text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RODNEY CRAIG, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 15, 1969.

      Before Judges Kilkenny, Labrecque and Leonard.

      Mr. Robert W. Griscuolo, assigned counsel, argued the cause for appellant (Messrs. Parker, McCay & Griscuolo, attorneys) .

      Mr. Alfred 0. Powell, Assistant Prosecutor, argued the cause for respondent (Mr. Martin J. Queenan, Burlington County Prosecutor, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant appeals in forma pauperis from his conviction for contempt of court.

Defendant, jointly with one Harry Brewer, had been indicted for armed robbery. He was tried separately, convicted and sentenced. His conviction was affirmed on appeal. Thereafter he was called to testify at Brewer’s trial for the same offense (Brewer had been previously convicted and his conviction had been reversed). He stated, out of the presence of the jury, that he was refusing to testify on the ground of self-incrimination and on the further ground that Brewer’s then counsel had previously acted as his (defendant’s) counsel and would be in a position, on cross-examination of him, to make use of confidential information obtained from him. When defendant’s claim was disallowed and he still declined to answer, he was adjudged to be in contempt and sentenced to serve six months in the county jail, consecutive to the sentence he was already serving for the armed robbery.

We affirm the conviction. A witness may not make himself the final judge of the availability of the Fifth Amendment privilege against self-incrimination. Hoffman v. United States, 341 U. S. 479, 486-487, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); In re Pillo, 11 N. J. 8, 19 (1952). He must make a sufficient showing to permit the court to pass upon it. In re Addonizio, 53 N. J. 107, 116 (1968). There must be reasonable ground to apprehend the peril. State v. De Cola, 33 N. J. 335, 350 (1960). Since defendant had already been convicted for his participation in the crime for which Brewer was being tried, and had exhausted his appeal from that conviction, the possibility of his being further held to account for that crime was nonexistent. He was afforded every opportunity to bring home to the court any other basis which would support the exercise of his Fifth Amendment right to refuse to testify on the ground of self-incrimination, but declined to do so. Our inquiry at the oral argument leaves us still in the dark as to the basis for his contention. In the absence of any disclosure of any criminal exposure which would have justified his refusal, the court properly rejected his claim and ordered him sworn. State v. Tyson, 43 N. J. 411, 416-417 (1964) ; State v. De Cola, supra; In re Boiardo, 34 N. J. 599, 602-603 (1961).

The fact that counsel for Brewer had also been defendant’s counsel at the time of his trial and conviction afforded no basis for defendant’s refusal to testify. There was no attempt to show that his former counsel would be in a position, on the basis of confidential information acquired from him, to ask questions which might involve him in some other illegal activity. Actually, defendant’s position, as stated to the court by the deputy public defender who represented him, was that he had “no objection to Mr. Hartman proceeding with the representation of Mr. Brewer. But, he would object and for the record does object to any interrogation by Mr. Hartman on any questions or information which Mr. Hartman would have knowledge of as a result of their client-attorney relationship. He has no objection to Ms representation if the examination is limited to those matters which are questions of public record.” To this the court replied that that was “& point we have not come to.” It never was reached because defendant refused to answer any and all questions. Typical is the following:

By Mr. Harrison [Assistant Prosecutor] :
Q Now, Mr. Craig, where were you born?
A I plead the Fifth.
Q I did not hear you?
A I plead the Fifth.
THE COURT: Are you aware, Mr. Craig, that I have just ordered you to answer these questions?
THE WITNESS: Yes

Defendant’s contention that he should have been granted immunity from prosecution, as provided in N. J. S. A. 2A:81-17.3, as a prerequisite to holding him in contempt is clearly without merit. We note that the point was not raised below. Wholly aside, only if the court had ruled that there was a basis for defendant’s claim of privilege would the prosecutor have been put to the choice of granting him immunity or abandoning the inquiry. In re Addonizio, supra, 53 N. J., at p. 116.

Defendant’s final point, that his invocation of the privilege was justified by the court’s failure to explain the applicable law, leaving him in fear that he would incriminate himself through ignorance of the law, is likewise without merit. Prior to the opening of the trial defendant filed with the court a brief and statement of position in support of his refusal to testify. At the trial he was attended by a representative of the Public Defender’s Office who was present to advise and represent him, and did so. He also conferred with Brewer’s attorney, who, as noted, had previously represented him, before the trial began. We are satisfied that the court fully discharged its duty to defendant. He voluntarily placed himself in the position in which he now finds himself.

Affirmed.


source: Caselaw Access Project

author: Kilkenny, J. A. D. Conford, S. J. A. D.

license: Public Domain

text:
    MEYER KAPLAN, PLAINTIFF-RESPONDENT, v. ELSIE CAVICCHIA, DEFENDANT AND THIRD-PARTY PLAINTIFF, v. HUGH ANTHONY LOPEZ, ET AL., THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1969
    Decided June 26, 1969.

      Before Judges Coneokd, Kilkenny and Leonakd.

      Mr. Julius B. Poppinga argued the cause for appellant and third-party plaintiff (Messrs. McCarter & English, attorneys; Mr. Joseph E. Irenas and Mr. John R. Drosdiclc, on the brief).

      Mr. Morris M. Schnitzer argued the cause for respondent (Messrs. Kasen, Schnitzer <& Kraemer, attorneys).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Defendant Elsie Cavicchia appeals, pursuant to leave granted under R. R. 2:2-3(a), from an order of the Chancery Division denying her motion for a jury trial of the issues involved in this litigation. Denial was based on the ground that the application for a trial by jury was not timely made, as required by R. R. 4:39-1 and 4:39-2.

R. R. 4:39-3 provides that where a party has a right to trial by jury, the right will be deemed to have been waived, unless trial by jury is demanded as required by R. R. 4:39-l and 4:39-2 — that is, “not later than 10 days after service of the last pleading.” A motion by defendant for a jury trial was not made herein until November 4, 1968, after plaintiff had filed a second pretrial conference memorandum dated October 31, 1968. The first pretrial conference, scheduled for about May 31, 1968, had been postponed to enable defendant to bring in additional parties. In her third-party action defendant referred to plaintiff’s suit as one seeking to have her declared a constructive trustee. In the second pretrial memorandum plaintiff alleged additionally that defendant’s conduct made her guilty of the conversion of plaintiff’s securities, allegedly worth $70,000.

Defendant claims justification for the late demand on the ground that plaintiff’s complaint in the Chancery Division initially sought essentially equitable relief — a judgment finding that defendant was a constructive trustee of certain securities deposited by plaintiff, an accounting and an injunction restraining disposition of such securities. Under those circumstances there was concededly no right to trial by jury because the ease was generally an action in the Chancery Division, in pursuit of equitable remedies. She argues that it was not until the actual pretrial conference that plaintiff allegedly disclosed that her claim was rather one for money damages based upon an allegedly wrongful conversion by defendant of plaintiff’s securities. Those securities had been disposed of and were no longer recoverable, presumably by plaintiff. This, avers defendant, altered plaintiff’s suit to one at law for conversion, thus entitling defendant to trial by jury. Her motion for jury trial was then made and, according to defendant, was timely because plaintiff manifested the real theory upon which she sought a judgment at the pretrial conference.

However, defendant knew, apparently at the inception of the suit, that plaintiff would not be able to recover the deposited securities because they had already been disposed of by the pledgee or the pledgee’s agent. Hence, she was aware that a constructive trust as to the particular securities would probably be unobtainable and an injunction as to their transfer by defendant would prove abortive, in view of the fait accompli. Yet, she never made this fact known to the originally unaware plaintiff or to the court by her answering pleading.

It was not until January 24, 1968, when plaintiff took depositions, that he learned for the first time that most of his securities had been wrongfully converted. On February 1, 1968 equitable relief was sought from the trial court in plaintiff’s application for appointment of a receiver for defendant’s brokerage accounts. By order of February 8, 1968 defendant was directed to deposit and maintain on deposit securities with a value of at least $100,000 to secure any judgment. obtained by plaintiff against her. Such intermediate relief reflects, and the parties knew, that the trial court was exercising its equity powers and negates defendant’s belated claim that this is a purely legal action. She never made a motion, supported by an affidavit reciting the facts, for a transfer of the cause from the Chancery Division to the Law Division, on the ground that there was an adequate remedy at law. Upon an order for such a transfer, allowable under R. R. 4:41-3, she could have at least then demanded a trial by jury. She allowed the action to proceed to pretrial conference before demanding trial by jury. Even in the pretrial order, the nature of the action was described as one for equitable relief and equitable issues were listed.

We agree with the trial court that, under the totality of the circumstances, demand for trial by jury was not timely made and defendants conduct did not justify or excuse her noncompliance with the requirement of R. R. 4:39-1 and 2.

There is a further reason for affirming the order under review. This suit was properly instituted in the Chancery Division. The equitable remedies sought have never been withdrawn, or abandoned. There has been no amendment oí plaintiff's cause of action. See Associated Metals, etc., Corp. v. Dixon Chemical and Research, Inc., 82 N. J. Super. 281, 296-299 (App. Div. 1964), certification denied 42 N. J. 501 (1964). If the securities cannot be recovered, plaintiff may still seek from defendant, if the latter wrongfully converted them, an accounting of the proceeds derived from their disposition, including any profits .flowing therefrom, and a judgment declaring defendant a constructive trustee, lor plaintiff’s benefit, of those proceeds and profits, or any snbstituted assets. The deposit of $100,000 in securities is hy order of an equity court.

Upon the conversion of securities the injured party has an election of remedies. He may sue at law in replevin and obtain Ms securities, if defendant still has them, plus damages for the wrongful detention. He may also sue at law for money damages in trover for the wrongful conversion. In such ease, the damages recoverable would be the highest intermediate value of the securities between the date of the conversion and the date of judgment. Then, too, he may sue in equity for a judgment declaring the wrongdoer a constructive trustee of the securities, or of any money or property derived from their disposition. He may obtain an accounting. There may also be injunctive relief where the facts warrant it. See, too. N. J. S. A. 12A-.8--315 (1) and (3), insuring the equitable remedies in the case of a wrongful transfer of securities.

Since this action has been properly in the Chancery Division since its inception, that tribunal may grant complete relief and, where complete equitable relief has become unavailable, inadequate or no longer fully attainable by reason of changed circumstances, equity may grant, and without any right to trial by jury, such substitutionary relief as plaintiff may be entitled to, according to the conscience of the court. See Steiner v. Stein, 2 N. J. 367, 379 (1949).

Eor the foregoing reasons, the order under review is affirmed. The matter is remanded to the Chancery Division for further disposition, consistent with this opinion.

Conford, S. J. A. D.

(concurring). The trial court denied defendant’s motion for a jury trial on the simple ground that any right thereto was waived because not demanded within the time fixed by R. R. 4:39-l, i. e., not later than ten days after service of the last pleading directed to such issue. I concur in the affirmance of the order, but solely for the reason that there was no right to a jury trial in the first place. I pass the question as to the timeliness of the demand.

The complaint here alleged, in effect, the fraudulent acquisition and conversion by another, with defendant’s aid and knowledge, of plaintiff’s stock securities and the subsequent obtaining of such securities by defendant’s agent. It asserted that defendant became “constructive trustee” of such securities for the plaintiff (subject to plaintiff’s conceded obligation on a loan secured by the securities), and it sought relief through a declaration of constructive trust, an accounting by defendant to the plaintiff for such securities and an injunction against the transfer of or other dealing with the securities by defendant. See N. J. S. 12A:8-315. Damages and costs were also prayed for.

It later developed that defendant had sold the securities in question before the action was brought. An interim order was entered by the trial court directing defendant to deposit with the court securities of a value of at least $100,000 to secure any judgment obtained by plaintiff against her. There was no attempt by defendant to seek leave to appeal from that interlocutory order.

On this phase of the ease defendant argues that the equitable character of the case as first filed has been neutralized by the second pretrial memorandum of plaintiff’s claim, the gravamen of which is conversion of the stock by defendant — a purely legal cause of action. This assertedly assured plaintiff’s right of jury trial regardless of the inclusion in the complaint of what are referred to as equitable “catchwords” such as fraud, accounting, injunction and constructive trust. Cited is Stein v. Elizabeth Trust Co., 126 N. J. Eq. 399 (E. & A. 1939), and cases of similar purport.

Plaintiff’s second pretrial memorandum, although describing the action as one “seeking damages for conversion of plaintiff’s securities and an accounting therefor,” demands as partial relief: “The return in kind of the securities listed in Exhibit A annexed to the complaint * * But, of more significance, the pretrial order signed by a judge describes the action as one “to adjudicate defendant a constructive trustee for certain securities, for the conversion of said securities and an accounting therefor * *

In view of the pretrial order, I am constrained to disagree with defendant’s contention that as of the time of the determination of defendant’s motion for jury trial the action had by amendment been delimited strictly to the legal claim of damages for conversion and denuded of its equitable character. There still remained the demand for the equitable remedies of declaration of constructive trust (which would have encompassed tracing the proceeds of any sale of the securities into other property and fastening a trust thereon) and for an accounting. As to constructive trust, see 4 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 1048, p. 104, § 1049, p. 105; as to accounting, see-3 Pomeroy, § 910, p. 577; 4 Pomeroy, § 1421, p. 1078. Inapplicable, therefore, are such cases as Stein v. Elizabeth Trust Co., supra, where no relief was ever demanded in the Chancery court but for a money judgment for wrongful appropriation by defendant of plaintiff’s bank account.

The principle clearly applicable here, and not at all changed by the 1947 constitutional merger of law and equity jurisdiction in a single Superior Court, is that “where equity has rightfully assumed jurisdiction over a cause for any purpose, it may ordinarily retain the cause for all purposes and proceed to a final determination of the entire controvers3r, including the establishment [without a jury] of purely legal rights and the granting of legal remedies.” Associated Metals, etc. Corp. v. Dixon Chemical, etc., 82 N. J. Super. 281, 297-298 (App. Div. 1964), certification denied 42 N. J. 501 (1964). See also Mantell v. International Plastic Harmonica Corp., 141 N. J. Eq. 379, 393, 173 A. L. R. 1185 (E. & A. 1947); Steiner v. Stein, 2 N. J. 367, 379 (1949).

The order under review should be affirmed.


author: Yancey, J. C. C.

text:
    C. J. SIMONS & CO. A NEW JERSEY CORPORATION, PLAINTIFF, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey-Law Division
    Decided October 3, 1969.

      Mr. Frederick J. Wortmann appeared for plaintiff (Messrs. Braff, Litvak & Frtag, attorneys).

      Mr. Garl F. Barbato attorney for defendant.
   Yancey, J. C. C.

(temporarily assigned). This is a motion for summary judgment made pursuant to B. 4:46-1 by defendant, American Mutual Liability Insurance Company (American Mutual), duly licensed to do business in New Jersey. Plaintiff C. J. Simons & Co. filed a cross-motion for summary judgment on its behalf.

The facts underlying these proceedings are uncontroverted. Defendant issued two policies to Hersh Enterprises, Tnc., one a workmen’s compensation policy and the other a general liability policy. Both policies were to remain in force from August 24, 1964 to August 24, 1965. On January 5, 1965 Hersh Enterprises assigned its policies to plaintiff. Defendant acknowledged this assignment in writing. Prior to the expiration of the policies defendant declared a dividend on each policy consisting of $1,995.41 on the workmen’s compensation policy and $1,139.66 on the general policy. The insured, Hersh Enterprises, defaulted in its payment of the insurance premiums, leaving a balance still due to defendant of $4,000.09. Thereafter, Hersh Enterprises became bankrupt. In the bankruptcy proceedings which followed defendant filed a statement of account with the judge in bankruptcy on March 18, 1966 which indicated that it had credited the dividends to the account of Hersh Enterprises instead of paying the amount to the insured’s assignee, C. J. Simons & Co. The result of this credit was that an unpaid balance of $865.02 was still due to defendant.

Plaintiff’s position is that they are the insured’s assignee and that once the dividends were declared they became payable to it, and that defendant wrongfully credited the insured’s account with these dividends. Defendant contends that nothing was owed either the insured or his assignee due to the default of the insured in its payment of the premiums.

A “dividend” represents a share of surplus apportioned by the directors of mutual insurance companies for distribution to policyholders, and it is commonly considered a reduction of premium. Sniader v. Sniader, 40 Ill. App. 384, 188 N. E. 2d 255 (App. Ct. 1963). The dividend acts as a return to mutual insurance policyholders (all of whom are “owners” of the company) of a portion of earned premiums not expended in the operations of the company. In re Marcalaus Mfg. Co. 3 Cir. 205 F. 2d 627 (1953). It appears to be common practice amongst insurers to have any dividends or premium refunds credited against any of the insured’s obligations to the insurer. “It is not inconsistent to refuse actual pa3ment of a refund to an insured in default while permitting a credit to be given him To the extent of his obligations to the Company.’ ” Ibid., at 629.

In the present case the American Mutual liability insurance policy, provision 18, stated:

This policy is non-assessable. The insured is a member of the Company and shall participate to the extent and upon the conditions fixed and determined by the Board of Directors, in accordance with the provisions of the law, in the distribution of dividends so fixed and determined

On May 19, 1965 defendant’s board of directors at a regular meeting adopted a resolution concerning the pa3unent of ■dividends to polic3diolders whose policies were to terminate In the month of August 1965. The pertinent portion of that resolution states: “Provided no dividends shall be paid or credited to a polic3rholder or principal until the terms of the policy or bond as respects payment of premium shall have been complied with.” Due to the fact that the insured, Hersh Enterprises, Inc., defaulted in payment of its premiums, it was not entitled to be paid any dividend according to the terms of the insurance policy and the resolution passed b3r the board of directors.

In the Marcalaus case the mutual insurer’s board of directors passed a resolution similar to the one in the present case, stating that a premium refund should not be “payable” to any insured in default in his payment of any premium due the insurer. The court held that although this meant that a refund was not payable to the insured, such a default would not necessarily deprive the insured of the right to have the amount of the refund credited against his obligation to the insurer. The procedure outlined in Marcalaus was adhered to in the present action; defendant credited the declared dividends against the insured’s outstanding obligations to it, instead of paying the insured a cash dividend.

The intention of the board of directors was not to make a payment of a refund on a policy until all the premiums were paid, because a default in a payment would result in added collection costs for the company, especially where litigation has to be resorted to in order to effect the collection of the premium. Policyholders who have complied with the terms of the policy should not be made to bear the extra expense of collection costs caused by defaulting policyholders. Therefore, payments of refunds are withheld until the policies are fully complied with.

Although there is a paucity of New Jersey cases on this matter, a recent United States Court of Appeals decision held that an insurer under the terms of its insurance policies could use its discretion in determining and apportioning divisible surplus. Triscaro v. Union Labor Life Insurance Co., 355 F. 2d 1 (6 Cir. 1966). The facts in Triscara were that the insurer offset a prior year’s deficit on a policy against a current divisible surplus, although there was no specific authority in the dividend provision of the group policy to do this. The court held that the dividend provision specifically reserved to the insurer the right to ascertain and apportion the divisible surplus as to each policyholder, and, therefore, the insurer had the right to exercise its discretion in the adoption of a formula providing for offsetting of a deficit.

In the case at bar the assignee was put on notice by the terms of the insurance policy (condition 18) that the board of directors in its discretion would fix the terms and conditions for the payment of dividends. The action taken by defendant in crediting the dividends against the outstanding obligations of the insured was therefore authorized by the terms of the insurance policy as long as the insurer acted in good faith. There are no allegations by plaintiff that defendant acted in bad faith. The insured, Hersh Enterprises, Inc., did not comply with the terms of the policies in that it defaulted in its payment of premiums. An assignee has no right greater than his assignor, the result being that plaintiff is not entitled to the payment of dividends.

Defendant’s motion for summary judgment is hereby granted and plaintiff’s cross-motion for summary judgment denied.


author: McGann, J C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDWARD J. CAIN, JR., DEFENDANT-APPELLANT.
    Monmouth County Court Criminal Division
    Decided October 8, 1969.

      Mr. Charles H. Landesman, Deputy Attorney General, presented the cause for the State of New Jersey (Mr. Edward J. Wilson on the brief).

      Mr. Daniel J. Carluccio presented the cause for defendant-appellant (Messrs Citta, Gasser & Carluccio, attorneys).
   McGann, J C. C.

This is an appeal from defendant’s conviction in the Freehold Township Municipal Court for violating N. J. S. A. 39:4—50(a), operating his vehicle while under the influence of intoxicating liquor. After a hearing de novo defendant was found guilty as charged. This opinion concerns itself solely with the sentence to be imposed. The background chronology is as follows:

On October 4, 1968 defendant was arrested and charged with this violation in Freehold Township. On February 22, 1969 he was arrested and charged with committing the same violation in Brick Township. On March 18, 1969 he entered a plea of guilty to the Brick Township offense and was fined $200 plus costs, and his license was revoked for a period of two years as provided by the statute. Subsequently, on June 2, 1969, he was tried before the Freehold Township Municipal Court and found guilty of the Freehold Township offense, for which he was sentenced to a term of three months in the county jail and revocation of driving privileges for a period of ten years as a subsequent violator under the statute.

Upon the determination of guilt by this court on the appeal from the Freehold Township violation, defense counsel argued that it was inappropriate to sentence defendant as a subsequent violator. Opportunity was given to counsel and to the Attorney General to brief the question of the propriety of the punishment to be imposed.

The legislative history concerning the added penalty to be imposed on a subsequent violator of our drunk driving statute was reviewed in detail by Judge Martino sitting in the Camden County Court. State v. Deckert, 69 N. J. Super. 105 (1961). That opinion recognized the majority rule that, ordinarily, added penalties are imposed for the commission of a second offense where that offense had been committed after the defendant’s conviction of a prior offense. 24 A.L.R. 2d 1248; State v. Harris, 97 N. J. Super. 510 (App. Div. 1967). Defendant argues that since the offense under consideration was committed prior to both the commission and conviction of the Brick Township offense, he cannot be sentenced as a “subsequent violator.” State v. Deckert, supra, points out that our legislative policy concerning penalties for driving while intoxicated clearly runs contrary to the majority rule; that under N. J. S. A. 39 :4—50 (a) it is not necessary that the second offense be committed after conviction for the first offense; it is sufficient if there arc two convictions regardless of the sequence of the offenses. That conclusion seems entirely logical since, in this case, to accept defendant’s contention would lead to the result that, because of a happenstance in the timing of the decision in each of his cases, he would have been found guilty of violating N. J. S. A. 39 :4-50(a) on two separate occasions and yet not have subjected himself to the mandatory subsequent violator provision. There can be no question but that had the offense first in time (freehold Township) been disposed of first, on a conviction of the second offense in time (Brick Township) the mandatory subsequent violator penalty would have been appropriate. State v. Deckert, supra.

That being so and this offense being a subsequent conviction, the mandatory additional penalties provided by the Legislature are applicable. The sentence of the court is that defendant be committed to the Monmouth County jail for a period of three months and forfeit his right to operate a motor vehicle for a period of ten years from the date of the judgment of conviction and pay costs on appeal of $25.


author: Labrecque, J. A. D.

text:
    LESTER AND LAURA TERHUNE, PETITIONERS-APPELLANTS, v. TOWNSHIP OF FRANKLIN, RESPONDENT-MUNICIPALITY, AND DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 16, 1969.

      Before Judges Kilkenny, Labbecque and Leoxabd.

      Mr. Richard A. Koerner argued the cause for appellants (Messrs. SJcillman & Koerner, attorneys).

      Mr. Edward K. Zuclcerman argued the cause for respondent Township of Franklin (Messrs. Spritzer & Spritzer, attorneys; Mr. Henry M. Spritzer, on the brief).

      Mr. Arthur J. Sills, Attorney General of New Jersey, filed a statement in lieu of brief on behalf of respondent Division of Tax Appeals (Mr. Charles A. Landesman, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Petitioners appeal from a final judgment of the Division of Tax Appeals fixing the assessment on their home.

Petitioners own a 141.13-acre farm in Franklin Township, Somerset County. Farming and the sale of produce from the farm are their only occupations. It was stipulated for the purposes of the appeal that all of their land was under cultivation with the exception of an area measuring 115 feet by 125 feet (approximately one-quarter of an acre) on which their farmhouse was located. The property was assessed pursuant to the “Farmland Assessment Act of 1964,” N. J. S. A. 54:4-23.1 et seq.; L. 1964, c. 48. The statute provided that in determining the total area of the land to be assessed as farmland, that portion under the farmhouse and “such additional land as may be actually used” in connection therewith were to be excluded. Petitioners’ property was located in the Residential-Agricultural Zone of Franklin Township which required a minimum lot size of 50,000 square feet or approximately 1J4 acres. In fixing the assessment for the year 1967, 1% acres was deducted from the total area of the property and assessed with the farmhouse as residential property.

We are here concerned with but one issue, whether the farmhouse curtilage should have been assessed on the basis of its actual size or on the basis of the lot size which would have been required for a residence under the current zoning ordinance. We hold that the former test applies.

The Farmland Assessment Act of 1964 was enacted for the purpose of countering the adverse impact of property taxation upon agriculture. East Orange v. Livingston Tp., 102 N. J. Super. 512, 532 (Law Div. 1968), aff’d 54 N. J. 96 (1969). Prior thereto assessors were required to apply the same standard of value to all taxable real property, regardless of whether or not it was farmland Switz v. Kingsley, 37 N. J. 566, 585 (1962). In order to encourage and preserve the agricultural industry in New Jersey, Art. VIII, §1, fl of the New Jersey Constitution was amended to provide:

(b) The Legislature shall enact laws to provide that the value of land, not less than 5 aeres in area, which is determined by the assessing officer of the taxing jurisdiction to be actively devoted to agricultural or horticultural use and to have been so devoted for at least the 2 successive years immediately preceding the tax year in issue, shall, for local purposes, on application of the owner, he that value which such land has for agricultural or horticultural use.
Any such laws shall provide that when land which has been valued in this manner for local tax purposes is applied to a use other than for agriculture or horticulture it shall be subject to additional taxes in an amount equal to the difference, if any, between the taxes paid or payable on the basis of the valuation and the assessment authorized hereunder and the taxes that would have been paid or payable had the land been valued and assessed as otherwise provided in this Constitution, in the current year and in such of the tax years immediately preceding', not in excess of 2 such years in which the land was valued as herein authorized.
Such laws shall also provide for the equalization of assessments of land valued in accordance with the provisions hereof and for the assessment and collection of any additional taxes levied thereupon and shall include such other provisions as shall be necessary to carry out the provisions of this amendment.

The amendment was adopted at the general election held November 5, 1963 and became effective December 5, 1963. It was followed by enactment of the Farmland Assessment Act of 1964, N. J. S. A. 54:4-23.1 et seq.

N. J. S. A. 54:4-23.11 provides as follows:

In determining- the total area of land actively devoted to agricultural or horticultural use there shall be included the area of all land under barns, sheds, silos, cribs, greenhouses and like structures, lakes, dams, ponds, streams, irrigation ditches and like facilities, but land under and such additional land as may he actually used in connection with the farmhouse shall be excluded in determining such total area.

The basic legislative intent to be gathered from the statute is that all lands devoted to agricultural or horticultural purposes, as defined therein, are to be subject to assessment at the new, lower standard. Lands actually used in connection with the farmhouse are to be excepted. The amount of land to be included within the exception presents an issue of fact. Here the farmhouse lot of one-quarter of an acre was bounded on the west by a public road, on the south hv the property line of the property, and on the east and north by land under cultivation and farm buildings, so that it could not be extended without encroaching upon the land under cultivation. The effect of the assessor’s action was to hold an acre of farmland to be taxable at the residential rate in defiance of the direction of the Legislature that it be assessed and taxed at the farmland rate.

The township argues that the foregoing interpretation would derogate from its power and authority to fix minimum sizes • of dwellings and dwelling lots under its zoning ordinance. Not so. Notwithstanding the differing standards at which the two portions of petitioner’s property were to be assessed under the legislative mandate, the township remained free to exercise the zoning powers vested in it by N. J. S. A. 40:55-30 et seq., and petitioners’ lands were not dispensed from compliance with such requirements of the local zoning ordinance as might be applicable thereto. We need not determine what the requirements would have been had petitioners been applying for a subdivision for the farmhouse. See N. J. S. A. 54:4-23.8 which provides for a “roll-back” of taxes when farm property is applied to a use other than agricultural or horticultural.

The interpretation adopted by the Division is not supportable on the basis of its presumed expertise. The issue here is one of law based upon statutory construction. Cf. East Orange v. Livingston Tp., supra, 102 N. J. Super., at 520-521.

Reversed and remanded for further proceedings in accordance with this opinion.


author: Kilkenny, P. J. A. D.

text:
    JOSEPH V. TERENZIO, AS COMMISSIONER OF HOSPITALS OF THE CITY OF NEW YORK, PLAINTIFF-APPELLANT, v. HARVEY NELSON, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 17, 1969.

      Before Judges Kilkenny, Labkecque and Leonaed.

      Mr. Samuel A. Bloom argued the cause for appellant (Messrs. Harry Silverstein and Samuel A. Bloom, attorneys).
    Respondent did not file a brief or appear.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Plaintiff Commissioner of Hospitals of the City of New York sued defendant in 1967 in our Law Division to recover the sum of $4338, with interest thereon from May 8, 1963. He claimed entitlement thereto and the right to sue therefor under sections 101 and 104 of the Social Welfare Law, McKinney’s Consol. Laws, c. 55, of the State of New York. There were cross-motions by the parties for summary judgment. The Law Division granted defendant’s motion and denied plaintiff’s. Plaintiff timely appeals from the resulting judgment of November 4, 1968 in favor of defendant.

The parties agreed in the trial court that the facts essential to the determination of the motions were undisputed. The_y are as follows.

Bessie Nelson, a widow and mother of defendant, the latter being a New Jersey domiciliary, was a patient at three hospitals in the City of New York in 1962 and 1963, at all times as a nonpaying patient. She was in New York Hospital from September 1 to December 16, 1962; in Lenox Hill Hospital from January 29 to March 12, 1963, and in Bellevue Hospital from March 12 to May 8, 1963. New York Hospital and Lenox Hill Hospital were during the periods in issue voluntary nonprofit hospitals. Bellevue Hospital was a hospital maintained by the Department of Hospitals of the City of New York. She is now deceased.

The sum sued for was made up as follows:

Balance paid to New York Hospital by the City of New York $1,482
Paid to Lenox Hill Hospital by the City of New York 1,260
Due for hospitalization while at Bellevue Hospital 1,506
Total $4,838

Bessie Nelson had two other children, namely, Bernard Nelson and Cynthia Picket, residents and citizens of the State of New York. At the time of the pretrial herein, another action in the Civil Conrt of the City of New York was pending against these two other children. The record before us does not disclose the outcome of that action.

Section 101 of the New York Social Welfare Law, as it existed at the time in issue, established a “Liability of relatives to support,” as follows:

1. The husband, wife, father, mother or child of a recipient of public assistance or care or of a person liable to become in need thereof shall, if of sufficient ability, be responsible for the support of such person. Step-parents shall in like manner be responsible for the support of minor step-children.

Defendant was not a minor child at the time in issue, so that we need not concern ourselves with the qualified exception in section 101 applicable to a minor child.

Paragraph 3 of section 101 provides that the liability imposed by this section shall be for the benefit of the public welfare district concerned or any legally incorporated nonprofit institution which receives payments from any governmental agency for the care of medically indigent persons, “and such liability may be enforced by appropriate proceedings in a court of competent jurisdiction.”

Section 104 sets forth that a “public welfare official may bring an action or proceeding against a person discovered to have real or personal property * * * if such person, or any one for whose support he is or was liable, received assistance and care during the preceding ten years, and shall be entitled to recover up to the value of such property the cost of such assistance or care. Any public assistance or care received by such person shall constitute an implied contract. * * (Emphasis added). This section also notes that the claim asserted by a public welfare official shall not be impaired, impeded or defeated, “in whole or in part, on the grounds that another person or persons may also have been liable to contribute.” In all such claims, “the public welfare official shall be deemed a preferred creditor.” (Emphasis added).

The Law Division decided that the pertinent New York Social Welfare Law, upon the basis of which recovery was sought, was “penal” in nature and had been so interpreted in two New York decisions, viz., Trussell v. Kostiw, 35 Misc. 2d 60, 229 N. Y. S. 2d 263, 265 (Spec. T. 1962), and West v. Charles, 46 Misc. 2d 200, 259 N. Y. S. 2d 493, 495 (Family Ct. 1965). Based solely on that reason and the general rule that our State will not enforce the penal laws of another state, summary judgment was granted in favor of defendant. Reliance was placed upon New York v. Coe Mfg. Co., 112 N. J. L. 536, 537 (E. & A. 1934), in which our then highest court observed that “penalties imposed by the penal laws of a state cannot be enforced in another jurisdiction,” citing the Antelope, 10 Wheat. 66, 6 L. Ed. 268, in which Chief Justice Marshall said, “the courts of no country execute the penal laws of another.”

In Trussell v. Kostiw, supra, the New York trial court’s use of the word “penal in nature,” in referring to section 101 of the Social Welfare Law, was considered in the light of the special facts of that case. There it was sought to recoup from the assets of a deceased wife’s estate the cost of her husband’s hospitalization in a city-owned hospital. But the husband had abandoned his wife and son in 1951, such abandonment continuing to the date of her death in 1961, and the husband had been guilty of misconduct (adultery) during that period. The trial court noted the statute was “silent as to the obligations of the wife and next of kin when the husband abandons her or is guilty of misconduct.” In referring to a statute of this kind as “penal in nature” the court did so only to reach its conclusion that the statute must be “literally construed.” On that rule of statutory construction it decided that the duty imposed upon the wife by section 101 was “absolute in the absence of exculpatory words of exemption” (229 N. Y. S. 2d, at 265). Accordingly, the New York court held the wife’s estate liable, observing that “Until the marriage relationship is terminated by divorce or annulment, the burden is cast on the wife regardless of the fault of either spouse” (at 265). The son was also held personally liable in Trussell under sections 101 and 104, as then existing, for the same reason and despite his father’s abandonment.

In West v. Charles, supra, the court stated that statutes imposing responsibility upon certain relatives to contribute to the support of indigent relatives “are penal in nature and must be literally construed,” citing Trussell v. Kostiw, supra (emphasis added). The issue in West v. Charles was whether a son could be required under section 101 of New York Welfare Law to pay for his father’s “funeral expenses.” Construing section 101 “literally,” the court held that this section’s provision requiring the son of a recipient of public assistance to contribute to his father’s “support” could not be construed to include the father’s “future funeral expenses.” 259 N. Y. S. 2d, at 495.

Deference by a trial court of another state in its opinion to one of its statutes as “penal in nature” for the purpose of determining whether the law shall be “literally” construed does not make the characterization binding upon our State if, in fact and substance, the statute is not a penal law. As the old truisms express it: “A rose by any other name is still a rose” and “Calling a dog’s tail a leg will not give the dog five legs.” A name or label attached to something will not per se change the essential nature of the object.

In New York v. Coe Mfg. Co., supra, our Court of Errors and Appeals noted the basic rule that “penal laws, strictly and properly, are those imposing punishment for an offense committed against the State.” 112 N. J. L., at 538. In that case a New York statute imposed a franchise tax for the privilege of conducting business in that state by a foreign corporation. The tax was to be paid annually and an action could be brought against a foreign corporation for failure to comply with the statute, and for the recovery of the tax, penalties and interest. Suit was brought by the State of New York in our former New Jersey Supreme Court against a New Jersey corporation to recover the franchise tax due it, together with the “penalties” and interest for nonpayment. Our then highest court held that the New York statute was not a “penal” one, regardless of the “penalty” provision therein. It allowed recovery by New York in our courts, despite the general principal referred to above that courts of one state will not enforce the “penal” laws of another state.

In Pennhurst State School v. Estate of Goodhartz, 42 N. J. 266 (1964), our present Supreme Court held that the Pennsylvania statute, comparable to that in New York, requiring specified relatives, if “legally able” so to do, to pay for the maintenance of an inmate of any hospital or other institution of the Commonwealth, did not require that action be brought in the courts of Pennsylvania rather than in the courts of New Jersey, where the estate of a relative made liable by the statute was being administered. Justice Jacobs, speaking for a unanimous court, observed that the remedy afforded to Pennsjdvania was neither unusual or unknown in New Jersey, our statutes containing comparable provisions “which evidence a common policy favoring the imposition of responsibility upon financially able parents for the maintenance of their indigent incompetent children in State institutions” (at 210). The same rationale applies to the statutory obligation of financially able children to pay for the hospitalization at the public expense of an indigent parent.

Justice Jacobs also noted: “There is no sensible basis for declining to entertain the plaintiffs action in our courts for we have long become accustomed to the enforcement of rights created by foreign states which are neither penal in nature nor offensive to our policy” (at 271). New Jersey’s attitude was deemed to be one of “favoring the extraterritorial enforcement of familial support obligations” (at 271).' And further, “These obligations are compensatory rather than penal and are consistent with local policy; * * (at 272; emphasis added).

The trial court acknowledged its familiarity with the Pennhurst State School decision. However, it sought to distinguish it from the instant case on the ground that the Pennsylvania statute in that case had not been declared to be penal in nature by any court, whereas the comparable New York statute had been referred to in the above-mentioned two New York cases, in opinions by the trial courts, as “penal in nature.” But, as we observed above, the invocation of “literal” construction which motivated the characterization was due to the special facts of those cases. No such reason exists under the facts herein for any such label to be attached to enforcement of the statutorily created “familial support obligation” against defendant son to pay for his indigent mother’s hospital care in the New York hospitals.

Section 101 of the New York Social Welfare Law merely seeks to recoup costs incurred in earing for an indigent only if the specified relative is financially able to pay. The obligation is referred to in section 104 as constituting “'an implied contract.” The welfare official is to be regarded as a “preferred creditor.” He is authorized to bring an action to recover against a person “discovered to have real or personal property” who is liable to pay. Penal sanctions, such as fines or jail confinement, are not provided. These New York statutory sections provide simply a means of receiving compensation for the public benefit for costs incurred, thereby enabling the public welfare officials to render further public benefactions to the needy. Such a statutory obligation and the remedy for collection from the property of the one made liable are not “penal,” as that word is correctly interpreted.

We note in passing that a 1966 amendment to section 101, L. 1966, c. 256, effective April 30, 1966, diminishes to some extent the list of relatives made liable for support. But the amendment was held to have no retroactive applicability and did not nullify a claim for services rendered prior to its adoption. Yerby v. Greenberg, 52 Misc. 2d 835, 277 N. Y. S. 2d 54 (N. Y. C. Civ. Ct. 1967).

The judgment under review is reversed. The matter is remanded to the Law Division for the entry of an appropriate judgment in favor of plaintiff and against defendant for the sum due, credit, if any, to be given for any amounts received from decedent’s other children by virtue of the New York action.


author: Goldmann, P. J. A. D.

text:
    IN THE MATTER OF THE APPLICATION FOR A CHARTER FOR THE SPRINGFIELD STATE BANK, TO BE LOCATED AT 220-230 ROUTE 22 IN THE TOWNSHIP OF SPRINGFIELD, COUNTY OF UNION.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1969
    Decided October 20, 1969.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Barry D. Maurer argued the cause for appellant The National State Bank (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. Hugo M. Pfaltz, Jr. argued the cause for appellant Summit & Elizabeth Trust Co. (Messrs. Bourne & Noll, attorneys).

      Mr. Donald G. Kein argued the cause for appellant The Union Center National Bank (Messrs. Kein, Scotch, Pollatschelc, Iacopino & Kein, attorneys).

      Mr. Jerome 0. Eisenberg argued the cause for respondent Springfield State Bank (Messrs. Norris, McLaughlin & Trucker and Messrs. Glapp & Eisenberg, attorneys; Mr. Robert P. Gorman, of counsel).

      Mr. Arthur J. Sills, Attorney General, attorney for Horace J. Bryant, Jr., Commissioner of Banking and Insurance of New Jersey, did not argue but filed a statement in lieu of brief (Mr. Joel L. Shain, Deputy Attorney General, of counsel).
   Goldmann, P. J. A. D.

National State Bank, Summit & Elizabeth Trust Company, and Union Center National Bank appeal from the determination of the Commissioner of Banking and Insurance approving the application of Springfield State Bank for a charter.

We find substantial persuasive relevant testimony in the record to support the Commissioner’s findings that the proposed bank would serve the public interest to advantage and that conditions in the locality in which the bank will transact business afford reasonable promise of successful operation.

In this connection we note that the only testimony presented at the three hearings conducted before the Department of Banking and Insurance was that of the applicant, Springfield State Bank, except for one witness presented by Union Center National Bank. Contrasted with the applicant’s plenary expert and technically factual proofs, all that National’s witness (the manager of its Springfield branch office) testified to was, in essence, that the new bank would have a detrimental effect on the deposits in the branch bank he managed. Neither the factual nor opinion evidence submitted by Springfield was contradicted.

It is claimed that the Commissioner failed to consider the enactment and purpose of N. J. S .A. 17:9A-3.1 and 17:9A—19, part of the new Branch Banking Act, L. 1968, c. 435. Springfield State Bank had filed its application with the Commissioner in December 1967. L. 1968, c. 415 was approved by the Governor on January 17, 1969, and by its terms was to become effective six months later, on July 17, 1969. The Commissioner was fully alerted to the prospect of such legislation as well as to its actual passage by the Legislature and its imminent approval by the Governor. As head of the department that would be directly affected, the Commissioner undoubtedly knew of the ongoing efforts of the banking establishment to obtain the passage of such legislation. Moreover, Summit & Elizabeth Trust Company had written him on January 22, 1968, before the hearings on Springfield’s application, and the Union Center National Bank had written him on Decernber 18, 1968 and January 22, 1969 while the Springfield determination was pending, calling attention to the impact of the proposed legislation. The Commissioner believed it would not be fair to avoid consideration of pending applications where a great deal of expense had been incurred and much work done in preparation for their final consideration. We agree. Indeed, the six-month delay in the effective date of the legislation could have had no other purpose than to permit the Commissioner to dispose of matters then pending, on the merits and in light of then existing law.

Union Center National Bank advances two additional arguments, namely (1) the Commissioner’s determination is invalid because he made no specific factual findings with respect to the qualifications, experience and character of Springfield’s proposed officers, as called for by N. J. S. A 17:9A-11 (D) (3); and (2) he failed to render his determination within 90 days after the final hearing held July 23, 1968. As for the latter, we consider the provision as merely directory and not mandatory. Cf. N. J. State Hotel-Motel Ass’n v. Male, 105 N. J. Super. 174, 177 (App. Div. 1969).

As for Union’s first argument, the answer is to be found in the recent case of National Community Bank of Rutherford v. Howell, 106 N. J. Super. 317, 323 (App. Div. 1969). The Commissioner expressly made it a condition of his approval of Springfield’s charter that

It is understood that an executive officer, who will be in charge of the management of the affairs of the bank, and who will be acceptable to me, will be engaged prior to the request for a Certificate of Authority to commence business.

Affirmed.


author: Sullivan, P. J. A. D.

text:
    DONALD B. JONES, PLAINTIFF-RESPONDENT, v. ASA C. PARKER, HAZEL PARKER, HIS WIFE, TAR ASPHALT SERVICE, INC., A NEW JERSEY CORPORATION, DEFENDANTS AND SHARP BROS. BUILDING SUPPLIERS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided October 17, 1969.

      Before Judges Stjllivan, Cabton and Halpekn.

      Mr. Nathan G. Ginsburg argued the cause for appellant (Messrs. Laser £ Ginsburg, by Nathan G. Ginsburg. attorneys) .

      Mr. Frederick 0. Schneider, III, argued the cause for defendant Tar Asphalt Service, Inc.

      Mr. Stephen F. Lichtenstein argued the cause for respondent (Mr. Donald B. Jones, of counsel and on the brief; Messrs. Lichtenstein, Levy £■ Segal, attorneys).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal by a judgment creditor involves a dispute between such judgment creditor and the holder of a subsequent mortgage, and a subsequent judgment creditor over the proceeds of a sale of certain real property.

The trial court held that a money judgment entered in the Superior Court, Law Division, against Ace Parker was not a lien on real estate held of record in the name Asa C. Parker and Hazel J. Parker, his wife, even though Asa C. Parker and Ace Parker were, in fact, one and the same person. On this basis the trial court ruled that a subsequent mortgage on the property made by Asa C. Parker and his wife to a bank, and a subsequent money judgment against Asa C. Parker, respectively had first and second priority as liens on the real estate. For reasons hereinafter stated we affirm.

The factual background of the case is as follows.

On March 12, 1941 Asa C. Parker and Hazel J. Parker, his wife, acquired title to a parcel of real estate on Radio Road in Little Egg Harbor Township, Ocean County, Hew Jersey. The deed was recorded in the Ocean County Clerk’s office on April 13, 1956.

On April 24, 1963 Sharp Bros. Building Suppliers, Inc. (Sharp) instituted suit in the Superior Court, Law Division, Gloucester County, on a book account against Ace Parker, defendant, and obtained a default judgment for $16,563.49. The judgment remains largely unpaid.

Prior to 1965 Parker had a checking account and a loan account in the name Asa Parker with the First Hational Bank of Tuekerton, Ocean County. In June 1965 he made application to the bank for a mortgage loan on the Radio Road property. The application was signed with the name Asa Parker. The bank approved the application and referred the matter to its attorney, who certified the title and closed the loan. In the course of the title examination the attorney ordered a 20-year judgment search against the names Asa C. Parker and Hazel J. Parker, the record owners of the property. The resulting judgment search, certified to the attorney by State Capital Title & Abstract Co., did not disclose any judgments against either name. At the closing of the mortgage loan on February 21, 1966 the attorney had Mr. and Mrs. Parker execute a bond and mortgage in the names Asa C. Parker and Hazel J. Parker, his wife. The Parkers also signed an affidavit of title in which they stated that they had not changed their names and that there were no judgments against either of them.

Thereafter, Tar Asphalt Service Inc. (Tar), which had an unpaid account with Ace Paving & Trucking Company, turned it over to counsel for collection. In reviewing the file counsel ascertained that the business was operated by a man using the name Ace Parker, with an address at Radio Road in Tuekerton, Hew Jersey. Upon searching the deed records in Ocean Count}", counsel found the recorded deed for the Eadio Eoad property in the name of Asa C. Parker and Hazel J. Parker. He thereupon filed suit on behalf of Tar against Asa C. Parker, t/a Ace Paving Company, in the Superior Court, Law Division, Ocean County, and obtained a default judgment for some $1400 on April 10, 1967.

The mortgage fell into default in April 1967 and the Parkers vacated the Eadio Eoad property. In anticipation of foreclosure the bank made arrangements to sell the property. A title search made on behalf of the prospective purchasers (Ernst Ambrose and wife) by M & D Search Co. of Trenton disclosed the existence of the 1963 Sharp judgment against Ace Parker, as well as the 1967 Tar judgment against Asa C. Parker, t/a Ace Paving Company. The search report was turned over to the bank’s attorney who upon inquiry discovered that Asa Parker and Ace Parker were one and the same person. The attorney communicated with Donald B. Jones, plaintiff herein, the president of State Capital Title & Abstract Co. which had made the judgment search for the bank and had not reported any judgments against the names searched. Plaintiff immediately purchased the bank’s mortgage for the full amount due thereon and took an assignment thereof.

Foreclosure proceedings were commenced by Jones, who joined as parties-defendants Asa C. Parker, Hazel J. Parker, Tar Asphalt Service Inc. and Sharp Bros. Building Suppliers. The suit also asked that a declaratory judgment be entered adjudicating the Sharp judgment as not a lien on the mortgaged premises. Sharp’s answer and counterclaim asserts that its judgment is a lien on the property prior to and superior in right, title and interest to the mortgage lien sought to be foreclosed.

Pending the foreclosure proceeding, all the parties thereto entered into a written agreement with the Ambroses to sell the property for $10,000 and to permit the Ambroses to take possession immediately. Because of this agreement, the foreclosure aspect of plaintiff’s suit was dismissed and it was agreed that the determination of the court would relate solely to the priorities of the parties in the sale proceeds.

The trial court, after a plenary hearing, decided that the names Ace and Asa were so dissimilar that the Sharp judgment against Ace Parker did not constitute notice that it was against Asa C. Parker and was not a lien on the Radio Road property. Consequently, as heretofore noted, he held that plaintiff’s mortgage and the Tar judgment had first and second priority respectively as to the proceeds of sale.

In "New Jersey a judgment creditor has a lien on real property owned by the debtor as the implied result of N. J. S. A. 2A.T7-17. A Superior Court or County Court, Law Division, judgment becomes a lien upon real estate from the time of the actual entiy of such judgment on the minutes or records of the court. N. J. S. A. 2A:16-1. The statute directs the clerk of the court to keep and maintain a book known as the Civil Judgment and Order Docket and to enter an abstract of each judgment or order for the payment of money therein, including the names at length of all parties to the judgment, the amount of damages and costs, and the date of actual entry of the judgment. The Superior Court Clerk is required to keep and maintain suitable in-dices in alphabetical order of the Civil Judgment and Order Docket and the record of all judgments, assignments thereof, etc. See N. J. S. A. 2A:16-11 to 16. The purpose of these recording provisions is to give constructive notice of judgment liens to subsequent purchasers, encumbrancers and others who may deal Avith the real estate. Consequently, it has been held that unless the judgment is entered against . the same name, both the Christian or first name and surname, as that in which the record title stands, it does not constitute notice to a subsequent purchaser or encumbrancer and is not a lien on the real estate. Venetsky v. West Essex Bldg. Supply Co., 28 N. J. Super. 178 (App. Div. 1953); Englese v. Hyde, 111 N. J. L. 1 (E. & A. 1933); Lembech & Betz Eagle Brewing Co. v. Barbi, 90 N. J. Eq. 373 (Ch. 1919), aff’d 91 N. J. Eq. 533 (E. & A. 1920). Otherwise, the statutory system of recording land titles, liens, and encumbrances, would lack certainty and titles to real estate rendered hazardous and uncertain.

Here record title to the property was in the name Asa C. Parker and Ilazel J. Parker. Asa is a recognized first name going back to Biblical times. The Sharp judgment is against Ace Parker. Ace is not a recognized first name, but is commonly used as a nickname without any relationship to a first name. In reality, a judgment against Ace Parker could be against anybody named Parker and the searcher would have no way of knowing what that first name might be. The eases recognize that slight variations in names, which do not have the capacity to mislead, will not vitiate the judgment creditor’s lien. Thus, the abbreviation Edw. for Edward would be sufficient to give constructive notice as to the identity of the judgment debtor. So too, the entry of a judgment against .V. Parker might be sufficient to alert a searcher who was running down the name Asa Parker. But, where there are dissimilar names, no obligation is imposed on the title searcher to go behind what the record judgment shows on its face, particularly where the last name being searched is a common name like Jones, Smith or Parker.

The proofs showed that there are five companies in New Jersey which make searches in the Superior Court clerk’s office, in addition to the Superior Court Clerk himself. After this suit was commenced, formal requests were made to each one of these companies and the Superior Court Clerk to make a 20-year judgment search against the names Asa C. and Hazel J. Parker, and to furnish a report theTeon. Not one of the five companies or the Superior Court Clerk reported the Sharp judgment. Paradoxically, it is to be noted that one of the five companies was the M. & D. Search Company which originally reported the Sharp judgment when it made the judgment search on behalf of the Ambroses.

The title searcher for M & D Search Company, who testified as a witness for appellant, revealed that the reason she reported the Ace Parker judgment on the Ambrose search in 1967 was because she noticed that the Tar judgment was against Asa C. Parker, t/a Ace Paving Company. Since the word Ace appeared in both judgments she went to the original files, looked at the addresses on the summons, and saw they were the same. She therefore reported both judgments. (The State Capital Title & Abstract Company made its judgment search for the bank in 1965, prior to entry of the Tar judgment.) When she was shown the later search by M & D which did not report the Sharp judgment her only explanation was "different searchers.”

Appellant’s contention that the bank was chargeable with actual or constructive notice that Asa C. Parker was commonly known as Ace Parker is unsupported by any credible evidence. The bank, in good faith and without notice of the Sharp judgment, made a mortgage loan after taking the normal legal precautions for such type of transaction. Tar also acted in good faith and without notice. Its attorney was diligent in ascertaining that the debtor owned real property and the name in which the record title stood. Suit was filed against that name to insure that the judgment entered would be a lien on the property. On the other hand, Sharp, although its account showed Radio Road, Tuckerton, as Parker’s address, was content to sue and enter judgment against Ace Parker.

The lien given a judgment creditor is purely statutory. Joseph Harris & Sons, Inc. v. Van Loan, 23 N. J. 466, 470 (1957). Unless the judgment entered is against the same name as that in which record title to real estate stands, the statute does not come into operation and no lien exists.

Finally, appellant argues that Ace and Asa are similar in sound and that the trial court should have applied the doctrine of idem sonans and held that the judgment against Ace Parker gave constructive notice to anyone making a judgment search against the name Asa Parker.

We cannot agree. Idem sonans as a doctrine came into being when spelling was not an exact art. It was, and to a very limited extent still is, used to overcome technical errors due to misspelling where no one was misled by the error. Cf. Elberson v. Richards, 42 N. J. L. 69, 70 (Sup. Ct. 1880). The practical difficulty with application of the doctrine is that it rests on pronunciation of a name as to which persons may differ widely.

Certainly, the mortgagee and Tar would be prejudiced were the Sharp judgment held to be a prior lien. Moreover, Asa has different pronunciations. Its possible phonetic similarity to the nickname Ace should not be held to be sufficient to alert a reasonably careful searcher.

Affirmed.


author: Per Curiam.

text:
    IN THE MATTER OF THE PETITION OF CARLOS SANTIAGO, ON BEHALF OF ALL OTHER INDIGENT PRISONERS WHO ARE CONFINED TO ANY JAIL OR PENITENTIARY IN THE STATE OF NEW JERSEY WHO WERE SENTENCED AFTER MAY 20, 1968 AND BEFORE JUNE 25, 1968 FOR A VIOLATION OF ANY SUBSECTION OF THE DISORDERLY PERSONS ACT, FOR A WRIT OF HABEAS CORPUS.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1669
    Decided October 23, 1969.
    Before Judges Kilkenny, Labbecqtje and Leonard.

      Mr. William Goldberg argued the cause for appellant (Messrs. Alan G. Antonucci and John J. Powers, Directors, Hudson County Legal Services, attorneys).

      Mr. Abel Goldstein, Assistant Prosecutor, argued the cause for respondent (Mr. James A. Tumulty, Jr., Hudson County-Prosecutor, attorney; Messrs. Anthony M. DeFino and Charles D. Sapienza, on the brief).
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed by Judge Artaserse in his opinion as reported in 104 N. J. Super. 110 (Law Div. 1968).


text:
    ALMA VON S. TITMAN, PLAINTIFF-APPELLANT, v. BOARD OF TRUSTEES OF THE TEACHERS’ PENSION AND ANNUITY FUND, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 23, 1969.

      Before Judges Coneokd, Colehstek and Kolovsky.

      Air. Edward G. Stokes argued the cause for plaintiff (Messrs. Stokes & Throckmorton, attorneys).

      Miss Rachel Leff, Deputy Attorney General, argued the cause for defendant (Mr. Arthur J. 8ills, Attorney General, attorney; Mr. Stephen Skillman, Deputy Attorney General, of Counsel; Air. Franklin D. Renkoff, Deputy Attorney General, on the brief).
   Per Curiam.

Subsequent to oral argument we requested the parties to brief the question, raised for the first time at the argument by the Attorney General, whether, assuming the 1960 “jumping rope” incident qualifies as a “traumatic event” within N. J. S. A. 18A :66-39, subd. c, plaintiff’s permanent and total disability after the 1966 “staircase” incident constitutes a “direct result” of the 1960 incident within the language and intent of the statute and under the proofs adduced before the agency.

It is clear from the fourth paragraph of subsection (c) of the cited statutory section that allowance of a pension for employment-connected disability depends upon a showing that the applicant “is physically * * * incapacitated for the performance of duty * * *” and is “permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular and assigned duties * *

Plaintiff sustained a disability to her left leg in 1960 while jumping rope during a physical education class which she was teaching. We are inclined to the view, and assume for present purposes, that this constituted a “traumatic event.” However, the proofs are persuasive that the disability resulted from the combined effect of a progressive condition of degenerative arthritis and either a ligament strain or a fracture of the bone structure of the left knee probably the product of the 1960 incident. Plaintiff had minor trouble with her left leg and favored it after the 1960 incident. However, plaintiff was not totally disabled, continuing as a teacher until September 23, 1966, when her right leg collapsed or “snapped,” as she put it, while descending a flight of steps at school.

The medical proofs indicated that the “process” that had caused the degeneration of the left knee also eventually affected the right knee. The school-board physician thought that plaintiffs favoring the left leg prior to the 1966 incident contributed to the collapse of the right leg.

Preliminarily, we have concluded that the Board was right in deciding that the 1966 incident was not a “traumatic event” independently effective to sustain a claim for disability pension consequent thereon. The term “traumatic event,” as employed in the 1966 revision of the act (chapter 66) is a significant departure from the term “accident” previously found in the act. Without here assaying the full scope of the substituted term, we are satisfied that the proofs concerning the 1966 episode do not bring it within the meaning of the term. We conclude that a previously developing degenerative process simply reached the point of collapse of the right leg and knee at the fortuitous moment petitioner was descending a staircase, and that this does not constitute such a traumatic event as the statute contemplates.

We further conclude that petitioner’s ultimate total disability was not a “direct” result of the I960 incident, as the act requires it to be. The word “direct” connotes relative freedom from remoteness, whether in terms of time, intervention of other contributive causes or the like, or a combination of such factors. The criterion cannot be reduced to a formula which will solve all cases. The matter is one essentially of degree. Here, the disability of the left leg produced no disability to work at plaintiff’s assigned duties. It was only the intervention of a similar condition in the right leg, over six years later, not itself the result of a traumatic event, which produced plaintiff’s disability to perform her duties. The Board here found, on adequate proofs, that plaintiff’s disability resulted primarily from a progressive disease, and there is no medical proof that the 1960 injury caused that disease. The express statutory exclusion of disability resulting from a “muscular-skeletal condition” not the direct result of a traumatic event, etc., reflects the legislative view that such conditions are particularly to be scrutinized for directness of connection between the specified traumatic event and the claimant’s total disability.

The state of the record here, in the light of such pertinent findings of fact as were made by the Board, convinces us that plaintiff’s permanent and total disability was not a direct result of the 1960 incident. She is therefore not entitled to a service-connected disability pension.

Affirmed.


text:
    STATE OF NEW JERSEY, BY THE STATE HIGHWAY COMMISSIONER, PLAINTIFF-RESPONDENT, v. HERBERT J. KENDALL, ELAINE B. KENDALL, MARCREST HOMES, A CORPORATION OF NEW JERSEY, TOWNSHIP OF MARLBORO, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided September 29, 1969.

      Before Judges Kilkenny, Labrecqtje and Leonard.

      Mr. Benjamin Weiner argued the cause for appellant (Messrs. Weiner & Schoifet, attorneys).

      Mr. Philip 8. Garchman, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   Per Curiam.

This land condemnation case was tried before a jury and resulted in a verdict awarding the property owner, Marcrest Homes, $1075 for a small sliver of land taken for highway purposes (.058 of an acre) and slope rights, and further awarding $2750 for the State’s alleged interference with the property owner’s access rights to its remaining acreage.

The State moved for judgment n. o. v. as to the $2750 portion of the verdict; and Marcrest Homes moved for a new trial, claiming the $2750 award for loss of access rights was inadequate. The trial judge granted the State’s motion, having reserved decision on the State’s prior motions during trial to dismiss this claim pending return of the verdict. Marcrest Homes’ motion for a new trial was denied.

Marcrest Homes appeals from the judgment n. o. v., insofar as it denies a recovery for the claimed loss of access rights. It also appeals from the order denying a new trial as to the quantum of damages awarded by the jury for loss of access rights.- Marcrest Homes does not appeal from the award of $1075 for the land actually taken and the slope rights.

Marcrest’s property is located on Route 9 at the intersection of that State Highway and Clayton Road. The entire tract contains approximately 118 acres in both Marlboro and Manalapan Townships. At the time of the State’s taking on June 16, 1966 to improve Route 9, the property was vacant, unimproved, rolling land. Prior to June 16, 1966 a one-story fruit stand had been on the property, but at the time in issue there were no buildings on the land and no building permit applications were pending.

Some 109.6 acres of the entirety of 117.26 acres were zoned by Marlboro Township for residential purposes under its zone classification R-40. We are not concerned herein with that acreage. The other 7.66 acres were in commercial zone B-3. Such zoning permits highway commercial uses. Of that latter acreage, there were 720 feet of frontage on Clayton Road with 4.43 acres; and there were 525 feet of frontage on Route 9 with acreage of approximately 3.23 acres. It is this last item with which we are concerned.

In reconstructing and improving Route 9, the State erected curbing and a guard rail along the entire 525-foot frontage on Route 9 for the safety of the travelling public — the highway level being about three feet higher than Mar-crest’s abutting property. Such a curbing and guard rail had not existed prior thereto, so that one could previously drive off Route 9 onto the Marerest land, as, for example, to the lone fruit stand.

The highway business district permits funeral homes, service stations, drive-in restaurants, bowling alleys, motels and other equivalent uses. There are area requirements for each use, such as 60,000 square feet for bowling alleys and lumber yards, 40,000 square feet for funeral homes, service stations, motels and other specified uses, and 20,000 square feet for animal hospitals. There are highway frontage requirements, generally 200 feet, but 300 feet for bowling alleys and down to 100 feet for drive-in-restaurants and animal hospitals.

However, Marerest had never subdivided its lands or highway frontage, had never made application for any subdivision and, as noted above, the land was vacant and unimproved.

The State granted five curb opening permits along the 525-foot frontage including an egress permit of 45 feet in the northerly 260 front feet of the property. However, some 242 feet of frontage along Route 9 had no access. It is the lack of access at this point which gives rise to Marcrest’s claim of damages. It produced an expert who calculated that this damage was $21,800. His formula was to calculate the frontage-foot value along Route 9, which he fixed at $225; he then deducted 40% therefrom as the loss (in his opinion) in value by reason of the lack of ready access, and next he multiplied the asserted loss of $90 in front-foot value by the 242 front feet allegedly interfered with. By this method, the expert arrived at the figure of $21,800 as his estimate of the damage caused.

The State’s expert gave as his opinion that there was no denial of access rights and no damage by reason of the State’s erection of the guard rail and curbing. To him this represented only a measure of present control in furtherance of highway safety. When queried on cross-examination as to how one could traverse the 242 feet from Route 9, in view of the existing “curb and fence,” he replied, “Raise the grade of the land and the fence is taken down.” The State’s position is that its conduct has not denied access from Route 9 to defendant’s abutting lands, but merely controlled access in the interest of the public. safety. It points out that not only must the difference in levels between the highway aud Marcrest’s lands be considered, but also, as the map indicates, the point of highway frontage in issue is at the Clayton Road intersection where highway safety requires control of access. The State expressed a willingness to consider in the future any specific application by Marerest for any further curb-cut at the point in issue, consistent with the safety of the public using the highway. No such specific application has yet been made as to the frontage in- issue.

The evidence supports the trial court’s determination that, as a matter of - law, Marerest Homes was not, under the totality of the circumstances, denied access from' Route 9 to its abutting lands to such an extent as would entitle it to compensation from the State. Its judgment n. o. v. as to this phase of the case was, therefore, proper. There was not in this case a denial of all access, as in Mueller v. N. J. Highway Authority, 59 N. J. Super. 583 (App. Div. 1960). Mueller points out that “the general rule is that the property owner is not entitled to access to his land- at every point between it and the highway but only to ‘free and convenient access to his property and the improvements on it.’ ” (At 595) Reasonable highway regulations will not give rise to a claim for 'compensable taking. Tubular Service Corp. v. Comm'r State Highway Dept., 77 N. J. Super. 556 (App. Div. 1963), affirmed o. b. 40 N. J. 331 (1963).

In brief, an owner of land abutting a highway may not be shut off from all access thereto, but his right of access must be consonant with -traffic conditions and reasonable and uniform police requirements. Breinig v. County of Allegheny, 332 Pa. 474, 2 A 2d 842, 847-848 (Sup. Ct. 1938). The-law recognizes a “noncompensable interference with private highway access.” See 73 A. L. R. 2d 691.

We find no substantial merit in the claim that Marcrest was prejudiced by a remark made by the State’s attorney in summation. Moreover, the conclusion above makes it unnecessary to decide whether Marcrest was entitled to a new trial on the quantum of damages.

The judgment is affirmed.


author: Milmed, J. C. C.

text:
    LOUISE A. REILLY, PETITIONER-APPELLANT, v. WEBER ENGINEERING CO., INC., RESPONDENT-RESPONDENT.
    Essex County Court Law Division
    October 16, 1969.

      Mr. Frank J. Miele, appeared for petitioner (Messrs. Biker, Danzig, Scherer é Brown, attorneys).

      Mr. Alfred A. Arnold, appeared for respondent (Messrs. Carroll & Galvin, attorneys).
   Milmed, J. C. C.

Petitioner, Louise A. Reilly appeals from a judgment of the Division of Workmen’s Compensation dismissing her dependency claim petition for compensation. The petitioner, widow of Rajunontl Robert Reilly, had filed the petition seeking statutory workmen’s compensation dependency benefits for herself and two of her children, Timothy and Christine Reilly, and statutory burial allowance, alleging that the death of her husband resulted from personal injuries sustained by accident arising out of and in the course of employment with the respondent Weber Engineering Co., Inc. (Weber).

The material facts in the case are not in dispute. Raymond Robert Reilly died on April 8, 1966 as a result of injuries which he received when he fell from a catenary structure some 35 feet above railroad tracks of the Erie Lackawanna Railroad Company adjoining an industrial complex in Bloomfield, in which Weber’s plant is located. At the time decedent was attempting to rescue a young boy who was dangling by one foot which was caught in high tension wires on the catenary.

At the time of the attempted rescue, decedent was employed by Weber as a “truck driver and warehouse man,” working three days a week. His wages from this employment were $90 a week. His employment with Weber began in 1959 and continued until the time of his death. He was also, at the time of his death, a fire captain in the Eire Department of the City of Newark.

The respondent’s plant, located in the Parkway Industrial Park in Bloomfield, consisted of an office on the first floor of a building at 5 Lawrence Street and a shop in a building about 100 yards away in the parking area. The distance between the shop and the place where the accident occurred was about 80 to 85 yards. On the afternoon of April 8, 1966 decedent was engaged in his regular duties at the shop, working on maintenance of construction equipment with two co-workers, William and John DeMichele. Two other employees, Anua M. LaCapra and Philip Hagin, were at the respondent’s office at the time; Miss LaCapra, a secretary, being in charge of the office in the absence of the president of the corporation. None of the three employees in the shop at the time had any supervisory authority over any other. When the president of the corporation was not in attendance, “if something had to be done, those who remained discussed what had to be done and determined what they thought was the best way of accomplishing it.”

In the early afternoon Miss LaCapra, on hearing a “constant roar of sirens” and observing police cars and a fire deputy car coming into the industrial complex, and being unable to work, called the shop on the “Inter-com.” She spoke to William DeMichelc and asked him to check and let her know what was going on outside. He told her, “We’ll find out,” and then said to his brother John and decedent, “Let’s see what it is.” The three of them then walked out to a loading platform in hack of the shop and saw people running behind a boiler house, “the last building at the back of the plants.” Decedent left the loading platform to see what was happening, crossed over “spur tracks” at the platform, and went through a gate about 30 feet from the back of the Weber shop and onto a road leading to the hack of the industrial complex. Accompanied by Philip Hagin, who had left the Weber office to investigate the commotion, decedent rounded the boiler house. A young boy was dangling by one foot which was caught in high tension wires on a catenary structure above the railroad tracks adjacent to the complex.

Decedent and Philip Hagin were standing near a police radio ear at the scene when a report over the radio announced that the electric power had been shut off. William Suprenant, from a nearby luncheonette, then climbed up to the catenary. The electric current had not been cut off. In his attempt to reseñe the boy, William Suprenant received an electrical shock and fell across some wires with his leg swinging hack and forth hitting the catenary structure. Decedent, having climbed to the top of the catenary structure, and using a stick which one of the police officers had handed to him, tried to keep William Snprenant’s leg away from the catenary. He, too, received an electrical shock. He fell from the catenary onto the tracks some 35 feet below, and died from his injuries upon arrival at the hospital a short while later.

He was survived by his wife, the petitioner-appellant, and their three children, Raymond, aged 25, Timothy, aged 24, and Christine, aged 14. It is not claimed that Raymond, who was then attending medical school and not living at home with his parents, was dependent upon decedent at the time of the accident. Timothy and Christine were both living at home with their parents at the time of decedent’s death. It is claimed that Timothy was partially dependent upon decedent at the time of his death. Timothy suffered from cerebral palsy, and although employed and earning about $3,6Q0 a year at the time, was supported in part by decedent to the extent of decedent’s furnishing him with room and board, paying for his automobile expenses including insurance, and paying for his life insurance. There is no question as to petitioner’s or Christine’s total dependency upon decedent at the time of his death. See N. J. S. A. 34:15-13. The cost of burial exceeded the applicable statutory burial allowance. No claim is made for any medical, surgical or hospital expense.

The judge of compensation dismissed the dependency claim petition upon his determination that the accident did not arise out of and in the course of decedent’s employment with respondent. He made no determination as to the dependency of Timothy.

My analysis and appraisal of the record in this case and my review of the applicable decisional law lead to a contrary conclusion. Here, a fire captain of the Newark fire department, employed three days a week by respondent, was, while working for respondent, alerted to a commotion near the place of his employment involving fire apparatus and police vehicles. He and another employee proceeded to investigate the commotion, and in doing so were confronted with an emergency — a young boy dangling from high tension wires on a catenary structure some 35 feet above' railroad tracks. He died from injuries sustained in a fall from the catenary structure while attempting a rescue. I find and determine that his accidental death was work-connected.

The Workmen’s Compensation Act “nowhere either in terms or purpose, embodies the common law concept of proximate causation; on the contrary it is enough if the employment is a contributory cause.” Secor v. Penn Service Garage, 19 N. J. 315, 319 (1955).

In Secor, Justice Jacobs, in his opinion for a majority of the State Supreme Court, pointed out that

The statutory phrase “by accident arising out of and in the course of his employment” has no strict common law counterpart and courts hare defined and applied it with varying liberality. In the oft-cited case of Bryant v. Fissell, 84 N. J. L. 72, 77 (Sup. Ct. 1913), Justice Trenchard, in sustaining an award to an injured workman, stated that a compensable accident results “from a risk reasonably incidental to the employment” and that an accident arises in the course of the employment “if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” See Miller v. Bill Miller’s Riviera, Inc., 21 N. J. Super. 112, ll6 (App. Div. 1952) ; Schultz v. Henry V. Vaughans Sons & Co., 24 N. J. Super. 492, 498 (Cty. Ct. 1953). In Belyus v. Wilkinson, Gaddis & Co., supra, Justice Heher noted that an accident arises out of the employment when the risk is “reasonably incident” thereto, and arises in the course of the employment when it occurs within the period of the employment at a place where the employee may reasonably be and while lie is reasonably fulfilling the duties of the employment “or doing something incidental to it.” * * * [at 320]

It is well settled that “an employee is not deprived of the benefits of the Compensation Act simply because he was not actually working when the accident occurred.” Secor v. Penn Service Garage, supra, 19 N. J., at 321, and see Tocci v. Tessler & Weiss, Inc., 28 N. J. 582, 588 (1959). And, as pointed out by Justice Wachenfeld in his opinion for a majority of the State Supreme Court in Green v. DeFuria, 19 N. J. 290 (1955):

* * * it is clear that regardless of how rigid an employer’s work order may be, there are always situations which will occasionally arise which justify a departure from instructions and which the emjfioyer would have countenanced had he been present. The judicial treatment of these situations has labeled them “emergencies,” with the result that the scope of the employment is impliedly extended to in-elude the performance of any act designed to save life or further the employer’s interests, [at 299-300]

In the present ease decedent, far from disregarding any employer instructions, was investigating the cause of a commotion near the employer’s premises, in response to Miss LaCapra’s call, when he was confronted with the “emergency.” His rescue attempt was accordingly clearly within the scope of his employment. See Green v. DeFuria, supra, 19 N. J., at 300, and 1 Larson, Workmen’s Compensation Law, §§ 28.10, 28.11 (1966). See also, O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, 71 S. Ct. 470, 95 L. Ed. 483 (1951). Undoubtedly, but for the fact of decedent’s employment with Weber, his injuries and ensuing death on April 8, 1966, would not have happened. See Howard v. Harwood’s Restaurant Co., 25 N. J. 72, 85 (1957). See also Tocci v. Tessler & Weiss, Inc., supra, 28 N. J., at 589.

In O’Leary v. Brown-Pacific-Maxon, Inc., supra, the United States Supreme Court had under review an award of compensation under the federal compensation reined}’, the Longshoremen’s and Harbor Workers’ Compensation Act, 33 27. 8. C. A. §901 et seq. The deputy commissioner had awarded a death benefit on a claim filed by the decedent’s dependent mother. The District Court denied the petition of Brown-Pacific and its insurance carrier to set aside the award. On appeal, the Court of Appeals for the Ninth Circuit reversed. The United States Supreme Court, on its review, reversed the judgment of the Court of Appeals and affirmed the judgment of the District Court. In the course ■of his opinion for the court Justice Frankfurter stated:

* * * The award was made on a claim arising from the accidental ■death of an employee of Brown-Pacific-Maxon, Inc., a government •contractor operating on the island of Guam. Brown-Pacific maintained for its cmjjloyees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Valak, the employee, spent the afternoon at the center, and was waiting for his employer’s bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the iwo men he was drowned.

The Longshoremen's and Harbor Workers’ Act authorizes payment of compensation for “accidental injury or death arising out of and in the course of employment”. § 2(2), 44 Stat. 1425, 33 IT. S. C. § 902(2), 33 LT. S. C. A. § 002(2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer's service, undertaken in forbidden waters outside the employer's premises. We think this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481, 67 S. Ct. 801, 808, 91 L. Ed. 1028; Matter of Waters v. William J. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728, L. R. A. 1917A, 347. The test of recovery is not a causal relation between the nature of employmenr of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Xor is it necessary that the employee be engaged at the time of Ihe injury in activity of benefit to liis employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17, 164 N. E. 726, 727 [61 A. L. R. 1354] ; Puttkammer v. Industrial Comm., 371 Ill. 497, 21 N. E. 2d 575. This is not to say that there are not cases “whore an employee even with the laudable jrarpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” Matter of Waters v. William J. Taylor Co., 218 N. Y. at page 252, 112 N. E. at page 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. [71 S. Ct., at 471-472]

As pointed out in 1 Larson, Workmen's Compensation Law, § 28.23 (1966) at page 452.85: “The Brown-Pacific-Maxon ease adopts the positional risk theory in its purest form, by finding work-connection if the employment merefy brings the employee to the place where he encounters a moral obligation to rescue a stranger. * *

See also, Green v. DeFuria, supra, 19 N. J., at 296-297, wherein it is pointed ont that “It matters not whether the act performed and the risk assumed by the employee is directly connected with the employment or extraordinary in character, so long as the employment is a necessary factor leading to the accident * * *."

I find and determine that decedent’s death resulted from injuries sustained by accident arising out of and in the course of his employment with the respondent.

Accordingly, I find and determine that petitioner and decedent’s dependent children are entitled to statutory workmen’s compensation death benefits. N. J. S. A. 34:15-13. In addition to the statutory dependency benefits, petitioner is, of course, also entitled to the applicable statutory burial allowance. N. J. S. A. 34:15-13. As pointed out earlier in this opinion, there is no question in this case as to the total dependency upon decedent of his widow and his infant daughter Christine. See N. J. S. A. 34:15-13. Petitioner’s employment as a full-time teacher earning $2,000. a year at the time of decedent’s death does not affect her status of total dependency upon him. Id. See also Fitzsimmons v. Federal Shipbuilding Dry Dock Co., 4 N. J. 110, 114 (1950). In dispute is the claim that Timothy Reilly, one of decedent’s adult sons, was partially dependent upon him at the time of his- death. Chief Justice Weintraub in his opinion for a majority of the State Supreme Court in Ricciardi v. Damar Products Co., 45 N. J. 54 (1965) points out that

The general test of dependency is well put in 2 Larson, ’Workmen’s Compensation Lam §63.11, p. 102 (1961) :
“A showing of actual dependency does not require proof that, without decedent’s contributions, claimant would have lacked the necessaries of life. The test is whether his contributions were relied on by claimant to maintain claimant’s accustomed mode of living.” [at 62]

Applying this standard, I find and determine that Timothy Reilly, although 24 years old and working at the time, was partially dependent upon the decedent by reason of his disability and is, accordingly, entitled to partial dependency benefits. Additional testimony is required for a determination as to the amount of the payments he is entitled to for the full compensation period. See N. J. S. A. 34:15-13; and Ricciardi v. Damar Products Co., supra, 45 N. J., at 64-67.

The judgment of the Division of Workmen’s Compensation is reversed and the cause remanded to the Division for additional testimony and for findings and determinations in accordance with this opinion and the applicable statute, N. J. S. A. 34:15-13. Jurisdiction of the cause is retained by this court. See Quiles v. New Jersey Metals Co., 37 N. J. 91, 95-96 (1962).