Ferragina v. Kaplan

Supreme Court of New Jersey

Ferragina v. Kaplan

28 A.2d 175, 129 N.J.L. 88, 1942 N.J. LEXIS 281

CourtSupreme Court of New Jersey

DecidedSeptember 18, 1942

StatusPublished

Cited by1 cases

This text of 28 A.2d 175 (Ferragina v. Kaplan) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ferragina v. Kaplan, 28 A.2d 175, 129 N.J.L. 88, 1942 N.J. LEXIS 281 (N.J. 1942).

Pincite

Opinion

The opinion of the court was delivered by

Brogan, Chief Justice.

The Supreme Court vacated the allocatur of a writ of certiorari. Motion was made for this relief before the date for the return to the writ. Upon an inspection of the moving papers, supporting the motion, the Supreme Court obviously thought that the writ was improvidently allowed, hence its rule vacating the allocatur.

The appeal before us was not argued and the appellant’s brief contains but one point which is addressed generally to the merits of the District Court judgment in a landlord and tenant case, for the review of which the writ was originally allowed. But the judgment of the District Court is not under review here. An appeal or writ of error or a *89 prerogative writ is in review of the judgment of the tribunal which last passed upon the issue. Ho point is made challenging the power of the Supreme Court to vacate the allocatur except to say that while a single justice may vacate his own allocatur the Supreme Court en ianc may not vacate such allocatur. There is a further statement in the brief, without more, that there is a “great difference” between the two cases, i. e., where a Supreme Court Justice nullifies the writ which he has granted as against the court vacating a writ allowed by such justice. What the difference is appellant does not say. It seems to us to be elementary that whatever a Supreme Court Justice is empowered to do, certainly the court en ianc may likewise do. This being so, there is nothing before us. The appellant has no standing. Allowing a writ of certiorari is a prerogative of the Supreme Court and it is discretionary in character. Its allowance or vacation cannot be restricted even by statute. Dufford v. Decue, 31 N. J. L. 302; Winegrath v. Fairview, 77 Id. 448; 72 Atl. Rep. 91; Frazier Co. v. Township of Long Branch, 110 N. J. L. 221; 164 Atl. Rep. 278; Ford Motor Co. v. Fernandez, 114 N. J. L. 202; 176 Atl. Rep. 152; Wedgest v. Globe Porcelain Co., 125 N. J. L. 438; 15 Atl. Rep. (2d) 760.

The appeal will be dismissed.

For dismissal —The Chancellor, Chief Justice, Parker, Case, Donges, Heher, Porter, Colie, Dear, Wells, Rafferty, Hague, Thompson, JJ. 13.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

Brogan, Chief Justice.

The Supreme Court vacated the allocatur of a writ of certiorari. Motion was made for this relief before the date for the return to the writ. Upon an inspection of the moving papers, supporting the motion, the Supreme Court obviously thought that the writ was improvidently allowed, hence its rule vacating the allocatur.

The appeal before us was not argued and the appellant’s brief contains but one point which is addressed generally to the merits of the District Court judgment in a landlord and tenant case, for the review of which the writ was originally allowed. But the judgment of the District Court is not under review here. An appeal or writ of error or a *89 prerogative writ is in review of the judgment of the tribunal which last passed upon the issue. Ho point is made challenging the power of the Supreme Court to vacate the allocatur except to say that while a single justice may vacate his own allocatur the Supreme Court en ianc may not vacate such allocatur. There is a further statement in the brief, without more, that there is a “great difference” between the two cases, i. e., where a Supreme Court Justice nullifies the writ which he has granted as against the court vacating a writ allowed by such justice. What the difference is appellant does not say. It seems to us to be elementary that whatever a Supreme Court Justice is empowered to do, certainly the court en ianc may likewise do. This being so, there is nothing before us. The appellant has no standing. Allowing a writ of certiorari is a prerogative of the Supreme Court and it is discretionary in character. Its allowance or vacation cannot be restricted even by statute. Dufford v. Decue, 31 N. J. L. 302; Winegrath v. Fairview, 77 Id. 448; 72 Atl. Rep. 91; Frazier Co. v. Township of Long Branch, 110 N. J. L. 221; 164 Atl. Rep. 278; Ford Motor Co. v. Fernandez, 114 N. J. L. 202; 176 Atl. Rep. 152; Wedgest v. Globe Porcelain Co., 125 N. J. L. 438; 15 Atl. Rep. (2d) 760.

The appeal will be dismissed.

For dismissal —The Chancellor, Chief Justice, Parker, Case, Donges, Heher, Porter, Colie, Dear, Wells, Rafferty, Hague, Thompson, JJ. 13.

Cite This Page — Counsel Stack

Bluebook (online)

28 A.2d 175, 129 N.J.L. 88, 1942 N.J. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferragina-v-kaplan-nj-1942.

Opinion

Related

Cite This Page — Counsel Stack