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State v. Tenenbaum

Decided: June 23, 1977.

STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-APPELLANT,
v.
ELVIRA TENENBAUM ET AL., DEFENDANTS-RESPONDENTS



Lora, Crane and Michels.

Per Curiam

This is a condemnation case. On July 30, 1976 a hearing was held before the condemnation commissioners at which time plaintiff presented expert testimony that the value of the property taken was $5,800. Defendant property owner, represented by counsel, did not produce any expert testimony as to the value of the property but relied on witnesses who testified as to the nature of the property subject to condemnation and the impact of the taking on the use of the remainder of the tract. The commissioners' report dated July 30, 1976 and filed August 9, 1976 fixed the value of the property taken at $7,800.

Plaintiff State of New Jersey filed a notice of appeal to the Superior Court on August 20, 1976, the notice being dated August 13, 1976. Counsel for defendants acknowledged receipt of the notice of appeal on August 20, 1976. No appeal or cross-appeal was filed by the defendants. During the pendency of the appeal before the Law Division defendants hired a real estate expert at a fee of $600 to testify at the upcoming trial. It appears from defendants' brief that the scheduled trial date was postponed at plaintiff's request.

By motion dated December 29, 1976 plaintiff moved to withdraw its appeal and for dismissal of the action. The motion was denied by the trial judge at a hearing conducted on January 13, 1977. An appropriate order was entered on February 3, 1977 in which the judge outlined his reasoning in denying the motion. He found that (1) defendants' attorney had expended $600 for a real estate expert subsequent to

plaintiff's filing of its appeal; (2) the time during which defendants were entitled to file a cross-appeal under R. 4:73-6 had expired without defendants having filed an appeal; (3) he was not empowered to relax the time limits set forth in that rule to allow defendants to file an appeal out of time, and (4) the prejudice to defendants which would result from granting plaintiff's motion outweighed any prejudice to plaintiff should the motion be denied.

Leave to appeal from this interlocutory order was granted on March 8, 1977. On appeal the State contends that the decision of the trial judge will impose severe burdens upon the State and contravenes a strong public policy in favor of permitting withdrawal of such appeals. It asserts that the trial judge's refusal to permit the State to withdraw its appeal from the commissioners' award has deprived the State of the discretion which it must necessarily exercise in determining the manner in which public funds are expended in condemnation actions.

R. 1:3-4(b) specifies that enlargement of time for appeal to the Superior Court, Law Division, from reports of condemnation commissioners shall be governed by R. 4:73-6(a) which, as authorized by N.J.S.A. 20:3-13(a), provides that an appeal from the report of the commissioners shall be taken by an appellant by filing a notice of appeal with the Clerk of the Superior Court within 20 days after the date of service upon him, by mail or otherwise, of a copy of the report; but the court for good cause shown may extend the time for a period not exceeding 30 days.

It is our opinion that these rules are mandatory and fall within that category of rules which may not be relaxed in accord with R. 1:1-2 which provides:

The rules in Part I through Part VII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it

would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes.

Accordingly, neither the Law Division nor this court may extend the time for filing an appeal or cross-appeal. See In re ...


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