Opinion
Argued December 3 and 4, 1962 —
Decided December 17, 1962.
Appeal from Superior Court, Appellate Division.
Mr. Sidney P. McCord, Jr., argued the cause for the defendant-appellant E. Bernard Sirotta ( Messrs. McCord, Farrell and Eynon, attorneys). Mr. Charles A. McGeary argued the cause for the defendant-appellant Samuel M. Langston Company ( Messrs. Bleakly, Stockwell Zink, attorneys).
Mr. Martin L. Haines argued the cause for the respondent ( Messrs. Dimon, Haines Bunting, attorneys).
The defendants' applications for summary judgment were denied in the Law Division for the reasons expressed in the opinion reported at 71 N.J. Super. 182 (1961). The Appellate Division granted leave to appeal ( R.R. 2:2-3) and we certified the matter while it was awaiting argument there. The Joint Appendix which the parties have submitted is confined largely to the pleadings. Counsel assert that there was an oral stipulation of facts in the Law Division but it was apparently never transcribed for incorporation in the Joint Appendix. In any event at oral argument it became evident to us, and perhaps to counsel as well, that pertinent facts have never been explored or set forth in testimonial form anywhere. The legal issues which the parties seek to present carry important implications and they should not be determined in a vacuum or in academic fashion; the preferable procedure is to permit the matter to be tried and determined in regular course. Cf. Public Affairs Associates v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 , 606 (1962); State v. Hudson County News Co., 35 N.J. 284 , 288 (1961).
The order granting leave to appeal is vacated and the cause is remanded to the Law Division for trial.
For vacating leave to appeal — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
Opposed — None.