On appeal from Superior Court, Chancery Division, Morris County, whose opinion is reported at 159 N.J. Super. 317 (1978).
[167 NJSuper Page 50] This suit involves the validity of defendant landlord's repossession of premises leased to plaintiff, a commercial tenant, and distraint of the tenant's personal
property located on the premises following nonpayment of rent.
Plaintiff-tenant Porter and Ripa Associates, Inc. commenced the instant action by filing a complaint with supporting affidavit, charging that it had been wrongfully evicted by defendant-landlord 200 Madison Avenue Real Estate Group. On January 30, 1978 Superior Court Judge Bertram Polow signed an "order to Show Cause with Temporary Restraints" which permitted plaintiff to remove personal property, including business records and material pertaining to ongoing projects, and required plaintiff to post the rent due ($22,000) in an escrow account. Subsequent court orders more specifically delineated plaintiff's right of access to the repossessed premises and directed defendant's general partner, Louis C. Ripa, to comply fully with the court's orders.
On April 24, 1978 the trial judge entered an order which included a denial of defendant's motion for summary judgment and a grant of plaintiff's cross-motion for partial summary judgment -- the judge having determined that "the eviction of the Plaintiff was wrongful and in breach of the lease." On May 1, 1978 the Appellate Division denied defendant's motion to stay judgment and for leave to appeal. The April 24 order was supplemented by an order entered on June 9, 1978, stating that the partial summary judgment embodied in the April 24 opinion of the trial judge was to be considered a final judgment on less than all the claims made by plaintiff and defendant under R. 4:42-2. Notice of appeal was filed with the Appellate Division by defendant on July 17, 1978.
Following the publication of Delbridge v. Jann Holding Co. , 164 N.J. Super. 506 (App. Div. 1979), which held that an order entered by a trial judge pursuant to R. 4:42-2, directing entry of final judgment upon less than all of the claims (as was done in the instant case) is not binding upon us, plaintiff moved to dismiss the appeal. The grounds were that the order appealed from was not a final judgment
and we had previously denied leave to appeal. We reserved decision of the motion until after argument of the appeal.
We have now considered plaintiff's argument in the light of the events which transpired since we initially denied leave to appeal. Plaintiff's motion to dismiss was made after the case had been fully processed for argument on appeal. It would serve no useful purpose to dismiss the appeal at such late date, when the parties assumed that the appeal was as of right. Additionally, we believe that the interests of justice arising from the circumstances which are now present warrant our hearing the appeal. Accordingly, we deny the motion to dismiss and grant leave to appeal nunc pro tunc from the order. Delbridge v. Jann Holding Co., supra.
Before proceeding, we also note that defendant does not argue that there are any factual issues which rendered the order under appeal invalid. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954); R. 4:46-2.
We need not recite the facts in full, since they are set forth in Judge Polow's reported opinion and neither party contends that his statement thereof is erroneous. The judge based his decision that defendant had wrongfully dispossessed and distrained upon plaintiff's property located within the demised premises, primarily upon the thesis that N.J.S.A. 2A:33-1 et seq. , covering the subject of distraints, is unconstitutional for the reasons expressed in Van Ness Industries v. Claremont Painting , 129 N.J. Super. 507 (Ch. Div. 1974),*fn1 and the plaintiff had not ...