author: Meanor, J. A. D. Kole, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN REPP, AND HOWARD J. STILES, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 21, 1974
    Decided August 15, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Leonard A. Cinaglia, attorney for appellant, John Repp.

      Mr. Edward J. Dimon, Assistant Deputy Public Defender, argued the cause for appellant, Howard J. Stiles (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Robert II. Elausner, Deputy Attorney General, argued the cause for respondent {Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Eugler, Jr., former Attorney General of New Jersey).
   The opinion of the court was delivered by

Meanor, J. A. D.

Once again an appellate court is asked to construe New Jersey’s Gun Control Law, N. J. S. A. 2A:151-1 et seq., sustained as constitutional in general in Burton v. Sills, 53 N. J. 86, 28 A. L. R. 3d 829 (1968), app. dism. 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969). As has been recently and aptly noted, this is a statute “not without its obscurities.” State v. Hatch, 64 N. J. 179, 186 (1973).

The indictment here, as amended, charged that the defendants “did unlawfully carry in an automobile a certain firearm to wit: a shotgun without first having obtained a requisite firearms Purchaser Identification Card contrary to the provisions of N. J. S. A. 2A:151-41.”

The convictions from, which these appeals ensue arise out of events that took place in the early morning of Saturday, April 10, 1971, in the Borough of Clementon. The State’s case was presented through the testimony of Francis A. Dailey, a Clementon patrolman. At 12:45 a.m., while in a patrol car, he saw a vehicle owned by defendant Howard J. Stiles pull into the parking lot of the Clementon Borough Hall. Defendants Stiles, Charles LaPollo and John Repp exited from the Stiles car, ran to another vehicle in the lot and “threw open the driver’s door and the passengers’ door.” Dailey’s investigation revealed the presence of a shotgun in the front seat of Stiles’ car. None of the defendants could produce a firearms purchaser identification card.

The essential facts of the State’s case were not disputed. The defense was to the effect that LaPollo owned a gas station in Lindenwold which was open 24 hours a day. On Friday, April 9, 19/1 the two couples, Linda and John Eepp, and Victoria and Howard J. Stiles, arrived at LaPollo’s station sometime late in the evening. LaPollo was not there, the station being attended by his employee Horace Lederman. At this point those present thought that there was an attempt to break into the rear of the station. Lederman called LaPollo and asked for some protection. LaPollo lived nearby and arrived at the station just as a police car was pulling up. The station was searched to no avail.

LaPollo owned a shotgun which he had taken to Stiles’ apartment the night before in order to clean it with Stiles’ cleaning kit. The gun had been left there by LaPollo who asked Stiles if it could be returned, ostensibly to provide the protection that Lederman requested. Stiles asked his wife to go to their apartment in Stratford and bring the gun to the station. She did so, taking the Stiles automobile and was accompanied by Linda Repp. On the way to the Stiles apartment the two women were followed by a vehicle whose driver was sounding its horn and blinking its lights. When the Stiles vehicle stopped, the occupants of this vehicle tried to “pick-up” Linda Eepp and Victoria Stiles. Mrs. Stiles was grabbed by one of their accosters and dragged a few feet. This “pick-up” attempt was reported to the Stratford police who investigated.

Following her husband’s instructions, Mrs. Stiles put the LaPollo gun in a guncase and attached Stiles’ hunting license to it. Because they were upset by the “pick-up” attempt, Mrs. Stiles and Linda Eepp agreed to stop for coffee at the Repp apartment. En route there they passed the borough parking lot in Clementon where they saw the vehicle whose occupants had been involved in the incident outside the Stiles apartment. They immediately went to LaPollo’s gas station and informed their husbands of the occurrences. The three men, Stiles, Repp and LaPollo, entered the rear seat of the Stiles car which was driven to the parking lot. After their arrival and approach to the vehicle thought to contain the men who had tried earlier to "pick-up” Mrs. Repp and Mrs. Stiles, Officer Dailey and other police came upon the scene.

LaPollo, Linda Repp, John Repp and Stiles were indicted for violation of N. J. S. A. 3A:151-41(b). Linda Repp’s case was severed and the three men were convicted. Only Repp and Stiles are involved in this appeal.

LaPollo contended that he was not required to have a firearms purchaser identification card since the shotgun had been acquired from his father before August 5, 1966, the date upon which the statutory requirement of a firearms purchaser identification card became effective. Repp and Stiles joined in this defense, urging that as alleged joint possessors they were entitled to share in the legal possession by LaPollo of the shotgun without the requirement of a purchaser identification card. The trial judge refused to honor these arguments, ruling them unavailable as a matter of law.

The 1966 amendments to N. J. S. A. 3A:151-1 et seq. for the first time brought into our statutes a requirement that a firearms purchaser identification card be obtained before a rifle or shotgun could be acquired.

Permits to purchase a pistol or revolver and firearms purchaser identification cards are issued by the chief of police if the applicant resides in a municipality which has an "organized full-time police department,” and in all other cases by the Superintendent of State Police. N. J. S. A. 3A:151-34. This statute requires that “iFo person of good character and who is of good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a pistol or revolver or a firearms purchaser identification card * * The statute goes on to deny permits or cards to those convicted of a crime, narcotics addicts, inmates of mental hospitals, habitual drunkards, to those suffering certain physical and mental disabilities, and to those under age 18-. See Weston v. State, 60 N. J. 36 (1972).

It might also be noted that a separate permit must be obtained for each purchase of a pistol or revolver, but the number of riñes and shotguns that may be acquired under the authority of a single firearms purchaser identification card is unlimited. N. J. S. A. 2A:151-39. It is quite clear, however, that the Legislature did not intend to impose any requirement for a permit to carry a rifle or shotgun. The statement appended to the bill containing the 1966 amendments says in part:

The new act does not require registration of rifles and shotguns, nor is there a requirement for a permit to carry a rifle or shotgun. There is only a check on the person who desires to purchase such weapons.

The above statement is not quite accurate, for N. J. S. A. 2A:151-32 is clear that acquisition by any means, and not only by purchase, must be preceded by the obtaining of a purchaser identification card. The only exception is set forth in N. J. S. A. 2A:151 — 32(C) which permits one who acquires a firearm by testate or intestate succession temporarily to possess it without first obtaining a purchaser’s permit or identification card.

N. J. S. A. 2A:151-41 must, of course, be strictly construed. State v. Carbone, 38 N. J. 19 (1962); State v. Provenzano, 34 N. J. 318 (1961). If that statute is read in isolation, it can be thought to require a firearms purchaser identification card in order to carry any rifle or shotgun in an automobile, including a weapon acquired before the effective date of the 1966 amendments requiring a firearms purchaser identification card as a prerequisite to acquisition of a rifle or shotgun. However, N. J. S. A. 2A:151 — 41 cannot be read in isolation, but must be construed in pari materia with the other statutes contained in our gun control legislation. No fair reading of these statutes would lead one to believe that any circumstances existed that would require a firearms purchaser identification card for a previously possessed weapon. The thrust of this legislation is to prevent future acquisition of firearms by those thought not suitable to have them. If there was any legislative intent to reach past acquisitions, the major theme of the statute would not have been identification of the purchaser but rather registration by the possessor. By making the marked distinction between permits to carry handguns and permits to purchase (acquire) riñes and shotguns, it is obvious that the Legislature had no intention to have the firearms purchaser identification card double as a permit to carry.

The Legislature, by providing in N. J. S. A. 2A:151-41 that possession, under the circumstances set forth, of a rifle or shotgun was to be a crime unless the possessor first obtained a firearms purchaser identification card “in accordance with the provisions of this chapter” was directing its attention only to rifles and shotguns acquired on or after August 5, 1966, for it is only to such acquisitions that the card is a prerequisite.

This construction means that an individual with a previously possessed rifle or shotgun has the same legal liberties with respect to it as does one who possesses such a weapon validly acquired pursuant to a firearms purchaser identification card. This construction does not render nugatory the exceptions to N. J. S. A. 2A:151-41 set forth in N. J. 8. A. 2A:151-42. The latter statute permits certain defined uses and places of possession of firearms without the necessity of a card or permit. This statute at least would be applicable to travelers through the State and to possession of a. firearm in New Jersey which had been acquired without the State after August 5, 1966. State v. Hatch, supra, 64 N. J. at 187.

Thus, LaPollo’s position that he did not need a purchaser identification card because of his preexisting possession of the weapon should not have been ruled invalid, and he should have been given the opportunity to present his proofs on the point. Procedurally the contention that the firearm in question was acquired before the requirement for a firearms purchaser identification card came into existence should be handled in the same manner as the defense contention that a required permit to carry had in fact been issued. State v. Hock, 54 N. J. 526, 536-537 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), and cases cited therein.

If LaPollo’s position that a purchaser’s card was not required of him is honored, then his co-defendants’, all alleged joint possessors with him of the same firearm, will also be protected. We believe it would be arbitrary in a case of joint possession of a firearm by the owner thereof and others to hold that, while the owner is protected by an identification card or by the lack of a necessity to have it, his joint possessors are guilty of a crime. Cf. State v. Humphreys, 54 N. J. 406 (1969). Of course, in order for Repp and Stiles to obtain exclusive possession of the shotgun from LaPollo, either singly or jointly, a card would be required. N. J. S. A. 2A:151-32.

Reversed and remanded.

Kole, J. S. C.,

Temporarily Assigned (concurring). Before the 1966 Gun Control Law there were only two types of permits relating to firearms •— (1) a permit to purchase a pistol or revolver and (2) a permit to carry a pistol, revolver “or other firearm.” The permit to carry was required in order that a concealed weapon — whether a pistol, revolver, shotgun or rifle — be legally carried; otherwise, the defendant was guilty of a misdemeanor. State v. Nerwinski, 69 N. J. Super. 239 (App. Div. 1961), cert. den. 369 U. S. 825, 82 S. Ct. 841, 7 L. Ed. 2d 790 (1962). See N. J. S. A. 2A:151—32, 41, 44 and 45 before their amendment by the 1966 act. Although prior to the 1966 act there was authority aud a statutory requirement for a permit to carry a concealed rifle or shotgun, there was no requirement or authority for a purchase permit for these weapons. The 1966 act eliminated the permit to carry a concealed rifle or shotgun and created three distinct “licenses” with respect to firearms: (1) a permit to purchase, required to acquire a pistol or revolver; (2) a firearms purchaser identification card to acquire a rifle or shotgun, and (3) a permit to carry a pistol or revolver. It also imposed more specific standards for the issuance of both the permit to purchase and the .firearms identification card than had existed prior thereto for the permit to purchase a pistol or revolver; and imposed more restrictive conditions for the issuance of a permit to carry a pistol or revolver based on need. It eliminated the prerequisite that the proscribed weapons — whether a handgun or a shotgun or rifle — be concealed in order to constitute a crime under N. J. S. A. 2A :151-41, and changed the crime from a misdemeanor to a high misdemeanor. N. J. S. A. 2A:151-32 to 36, 44 to 45, inclusive. State v. Hatch, 64 N. J. 179 (1973); State v. Johnson, 125 N. J. Super. 344 (App. Div. 1973), mod. on other gds. 65 N. J. 388 (July 9, 1974). It is apparent, therefore, that State v. Nermnslci, supra, no longer governs the applicability of N. J. S. A. 2A :151-41, as amended in. 1966, to rifles or shotguns.

I am satisfied from the foregoing and the reasoning of the Judge Meanor’s opinion that as to these defendants (1) the trial judge erred in not permitting proofs as to whether the shotgun was acquired by La Polio before or on or after August 5, 1966, and (2) if it were acquired prior to that date, defendants should be acquitted unless the jury were to find that they — Repp and Stiles — obtained exclusive possession of the shotgun from La Polio, either singly or jointly. Thus, the convictions should be reversed and the matter remanded for a new trial.

Although I am not too clear as to the full implications of State v. Hatch, supra, it seems to point in this direction when it states that “persons with hunting licenses may carry guns used by them for hunting provided the guns are securely concealed while being transported; indeed they may do so * * * even without holding firearms purchaser identification cards so long as they did not purchase or receive the guns in New Jersey subsequent to the 1966 passage of the Gun Control Law.” 64 N. J., supra at 187 (emphasis supplied).

I would hold, however, “in the absence of legislative clarification or modification” (cf. State v. Hatch, supra at 189), that prospectively a factual setting arising after the date of this opinion similar to that presented before us would constitute a violation of N. J. S. A. 2A:151-41(b) even though ihe rifle or shotgun were acquired prior to August 5, 1966.

When apprehended the owner of the shotgun (La Polio, who has not appealed) and Repp and Stiles (who have) were carrying it in the car with Stiles’ hunting license attached thereto. The evidence plainly supports a finding that all three defendants thus were endeavoring to comply with the hunting exception to the statute even though they were not going hunting. N. J. S. A. 2A:151-42(c). If, as claimed, the shotgun were being repaired or cleaned by Stiles under N. J. S. A. 2A :151-42(a), this particular requirement of the hunting exception need not have been complied with. Again, if, in fact, defendants were actually going hunting, as that term is commonly and legislatively understood, when they joined in the search of the men who had endeavored to pick up Mrs. Repp and Mrs. Stiles, this hunting prerequisite to carrying the shotgun in the car was inapplicable. The inescapable conclusion is that the trip by the automobile containing the shotgun fortunately was aborted by the police before its mission was accomplished.

• The salutary purpose of the Gun Control Law of 1966 to insure public safety by reason of the inherent dangers associated with firearms, has been recently adverted to in State v. Hatch, supra. In view of this, absent further legislative action to the contrary, I would hold that under these or similar circumstances in the future, a defendant may not seek refuge in the happenstance of when he acquired the rifle or shotgun. See also State v. Sisti, 62 N. J. Super. 84, 88 (App. Div. 1960); State v. Ferro, 128 N. J. Super. 353 (App. Div. 1974). Even though a defendant acquired the shotgun in Mew Jersey before August 5, 1966, his act of possessing it in an automobile where such possession was not within any of the exceptions in N. J. S. A. 2A:151-42 or 43 should not hereafter be considered a lawful carrying of firearms in this State. If he desires to carry any such weapon in a vehicle, in order to comply with N. J. S. A. 2A :151-41- he must first obtain a firearms identification card. Some measure of control is thereby afforded the State over such persons, in accordance with the basic aim of the 1966 Gun Control Law.

The obscurities in this area with which we have been compelled to deal make it fundamentally unfair to apply the foregoing interpretation retroactively to these defendants, charged with a high misdemeanor, even though I am satisfied that they had some knowledge of the 1966 statute.

      There is no sound basis for the claim defendants make that the firearm was being transported from a place where repairing is done to a place of business or from a dwelling place (La Polio’s) to La Polio’s place of business within N. J. S. A. 2A :151-42(a), or that the course of travel in any of these respects involved a reasonable or necessary deviation from the course of travel to and from any such areas. N. J. S. A. 2A:151 — 42(e). The weapon was never left at La Polio’s service station after being taken from Stiles’ home; it remained in the vehicle while defendants attempted to pursue the alleged aceosters.


source: Caselaw Access Project

author: Schreiber, J. S. C.

license: Public Domain

text:
    GENERAL ELECTRIC COMPANY, A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. ARNCO ELECTRONICS, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided July 3, 1974.

      Mr. Richard O. Cooper for plaintiff (Messrs. McCarter & English, attorneys).

      Mr. Warren J. Kaps for defendant (Messrs. Stein & Rosen, attorneys).
   Schreiber, J. S. C.

General Electric Company (G.E.) instituted this action against Arnco Electronics (Arnco) for violations of minimum retail prices fixed under a contract entered into between the parties under the Yew Jersey Pair Trade Act. The infractions allegedly occurred on August 10, 1972 and September 16, 1972.

Arnco is a New Jersey corporation which has been engaged in the sale of electrical appliances at a store located at 77 South Washington Avenue, Bergenfield, N. J. G.E. has been engaged in the business of manufacturing various electrical appliances, including, among other items, television sets and

dishwashers. G.E.' utilizes a trademark “General

Electric” which is associated with its products. It has extensively promoted and advertised its appliances with this trademark, and has created goodwill in connection with it.

G.E. and Arnco entered into a minimum retail price agreement in November 1968. The contract has remained viable since that time. Under its terms Arnco agreed that it would not sell any fair-traded G.E. products at less than the minimum retail price stipulated, and would not, in connection with any sale of fair-traded products, make any discounts, allowances or concessions of any kind or character which would have the effect of decreasing the selling price. G.E. had the right in its absolute discretion to withdraw any or all of the products from the list of minimum retail prices and to add to or change or revise the prices of the products listed. Attached to the agreement was a list of the minimum retail prices for the enumerated G.E. commodities. That list stated that the minimum retail prices did not apply to: (1) sales to G.E. employees or to employees of distributors or dealers; (2) sales to governmental agencies buying for their own use, and (3) sales to a commercial or institutional customer buying four or more products for its own use and not for resale.

After execution of the contract G.E. from time to time sent to Arnco modifications of the list of minimum retail prices. It made one significant change in its exemptions by deleting the requirement that the commercial or institutional customer had to buy four or more units for its own use.

Nonretail or wholesale sales did not fall under the minimum retail price proscription. The parties stipulated that G.E. excepted from its fair trade minimum price schedules sales to apartment house builders, large residential developérs and various commercial enterprises which distributed the products in the form of prizes. G.E. had a Sales Division which dealt directly with the buyers. A resale might or might not occur in these situations. Por example, the apartment house builder could, after completion, retain the building and rent the apartments. Or it was possible that a company’s prize might not involve a sale.

In the latter part of 1971 or the early part of 1972 Arnco instituted a program under which it distributed discount cards which entitled the . holder to purchase appliances through Arnco’s wholesale organization division. Sales made by the so-called Arnco wholesale organization division were admittedly made at prices below the minimum charges that had been fixed by G.E. and in the same showroom and place as its retail business. Arnco’s plan consisted of going to an employer or organization and requesting that entity to distribute, either through the employer or Arnco, discount cards to its employees or members. In this fashion the employer or association would be able to take credit for having given its employees a benefit. Although Arnold Rosen, who is president of Arnco, testified that when this arrangement was made with the Lipton Tea Company as part of the agreement with that company it was understood that Lipton Tea Company would purchase appliances for promotional purposes from defendant. Conspicuous by its absence was any evidence that such an arrangement was part and parcel of the agreement with other employers or organizations. Por example, he did not testify to any such understanding when he obtained the services of the Bergen County Educational Association, an organization of school teachers, to distribute Arnco’s discount cards to its members.

If any individual appeared with the discount card, it was assumed that he or she was its rightful holder. ISTo verification or check of any kind was made. If purchases were made, cards would be made available to the members of the purchaser’s immediate family. Apparently, a large number of employers have agreed to this arrangement and, presumably, thousands of employees have received the cards.

Rosen testified that before instituting this program he had the advice of counsel that the program conformed with the New Jersey Fair Trade Act. I am satisfied that the scheme and method which Arnco utilized was simply an artifice to evade the impact of the G-.E. fair trade minimum price list. The contention that these were commercial sales made to the employers or organizations of the consumer flies in the face of reality. The consumer was billed, not the employer. The consumer could well be someone who was not an employee. Arnco made no sincere effort to police the program. It was only interested in the sale. I find and conclude that the discount plan sales constituted retail sales. In so concluding I do not mean to imply that defendant believed the sales were retail. Defendant actually thought the method brought these sales within the exempt status — a commercial sale for the customer’s own use. The attempt to avoid resulted in an evasion of the minimum price schedule.

As noted above, the violations allegedly occurred on August 10, 1972 and September 16, 1972. To prove the violations on those respective dates plaintiff relied upon the testimony of Herbert Schneider. Schneider was employed by a Ralph T. Piper, who operated a private investigating service. Schneider is a professional shopper, and as such has performed services which have involved products of Seagram’s, Parker Pens, Mead Johnson and G.E., among others. On August 10, 1972 he went to defendant’s store at 77 South Washington Avenue, Bergenfield, N. J. There he examined a G.E. portable television set and discussed its purchase with a Irving Rosen who was in charge of defendant’s sales. Schneider showed Rosen a discount card on which was imprinted the name of Rex Chain Belt, Inc., one of the employers with whom Arnco had made an arrangement. The card was not signed by the employee. Rosen never took the card in his hand to examine it or attempted to verify Schneider’s employee status. Because Schneider displayed that card Rosen quoted a price of $79 — $4 less than the minimum — for a model No. WM156SBK television set. Schneider bought the set (which he subsequently delivered to G.E.) and paid $79. On September 16, 1973 Schneider returned to the store, where he was met by Arnold Rosen. Schneider was shown a portable dishwashing machine which bore the serial number GGSC431N. Schneider 'had identified himself to Rosen as having been a prior purchaser, and before quoting a price Rosen checked the records in the office which indicated that Schneider had in fact been a prior customer who was entitled to a discount. Therefore, he offered to sell the dishwasher to Schneider for $183, even though the fair trade price was $339.95. Schneider left a $10 deposit and returned on October 3, when he paid the balance due and picked up the dishwasher, which was also delivered to G.E. This sale was admittedly made below the minimum price because the Arneo record revealed that Schneider was a preferred customer. He became a preferred customer because he had previously utilized a discount card.

The initial question is whether plaintiff has established that on August 10, 1973 and September 16, 1973 defendant violated its minimum retail prices. To constitute a violation the sale must be at retail. G.E. has taken the position that retail embraces all sales made to a consumer where the consumer is purchasing the item for his or her or its own use. Whether this test is to be determined by the retail seller’s intent or the purchaser’s is not clear. G.E. seemed to take the position that the criterion was the buyer’s purpose, irrespective of the retailer’s intent. Since the sales to Schneider were not for his own use, one may conclude that they were not retail sales and therefore did not constitute a violation of any minimum retail price schedule. Furthermore, even if the sales were deemed retail, Schneider was a commercial customer since he was making the purchase in connection with the business of his employer for a business purpose. Therefore, the minimum retail price schedule would not have applied because of the exemption that the retail price schedule was not applicable where a commercial customer bought for a business use. Although there was some testimony in connection with the fact that Schneider had a bungalow colony and he may have bought the set for a tenant in the colony, the evidence is clear that the initial sale was made to him at a discount by Irving Eosen solely on the basis of the fact that he was a card holder. Since the discount price for the second sale was predicated on the first sale, it would appear to be immaterial from defendant’s standpoint as to what Schneider’s real purpose was in making the acquisitions. Even though the discount plan was a method which has been found to be an ineffective form, as stated above, defendant believed that its plan brought the sales into an exempt status. It is this uncertainty — who makes the decision and what is the proper determination —• that calls for further consideration of the G.E. fair trade agreement.

The Eair Trade Act provides that the following are not subject to the price fixing provisions of the law: (a) a closeout of stock for the purpose of discontinuing a commodity; (b) sale of damaged goods; (c) commodities sold hv any officer under orders of a court, and (d) sales to libraries. N. J. S. A. 56:4-5 and 56:4-4. As noted above, G.E. has increased the exempt classifications by adding three more categories: sales to certain employees, governmental agencies, and commercial or institutional customers purchasing for their own use. Defendant argues that the G.E. exemptions are illegal because the only exemptions which are permissible are those which have been set forth in the Eair Trade Act. The statutory exemptions were inserted for the benefit of the retailers and third persons. Since the act was primarily adopted to protect producers and manufacturers, producers and manufacturers have the right not only to exclude certain merchandise from the minimum price schedule but to omit certain types of transactions. Defendant relies upon Bristol-Myers Co. v. L. Bamberger & Co., 122 N. J. Eq. 559 (Ch. 1937), aff’d o. b. 124 N. J. Eq. 235 (E. & A. 1938). There the buyer resold the product at. a discount to the buyer’s employees. The court held this constituted a violation of the fair trade agreement. In that context, namely, the buyer’s right to claim exemptions, the court noted that the only exemptions were those set forth in the statute. In Burroughs Wellcome & Co. v. Weissbard, 129 N. J. Eq. 563 (Ch. 1941), aff’d 130 N. J. Eq. 605 (E. & A. 1942), the manufacturer’s exemption from the fair trade prices on sales of pharmaceutical products to “physicians, dentists, veterinarians, clinics, hospitals and charitable institutions” was held proper and valid. The court commented (at 565), “I see no objection to the stated exemptions and, as regulated, they conform to the provisions of the statute.” Since this pronouncement was more recently affirmed by the Supreme Court in Texas Co. v. DiGaetano, 39 N. J. 120 (1963), this court is bound by the stated interpretation, namely that producers may increase the number of exempt categories.

A more serious question arises when defendant charges that the exemption of sales to a “commercial or institutional customer for its own use” is vague and indefinite. It claims that what constitutes a commercial or institutional customer and when the purchase is for the buyer’s own use are uncertain and indefinite. John D. MaePherson, manager of Dealer Sales Administration for the New York zone, who administers the G-.E. fair trade program, contended that “commercial” or “institutional” have definitive meanings in the trade by virtue of custom and usage. I do not agree with him. His testimony in this respect was not clear and definite. MaePherson defined a commercial customer as one who, in the ordinary course of business, is not used to or is not in the habit or in the practice of paying full retail prices. He further refined this group of customers to people in business. He testified that in the industry a sale to a commercial or institutional customer would ordinarily be regarded as a retail sale to a business or institutional entity. MaePherson stated that the nature of a commercial or institutional customer does not change whether the customer is purchasing for his own use or for resale. But he also explained that the customer would be deemed a commercial customer only if the purchase were being made in connection with the business. A doctor, for example, would be a commercial customer if he bought a G.E. television set for his office, but not for his adjoining living room. Or a dentist who bought two air conditioners, one for his waiting room and one for the bedroom upstairs, would be entitled to a negotiated price on the one unit and not on the other. It is up to the dealer to make adequate inquiry of the customer. No written directives or instructions have been sent to franchised or nonfranchised dealers delineating any of the foregoing. 'MacPherson, as well as his assistant, Harty, claimed that franchised dealers had received these explanations orally at sales meetings. G.E. had no documentary proof to establish that fact. Arnold and Irving Rosen denied having been so instructed. I conclude that no such detailed instructions had been given to the defendant, or to other dealers, franchised or nonfranchised. MacPherson also said that in the trade all dealers know that they should, and they do, question purchasers to learn if the product is to be used in the business. I do not accept that explanation. I do not believe it. The same ambiguity applies to the definition of an institutional customer. G.E. puts out no explanatory literature on this either. MacPherson stated that “institutional” generally means a charitable or a scientific, nonprofit or educational entity. Harty considered a hospital or school as being an institutional purchaser. He agreed that the institutional customer was different from a commercial customer. On the other hand, Rosen took the position that an institutional customer was a nonprofit organization. All these interpretations point up the difficulties when a generic term is used rather than the specifies utilized in the Burroughs Wellcome case, supra.

Attention is invited to the exemption language that the commercial customer must be buying the product for his own use. The language used in the exemption does not state that the commercial customer must be purchasing the item for his own commercial use. Rather, it simply states that the commercial customer must be buying the item for his own use. This, literally, may he read as applying to a situation where a commercial customer is buying the television set for his own personal use. Significantly, G.E. never sent out any written instructions or directions to its franchised dealers or to other dealers in G.E. appliances specifying precisely what was meant in this respect.

I am satisfied that the exemption to a commercial or an institutional customer buying for its own use has no certain or well defined meaning. Such a test leaves much to the discretion and judgment of the individual dealer. Eurthermore, the distinction between a commercial customer’s purchase for his commercial or personal use can hardly be viewed as fair or reasonable or as fulfilling the legitimate purpose of the law. It is true that the statute was passed primarily to protect the producer’s goodwill in the trademark, but it was also intended to afford protection to the retailer and the consuming public. Upholding a fair trade agreement with this type of exemption does not serve to advance the protection of the goodwill symbolized by the G.E. trademark, nor does it afford a proper measure of protection for the retailers and the public.

There should be uniformity in application of price-fixing. Here the variables are many. In addition to those mentioned is the G.E. requirement that the fair trade price include delivery. The extent and nature of delivery varies from dealer to dealer, so that what the customer receives for that fixed minimum price depends on the dealer’s practice. To attain uniformity there would at least have to be wide enough notice to all retailers of an identifiable, fixed delivery service and of precisely what is encompassed in the exemptions. Notice in this case was conspicuous by its absence. In Burroughs Wellcome & Co. v. Weissbard, supra., the court, in approving a price schedule, noted:

* * * The prices fixed are uniform.
# $ * ■’/' :> í¡: Jit
* * =r jn my opinion granting exemption to physicians, dentists, veterinarians, clinics, hospitals and charitable institutions from the price structure, where uniform, is part of the process of fixing prices. [129 N. J. Eq. at 565; emphasis supplied]

The language in Frank Fischer, etc. Corp. v. Ritz Drug Co., 129 N. J. Eq. 105 (Ch. 1941), is particularly appropriate:

* * * A manufacturer or such other person entitled to operate under the statute must subject all retailers selling his commodity to restrictions which are uniform, otherwise he permits discrimination between classes of consumers and classes of retailers. Except as the legislature itself may constitutionally provide, the fixed price must apply to all consumers alike and this can be accomplished only by binding all retailers to maintain the same minimum price schedule. A manufacturer may not require or permit one group of retailers to sell at a fixed price leaving another group selling the same product free to pursue its own price policy. Similarly, the manufacturer may not, except as permitted by statute (see 1940 amendment exempting libraries) set a different price for classes of consumers. The very description of the statute as a Fair Trade Act carries with it the fundamental equitable concept that “equality is equity.” Exemptions from price restriction cannot be left to the sole uncontrolled, arbitrary act of the manufacturer, [at 108-109]

Cf. Menley & James Laboratories, Ltd. v. Vornado, Inc., 90 N. J. Super. 404 (Ch. Div. 1966).

In Texas Co. v. DiGaetano, supra., The Texas Company had adopted a retail price-fixing program under N. J. S. A. 56:4-3 et seq. There the company excluded from its minimum price sales to purchasers to whom delivery is made by tank wagon or truck transport into bulk storage facilities maintained by tbe buyers. In approaching the problem before it the court reviewed the history of treatment of fair trade legislation through the years and cautioned that there was a “special need for judicial scrutiny of enforcement proceedings to insure that there he no perversion of the stated legislative purpose and that there be full adherence to basic equitable principles.” 39 N. J. at 129. The Supreme Court concluded that the indeiiniteness of the exemption destroyed the validity of the fair trade schedule.. It quoted a Mr. Bermingham iu an article in 7 U. C. L. A. Rev. 161, 257 (1960) in the following pertinent fashion:

* * * the exclusion of commercial sales leaves the-door open for any retailer who wants to cut the stipulated price. He can presumably classify any employee of a business establishment as a commercial buyer, and because policing of thousands of dealers is impossible, he has little fear of his classification being challenged. [39 N. J. at 131]

Plaintiff has cited several cases for the proposition that its exclusion is not indefinite and should be upheld. It relies primarily on G. E. v. Federal Employees’ Distributing Co., 45 Cal. 2d 891, 291 P. 2d 942 (Sup. Ct. 1956). The California court upheld an exemption with about the same language as in the instant case. The court did not discuss the problems referred to herein but simply relied upon the New Jersey Burroughs Wellcome ease and Burroughs Wellcome & Co. v. Johnson Wholesale Perfume Co., Inc., 128 Conn. 596, 24 A. 2d 841 (Sup. Ct. Err. 1942), in both of which the exemptions were limited to buyers identified by occupation, all of which occupations fell into the public service field. The Connecticut court significantly wrote:

^ * It may well be that a producer or distributor who permits a certain retailer or certain retailers to sell at prices below the minimum fixed in its schedule, or who permits exceptions to be made so generally or under such indefinite terms that its schedule ceases to maintain prices on a substantially uniform basis, would not be complying with the act. But a reasonable exception such as that provided in the plaintiff’s price schedule, which it is open to any retailer to make, does not destroy the validity of the schedule. [128 Conn. at 603, 24 A. 2d at 845]

Plaintiff also relies upon G. E. v. S. Klein on the Square, Inc., 121 N. Y. S. 2d 37 (Sup. Ct. 1953). The court upheld an exemption in terms of a commercial and institutional customer. However, here again the court did not discuss the concept with respect to vagueness or lack of uniformity. The last decision relied upon by plaintiff is Schill v. Remington Putnam Book Co., 179 Md. 83, 17 A. 2d 175 (Ct. App. 1941), motion for reargument denied 22 A. 2d 128 (1941). The court upheld various exemptions to identifiable purchasers and had one general category designated as “miscellaneous sales not generally intended for retail by the purchasers.55 However, the case does not discuss the contention that the exemptions stated were vague and ambiguous.

In the instant case the exemption has no certain or well denned meaning. It is vague, indefinite and ambiguous. Gr.E. has not definitively explained, indeed if it could, to all retailers precisely what was to be included in the exemption so as to result in a uniform program.

In view of all the foregoing I conclude that plaintiff has not established that defendant Arnco has violated its fair trade minimum price list; and, even if it has, such schedule must fail because it is vague, uncertain, and lacks uniformity. In view of these conclusions it is unnecessary to consider the other defenses raised.

Please submit an appropriate order.


author: McGeet-ian, S. J. A. D.

text:
    SAM GAGLIANO, PETITIONER-APPELLANT, v. BOTANY WORSTED MILLS, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1951
    Decided March 14, 1951.

      Before Judges MoGeehan, Jayne and ffi. J. Brennan, J'r.

      Mr. Benjamin Greene argued the cause for petitioner-appellant; Mr. Alfred I). S.chiaffo, on the brief.

      Mr. G. Dixon Speahman argued the cause for respondent-respondent {Messrs. Toner, Speahman A Crowley, attorneys).
   The opinion of the court was delivered by

McGeet-ian, S. J. A. D.

The petitioner appeals from the judgment of the Passaic County Court which affirmed a judgment entered in the Division of Workmen’s Compensation dismissing the petitioner’s claim for compensation.

The petitioner was employed by the respondent as a trucker in its warehouse. While at work in the. warehouse pushing a hand truck, on which there was a bale of wool weighing approximately 350 pounds, the petitioner collapsed, became unconscious and was taken to the employer’s clinic. He suffered a coronary thrombosis resulting in a myocardial infarction. At the hearing before the deputy director, he attempted to prove that while ¡lushing the hand truck it became stuck in a hole in the floor and in trying to free it by force he slipped to the floor and the hand truck toppled on his chest; that this activity constituted an unusual or unexpected strain or exertion arising out of his employment; and that his heart attack was caused thereby. There was conflict in the evidence as to what actually happened about the time of the petitioner’s collapse, and question as to the credibility of certain witnesses.

In the findings filed by the deputy director, there is no finding of fact as to what actually occurred at or about the time of the alleged accident. The deputy director found: (1) that the petitioner had not sustained the burden of proof “in .establishing that he suffered an accident arising out of and in the course of his employment,” and (2) that “Even if any one of the number of versions of a compensable accident to the petitioner had been established by him, I am satisfied that his present cardiac condition is in no wise related, either by way of cause or aggravation, to such alleged accident.” Both of these findings are merely ultimate conclusions of fact. Cf. Cormican v. McMahon, 128 A. 709, 711 (Sup. Ct. of Errors, Conn. 1925). The County Court judge filed a determination, stating: “I am of the opinion that the judgment of the Workmen’s Compensation Bureau should be affirmed and the appeal dismissed for the reasons expressed” by the deputy director.

On this appeal the petitioner argues; (1) that the court erred in capriciously rejecting the testimony of a competent witness, (2) that the petitioner sustained the burden of proving that he suffered a compensable accident arising out of and in the course of his employment, and (3) that the County Court erred in its failure to make an independent finding of fact on an appeal from a decision of the Workmen’s Compensation Bureau.

On a claim for compensation for a heart injury, there is a presumption that the heart injury is the result of natural physiological causes and the petitioner has the burden of proving, by a preponderance of the probabilities, that his heart attack was caused by an unusual or unexpected strain or exertion arising out of his employment and beyond the mere employment itself. Seiken v. Todd Dry Dock, Inc., 2 N. J. 469 (1949); Grassgreen v. Ridgeley Sportswear Mfg. Co., 2 N. J. Super. 62 (App. Div. 1949), cert. den. 1 N. J. 603 (1949); Temple v. Storch Trucking Co., 3 N. J. 42 (1949).

The deputy director made no finding of fact as to the particular activity in which the petitioner was engaged at the time in question and no finding as to whether such activity was in the usual routine course of labor to which the petitioner was accustomed, or whether it included an unusual or unexpected strain or exertion arising out of the employment. Without such findings by the deputy director in a heart case, neither the County Court nor this court can perform its proper functions.

On appeal to the County Court in a workmen’s compensation ease, the hearing before the County Court must be based “exclusively on the transcript of the record and testimony"’ below, and the County Court judge must file with the clerk of the court a- determination, in writing, of the merits of the controversy. R. S. 34:15-66. The findings of the deputy director are part of the record and the County Court, in coming to its determination, must consider the deputy director’s findings of fact and give due, although not necessarily controlling, regard to the opportunity of the deputy director to judge of tlie credibility of witnesses. Donofrio v. Haag Brothers, Inc., 30 N. J. Super 258 (App. Div. 1950); cf. Universal Camera Corp. v. N. L. R. B., 71 S. Ct. 456 (U. S. Sup. Ct., 1951).

On appeal to this court from the judgment of the County Court, we accord determinative weight, in the first instance, to the factual findings of the County Court. Donofrio v. Haag Brothers, Inc., above. Particular weight is given in this court to the findings of fact of the County Court, when such findings agree with the findings of fact in the Division of Workmen’s Compensation. Cf. Wright v. Westinghouse Elec. & Mfg. Co., 134 N. J. L. 581, 583 (Sup. Ct. 1946), affirmed 135 N. J. L. 460 (E. & A. 1947); Brighton v. Rumson, 135 N. J. L. 83 (Sup. Ct. 1947). It is only when we are satisfied that the interests of justice require it, that we make independent findings of fact. Rule 3 :81-13; cf. Rules 1:2-20 and 4:2-6.

We are unable to deal properly with the merits on this appeal without having the benefit, first, of the essential findings of fact by the Division of Workmen’s Compensation which are required but were not supplied (cf. Palton v. American Oil Co., 13 N. J. Misc. 825 (Sup. Ct. 1935), affirmed 116 N. J. L. 382 (E. & A. 1936)); and, second, of the findings of fact by the County Court judge in the performance of his duty to bring a new mind for the consideration of the transcript of the' record and testimony in the cause (cf. Charlock v. M. W. Kellogg Co., 4 N. J. Misc. 260, 262 (Sup. Ct. 1926)).

The judgment is reversed. The record shall be remanded to the County Court and by it remanded to the Division of Workmen’s Compensation for the filing, by the deputy director, of new findings on the record and the entry of a consequent judgment. No costs.


author: William J. Brennan, Jr., J. A. D.

text:
    LOUIS F. PADAVANO, PETITIONER-APPELLANT, v. TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 11, 1951.

      Before Judges McG-eehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Joseph V. Gullum argued the cause for appellant {Mr. CuTlum and Mr. Max A. Boxer, attorneys).

      Mr. Nicholas 8. Schloeder argued the cause for respondent.
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Each municipality is required by R. S. 54:5-11 to designate a bonded official to be responsible for the making of tax searches and the execution of official certificates as to unpaid municipal liens. Appellant, Louis F. Padavano, was appointed tax searcher of the Township of North Bergen in 1944. In 1947 the township adopted the Civil Service Act and Padavano was placed in the classified service with the title tax searcher.

After a recall election in May, 1949, the newly organized township commission noted the small return in 1948 and 1949 from search fees, and on June 15, 1949, adopted a resolution designating the township clerk and the assistant township clerk, both bonded officials, in place of Padavano, to execute official search certificates. On the next day, June 16, the Director of the Department of Revenue and Finance notified Padavano by letter that his employment was terminated “in order to effect economies.” The Department of Civil Service sustained the action and Padavano appeals from its order.

The finding of the Department of Civil Service has substantial foundation in the proofs and should not be disturbed. Because the volume of search work was not sufficient to take his full time, Padavano for some time worked only mornings on the job and spent the afternoons doing voluntary recreation work. Since his termination the work of examining the records and preparing and typing the certificates is being done without additional compensation by other employees of the Department of Revenue and Finance in addition to their other duties, and the certificates are then executed by the township clerk, who likewise has received no increase in compensation. We do not interpret R. S. 54:5-11 to require that the examination of records and the preparation of the certificates should be done personally by the designated official. That official in many municipalities, certainly the populous ones, requires help to do the work. The responsibility to the municipality for the manner of its performance, however, remains his whether done by him alone or with help. See In re Allen, 95 A. 215 (Sup. Ct. 1915) (not in the state reports).

Appellant’s charge that he was the victim of a plan contrived, not to accomplish economy, but to effect his removal without following the Civil Service Act, is not sustained by the record. Cf. Newark v. Civil Service Commission, 112 N. J. L. 511 (Sup. Ct. 1934), affirmed 114 N. J. L. 185 (E. & A. 1935). We do not find any adequate support for his allegations that political motivation was present. And his charge that the work is not now being given proper attention and that lawyers have complained about delays in receiving completed searches, if true, does not of itself sustain his allegation that his layoff was not purposed to effect economy. See Benzoni v. Department of Civil Service, 10 N. J. Super. 103 (App. Div. 1950); Klein v. Township of North Bergen, 10 N. J. Super. 128 (App. Div. 1950).

It is said that R. S. 11:22-12 was violated by the assignment of the duties of examination of records and preparation and typing of certificates to other employees of the Department of Revenue and Finance and by the designation of the township clerk and the assistant township clerk to execute the official certificates. It is clear that the designation of the township clerk and the assistant township clerk was entirely proper under R. S. 54:5-11, and was in no respect a violation of R. S. 11:22-12; the designation under R. S. 54:5-11 may be changed by the governing body at will. And there is no evidence upon which to determine if the work of the employees of the Department of Revenue and Finance now examining records and preparing and typing the certificates is performance of duties not appropriate to their classifications in violation of R. S. 11:22-12, as the record is barren of any proof as to the titles or job content of their classifications.

Appellant next contends that he is entitled to demotional rights under R. S. 11:22-10, arguing that the resolution of June 15 not only changed the designation of the bonded officials authorized to execute search certificates but also purported to “abolish” his position, so that, he says, the Department of Civil Service erred in treating his termination as a layoff or separation controlled by R. S. 11:22-9. ' The position could not legally be abolished by resolution if, as we assume for present purposes, it was legally created by ordinance. Cahill v. West Hoboken, 90 N. J. L. 398 (Sup. Ct. 1917); Reck v. Board of Commissioners of North Bergen, 10 N. J. Misc. 962 (Sup. Ct. 1932), affirmed 110 N. J. L. 173 (E. & A. 1933); Ziegler v. City Manager, etc., Hackensack, 115 N. J. L. 328 (Sup. Ct. 1935); and see Pondelick v. Passaic County, 111 N. J. L. 187 (Sup. Ct. 1933). The language of the resolution purporting to abolish the position may be treated as immaterial without affecting the provisions satisfying the requirements of R. S. 54:5-11 as to a change of designation of bonded officials. In the circumstances, the Department of Civil Service properly construed his termination to be a separation or layoff within R. S. 11:22-9 accomplished by the director’s letter. The direction that appellant’s name be placed upon an eligible list for reinstatement when an opportunity arises was therefore the proper measure of the protection to which he was entitled. Cf. Benzoni v. Department of Civil Service, supra.

Affirmed.


text:
    MARGARET SCHNIPPER, PETITIONER-APPELLANT, v. TOWNSHIP OF NORTH BERGEN IN THE COUNTY OF HUDSON, NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 11, 1951.

      Before Judges McGeehan, Jayne and Wi. J. Brennan, Jr.

      Mr. Joseph V. Outturn argued the cause for appellant {Mr. Outturn and Mr. Max A. Boxer, attorneys).

      Mr. Nicholas 8. Schloeder argued the cause for respondent.
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Appellant, Margaret Sehnipper, was laid off on June 7, 1949, from her position as senior clerk bookkeeper by the Director, Department of Revenue and Finance, Township of North Bergen, whose letter to her bearing that date stated that the layoff was made “in order to effect economies * * * and in the public interest.” The director’s action was upheld by order of the Department of Civil Service, before us on the appeal.

The layoff followed a recall election in May, 1949, in which appellant supported a commissioner who was recalled. She asserted below that the real reason for her separation was political. The conclusion of the Department of Civil Service was that that consideration was immaterial as appellant had not sustained the burden of showing that the layoff was not for reasons of economy.

When the good faith of the asserted reason of economy is challenged before the Department of Civil Service, that agency must determine, after the hearing of evidence and argument, the fact question, “not narrowly whether a plan conceived and adopted for the purpose of saving money, actually in operation, attained its purpose, but, whether the design in adopting the plan was to accomplish economy or, on the contrary, was to effect the removal of a public employee, protected by Civil Service, without following the * * * Civil Service Act.” Newark v. Civil Service Commission, 112 N. J. L. 511 (Sup. Ct. 1934), affirmed 114 N. J. L. 185 (E. & A. 1935) ; Weaver v. New Jersey Department of Civil Service, et al., 6 N. J. 475 (1951). A presumption of good faith arises and the burden is on the separated employee to show bad faith. Hunziker v. Kent, 111 N. J. L. 565 (Sup. Ct. 1933). If that presumption is not overcome by sufficient proofs, it is of no consequence that there is proof showing that considerations other than economy underlay or played some part in that action. Santucci v. Paterson, 113 N. J. L. 192 (Sup. Ct. 1934); Camden v. Civil Service, 118 N. J. L. 501 (Sup. Ct. 1937).

Our review of the record satisfies us that Mrs. Schnipper did not sustain her burden in this case. Her duties consisted of typing the payroll, cutting payroll checks, sorting payroll vouchers, making entries in certain books and similar activities of a general clerical nature. Those duties are now being performed by one Peter McCosker, a senior clerk in the same $l,800-$2,400 salary range and appellant’s senior in employment with the municipality. McCosker became an employee of the Department of Revenue and Finance when the Legal Department, to which he was attached, was transferred from the Department of Public Affairs upon the reorganization of the township commission after the. recall election. The proofs are clear that McCosker is doing satisfactorily the work previously done by appellant, without increase of salary. The argument made in appellant’s brief that ihe Legal Department was transferred from the Department of Public Affairs to the Department of Revenue and Finance for the sole purpose of justifying appellant’s separation by assigning her work to McCosker, is utterly without support in the proofs.

Appellant argues further that the assignment to McCosker of the duties of her position was in violation of R. S. 11:22-12, which provides “no person shall be appointed or employed under any title not appropriate to the duties to be performed nor assigned to perform the duties other than those properly pertaining to the position which he legally, holds.” The job descriptions of the titles senior clerk bookkeeper and senior clerk as adopted by the township ordinance differ in content, but it does not appear that the bookkeeping actually done by appellant and now being performed satisfactorily by McCosker demands the skill imported in the requirement of the job description for senior clerk bookkeeper that the incumbent have “considerable knowledge of modern bookkeeping procedures.” So far as appears, bookkeeping as generally understood is not part of the job; the only evidence. concerning books is that appellant’s duties included the making of some simple entries in cash disbursement books; her work and time were principally devoted to the typing of the payroll; the cutting of payroll checks and the sorting of payroll vouchers. McCosker possesses the skills required to do all the work she was actually doing and, measured by the job descriptions, those duties are as much within the classification of senior clerk as they are of senior clerk bookkeeper. See In re Allen, 95 A. 215 (Sup. Ct. 1915) (not.in state reports). Thus the proofs do not support appellant’s contention that R. S. 11:22-12 is being violated, and we have no occasion to say whether the employment of persons in “out of title” positions is to be viewed as a proper consideration in determining the rights of a separated employee, cf. Krailbuehler v. Civil Service Commission, 134 N. J. L. 97 (Sup. Ct. 1946).

It is next argued that the Department of Civil Service erred in not directing that the municipality place appellant in the position of assessing clerk held by another employee, who was her junior in service, in a different branch of the Department of Revenue and Finance. Appellant argues that she was entitled to such order under R. S. 11:22-9 and Rule 57 of the Department of Civil Service and that the order which was made, namely, that her name be placed upon a reemployment list for certification and appointment to the position of senior clerk bookkeeper or for another comparable position as vacancies occurred, gave her less protection than was her due. The order made was that expressly authorized by R. S. 11:22-9. Demotion to some lesser position is a protection given by R. S. 11:22-10, not to persons laid off or separated, but to persons whose positions are abolished. Rule 57 governs layoffs in order of seniority of employees “in a given class” and does not appear to require what in private employment is termed the “bumping” of employees junior in service in other equal or lesser classifications. In any event, we cannot say on this record that the Department of. Civil Service was not justified in imposing the limitation provided by the order, since it is altogether clear not only that the position of assessing clerk is in another branch, but also that the functions and responsibilities of that position are very different from those required of a senior clerk bookkeeper whether the requirements of the latter job are determined by reference to the job description or in relation to the functions actually performed. See Krailbuehler v. Civil Service, supra.

The final argument is that the director should have been ordered to give Mrs. Schnipper the position of another senior clerk bookkeeper who was on leave of absence at the time of Mrs. Schnipper’s layoff and whose work had been distributed among other employees. This contention has no merit. That position was vacant at the time of the hearing below by reason of the incumbent’s resignation after Mrs. Schnipper was laid off. The director has not appointed any other person to the position and testified that he had no intention of doing so because the work is still being performed to his satisfaction by those to whom it was assigned at the time the incumbent was granted a leave of absence.

Affirmed.


author: Bigelow, J. A. D.

text:
    FRANK KIERNAN, PLAINTIFF-RESPONDENT, v. RICHARD E. MAUER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 10, 1951.

      Before Judges Eastwood, Bigelow and Fketjnd.

      Mr. Jerome Alper argued the cause for the respondent (Jlessrs. Jerome Alper and Alper, attorneys).

      Mr. Hubert J. Franklin argued the cause for the appellant.
   The opinion of the court was delivered by

Bigelow, J. A. D.

Judgment was rendered for the plaintiff in the action which was brought to recover the balance of the agreed price for the work performed on defendant’s dwelling house, including applying to the house “siding” manufactured by Bird & Son, Inc. The defendant specified as a defense that the work was performed in a negligent and unworkmanlike manner.

The defendant presents as the first ground for reversal the admission of certain testimony given by plaintiff’s witness, Murphy, who had inspected the house after plaintiff had finished his work. We quote from the statement of the evidence certified by the trial judge:

“Although he was not qualified as an expert because he was not a builder, he was permitted to testify to the conversations between him and the defendant concerning the manner in which the siding was applied. * * * When asked by plaintiff’s counsel whether he had during this conversation expressed to the parties his opinion of the job, Murphy was permitted, over objection (based on the fact that he was not qualified as an expert and that anything he might have said in the aforementioned conversation was in no manner binding on the defendant), to testify that he had said that the siding job on the subject house was as good as any he had seen. The court stated as a basis for its ruling that notwithstanding the fact that the witness was not qualified as an expert and thereby competent to give an opinion, his statement was a part of a conversation in the presence of the parties, and that it would be allowed as such.”'

It is not the law that, in general, words uttered in the presence of a party, are evidential against him. On the contrary, the fact that the utterance was made is generally irrelevant and inadmissible unless it throws light on something said or done by the party to whom the words are addressed, or unless the utterance is made under such circumstances that it becomes, by adoption, an admission of the party. Wigmore on Evidence, § 2115. Under the latter heading comes the situation where a party’s silence gives consent. Ollert v. Ziebell, 96 N. J. L. 210 (E. & A. 1921). “While the thing that is proved is the statement made to the party, the thing that proves it, i. e., the thing that makes it evidence, is the act of the party himself, viz., his silence.” State v. MacFarland, 83 N. J. L. 474, 484 (E. & A. 1912). And see State v. Toohey, 6 N. J. Super. 97 (App. Div. 1950). But in the case before us, we are not informed what was .the defendant’s reaction to the salesman’s assertion “that the siding job on the subject house was as good as any he had seen.” The evidence was not offered in an effort to prove that defendant conceded that the work was well done.

The respondent urges another theory, namely, that it part of a conversation is evidential and is presented, the witness, upon his direct examination, should or may be asked concerning all the material parts of the conversation relating to that topic. Wigmore on Evidence, § 2099. And if the opposite party is not satisfied that the conversation is accurately and fully given, he may, by cross-examination or otherwise*, present to the jury the other relevant parts. Somerville & Easton R. R. ads. Doughty, 22 N. J. L. 495 (Sup. Ct. 1850); Stale v. Engsberg, 94 N. J. L. 4G4 (E. & A. 1920). But in the application of these rules, the court should not permit, by indirection, evidence to be presented that is clearly incompetent and that may mislead the jury. One party ought not be allowed to prove statements made to the opposite party that are evidential neither by themselves nor taken in connection with anything else in the case. Clearly, Murphy’s opinion was incompetent whether presented directly or as a recital of what he had said to defendant. The admission of his opinion was erroneous and harmful and must lead to a reversal.

We will consider one other subject because appellant’s counsel presses it so earnestly. On cross-examination of the plaintiff, counsel went into matters not even remotely connected with- the present controversy. He elicited the fact that plaintiff had had some difficulty in connection with work done for a man named Coen, as a result of which he owed Coen $55. Plaintiff denied that one Hoed had paid this money to Coen at plaintiff’s request. Defendant then put in evidence a copy of the record of a default judgment obtained by Hoed against plaintiff for $55. The court charged-the jury to pay no attention to the transcript. The defendant contends that this instruction was error.

Neither the cross-examination nor the offer of the transcript was objected to. We assume that otherwise the evidence would have been rejected. While much latitude is permitted in our courts on cross-examination, it is still the rule that cross-examination should be confined to matters which were a subject of the direct examination or which are relevant to the issues of the action, or which tend to affect the credibility of the witness. Fidelity Union Trust Co. v. Sayre, 137 N. J. Eq. 179 (E. & A. 1945); Rynar v. Lincoln Transit Co., 129 N. J. L. 525 (E. & A. 1943); Bingham v. Schindel, 92 N. J. L. 502 (E. & A. 1918). Obviously, plaintiff’s dealings with Coen and Hoed were not material to the present litigation, and nothing brought out by the questions affected plaintiff’s credibility as a witness. But assuming the propriety of the questions put to plaintiff, counsel could not adduce other evidence and so prove his answers false. Testimony, drawn out by cross-examination, can be contradicted only on matters germane to the issue being tried. State v. Mor, 85 N. J. L. 558 (Sup. Ct. 1914); State v. Simon, 113 N. J. L. 521, at 534 (Sup. Ct. 1934), affirmed 115 N. J. L. 207 (E. & A. 1935); Wigmore on Evidence, § 1001 to 1006. The record in the action of Hoed v. Kiernan having slipped into the proofs, was there any error, injurious to the defendant, in charging the jury to ignore it? Certainly not, for it contained nothing material to the present litigation.

Eor the erroneous admission of Murphy’s evidence, the judgment must be reversed. Costs to abide the event.

The action was consolidated for trial with another suit between the same parties. Ho appeal was taken from the judgment in that cause and, of course, that judgment is not disturbed by our action on the appeal.


text:
    FRED C. EHNES, PLAINTIFF-APPELLANT, v. PHILIP J. WELDON AND ANOTHER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951
    Decided April 4, 1951.

      Before Judges Jacobs, Bigelow and Dodges.

      Mr. Harry V. Osborne, Jr., argued the cause for the appellant (Messrs. Osborne, Cornish ,& Seheclc, attorneys).
    The respondent did not file a brief or make an oral argument.
   The opinion of the court was delivered by

Bigelow, J. A. D.

The appeal is before us on a very scanty agreed statement in lieu of record. Rule 1:2-22. The statement shows that the action was instituted by the appellant to recover the money due upon a judgment of one of the courts ol common pleas of Pennsylvania, rendered more than 20 years earlier, December 4, 1928. The Law Division awarded judgment for defendants because of the delay in bringing the action.

We have no statute which, in express terms, prescribes a period within which an action upon a judgment of another state must be commenced. Our statute of limitations respecting judgments, which has remained unchanged since 1799, Pal. 353, is confined in terms to judgments of this state. R. S. 2:24-6. But the lapse of 20 years since the entry of the judgment of another state, raises a presumption that the judgment has been satisfied. When circumstances are presented to explain the delay, the trier of the facts must judge whether the circumstances are sufficient to override the presumption. But when the lapse of time is unaccounted for, the presumption of payment is conclusive. Gulick v. Loder, 13 N. J. L. 68 (Sup. Ct. 1832). The enforcement of the law of the forum on such questions does not violate the full faith and credit clause of the Constitution. Union Natl. Bank v. Lamb, 337 U. S. 38; 69 8. Ct. 911 (1949).

To rebut the presumption of payment, these proofs were presented: The plaintiff, who is an assignee of the original judgment, called upon one of the defendants, Mrs. Weldon, on August 7, 1945. “She refused to tell me where or when I could see her husband. She simply said they would not make any pajment.” lie testified that during that summer and early fall, he wrote the defendants several letters demanding payment. On December 6, 1945, a fi. fa. was issued on the judgment and was returned nihil habet. While the meaning of the return has not been expounded, we assume that it means that the sheriff found no property of the defendants subject to the execution. Since the presumption that the judgment has been satisfied is a strong one, the evidence offered to rebut it should be convincing. Gregory v. Commonwealth, 15 A. 452 (Pa. 1888). The evidence before us is far from sufficient to overcome the presumption.

It further appears that on June 1, 1949, a writ of scire facias was issued out of the common pleas to revive the old judgment, and damages were assessed. The agreed statement does not show whether judgment was entered upon the scire facias, but counsel for the appellant assured us that a praecipe for judgment was put in evidence in the Law Division and he assumed that judgment had been entered accordingly, although he had not seen a copy of the judgment and did not know its terms. The statute of Pennsylvania to which we are referred, directs the clerk of the court, upon praecipe, to enter judgment of revival of the judgment “against the real estate bound by the judgment, unless sufficient cause is shown to prevent the same.” In Cusano v. Rubolino, 39 A.(2) 906 (Pa. 1944), it is said that scire facias “is a process merely to continue or revive the lien of a judgment obtained in an original action.” In the present instance, the scire facias was not served on the defendants who had moved from Pennsylvania to New Jersey a few weeks before the writ issued. A copy was mailed to them at their new home. Because of the want of personal service, no judgment that may have been entered on the scire facias could create anew a judgment debt enforceable by an action in New Jersey. Owens v. McCloskey, 161 U. S. 642; 16 S. Ct. 693 (1896). And see Bank of Edwardsville v. Raffaelle, 45 N. E.(2) 651 (Ill. 1942); 144 A. L. R. 401, and Annotation at 403. If wé consider that the action before us is brought on the original judgment which was entered in 1928, and that the proceeding on scire facias merely revived or extended that judgment in some manner, then we must hold that such revival or extension is without effect upon the presumption that the judgment has been paid. Union Natl. Bank v. Lamb, supra.

The judgment is affirmed.


text:
    GEORGE A. WILFORD, PLAINTIFF-APPELLANT, v. SIGMUND EISNER COMPANY, DEFENDANT-RESPONDENT. GEORGE A. WILFORD, PLAINTIFF-APPELLANT, v. H. RAYMOND EISNER, ET AL., TRADING AS 54 BROAD COMPANY, A PARTNERSHIP, DEFENDANTS-RESPONDENTS. (Consolidated Actions.). GEORGE ALFRED WILFORD, PETITIONER-APPELLANT, v. SIGMUND EISNER COMPANY, RESPONDENT-RESPONDENT. GEORGE ALFRED WILFORD, PETITIONER-APPELLANT, v. H. RAYMOND EISNER, J. LESTER EISNER AND MONROE EISNER, TRADING AS 54 BROAD COMPANY, ET AL., RESPONDENTS-RESPONDENTS
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 4, 1951.

      Before Judges McGeehan, Jayne and Wit. J. Brennan, Jr.

      Mr. Ralph Heuser argued both causes for appellant (Messrs. Heuser i& Heuser, attorneys).

      Mr. R. Robinson Chance argued, the law cause for respondent, Sigmund Eisner Company (Messrs. Kellogg \& Chance, attorneys).

      Mr. Theodore J. Labrecque argued the law cause for respondents, H. Raymond Eisner et al., etc. (Messrs. Parsons, Labrecque, CanzonaS Combs, attorneys).

      Mr. John W. O’Brien argued the compensation cause for respondent, Sigmund Eisner Company (Messrs. O’Brien, Brett & O’Brien, attorneys).

      Mr. James J. Slceffington argued the compensation cause for respondents, H. Raymond Eisner et al., etc.
   The opinion of the pourt was delivered by

William J. Brennan, Jr., J. A. D.

The appellant, George A. Wilford, incurred a lung abscess which he attributed to exposure to coal gas and dust in his employment as a fireman tending furnaces in an office building at 54 Broad Street, Red Bank. That employment was in the period from January 7, 1948 to April 7, 1948, and was given him when he was laid off as a packer by the defendant corporation, Sigmund Eisner Company. The office building is owned by 54 Broad Company, a partnership comprised of the Eisner brothers. Appellant was uncertain which company was his employer and also whether his claim was under the Compensation Act or actionable at common law and instituted both compensation proceedings and law actions against each of the companies.

The law actions were tried first, as consolidated cases, and were dismissed on motions made under Rule 3 :41—2 at the close of plaintiff's proofs, the trial judge stating, “that it is a suit that should be in the Compensation Court and not here, that ibis court has not jurisdiction.” Appellant did not appeal from the ensuing judgments, but moved the compensation cases for hearing.

The compensation cases were tried together and were also dismissed upon findings of a deputy director, concurred in by the Monmouth County Court, that the appellant had no claim against Sigmund Eisner Company because that company was not his employer at the time, and that he had no claim against 54 Broad Company, which was his employer, because the lung ailment was not connected with appellant’s employment, or “at most” “* * * petitioner’s condition is one which is due to an industrial disease not covered by the compensation act.” The deputy director’s determination in the Sigmund Eisner Company case was entered in October, 1949, and that in the 54 Broad Company case in January, 1950.

The county court judgments on the appeals in the compensation cases were entered in June, 1950, over one year after the entry in the law actions in May, 1949, of the judgments of involuntary dismissal. Appellant in June, 1950, applied to the Law Division by motion under Rule 3:60-2 for relief against the law judgments, stating as his ground for relief that defendants induced those judgments when arguing their motions for involuntary dismissal by admitting “that the plaintiff met with a compensable accident, and that his relief should be obtained before the Compensation Bureau” and that “when plaintiff applied for his relief before the Compensation Bureau, the defendants * * * argued that the Judge of the Superior Court should not have made an order dismissing the complaints;” with the result that “defendants, by their motions to dismiss the complaints in the Superior Court lead the plaintiff into a position of resting upon the legal presumption that the defendants were bound by their assertions on the motions and their admissions that the injury suffered by plaintiff was the result of a compensable accident, and by later taking a diametrically opposite position in the Compensation Bureau, deprived the plaintiff of the benefits of the legal admissions or a trial by jury.” The motion was denied.

Appellant appeals from both the order of the Law Division denying his motion for relief, and from the judgments of the Monmouth County Court entered in the compensation proceedings. The appeals were consolidated for argument and disposition. At the oral argument on the appeals appellant’s counsel informed us that the compensation appeals are pressed only if the law appeals fail, and that, in that case, the only point urged is that the defendants’ counsel in urging in the law actions that plaintiff’s proofs showed a case for relief under the Compensation Act estopped defendants to assert in the compensation proceedings that appellant had not suffered a compensable accident.

Since the record includes no reasons supporting the denial of the motion in the' Law Division, we do not know whether it was grounded upon a supposed lack of power to entertain the motion after one year from the entry of the judgments or upon other reasons. Motions for relief by reason of “(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence * * *; (3) fraud * . * *, misrepresentation or other misconduct of an adverse party” must be made within a reasonable time and not more than one year after entry of the judgment sought to be set aside. On the other hand, such a motion for “(6) any other reason justifying relief from the operation of the judgment” is not subject to the one-year limitation, but whether it is made within a reasonable time if brought after the lapse of a year is to be determined in the special circumstances of the particular case.

Belief for any reason allowed by the rule rests in the sound discretion of the trial court, controlled by accepted legal principles, whenever such action is appropriate to accomplish justice. Hogan v. Hodge, 6 N. J. Super. 55 (App. Div. 1949). Equitable principles may be a guide in administering relief to determine in the particular circumstances whether justice and equity require that relief be allowed. LaBell v. Quasdorf, 116 N. J. L. 368 (Sup. Ct. 1936); Klapprott v. United Stales, 335 U. S. 601, 93 L. Ed. 279 (1949). The rule grants a broad power to trial courts to set aside judgments in proper cases, but the power is not a new one; the courts of this State have always had power to control, vacate or correct their own decrees in the interests of justice. Assets Development Co. v. Wall, 97 N. J. L. 468 (E. & A. 1922).

The power should doubtless be freely exercised when the enforcement of a judgment would be unjust, oppressive or inequitable as to the party moving to vacate it. Unless impropriety in its exercise clearly appears in the particular ease, this court will not disturb the trial court’s action. That, too, is the practice of appellate courts in the federal system in cases arising under amended Federal Rule 60(5), which was brought into our rules, as Buie 3:60-2. Barron \& Holtzoff, Federal Practice Procedure (1950), vol. 3, p. 253, and cases cited.

The one-year time limitation imposed upon a motion for reasons falling within subdivisions (1), (2) and (3) of the rule is an expression of the policy of finally concluding litigation within a reasonable time. Klapprott v. United States, supra. If, however, a strong case of extreme hardship or injustice is shown, relief for such reasons has been allowed after one year within the more liberal dispensation of subdivision (6), the catch-all "other reason” category. Klapprott v. United Stales, supra.

Appellant in this case had six months after the entry of the adverse determination of the deputy director in the 54 Broad Company case within which to make his motion in the law actions before the year expired. He elected instead to prosecute appeals to the county court from the deputy director’s judgments and only after failing there and after the year had run out did he attempt to vacate the law judgments. Our decision, however, need not depend on plaintiff’s lack of diligence in seeking relief; in any event we are unable to find in the record a state of facts which establishes a right to relief for the reasons assigned by him even if the application had been made within the year, let alone any evidence of extraordinary hardship to justify relief after that time.

The motion in effect charged that defendants, and more particularly defendants’ counsel in the law actions, were guilty, in light of the position denying the occurrence of a compensable accident taken on behalf of the defendants in the subsequent compensation hearings, if not of fraud, at least of misconduct, in arguing, in support of the motions for involuntary dismissal, that plaintiff’s proofs, if believed, revealed a compensation claim. We are,satisfied from our review of the record that the imputation is without foundation. Counsel for defendants simply performed their clear duty to their clients by including among several grounds upon which the motions were supported the ground "that this, if anything, was an accident under the compensation law”; this argument was grounded on plaintiff’s proofs that on April 7, 1948, he collapsed at work after exposure to gases while cleaning the furnace and defendants’ counsel contended that the proofs of that occurrence, if believed, showed "a case of plain, simple accident brought about by exposure of this man, perhaps to gases, perhaps to his exertion * * * and that strain and that exercise and that effort he was using is the thing that caused his lung to become or go bad, with the result that he had an accident right then and there, a compensable accident, if what he said as to the manner of the accident, and we have to talce his word on a motion of this Tcind, is true(Emphasis supplied). Appellant’s argument twists these unambiguous statements into "admissions” on behalf of the defendants that appellant “'met with a compensable accident.” It is obvious not only that there is no admission in the statements of the occurrence oí an accident in the manner described by appellant, but that defendants plainly implied no accident had occurred in any other manner. That is the real significance of counsel’s qualifications, “if anything,” “if true.” It was appellant’s own testimony that emphasized the events of April 7, 1948, as those which brought on his lung ailment, and if so, his claim was one within the compensation law. Defendants’ position was more fully disclosed Lu the compensation proceedings and was that the alleged events of that day never in fact occurred. The deputy director after extensive hearings found, and the Monmouth County Court agreed, that the alleged occurrence was “a figment of the imagination.” It is clear that counsel at the law trial were careful not to admit appellant’s version of the events of that day, and the charge that they did admit the inculpatory essentials of a compensation claim is devoid of substance.

The foregoing considerations also dispose of the only point urged in the compensation appeals, namely, that defendants were estopped to deny the application of the compensation law because of their alleged “admissions” in the law actions that appellant had suffered a compensable accident on April 7, 1948. it is, of course, settled that a party cannot he heard io contend for two diametrically opposed sets of facts, although lie may argue inconsistent principles of law applicable to a given set oE facts. In re Perrone, 5 N. J. 514 (1950). b’be principle that one may not be permitted to assert contradictory factual contentions has been applied to estop an employer from defending a law action on the ground the plaintiff was bis employee after the employer bad successfully resisted a compensation claim on the ground that plaintiff was not bis employee. Welser v. Ealer, 317 Pa. 182, 176 A. 429 (Sup. Ct. 1935). Where, however, an employer defeated a compensation claim on the ground that an injury allegedly resulting from the inhalation of dangerous gases was not of an accidental nature, he was not estopped in a subsequent law action from urging dismissal of the law claim on the ground that the law court lacked jurisdiction because the action, as pleaded, was bottomed upon an accidental injury, Twork v. Munising Paper Co., 275 Mich. 174, 266 N. W. 311 (Sup. Ct. Mich. 1936). This case presents the same situation that was dealt with in the Tworlc case except that the cases were tried in reverse order; here the trial of the law actions preceded the hearings on the compensation petitions. Defendants did not admit in either tribunal that appellant’s lung ailment was related to his employment and in the law actions merely asserted that if his proofs were taken as true, he was in the wrong forum. If appellant viewed the dismissal of the law actions as an erroneous application by the Law Division of the law to his proofs, he had a remedy by appeal to seek to reverse the judgments. He cannot on this record successfully contend that he did not pursue that remedy because he was misled by an admission of the defendants that they agreed that he had suffered an accident remediable under the compensation law.

Einally, appellant apparently assumes that he was entitled to recover either under the Compensation Act or at common law. Our careful examination of the transcripts in both tribunals leads us to conclude that it is more than doubtful that he had a meritorious claim of any kind against defendants or either of them, and that the deputy director soundly reasoned the lung abscess was not causally connected with appellant’s employment but was the end result in natural progression of an old lung condition which preceded the employment.

The order of the Law Division on appeal in A-817-49 is affirmed, without costs.

The judgments of the Monmouth county court on appeal in A-755-49 and A-756-49 are affirmed, without costs.


author: McGeehan", S. J. A. D.

text:
    MARY McENANEY, PLAINTIFF-APPELLANT, v. HARRY C. SPEDICK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951
    Decided April 4, 1951.

      Before Judges McGeei-ian, Jayne and Wh. J. Brennan, Jr.

      Mr. Paul Colvin argued the cause for appellant.
    J/r. Edward J. Gilhooly argued the cause for respondent (Messrs. Gilhooly & Yauch, attorneys).
   The opinion of the court was delivered by

McGeehan", S. J. A. D.

The defendant’s motion for dismissal, made at the end of the plaintiff’s case, was granted and judgment entered thereon September 20, 1950.

Plaintiff, individually, sued the defendant on two counts. The first count alleged that the plaintiff had paid $1,000 to the defendant as a deposit for the purchase of certain property; that the defendant sold said property to another and, as a result, the deposit is now due and owing to the plaintiff. The second count alleged that the defendant accepted from the plaintiff the sum of $1,000 in consideration of which he was to enter into a formal contract of sale for certain lands belonging to him and other lands which he was to acquire and sell, together with bis own, to the plaintiff; that the defendant was unable to acquire the lands which he agreed to convey to the plaintiff and, as a result, no formal contract was executed; and that the $1,000 deposit is therefore due and owing to the plaintiff.

Plaintiff testified that Russell S. McEnaney, her husband, and she sought to buy the defendant’s property, consisting of 12 cottages and a house called the “White lurches” and on September 27, 1947, they entered into an agreement. Russell 8. McEnaney gave his check for $1,000 to the defendant as a deposit, and he received the following writing signed by the defendant:

White Birch Cottages
Harry C. Spedick
Cottages for Bent—Weekly, Monthly or Season
A11 Improvements
Netcong Boad, Budd Lake, N. J.
Sept. 27,/47
Beceived from Mr. Bussell S. McEnaney, One Thousand Dollars ($1,000.00) deposit, on property known as The White Birch Cottages consisting of 13 Burnished houses. Bull price $30,000. Balance on occupancy or closing of clear title. Deposits refunded in case of titles not clear.
Harry C. Spedick

A counterpart of this writing, retained by the defendant, was signed by Russell McEnaney and had added thereto, in RusselPs handwriting: “deed of property to be made out in the name of Mary and Russell McEnaney.” The plaintiff admitted that in May, 1948, a Mr. McKinley came to the McEnaney home and stated he was there for the purpose of making tender of a deed, upon the payment of the balance of $29,000. She admitted that neither Russell nor she had ever made a tender of the balance of the purchase price or had ever sought a deed for the property. In the fall of 1949 the defendant sold tbe premises to another for $29,000.

At the trial, the plaintiff was permitted to amend the complaint by substituting as plaintiff “Mary McEnaney, now Padawer, individually and as executrix of the last will and testament of Russell McEnaney.”

The first contention is that the writing is a mere receipt and not a contract. The fact that a writing, which embodies the essential elements of a contract, acknowledges the receipt of certain money or property does not, standing alone, make the entire writing a mere receipt subject .to contradiction by parol evidence. Katcher v. American Express Co., 94 N. J. L. 165 (E. & A. 1920); Finkelstein v. Brodsky, 10 N. J. Misc. 55 (Sup. Ct. 1931), affirmed 110 N. J. L. 13 (E. & A. 1933). It is admitted that this writing is certain as to parties, description of the premises, price and terms. Therefore, it contains the essential elements of a contract for the sale of .land. Since it is contractual in nature, it is a contract and not a mere receipt. Steinbach v. Pettingill, 67 N. J. L. 36 (Sup. Ct. 1901); cf. Monahan v. McElligott, 136 N. J. Eq. 306 (Ch. 1944), affirmed 137 N. J. Eg. 176 (E. & A. 1945); Bernstein v. Rosenzweig, 1 N. J. Super. 48 (App. Div. 1948).

There is no merit in the further contention that it should be construed as a mere receipt because the parties intended to enter into a formal written contract which would set forth the complete and final contract between them. There was no evidence that the parties ever intended to enter into any formal written contract, let- alone evidence that they did not intend' to bind themselves until a formal written contract was prepared and signed. Cf. Burlew v. Hepps, 6 N. J. Super. 16 (App. Div. 1949); Bernstein v. Rosenzweig, above.

The court did not err in excluding oral testimony by the plaintiff to show that the $1,000 deposit was paid on condition that lake frontage would also be procured by the defendant and sold along with the “White Birch” cottages to the plaintiff, for a consideration equal to the cost to defendant of acquiring said lake frontage. Evidence of a contemporaneous verbal agreement or understanding between the parties, that the land to be conveyed was to include more than that set forth in the contract, is inadmissible as varying the terms of the written agreement in contravention of the statute of frauds. Schwartzman v. Creveling, 85 N. J. Eq. 402 (Ch. 1916); William, Dahm Realty Corp. v. Cardel, 128 N. J. Eq. 222, 225 (Ch. 1940). Nor was such testimony admissible under the exception to the ruJe stated in Naumberg v. Young, 44 N. J. L. 331 (Sup. Ct,. 1882): “There is a class of cases where the parties concluding an agreement which is reduced to writing, have, at the same time and on the same consideration, negotiated by parol another agreement which is collateral and on a subject distinct from that to which the written contract relates, in which oral evidence of such an agreement is held to be competent.” This testimony, if admitted, would not tend to prove a collateral agreement on a subject distinct from that to which the written contract relates. Its admission would violate the general rule that parol evidence will not be received to add to or alter the terms of the contract in writing. Naumberg v. Young, above.

Lastly, it is argued that the' plaintiff, representing the buyer, is entitled to the return of the deposit, even though the buyer defaulted in the consummation of the sale, because .the defendant failed to prove his actual damages. Where the parties have entered into a binding agreement, and the buyer defaults thereunder, the seller may, in general, retain the deposit as damages. Katz v. Katz, 134 N. J. L. 303, 304 (Sup. Ct. 1946) ; Bernstein v. Rosenzweig, above; cf. Steinbach v. Peilingill, above. Since the deposit in this case was less than four percent of the purchase price, no question of penalty or forfeiture rather than damages is involved, and the seller is entitled to retain the deposit as damages, without any proof of his actual damages. Cf. Bernstein v. Rosenzweig, above. The judgment is affirmed.