Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Gaulkin, S.j.a.d.
The zoning board of adjustment of the Township of Readington recommended the granting of a (d) variance to Louis Spiegel and Emma Spiegel, and it was approved by the township committee. Plaintiffs challenged the grant in an in lieu proceeding in the Law Division in which the Spiegels, the zoning board, the township and its building inspector were made parties defendant. The Law Division affirmed. Plaintiffs then appealed to this court, but, according to their notice of appeal dated November 23, 1964, only from "the final judgment * * * in favor of the Township of Readington, * * * The Board of Adjustment of the Township of Readington and Earl Hartpence, * * *." The Spiegels were not mentioned in the notice of appeal and they were not served with it.
When the case came on for argument before us we asked counsel to brief the question whether the appeal must not be dismissed because of the failure to join the Spiegels. Counsel have done so, respondents taking the position that the appeal must be dismissed. We also asked counsel to inquire of the Spiegels whether they would consent to become parties to the appeal. The Spiegels refused. We then allowed plaintiffs to serve a notice of appeal upon the Spiegels, reserving the question of its timeliness. The Spiegels then appeared specially,
with our permission, to contest the timeliness and to urge that the appeal could not affect their rights. At our request, and without prejudice, counsel for the Spiegels also briefed the merits of the grant of the variance. We then heard further oral argument on all issues.
We conclude that the Spiegels are indispensable parties to this appeal; that the notice of appeal served upon them was a nullity because too late, and that therefore the appeal must be dismissed. Alberti v. Civil Service Commission, 41 N.J. 147, 155 (1963); Borough of Hasbrouck Heights v. Division of Tax Appeals, 48 N.J. Super. 328, 333 (App. Div. 1958).
Plaintiffs argue that in Alberti, supra, the late joinder of an indispensable party was treated as timely and that we should do the same here. We hold that Alberti is distinguishable.
In Alberti the Supreme Court held the late joinder forgivable because there had been substantial compliance with R.R. 4:88-8(a), the rule which governed that case. The case before us is governed by R.R. 1:2-8 and there has been no compliance whatever with it.
Alberti had been dismissed from his employment by the City of Passaic. He appealed to the Civil Service Commission, which sustained the dismissal, and then he appealed to the Appellate Division. R.R. 4:88-8(a) provides:
"(a) 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 a writing filed with the clerk of the superior court and all other parties to the proceeding or their attorneys. * * *."
Pursuant to this rule, Alberti served the Civil Service Commission and the Attorney General, but he did not serve Passaic. This would have been sufficient before 1948. As we said in Alberti, 78 N.J. Super. 194 (1963):
"Prior to our present practice under R.R. 4:88 for review by proceedings in lieu of prerogative writs, the writ of certiorari would have been utilized to bring up the record of the state administrative agency for judicial review. In such instances, the jurisdiction of the former Supreme Court was complete when the writ was addressed to the governmental agency, as custodian of the record, and returned by it with the record annexed. Where it appeared that the necessary consequence of the judgment sought would be to injuriously affect the interests of third parties, or public interests not already represented in court, it was within the discretion of the reviewing court to defer judgment until those who were interested in sustaining the ...