Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

E & K Agency Inc. v. Dyke

Decided: February 1, 1972.

E & K AGENCY, INC., PLAINTIFF-APPELLANT,
v.
GEORGE VAN DYKE AND THEODORE SOFIELD, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Mountain, J.

Mountain

This case has had a long and rather complicated procedural history which must be briefly reviewed.

George W. Van Dyke and Theodore Sofield, defendants in the action, were the beneficial owners of the stock of several corporations which, in turn, owned valuable waterfront land. This property was listed for sale with the plaintiff real estate agency in March, 1965. Efforts to sell the land resulted in the execution and delivery of a contract in August, 1965 with prospective purchasers named Lane and Sherman. Just before the contract was executed, a brokerage commission agreement was signed by each defendant individually and by plaintiff. It provided that the commission, in the agreed amount of $19,125, would become payable "on closing of title." The contract with Lane and Sherman was expressly conditioned upon the sellers successfully clearing a tidelands title problem with the State of New Jersey. This they were apparently never able to do. Eventually they brought suit against the contract purchasers seeking specific performance, but this relief was denied and Lane and Sherman, on their counterclaim, succeeded in recovering the down payment.

Plaintiff instituted suit for the recovery of commissions in June, 1966. Defendants filed an answer which generally denied the allegations of the complaint and set up as a separate defense that no commissions were due since title had never closed. Each side moved for summary judgment. Plaintiff's motion was successful. Defendants sought reargument and reconsideration of the respective motions. A further hearing was in fact held, but the court adhered to its original ruling and in August, 1967, summary judgment was entered in plaintiff's favor.

Thereafter a timely notice of appeal from this judgment was filed, but only in the name of defendant, Van Dyke. Through inadvertence or a misunderstanding, no appeal was taken on behalf of defendant, Sofield. He appears to have learned of this oversight only when plaintiff initiated supplementary proceedings against him looking to a satisfaction of the judgment. After a levy had been made on his bank account, Sofield, with plaintiff's consent, placed in escrow a sum equal to the amount of the judgment and at once applied to the Appellate Division for leave to join the appeal of Van Dyke which was then pending in that court. Leave was granted by order entered March 11, 1968. Sofield's motion to be permitted to join in the appeal was vigorously contested by plaintiff who argued that its allowance improperly extended Sofield's time to appeal contrary to our rules of court. It is this action of the Appellate Division that forms the basis of appellant's argument before us.

On April 1, 1968, the Appellate Division reversed the summary judgment that had been entered in plaintiff's favor, the reversal, since Sofield was now party to the appeal, affecting the judgment as to both defendants. This court denied plaintiff's application for certification. 51 N.J. 577 (1968).

Upon the retrial, the judge, relying on Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528 (1967), dismissed the suit at the conclusion of plaintiff's case, whereupon plaintiff filed notices of appeal both to the Appellate Division and to this

court. On December 9, 1969, the appeal to this court was dismissed for the reason that the order from which the appeal was taken was not a final judgment on the merits and not appealable as of right. However, as plaintiff's brief tells us, the dismissal was accompanied by an "oral statement in open Court that the Plaintiff's right of Appeal would be preserved pending the final determination of the Appellate Division." On January 8, 1970, in an unreported opinion, the Appellate Division affirmed the trial court's dismissal of plaintiff's complaint.

Appellant's argument before us may be simply stated. It recovered a judgment against both Van Dyke and Sofield. The latter took no appeal therefrom within the prescribed time period. Hence, even if the reversal of the judgment as to Van Dyke was correct, the judgment against Sofield should have been allowed to stand; the action of the Appellate Division in allowing Sofield to join in Van Dyke's appeal and then reversing the judgment as to Sofield as well as to Van Dyke, was improper, as it extended, at plaintiff's expense, a right of review which Sofield had forfeited by his failure to file timely notice of appeal.

We affirm the judgment below. Our affirmance is based upon the conclusion that whether or not the Appellate Division granted Sofield's motion to become a party to the then pending appeal, the timely appeal taken by Van Dyke and the consequent reversal as to him, would in itself have required a reversal of the judgment against Sofield. This results from the application of a doctrine which at first seems to have taken the form of a somewhat technical rule of appellate practice, but which today is more often announced as a general function of appellate review, found to rest broadly upon the obligation of the judicial system to accomplish full and complete justice. The rule is that where reversal of a judgment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.