Terminal Warehouse of New Jersey, Inc. v. Phoenix Insurance
Terminal Warehouse of New Jersey, Inc. v. Phoenix Insurance
Opinion of the Court
We granted certification to review an order of the Appellate Division dismissing an appeal as out of time. 55 N. J. 168 (1969).
Plaintiffs, having sustained a fire loss, sued two insurance companies on policies they had issued. The jury returned a verdict in favor of defendant Phoenix Insurance Company and against defendant Westchester Fire Insurance Company for $1,000. Judgment was entered accordingly on March 24, 1969. On March 31 plaintiffs moved before the trial court for judgment notwithstanding the verdicts and alternatively for a new trial either as to damages only or as to all issues. On April 30 the trial court denied the motion as to Phoenix but granted the motion to enter judgment for $5,000 against Westchester notwithstanding the verdict of $1,000.
Phoenix and Westchester were and are represented by the same counsel. On June 14 Westchester filed a notice of appeal from the judgment “entered on April 30, 1969” and on June 20 filed an amended notice of appeal, amended to refer also to the original judgment entered on the jury verdict. On June 24 plaintiffs filed a notice of “cross-appeal” against Phoenix. Phoenix moved to dismiss plaintiffs’ appeal claiming it was out of time. Wot being a party to the appeal taken by Westchester, Phoenix contended plaintiffs’ notice of “cross-appeal” was merely an effort to originate an appeal against Phoenix after the 45-day time limit for appeals from the final judgment against it, R. 2:4H(a), had expired. The Appellate Division granted the motion of Phoenix to dismiss plaintiffs’ appeal.
It is agreed the “cross-appeal” was served and filed within 30 days after the expiration of the 45-day period following the entry of final judgment against Phoenix.
The order dismissing the appeal as to Phoenix is reversed and the matter remanded to the Appellate Division for further proceedings not inconsistent herewith.
For reversal and remandmeni — Chief Justice Weintbatjb and Justices Jacobs, Fkancis, 'Peoctok, Schettino and Haneman — 6.
For affirmance — None.
The time for appeal was tolled by tbe motion for a new trial as to Phoenix. R. 2:4r-3(e).
Reference
- Full Case Name
- TERMINAL WAREHOUSE OF NEW JERSEY, INC., A N. J. CORP., LANGER TRANSPORT CORP., A N. J. CORP., ARM REALTY CORP., A N. J. CORP. AND REGNAL REALTY CO., INC., A N. J. CORP. v. PHOENIX INSURANCE COMPANY, A CORP., DEFENDANT-RESPONDENT, AND WESTCHESTER FIRE INSURANCE COMPANY, A CORP.
- Cited By
- 3 cases
- Status
- Published