# Busik v. Levine > Supreme Court of New Jersey · July 6, 1973 · 63 N.J. 351 URL: https://www.frixlaw.com/law-library/cases/9645905 ## Case - **Full name:** John R. Busik, Plaintiff-Respondent, v. Joseph M. Levine, Defendant-Appellant; Gilma Giraldo (Busik), Plaintiff-Respondent, v. Joseph M. Levine, Defendant-Appellant; Donald F. Foley and Lillian Foley, Husband and Wife, Plaintiffs-Respondents, v. United Engineers & Constructors, Inc. and Public Service Electric and Gas Co., Defendants-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** July 6, 1973 - **Citations:** 63 N.J. 351; 307 A.2d 571; 1973 N.J. LEXIS 193 - **Precedential status:** Published - **Opinion:** Concurrence by Hall - **Judges:** Weintraub, Hall, Conford, Mountain - **Cited by:** 261 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645905 ## How later opinions describe it (automated extraction) - stating that a court “may deliberately decide issues which need not be decided when it believes that course is warranted” - finding that prejudgment interest is compensatory as to the parties and represents damages for delay in payment ## Opinion text Hall, J. (concurring in result). The matter of interest on claims before judgment and on judgments is one of those gray areas, like rules of evidence, which has both procedural and substantive aspects. Whether such areas should be called procedural or substantive for purposes of the exercise of this court’s rule-making power may well turn more on history and tradition, as between the legislative and judicial branches in the particular field, than on pedantic legal analysis. The Legislature of this state has never acted generally in the area of pre-judgment and post-judgment interest and the matter has historically been left to the judiciary. My view is that, especially in the light of this history, the subject matter of R. 4:42-11 has sufficient procedural aspects justifying the court’s adoption of it in the first instance. It seems to me, however, that it would be more appropriate in the future for rules proposed by the court in these over *375 lapping areas to be worked out in advance cooperatively between the three branches of government, as was done so successfully in the case of the evidence rules. The court would still retain exclusive power in those fields in which there can be no reasonable contention that substantive law is predominantly involved, as -well as, of course, in the areas of administration of the courts and admission to and regulation of the bar. The Legislature, by L. 1970, c. 258, N. J. S. A. 2A:84A-39.1 to —39.6, has provided an adaptable mechanism for this process by creating a permanent legislative commission called the State Rules of Court Review Commission 1 “to study and review * * * any rule of court in effect, or proposed, which the commission considers may call for legislative action to aid in the achievement of the intended purpose, or the solution of a problem, by means of amendatory, supplemental, revisory or new legislation.” N. J. S. A. 2A: 84A-39.3. Indeed, in the light of the substantive aspects of R. 4:42-11, the Commission might well review and consider it with the court, with the view to making a recommendation to the Legislature thereon. In this particular situation I would defer to ultimate legislative action. In the meantime, the rule should stand. The other opinions filed herein consider also the power of this court to make substantive law by rule. In the view I have expressed, I do not reach this question beyond saying that, regardless of any right of the court to change the common law by various mechanisms, I presently believe it at least inappropriate and unwise to do so by general rule outside of the framework of a particular case before us. For example, the Legislature has recently adopted comparative negligence, L. 1973, c. 146. (This statute contains, procedural as well as substantive features, but it is predominantly sub *376 stantive.) I am convinced it would not have been fitting for the court to have enacted the principle by rule, although it might properly have done so in deciding an appeal. I would affirm the judgments under review on the basis expresed above. Justice Sullivan joins in this opinion. My understanding is that this Commission is not presently operative by reason of the failure to appoint half of its members, which can and should be promptly rectified. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645905. Public record. Not legal advice.