was promulgated pursuant to Art. VI, ยง V, para. 1(b) of the New Jersey Constitution, which provides:

"Appeals may be taken to the Supreme Court: * * *

(b) In causes where there is a dissent in the Appellate Division of the Supreme Court."

Such appeal may be from all or any part of a judgment. See R.R. 1:2-8. Where an appellant appeals as a matter of right from a portion of the judgment, the respondent may cross-appeal against ...


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