For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[41 NJ Page 149] Nicholas Alberti, a classified civil service employee of the City of Passaic (the City), employed in its Park Department, was dismissed by the City for conduct unbecoming a public employee, after a contested hearing. He appealed to the Civil Service Commission, Department of Civil Service of the State of New Jersey (the Commission) which, after a de novo hearing, sustained the dismissal. The decision of the Commission was rendered on March 5, 1962 and a copy was served upon Alberti on March 14, 1962. Alberti filed a notice of appeal with the Appellate Division on April 26, 1962, and served copies of notice thereof on the Commission and the Attorney General, as required by R.R. 4:88-8. He failed, however, to serve such notice on the City or its attorney. On August 27, 1962 Alberti moved before the Appellate Division for an order permitting him to prosecute
an appeal against and to serve notice thereof upon the City. The motion was denied on September 4, 1962 upon the ground that the time for appeal, as provided in R.R. 1:3-1(b), even if extended under R.R. 1:27B(d), had expired. On November 26, 1962, the Commission moved to dismiss the appeal for lack of a necessary party, i.e., the City. The motion was denied without prejudice to its later being renewed. At the argument on that motion the Appellate Division suggested that Alberti apply for reconsideration of the order of September 4, 1962. Alberti did so move. The Appellate Division then granted Alberti leave to so join the City and to serve a notice of appeal as within time. 78 N.J. Super. 194 (App. Div. 1963).
This Court granted the City's and Commission's motion for leave to appeal from the Appellate Division's last mentioned order. This is cause A-144-62. After the argument thereof the Court held its decision and certified on its own motion Alberti's appeal on the merits pending in the Appellate Division. This is cause A-11-63.
The Appellate Division, relying upon DeNike v. Board of Trustees, etc., Retirement System, 62 N.J. Super. 280 (App. Div. 1960), concluded that the time limitation for appeals from a state agency decision or action provided by R.R. 1:3-1(b) was subject to enlargement under R.R. 4:88-15(c). The DeNike court rationalized as follows, at p. 291 of 62 N.J. Super.:
"Prior to the new rules, all prerogative writ cases were heard in the former Supreme Court. Central R.R. Co. v. Neeld, supra [26 N.J. 172]; Carls v. Civil Service Commission of New Jersey, 17 N.J. 215, 218-221 (1955); Ward v. Keenan, 3 N.J. 298 (1949). Under our present practice, the Law Division and the Appellate Division each has jurisdiction over all such cases, no matter by what writs they would have been prosecuted at common law, the only difference being that if the defendant is a state agency, plaintiff should proceed in the Appellate Division, by appeal under R.R. 4:88-8 or for declaratory judgment under R.R. 4:88-10, while against all other agencies he must sue in the Law Division. In other words, regardless of the essential sameness of the claim, it is only the identity of the defendant that determines whether one division or the other has jurisdiction."
From this premise it concluded that R.R. 4:88-15(c) was applicable to actions under R.R. 4:88-8. Parenthetically, it is to be observed that on the appeal to this court the affirmance in DeNike was not upon the Appellate Division's thesis. DeNike v. Board of Trustees, etc., Retirement System, 34 N.J. 430 (1961).
The error in the conclusion that R.R. 4:88-15(c) is applicable to the time for taking appeals under R.R. 4:88-8 is demonstrated as follows: Under Article VI, Section V, paragraph 4 of the New Jersey Constitution of 1947, prerogative writs were superseded, and
"* * * in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary."
In implementation of that directive, the Supreme Court provided as follows, R.R. 4:88-1:
"Prerogative writs are superseded, and in lieu thereof, review, hearing and relief may be had as of right in the Superior Court in the manner provided by Rule 4:88. The term 'proceeding in lieu of prerogative writ' appearing in the statutes shall be taken to include actions, appeals and reviews provided for by this rule."
"Review, hearing and relief heretofore available by prerogative writs and not covered by Rules 4:88-7, or 4:88-8, or 4:88-10 shall be afforded by a civil action at law in the Law Division of the Superior Court."
Thus it is seen that all those actions which prior to 1948 had been undertaken by the various prerogative writs were consolidated into one type of action, thereby eliminating the technical distinctions between the different writs, and so simplifying procedure. The general substitute for the old writs is a proceeding in the Law Division, appealable to the Appellate Division. There were, however, excepted out of this general
class three specific types of actions, which involve (1) review of statutory proceedings before judges sitting as statutory agents, or proceedings before courts of limited jurisdiction, R.R. 4:88-7; (2) review of a final decision or action of a state administrative agency, R.R. 4:88-8; and (3) review of an administrative rule promulgated by a state administrative agency, R.R. 4:88-10. These causes of action are directed to be undertaken by direct appeal to or action in the Appellate Division.
"Review of the final decision or action of any state administrative agency * * * shall be by appeal to the Appellate Division. Such appeal shall be instituted by filing a notice of appeal with the Appellate Division together with an affidavit or acknowledgment of service of copies of the notice of appeal upon the agency, the Attorney General or upon any person in his office designated by him in writing ...