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In re Ackerson

Decided: November 7, 1963.

IN THE MATTER OF JOHN D. LAZARUS. KATHERINE ACKERSON, APPELLANT,
v.
JOHN D. LAZARUS, AND THE STATE OF NEW JERSEY, DIVISION OF THE REAL ESTATE COMMISSION, RESPONDENTS



Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.

Freund

Appellant Katherine Ackerson filed a verified complaint with the New Jersey Real Estate Commission (Commission) under N.J.S.A. 45:15-17(e), charging respondent John Lazarus with "conduct which constitutes unworthiness, incompetency, bad faith and dishonesty and which constitutes fraud and dishonest dealing when he gave false testimony" in a prior condemnation proceeding involving property owned by appellant, in which respondent testified on behalf of the State as an expert on the valuation of property.

On the basis of this complaint the Commission held a hearing. Respondent's motion to dismiss at the end of complainant's proofs was granted, and an appeal to this court followed. Respondent then moved to dismiss this appeal on the ground that the complainant had no standing to appeal the Commission's determination, but decision on the motion was reserved for the hearing of the appeal on the merits. Both parties have included arguments concerning this point in their briefs.

The preliminary issue which we must decide, therefore, is whether one who files a complaint with the Commission concerning the activities of a licensed broker has standing, either statutory or under common law principles, to appeal the Commission's determination after it investigates the matter. The determinative statutory provision in this area is N.J.S.A. 45:15-18, which provides that before suspending or revoking a real estate broker's license the Commission shall notify the licensee of any charges made and afford him the opportunity to be heard. The last sentence of this section reads as follows:

"Any final decision or determination of the commission shall be reviewable by the Superior Court by a proceeding in lieu of prerogative writ."

This last sentence became effective March 19, 1953, replacing the final sentence of R.S. 45:15-18. The superseded sentence read in part as follows:

"* * * the supreme court shall have power to review all questions of law involved in any final decision or determination of the commission, if application is made to the supreme court by the aggrieved party within thirty days after such determination, which application shall be made by petition to any justice of said court, and he shall have power to dispose of the matter in a summary manner."

The reference to "supreme court" is to the former Supreme Court under the Constitution of 1844. See source statute, L. 1921, c. 141, ยง 14, p. 376.

In Tomei v. Annetta , 11 N.J. Super. 456 (App. Div. 1951), a complainant appealed the Commission's dismissal of his charges against a broker. Tomei was decided under the earlier statute as quoted immediately above. The Appellate Division affirmed the Commission's decision and dismissed the appeal. In the course of his opinion Judge Jayne made the following preliminary observation:

"Since the appeal has reached us for determination without any preliminary motion to dismiss it, we shall in the circumstances bypass, without comment, the status of the appellant as an 'aggrieved party' within the import of the statute." (11 N.J. Super. , at p. 460)

The implication is clear that the court considered it doubtful that the complainant in Tomei was "aggrieved" under the statute. Appellant contends, however, that the observation in Tomei is inapplicable to the present situation because the statute no longer mentions "aggrieved party." She argues that the final sentence of the statute, as amended, indicates an intent on the part of the Legislature to remove the requirement that a person be an "aggrieved party" in order to appeal.

We agree with respondent's contention, however, that the change in the statute was intended ...


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