N.J. Constitutional Convention: Vol. 4, Page 180

Wednesday, July 2, 1947 (Morning session)

JUDGE BRENNAN: Make it permissive, not mandatory.

VICE-CHAIRMAN: Well, that is all in the discussion. Assume you had an appellate division, would you permit appeals which are of an interlocutory nature, or stick to our law practice as it now stands?

JUDGE BRENNAN: The appellate division?


JUDGE BRENNAN: Well, you can't take an appeal in New York.

VICE-CHAIRMAN: But in New York you could take an intermediate appeal, that is from interlocutory orders.

JUDGE BRENNAN: And you can then go to the Supreme Court?

VICE-CHAIRMAN: That is to the Appellate Division. If you take your appeal on the preliminary motion you can take that to the Appellate Division.

MR. BROGAN: For instance, a motion to strike, made in the New York Supreme Court; and suppose the answer is struck. You may review that.

JUDGE BRENNAN: In the Appellate Division?

MR. BROGAN: Yes, you may review that. Our practice, which you very well know, prevents an appeal. Now, in Chancery, as opposed to that, you may appeal from any interlocutory order.

MR. SMITH: Is that good or bad?

MR. BROGAN: Well, I think it works a great delay and results in injustice. For instance, there have been many appeals where a man moved to strike a bill of complaint. The court would say, well I won't strike the bill of complaint but I will reserve your motion until final hearing, and they appeal from it.

VICE-CHAIRMAN: One of the proposals that you have before you raises that point, which would be a departure from our present practice. It is mainly a lawyer's problem, but on the other hand, in setting up your court structure, perhaps something should be included to provide for this question of intermediate appeal. You may ultimately conclude that that doesn't belong in the Constitution, but that the Constitution should be flexible enough to allow the Legislature to permit these appeals if it so desires...I mention it now because I think it is one of the problems that we should think about.

Any further questions of Judge Brennan?

MR. McMURRAY: May I just ask one question on a subject which Judge Brennan touched on and which was brought up by the statement that Justice Brogan made. Justice Brogan mentioned the fact that New Jersey equity cases have been outstanding, and that they have been cited and all that sort of thing, where we have

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