N.J. Constitutional Convention: Vol. 4, Page 239
years, when one Vice-Chancellor dared to differ from another Vice-Chancellor.
MR. SMITH: Is that good? I, personally, have very serious objections to "yes" men in any set-up.
MR. KAUFMAN: It's not a question of "yes" men, but it's a question of having uniformity in administration, in the law. I would be opposed to having the field of partnership as it is in New York, where there are equitable questions in the distribution or liquidation of partnership affairs. Ten judges, having five opinions on one side and five on the other - you don't know which to take.
VICE-CHAIRMAN: Wouldn't it be a problem of law that is involved?
MR. KAUFMAN: It's not so much a question of law. The courts of appeal have pretty much unified the law situation.
VICE-CHAIRMAN: The court of appeals can unify any difference of opinion.
MR. KAUFMAN: You have the same thing at law, on motion between various circuit judges, and I don't like it.
VICE-CHAIRMAN: Well, the point in the first place was that you have the same problem at law as you do in equity cases.
MR. KAUFMAN: Yes, and that is one of the things that you might have to remedy, because you have no appeal on the law side today and you are stuck with the decision until the case is finally determined by a jury, and by that time all your rights may have been impaired. That is a tremendous defect on the law side, and it may be that your appellate division on the law side will have some efficacy, if you will be able to appeal from some interlocutory orders.
I will give you an example. In a law action before a certain circuit judge he commanded the plaintiff to appear before trial, before an answer filed, in violation of the statute. There was no right of appeal. You had to wait until the case was over before you could review that action. In the meanwhile he was about to go ahead and examine the people before he was entitled to do it under the statute. What was the net result? The ingenious lawyer in that case went to the Supreme Court Justice sitting in circuit and applied for a motion for reargument, and the case was settled because it was practicable to settle it in view of the situation. But you have that situation on the law side. You couldn't have than on the equity side because, on the equity side today, would a Vice-Chancellor grant such an order? You could take an appeal to the Court of Errors and Appeals and reverse him. You haven't got that on the law side. In fact, the deficiency on the law side is what very few people have realized.
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