DiMAIO v. Local 80-A, Etc., of America, CIO

32 N.J. Super. 136 (1954)

108 A.2d 20

FRANK R. DiMAIO, PLAINTIFF-RESPONDENT, v. LOCAL 80-A, UNITED PACKING-HOUSE WORKERS OF AMERICA, CIO, BENJAMIN BUTLER, ANTHONY VALENTINO AND SYLVIA NEFF, DEFENDANTS-APPELLANTS.

Superior Court of New Jersey, Appellate Division.

Argued September 8, 1954.

Decided September 15, 1954.

*137 Before Judges CLAPP, JAYNE and FRANCIS.

Mr. Arthur W. Lewis argued the cause for the respondent (Messrs. Lewis and Hutchinson, attorneys).

Mr. Abraham Greenberg argued the cause for the appellants.

PER CURIAM.

Plaintiff sued appellant labor union and certain of its officials individually, charging the publication of specified libelous statements against him. Following answer, interrogatories and answers thereto and some depositions, defendants moved for summary judgment. The trial court denied the motion, but only as to the appellant, believing erroneously that such relief was not sought as to the individual defendants.

The judge who heard the motion having gone out of office, respective counsel presented to another judge a consent order denying the motion as to the individual defendants. This appears to have been done solely for the purpose of facilitating an intended appeal. The record does not indicate that there was any actual determination of the matter as to the individual defendants by either judge.

In any event, this appeal was taken from both orders. But the orders are interlocutory and not appealable as a *138 matter of right. Appeal in such case lies only on leave of the Appellate Division applied for within the time and under the conditions prescribed by R.R. 2:2-3(b). Under the circumstances the appeal must be dismissed. Milk Drivers, etc., Local 680 v. Shore Dairies, Inc., 8 N.J. 32 (1951).