author: Jayne, J. A. D.

text:
    IN THE MATTER OF THE APPEAL OF SAM SCHNEIDER FROM AN ORDER OF THE DIRECTOR OF THE DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DATED DECEMBER 27th, 1950.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951 —
    Decided March 26, 1951.

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

      Mr. Walter D. Van Biper argued the cause for appellant.

      Mr. Samuel B. Belfand, Deputy Attorney-General, argued the cause for respondent (Mr. Theodore D. Parsons, Attorney-General of New Jersey).
   The opinion of the court was delivered by

Jayne, J. A. D.

On December 27, 1950, the Director of the Division of Alcoholic Beverage Control suspended for the remainder of its term the plenary retail consumption license theretofore issued to the appellant for the premises known as the Ocean House at Toms River.

The formal charge from which the suspensión of the license ensued was that:

“On June 21, 1950, and on divers dates prior thereto, you allowed, permitted and suffered lewdness and immoral activities in and upon your licensed premises, vie., the renting of rooms for purposes of illicit sexual intercourse; in violation of Rule 5 of State Regulations No. 20.”

The director stated, “I am satisfied that the ABO agents’ testimony portrays a true picture of events which took place at the times in question.”

We quote his summary of the testimony adduced at the hearing:

“An ABO agent testified that oil Saturday, June 17, 1950, at 12:01 a. m., he and a fellow-agent visited defendant’s licensed premises. The witness described the premises as follows: ‘It is a large frame building operating as a hotel. They have rooms on the second and third floors and a package goods department in the front of it. Part of the building consists of a grocery store front and as you enter to the barroom, through a stairway, he has a large oval shaped bar.’ The ABO agent testified that he entered into conversation with the defendant and inquired from him whether he and his companion might hire rooms as they had a ‘couple of girls’ and would ‘like to use the rooms for an hour or so to have intercourse with them.’ The defendant, according to the testimony of the witness, stated, T don’t give a-if you use it for an hour or a week as long as I get paid for the room,’ and agreed to let them have rooms, each room’s rent to be $5 per couple. In response to the agent’s inquiry regarding baggage, the defendant said, ‘No, you don’t need any baggage, you register as “Mr. and Mrs.” ’ The agent testified that he told the defendant that the girls were not there, but he would let him know when he needed a room.
The witness furl her testified that the agent who accompanied him on June 17, 1950, and three other ABO agents arrived in the vicinity of defendant’s licensed premises on Wednesday night, June 21, 1950. The witness testified that he and the agent who had accompanied him on the previous occasion entered the premises together at 9:30 p. m. They look positions at the bar near one of the other agents who had preceded them into the premises and thereupon again engaged in conversation with the defendant. The witness testified that he told the licensee that they would like to hire a couple of rooms as they brought a couple of girls, married women, and would want the room for about an hour for the purpose of engaging in sexual intercourse. The licensee reassured the agents that it was not necessary that they have baggage. The licensee thereupon spoke to his wife and the latter approached the agents, saying, ‘Sam told me you fellows want to rent a couple of rooms.’
The wife, subsequently identified as Rose Schneider, led the two agents to the second floor and showed them two rooms, Nos. 11 and 12, which the agents agreed to hire. Each agent thereujDon signed the register — one as Mr. and Mrs. Frank Arthur and the other as Mr. and Mrs. Warner. Upon inquiry by Mrs. Schneider as to ‘Where are the women?,’ the agent answered, ‘Well, they are two married women; they don’t want to come here in the hotel with us because they are afraid of getting into trouble.’ Mrs. Schneider then said, according to the agent’s testimony, ‘These girls don’t come from Toms River?’ ‘No, they are not from Toms River,’ the agent replied. Mrs. Schneider then said, ‘That’s good, I don’t want to get into trouble with anybody if they know what is going on around here.’ Each agent paid Rose Schneider $5 for the respective rooms, the numbers of the money being used therefor having previously been noted. The agents then ordered a bottle of wine and four glasses, all of which were brought to them by Rose Schneider, for which payment to her in the amount of $1 was made. The agent testified that Mrs. Schneider, when leaving the room, said, ‘Have a good time, boys.’ ”

In our examination of the transcript of the evidence we note significantly the answers of the appellant to the following questions:

“Q. They say if anybody else was' coming in the room with them ? A. Not that I know of.”
“Q. Were you told at any time, or did you know that these men intended to bring women in the hotel? A. Not that I know of:”
“Q. Do you recall that at least two agents testified this morning that when you entered the room, they said to you ‘What are these two men doing here?’ and you said ‘These men are waiting for their wives.’ Is that what you said when you first went- in Room 12? A. I don’t know.”

The director’s factual conclusion, that the licensee-appellant rented “rooms for purposes of illicit sexual intercourse” is adequately warranted by the evidence. The proceedings are civil in nature and not criminal. Kravis v. Hock, 137 N. J. L. 252 (Sup. Ct. 1948).

It’ is acknowledged that the agents who obtained the accommodations never had any intention of using them for the purpose of sexual intercourse and that no women aceompanied the agents or were expected to participate in the plan.

The insistence of counsel for the appellant is that the order under review was not justified as a matter of law.

The Legislature empowered the commissioner (director, B. S. 52:11B-51) to “make such general rules and regulations and such special rulings and findings as may be necessary for the proper regulation and control of the manufacture, sale and distribution of alcoholic beverages,” embracing such subjects, inter alia, as disorderly houses, prostitution, orderliness, and decency. B. 8. 33:1 — 39.

In pursuance of that authority Eule 5 of State Eegulations No. 20 was promulgated, which reads:

“No licensee shall allow, permit or suffer in or upon the licensed premises any lewdness, immoral activity, or foul, filthy or obscene language or conduct, or any brawl, act of violence, disturbance or unnecessary noise; nor shall any licensee allow, permit or suffer the licensed place of business to be conducted in such manner as to become a nuisance.”

Anent the intent and construction of the Alcoholic Beverage Control Law the Legislature declared, “This chapter is intended to be remedial of abuses inherent in liquor traffic and shall be liberally construed.” B. S. 33 :1-13.

The governmental ¡lower extensively to regulate the conduct of those privileged to maintain premises for the sale of intoxicating liquors, especially by retail, has uniformly been accorded broad judicial support. Meehan v. Excise Commissioners, 13 N. J. L. 382 (Sup. Ct. 1906), affirmed 75 N. J. L. 557 (E. & A. 1908); Franklin Stores Co. v. Burnett, 120 N. J. L. 596 (Sup. Ct. 1938); Phillipsburg v. Burnett, 125 N. J. L. 157 (Sup. Ct. 1940); Grant Lunch Corp. v. Driscoll, 129 N. J. L. 408 (Sup. Ct. 1943), affirmed 130 N. J. L. 554 (E. & A. 1943), cert. den. 320 U. S. 801, 88 L. Ed. 484, 64 S. Ct. 430 (1944)

“The whole machinery of the Alcoholic Beverage Control statute is designed to control and keep within limits a traffic which, unless tightly restrained, tends toward abuse and debasement.” Kravis v. Hock, 135 N. J. L. 259 (Sup. Ct. 1947), reversed on other grounds, 136 N. J. L. 161 (E. & A. 1947).

“The liquor business is one that must be carefully supervised and it should be conducted by reputable people in a reputable manner.” Zicherman v. Driscoll, 133 N. J. L. 586 (Sup. Ct. 1946).

And then, moreover, it must be understood that a license to vend intoxicating liquor is not a contract. Lantz v. Highistown, 46 N. J. L. 102, 107 (Sup. Ct. 1884); Meehan v. Excise Commissioners, supra. It is not property. R. S. 33 :l-26. In reality it is merely a temporary permit or privilege to pursue an occupation otherwise illegal. Voight v. Board of Excise, 59 N. J. L. 358 (Sup. Ct. 1896); Drozdowski v. Sayreville, 133 N. J. L. 536 (Sup. Ct. 1946); Takacs v. Horvath, 3 N. J. Super. 433 (Ch. Div. 1949).

And so the words of Justice Van Syckel speaking for the Court of Errors and Appeals in Paul v. Gloucester County in 1888, 50 N. J. L. 585, continue to reverberate: “The sale of intoxicating liquor has, from the earliest history of our state, been dealt with by legislation in an exceptional way. It is a subject by itself, to the treatment of which all the analogies of the law, appropriate to other topics, cannot be applied.” Hudson Bergen, &c., Ass’n. v. Hoboken, 135 N. J. L. 502 (E. & A. 1947); Essex Holding Corp. v. Hock, 136 N. J. L. 28 (Sup. Ct. 1947). It is a business which may be restricted by “such conditions as will limit to the utmost its evils.” Crowley v. Christensen, 137 U. S. 86, 34 L. Ed. 620 (1890). The responsibility of a licensee may in some circumstances he imposed where, regardless of his knowledge, there is a failure to prevent the prohibited conduct by those entrusted with the management of the licensed premises. Essex Holding Corp. v. Hock, supra; Cedar Restaurant & Cafe Co. v. Hock, 135 N. J. L. 156 (Sup. Ct. 1947); Galsworthy, Inc. v. Hock, 3 N. J. Super. 127 (App. Div. 1949).

It is in this state of the law that we are at liberty to construe Rule 5 of the Regulations liberally within the boundaries of its obvious intent and object. It is to be at once recognized that the Regulations apply fundamentally to the behavior and responsibilities of the licensee. It would be fantastic to suppose that a licensee who himself personally disobeys the regulation does not “allow, permit and suffer” the occurrence of the violation. However, in the present ease the licensee allowed, permitted and suffered his wife to engage in the undertaking. We are therefore confronted with the question whether the mere renting of bedrooms in the licensed premises by a licensee with the belief and intention that they will be occupied for the purposes of illicit sexual intercourse is an immoral activity within the signification of Rule 5. We answer the question in the affirmative.

The appellant was charged with renting the rooms for an illegal purpose. A purpose is that which one sets before oneself as an object to be attained; the end or aim to be kept in view in any plan, measure, exertion or operation; design; intention. Webster's New International Dict. (2d ed.); vide, Sawter v. Shoenthal, 83 N. J. L. 499, 500 (E. & A. 1912). It would scran that the commission of an overt act on the licensed premises in furtherance or promotion or encouragement of an illicit purpose is in itself an immoral activity comprehended by the scope of the regulatory rule.

In the determination of the present appeal we are not concerned with whether the appellant’s activity constituted an indictable common law or statutory crime. Cf. State v. Baldino, 11 N. J. Super. 158 (App. Div. 1951); State v. Dumorjian, 204 N, W. 498 (Sup. Ct. Wis. 1925). We are dealing here with a purely disciplinary measure and its alleged infraction.

The pith of the criticism of the action of the director in suspending the enjoyment of the license is that the appellant should have been exonerated because despite his unbecoming and objectionable intent and purpose, illicit sexual intercourse was (1) not in fact in this instance committed on the licensed premises, and (2) its commission was not in reality anticipated by the investigating agents. In what respect those circumstances exculpate the licensee from the profligacy of his own deliberate misconduct is not clear. So far as the appellant as the licensee of the premises could act, he made the accommodations available and conferred his permission to utilize them in an immoral pursuit.

The point advocated in behalf of the appellant that the investigators sought nothing more than evidence is not a novel one in proceedings implicating alleged violations of license privileges. Vide, Black v. MacMahon, 130 N. J. L. 323 (Sup. Ct. 1943); State Board of Medical Examiners v. Coleman, 132 N. J. L. 64 (Sup. Ct. 1944).

Here, too, the director has construed ’ the promulgated regulatory rule to be sufficient to encompass the impugned conduct of the appellant. Cf. Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945).

The object manifestly inherent in the rule with which we are here concerned is primarily to discourage and prevent not only lewdness, fornication, prostitution, but all forms of licentious practices and immoral indecency on the licensed premises. The primary intent of the regulation is to suppress the inception of any immoral activity, not to withhold disciplinary action until the actual consummation of the apprehended evil.

“Immorality” is not necessarily confined to matters sexual in their nature. In a given context the word may be construed to encircle acts which are contra bonos mores, inconsistent with rectitude and the standards of conscience and good morals. Its synonyms are: corrupt, indecent, depraved, dissolute; and its antonyms are: decent, upright, good, right. Webster’s International Diet. (2d ed.).

The order of the Director of the Division of Alcoholic Beverage Control here subjected to review is affirmed.


source: Caselaw Access Project

author: Jayjte, J. A. D.

license: Public Domain

text:
    ANNIE S. LAYTON, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF IVY J. LAYTON, DECEASED, AND ANNIE S. LAYTON, GENERAL ADMINISTRATRIX OF THE ESTATE OF IVY J. LAYTON, DECEASED, PLAINTIFF-APPELLANT. v. MARY R. HEALY, ADMINISTRATRIX OF THE ESTATE OF THOMAS F. HEALY, AND FRANKLIN ROLLER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951 —
    Decided March 28, 1951.

      Before Judges McGeeitak, Jayste, and Wan. J. Bkeenae, Jr. ■

      Mr. Theodore D. Parsons argued the cause for appellant (Messrs. Parsons, Labrecque, Ganzona ■& Combs, attorneys).

      Mr. Lester C. Leonard argued the cause for respondents.
   The opinion of the court was delivered by

Jayjte, J. A. D.

The present appeal implicates the propriety of a judgment directing an involuntary dismissal of the plaintiff’s alleged cause of action at the close of the plaintiff’s evidence relating to the element of liability. Buie 3 :41 — 2.

A circumspect consideration of the transcript of the evidence introduced on behalf of the plaintiff has been pursued in the light of the following well-established rules:

1. Negligence is never presumed. It, or the circumstantial basis for it, must be established by competent proof. Oelschlaeger v. Hahne & Co., 2 N. J. 490 (1949) ; Callahan v. National Lead Co., 4 N. J. 150 (1950).

2. The court must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all inferences which may logically and legitimately be drawn therefrom in his favor. Such continues to be the rule. Scarano v. Lindale, 121 N. J. L. 549 (E. & A. 1939); McKinney v. Public Service Interstate Transp. Co., 4 N. J. 229, 243 (1950).

3. Where fair-minded men might honestly differ as to the conclusions to be drawn from the facts, whether controverted or uneontroverted, the question at issue should be submitted to the jury. Schwartz v. Rothman, 1 N. J. 206 (1948) ; Fischetto Paper Mill Supply v. Quigley Co., 3 N. J. 149 (1949); Antonio v. Edwards, 5 N. J. 48 (1950).

4. Where there are no disputed facts or disputed logical inferences to be drawn from the uneontroverted facts, it devolves upon the court to declare the judgment which the law imposes. Kaufman v. Pennsylvania R. R. Co., 2 N. J. 318 (1949) .

5. The power of the trial judge to grant such motion is not, however, restricted to an utter absence of all evidence of a contradictory purport. The “mere scintilla” of evidence rule does not obtain in this State. Sivak v. New Brunswick, 122 N. J. L. 197 (E. & A. 1939).

It is explanatory to disclose that the plaintiff’s decedent suffered fatal injuries in the motor vehicle collision to which this litigation relates. The driver of the other vehicle died, presumably from natural causes, during the pendency and before the trial of this action. Death had silenced the only persons who had knowledge of the circumstances amid which the mishap occurred.

That a collision actually occurred about 2:30 a. m. on June 1, 1947, on Ocean Avenue between Highlands and Sea Bright, Monmouth County, between the Plymouth sedan.probably operated by the plaintiff’s decedent and the Dodge coupe driven by Prank Healy, may be logically inferred from the evidence adduced.

. We pause here to recognize that the mere proof of the occurrence of an accident in the circumstances here disclosed does not of itself raise a presumption of negligence.

Plaintiff’s counsel obviously sought to squeeze out of the evidence relating to the positions and conditions of the respective vehicles as observed after the collision some inference of some negligent act or omission of the driver Healy.

Both witnesses, Lawrence, the nephew of the plaintiff’s decedent, and Boyer, the chief of police, who described the positions of the respective vehicles on the highway acknowledged that others had preceded them to the scene of the accident.

It might have been reasonably inferred from the positions of the cars on the highway and from the damage to the front of each car that the drivers were proceeding over the highway in opposite directions. If thus envisioned, then each car was found to be to the right of the center line of the highway in the direction in which it had been traveling. The witnesses testified that according to their observations made after the mishap, the automobile of the plaintiff’s decedent was in the northbound lane headed in a northwesterly direction, and the defendant's car was in the southbound lane facing almost directly east. There were no visible marks or debris on the pavement indicative of the point at which the vehicles came into collision.

Assuming, as required, that all of such conditions existed immediately after the occurrence of the collision, do they supply a reasonably probable ground, prevailing over all other reasonable hypotheses, for the inferential conclusion that the mishap would not have happened if the driver Healy had not failed to exercise reasonable care ? We think not.

The only additional testimony was that of the investigator who interviewed Healy at the hospital before the latter’s death and to whom Healy is said to have stated that he “was on his way to Sea Bright” (which would be proceeding in a southerly, direction) and that he “never saw the other car.” It was inferred from the circumstances that he was proceeding in that direction.

Counsel for the appellant emphasizes the probative significance of llealv’s admission that he “never saw the other car.” In a recent opinion (Gentile v. Public Service Coordinated Transport, 12 N. J. Super. 45 (App. Div. 1951)), we remarked that negligence in the abstract is a nihility, and that both negligence and reasonable care are relative terms which derive their legal signification only where they are associated with a given body of factual conditions and circumstances. Suffice to say in the present case that there is no evidence of the circumstances from which it may be inferred that in the exercise of reasonable care Healy should have seen the other car. In the absence of a revelation of the surrounding circumstances, the mere admission that one did not see an object does not indicate that such person was inattentive and heedless. If we were to enter the field of imagination, we could readily envision those rather common instances where an unlighted vehicle confronts one, where cars suddenly emerge from behind another vehicle or dart out of a driveway, or enter a'street intersection at an unanticipated rate of speed and are unobserved by the driver of another car notwithstanding the caution and vigilance of the latter. Here negligence cannot with any substantial degree of probability be predicated on any particular act or omission of either driver.

We conclude that any inference of the alleged negligence of the driver Healy which might be collected from the evidence in the present case is not superior to other inferences of the absence of such negligence. Surmise and conjecture cannot be substituted for competent probative evidence.

The judgment is affirmed.


text:
    ALBERT GALLANTHEN, PLAINTIFF-RESPONDENT, v. NICHOLAS POSTMA, BUILDING INSPECTOR OF THE BOROUGH OF PAIR LAWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951- —
    Decided April 3, 1951.

      Before Judges MoGeehan, Jayne, and Wm. J. Been-nan, Jb.

      Mr. Martin S. Mandón argued the cause for appellant {Mr. John A. Christie, of counsel).

      Mr. Peter Ilofsira argued the cause for respondent.
   The opinion of the court was delivered by

Jayne, J. A. D.

Succinctly characterized, this is an appeal by the Building Inspector of the Borough of Pair Lawn from a summary judgment of the Law Division of the Superior Court entered on August 18, 1950, in lieu of mandamus in favor of the plaintiff, commanding the defendant to issue to the plaintiff a building permit authorizing the erection and construction of a roller skating rink on the designated property. In view of some of the features of the appendix and brief submitted by the appellant, it seems necessary immediately to observe that the judgment entered on August 18, 1950, is the only action of the trial court to which the notice of appeal is addressed.

Rule 3:56 — 3 relating to proceedings for a summary judgment provides that “the judgment or order sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.”

True, Rule 3:56-6 requires that'the “supporting and opposing affidavits shall be made on personal knowledge and shall set forth only facts which are admissible in evidence and to which the affiant is competent to testify:”

In recognition of those rules we proceed to investigate the propriety of the judgment entered in the present action.

The history of events portrayed by the record reveals that the plaintiff as the owner of an area of real estate situate within the boundaries of a zone designated for industrial use by the ordinance of the borough applied on February 13, 1950, to the building inspector for the permit to which reference has been made. He presented the plans of the proposed structure. His application was denied and he was referred to the borough planning board. Upon submission of the plans to the planning board, the board approved them. The application to the building inspector was thereupon renewed and on this occasion the plaintiff was instructed to consult the mayor and council.

The plaintiff again followed the directions given him and consulted those officials, who informed him of their disinclination to order the inspector to issue the permit because there was in progress of preparation a contemplated amendment of the zoning ordinance which would prohibit the erection and maintenance of skating rinks anywhere in the borough.

In such a plight, the plaintiff-respondent instituted and prosecuted the present action.

Our examination of the pleadings reveals that the allegations of the complaint declaring that the land of the plaintiff upon which the erection of the building was contemplated is situate in “the industrial zone as delineated on the Zoning Map” and that the building inspector notified the plaintiff on February 13, 1950, that “he would not issue” the permit were both admitted to be true by the defendant’s answer. Those admissions are properly to be associated with the affidavits submitted by the plaintiff on the application here under review. Furthermore, we observe that the defendant did not resist the application by the presentation of any exhibits or counter-affidavits, explanatory or controversial. Coneededly, there was no restriction in the zoning ordinance against the erection of a skating rink in the industrial zone.

The plaintiff’s affidavit verified the factual allegations of the complaint and contained the following paragraph:

“6. At no time did the Building Inspector of the Borough of Fair Lawn inform me that the plans that I had submitted did not meet with the requirements of the Building Code of the Borough of Fair Lawn, nor did he point out to me any item on said plans that were in violation of said Building Code.”

Additionally we quote from the affidavit of the architect:

“2. I am familiar with the Building Code of the Borough of Fair Lawn and the plans which I have prepared for Albert Gallanthen are in conformity with the Building Code of the Borough of Fair Lawn to the best of my hnoioledge and belief.” (Italics ours.)

Neither of the foregoing statements was controverted.

Thus, in the state of the only information conveyed to the court, the pleadings on file and the affidavits submitted disclosed palpably that there was no genuine issue as to any material fact challenged (Rule 3:56-3) and accordingly warranted the summary judgment in favor of the plaintiff.

This conclusion is dispositive of the present appeal.

We have, noticed the extraneous matter which the appellant has inappropriately incorporated in the appendix and to which the respondent has objected. Suffice to state that none of such informational material was presented to the judge of the Law Division whose action we review pursuant to the present appeal.

If the application for the judgment was not properly contested by reason of mistake, inadvertence, or excusable neglect, or if by reason of events occurring subsequent to the judgment the defendant should be liberated from the operation of the judgment, the relief when warranted and timely sought is afforded by Buie 3 :60-2.

The judgment is affirmed.


author: Bigelow, J. A. D. Jacobs, S. J. A. I),

text:
    CECILE CHIRELSTEIN, PLAINTIFF-APPELLANT, v. NATHAN CHIRELSTEIN, AND OTHERS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided March 20, 1951.

      Before Judges Jacobs, Eastwood, and Bigelow.

      Mr. Benjamin M. Ratner argued the cause for the appellent.

      Mr. Edward J. Gilhooly argued the cause for the respondent Nathan Chirelstein (Messrs. Gilhooly led Yauch, attorneys) .

      Mr. Aaron Lasser argued the cause for the respondentintervenors, Helen Chirelstein, et al. (Messrs. Hannoch & Lasser, attorneys, and Mr. Irving Lloyd Gang, on the brief).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is a matrimonial cause with some unusual complications in the law, but with little dispute over the material facts. The complaint contains three causes of action, of which the last two were added by amendment three months after the original complaint was filed, embodying only the first claim. The first count or claim alleges: The parties were married in 1933 by the city clerk at the Municipal Building in New York. The plaintiff obtained a final decree of divorce from the defendant in 1937, in the Circuit Court for Dade County, in the State of Florida. The decree contained no provision for alimony or for the support of plaintiff. After the decree was entered, the defendant gave her $1,000 in money and $15,000 in securities, and he has made no provision for her since. The plaintiff is destitute, in poor health and has no means of support. She prays judgment compelling defendant to support her. The answer to the first claim denies the validity of the marriage for reasons that need not be presently stated, and, among other defenses, pleads res ad judicata: That plaintiff in 1939 instituted a suit in the Court of Chancery of New Jersey on the same cause of action, and a final decree was entered therein dismissing the bill.

The second and third causes of action, which were added to the complaint after the first count had been answered, allege that the defendant asserts that the Florida decree is void and without legal effect. Plaintiff contends that the Florida divorce is valid, yet if it be void, she avers: The parties were lawfully married and “were husband and wife and considered each other as such under the common law.” Then follow, in the usual form, a charge of desertion and a charge of adultery with one Helen Chirelstein. “The defendant and this co-respondent live together and represent themselves to be lawfully married and that they are husband and wife.” Plaintiff demands a judgment of divorce from bed and board and for alimony. In answer to these counts, the defendant denies that he and plaintiff were validly married or were lxusband-and wife. He says he does not contend that the Elorida divorce is void, but only that it does not establish the validity of plaintiff’s pretended marriage to him. The defendant counterclaims for a declaratory judgment that the plaintiff was never validly married to him.

The defendant’s second wife, Helen Chirelstein, and their two infant children were permitted to intervene and answered and counterclaimed. Thejr ask a declaratory judgment establishing the validity of the Elorida divorce.

The Chancery Division, after receiving testimony, adjudged that:

“1. The pretended ceremonial marriage between the plaintiff and the defendant made in the City, County and State of New York on January 9, 1934, was absolutely void and also a nullity.
2. There never was any common-law marriage between the plaintiff and the defendant nor were they ever validly married to each-other.
3. The decree of divorce obtained in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, is not entitled to-full faith and credit for the purpose of establishing the validity of the pretended marriage between the plaintiff and the defendant in the State of New York as aforesaid because of the fraud practiced by the plaintiff wherein and whereby the aforesaid divorce was obtained' by the plaintiff.
4. The facts disclosed at the trial were such that the plaintiff is not entitled to alimony.
5. The plaintiff’s application for alimony is hereby denied.”

We will deal with the questions presented on a somewhat, different plan from that followed in the Chancery Division by our colleague, Judge Schettino, whose opinion appears in 8 N. J. Super. 504 (1950). Assuming that the parties were-at one time husband and wife, and that they were validly divorced, as alleged in the first claim, let us consider whether plaintiff is barred.from her action for alimony by the Chan-eery decree. The material allegations of the first count and of the bill of complaint that was filed in 1939, are the same, and the relief prayed is the same. Both were framed on the same theory, namely, that the 1938 amendment to R. S. 2:50-37, L. 1938, p. 538, gave plaintiff a cause of action for-alimony based on the Florida divorce. The defendant moved in the earlier suit to dismiss the bill “on the ground that the matters and things set forth in the bill of complaint do not show any ground for equitable relief.” That motion was granted and upon it a final decree was entered “that the complainant’s bill of complaint be and the same is hereby dismissed with prejudice.”

The phrase “with prejudice,” which is somewhat unusual in this jurisdiction, must be noticed. The use of the expression is more common in the western states, Annotation, 119 A. L. R. 625. Especially upon the voluntary dismissal of an action as a result of a settlement, it is inserted to indicate finality, Bank of America v. Jorjorian, 24 N. E. (2d) 896 (Ill. 1940); Maib v. Maryland Casualty Co., 135 P. (2d) 71 (Wash. 1943). When the dismissal with prejudice is not voluntary, it has been said to imply a decision on the merits. But where the record shows that the action was dismissed for want of prosecution, or other reason that does not touch the merits, the addition of the words “with prejudice” cannot change the facts and the plaintiff is not concluded. Pueblo de Taos v. Archuleta, 64 F. (2d) 807 (10th Cir. 1933); Goddard v. Security Title etc. Co., 83 P. (2d) 24; 92 P. (2d) 804 (Cal. 1939). In an order like the one that we have under consideration, the phrase is as apt to confuse as to enlighten.

According to the practice of the Court of Chancery since 1915, a motion to strike a bill on the ground that there is disclosed no cause of action, was the equivalent of a general demurrer. It is the rule that a final judgment for the defendant on the ground that the complaint fails to state a cause of action is conclusive. While the plaintiff is generally not precluded from maintaining a new suit on his original cause of action, provided his second complaint contains new allegations remedying the defect that made his first complaint demurrable, yet he cannot relitigate the question that has already been decided. lie cannot sue a second time on what is substantially his old complaint. Restatement, Judg ments, § 50. Hale v. Lawrence, 22 N. J. L. 72, 80 (Sup. Ct. 1849); Linton v. Perry Knitting Co., 64 N. E. (2) 270 (N. Y. 1945); Angel v. Bullinglon, 330 U. S. 183, 67 S. Ct. 657 (1946).

Uo opinion was filed in the Court of Chancery setting forth the reasons of the dismissal. Plaintiff’s counsel surmises "that the court concluded that since the wife had taken a lump sum settlement' after the foreign decree for divorce,” she did not “present any cause for equitable relief.” The deféndant suggests that the court considered that the 1938 amendment to B. S. 2:50-37 did not authorize an award of alimony based on a foreign decree entered in 1937, that is, before the amendment became effective. It does not matter which was the ground of decision, for in either case, it was a decision on the merits and so concludes the parties. We recognize that there is a sense in which an alimony decree is not conclusive. Conditions may change: the needs of the former wife may grow with sickness, or the loss of other income; or she may remarry. Or the husband’s ability to pay alimony may dwindle or grow. The court may make a new judgment based on the new situation. Lasasso v. Lasasso, 1 N. J. 324 (1949). But in the litigation before us, there has been no substantial change since the decree of 1939 was made. Plaintiff’s argument, in essence, is that the decree was erroneous. Even if it were erroneous, it precludes the plaintiff from recovering on her first claim. The error should have been corrected through the process of appeal, and not by means of a new suit.

The second and third causes of action, charging desertion and adultery, are predicated on the hypothesis that the divorce decree entered in Florida was void. But plaintiff-appellant, like the other parties, protests that the Florida decree is entirely valid. Her complaint alleges, “The defendant, however, contends that this divorce is void and without legal effect. Plaintiff contends that the divorce is valid in the state where it was granted, and also in the State of Hew Jersey.” In her brief, she vigorously upholds the Florida decree. The defendant’s answer avers, “This defendant does not contend that the divorce obtained by plaintiff in Florida as aforesaid was void.” With this unanimity, judgment could hardly be rendered for the plaintiff founded on the theory that the divorce is void. She cannot succeed on her second and third claims.

The Chancery Division found that even if all other defenses failed, the court should exercise discretionary power to deny an award of alimony. Inasmuch as we find the plaintiff’s prayer for alimony is barred by the decree in her prior action, we need not delve into this branch of the decision. We incline, however, to the opinion that the court’s discretion whether to grant or deny alimony or separate maintenance, is rather limited in scope, and we are doubtful whether the misconduct of plaintiff recited in Judge Schettino’s opinion constitutes a sufficient ground for a denial of alimony.

The second wife and the two infant children of her union with Chirelstein ask a declaratory judgment affirmatively establishing the validity of the Florida divorce, while the husband seeks a declaration that he and plaintiff were never man and wife. Chirelstein, the defendant, and the plaintiff, Cecile, regarded themselves as man and wife from 1934 until the entry of the Florida decree in 1937. They resided in New Jersey and neither of them ever lived in Florida. They concocted together to pretend falsely that tiie woman was domiciled in that state, so that its courts would have jurisdiction to divorce them. Defendant provided plaintiff with the necessary funds to obtain the divorce; he entered an appearance and filed an answer in order to facilitate her suit. So much is established by the oral testimony in the present action. But the Florida record is not in evidence here. Not the bill of complaint for divorce or the answer, not even the master’s findings and recommendations, were put in evidence; only the bare decree. The pleadings, the findings, and all the essential parts of the record should have been presented. Wigmore on Evidence §§ 2110 and 2150. 30 Am. Jur. 993, Judgments § 274; 50 O. J. 8. 408, Judgments § 840. In Florida, where the judgment was rendered, it would not have been received in evidence, over timely objection, unaccompanied by the other parts of the record. Clem v. Meserole, 32 So. 815 (Fla. 1902). In this situation, we ought not be called upon to say what effect the Florida decree should be given in New Jersey. It is possible that the record, if proved, would be entitled to full faith and credit in litigation between the parties, although the decree contains no adjudication or finding of jurisdiction or with respect to the domicile of either party. Sherrer v. Sherrer, 334 U. S. 343; 68 S. Ct. 1087, 1 A. L. R. (2) 1355 (1948); Coe v. Coe, 334 U. S. 378, 68 S. Ct. 1094, 1 A. L. R.(2) 1376 (1948). And also it is possible that on the trial of an indictment, the State could prove the fraud that was practiced on the Florida court. Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 157 A. L. R. 1366 (1945). While Judge Schettino, in his opinion, expressed the view that the Florida decree is not entitled to full faith and credit because of the fraud whereby it was procured, he properly refrained when rendering judgment from declaring the effect of the Florida decree.

There is one aspect of that decree, however, that was dealt with, in a negative sense, by the Chancery Division. It adjudged that the decree of the Circuit Court for Dade County did not establish the validity of the marriage between the parties that was performed in New York. We agree with the result, although not with the reasons given.

We should not accord to the Florida decree a greater effect than it has under the law of Florida. U. S. C. A., Title 28, § 1738. Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 64 S. Ct. 208 (1943). The principles of res judicata, which are applied by the courts of Florida, seem to be the same as those followed in the United States generally. The scope of the estoppel depends upon whether the subsequent action is founded upon the same claim or demand as was the first action, or upon a different one. It is obvious that plaintiff’s claim for alimony, based as it is on the Florida decree, and her alternative claim for a limiied divorce on the grounds of desertion and adultery occurring since the date of that decree, cannot be the same as the cause of action on which the Florida decree was granted. In a second suit, on a different claim from that presented in the prior action, only those matters actually litigated and determined in the first suit are res judicata, and the first judgment is not conclusive as to matters of fact, or of law, that might have been but were not litigated. Prall v. Prall, 50 So. 807, 26 L. R. A. N. S. 577 (Fla. 1909) ; Restatement, Judgments, §§ 68 and 70(c). This seems also to be the New Jersey rule. Phillips v. Phillips, 118 N. J. Eq. 189 (Ch. 1935) , affirmed on this branch, 119 N. J. Eq. 497 (E. & A. 1936) , where a wife had recovered two judgments in New York for installments due on a contract by her husband to pay monthly sums to her. In a suit for later installments, the husband was permitted to show that the whole contract wras void ab initio on certain grounds that had not been presented in the earlier actions. But compare McAlpin v. Garfield, 137 N. J. L. 197 (E. & A. 1948).

[ 16,17] While we are hampered by the lack of a proper record of the proceedings in Florida, the testimony of the parties shows that no issue regarding the validity of the marriage, whether ceremonial marriage in New York or common-law marriage in New Jersey, was presented or litigated in the prior action. So if we follow the general American rule, we find that the Florida decree did not establish the validity of a marriage of any kind, even though the divorce presupposed that the parties were man and wife. This view of the law is supported by Williams v. Williams, 23 N. W. 110, 53 Am. Rep. 253 (Wis. 1885); Smith v. Foto, 280 N. W. 790, 120 A. L. R. 801, at 811 (Mich. 1938), and Ex parte Soucek, 101 F. (2) 405 (7th Cir. 1939). The rule in California is contrariwise. Petry v. Petry, 118 Pac. (2) 498 (Cal. 1941). Furthermore, under the broadest interpretation of res judicata, and the full faith and credit doctrine, the Florida decree establishes, at most, only that the parties were married, not that the New York marriage was valid. The decree is fully satisfied by the hypothesis of a common-law marriage.

We now come to the question whether the plaintiff and Chirelstein were ever husband and wife. The plaintiff at one time was married to a man named Rogers. In 1924, he obtained a divorce from her in the Supreme Court of the State of New York on the only ground for divorce recognized by the law of that state, namely, adultery. Plaintiff was then 21 or 22 years old. Ten years later, she and Chirelstein were married in New York City. The Domestic Relations Law of New York, §§ 6 and 8 (Cons. Laws, c. 14), enacts that a subsequent marriage of one who has been divorced for adultery shall be void if the former spouse is still alive, unless certain proceedings have been taken in the court which granted the divorce. Plaintiff failed and neglected, before remarrying, to take the steps prescribed by the statute. The law of New York is entirely settled that a marriage performed in that state, in defiance of the statute, is void. Cropsey v. Ogden, 11 N. Y. 228 (1854); Merrick v. Merrick, 194 N. E. 55 (N. Y. 1934). Also, it is clear that the validity of a marriage is determined hy the law of the place where the marriage ceremony is performed. Capossa v. Colonna, 95 N. J. Eq. 35 (Ch. 1923) affirmed 96 N. J. Eq. 385 (E. & A. 1924). We have no difficulty in concurring with the trial court’s determination that the formal marriage of the parties in New York was void.

Did the defendant and the plaintiff become husband and wife by force of what is called a common-law marriage in New Jersey? The parties were resident here at the time of the attempted marriage in the Municipal Building in New York, and thereafter. Immediately the ceremony was finished, they came back to Newark and set up housekeeping as man and wife. Each introduced the other to acquaintances as her husband or as his wife. They continued living together in Newark as married people until plaintiff went to Florida for her divorce. All the usual elements of proof of a common-law marriage were present, and there were no legal obstacles to such a marriage. The New York statute to which we have referred had no extra-territorial effect. Fisher v. Fisher, 165 N. F. 460, 61 A. L. R. 1523 (N. Y. 1929); King v. Klemp, 26 N J. Misc. 140 (Ch. 1947). Best/Cement; Conflict, of Laws, § 130. Our own statute requiring a marriage license and other formalities was not effective until several years later, December 1, 1939, B. S. 37: 1-10.

The Chancery Division proceeded on the principle that where the parties at the outset intend their relation to be meretricious, that intent presumably continues as long as they cohabit with each other, and no common law marriage arises until the original intent is replaced by a matrimonial intent; that proof of the common law marriage depends on proof of the change in intention. Schaffer v. Krestovnikow, 88 N. J. Eq. 192 and 523 (Ch. 1917), affirmed 89 N. J. Eq. 549 (E. & A. 1918). Meretricious is the adjective form of the noun meretrix, a prostitute. If the evidence proved that when plaintiff went to live with defendant at their apartment in Newark, she intended to be his mistress and not his wife, we would join in the trial court’s conclusion that she never became his wife. But we find no proof that she ever intended to be defendant’s mistress.

Circumstances are presented as indications of a meretricious intent. Shortly after plaintiff was divorced from Eogers in 1924, she met defendant. It was as Mrs. Eogers that he came to know her. The divorce was mentioned; she said that she — not Eogers — had obtained it. Chirelstein testified that he accepted her statement as fact, and that she never told him anything different. After the two had been acquainted for several years, they decided to marry. At first they planned a marriage ceremony in Newark where they both resided, but defendant’s family objected to the union because the bride was not of their religious faith. So, at defendant’s suggestion, they decided to get married quietly in New York. At the city clerk’s office defendant filled out an application for a license showing plaintiff was a divorced person, and that the divorce had been granted on her petition. Both parties made oath to the truth of the statements in the application.

We are unable to extract from these circumstances the inference that plaintiff intended to enter into a meretricious union with defendant. Plaintiff’s concealment from defendant that she had been adjudged guilty of adultery was the normal, predictable act of a young woman anxious to preserve as much of her reputation as she could. At the Municipal Building she continued in her falsehood — even upon her oath. She committed the serious crime of false swearing — so that nothing might interfere with her marriage to defendant. She knew that the law forbade her second marriage; we may easily surmise that she knew the clerk would not perform the ceremony if he were aware that the divorce had been granted for her adultery. But there is no evidence that she knew, or even suspected, that the second marriage would be void. In New York no presumption exists that all men know the law. Municipal, etc., Corp. v. Dobbs, 171 N. E. 75, 68 A. L. R. 1376 (N. Y. 1930). In New Jersey it has been said that there is such a presumption, “strong in the case of a lawyer, or with respect to general laws which are matter of common knowledge; weak, almost non-existent, in respect to details or to laws which touch few persons.” Schaffer v. Federal Trust Co., 132 N. J. Eq. 235 (Ch. 1942). But as we have already pointed out, plaintiff, at the time of her attempted marriage in New York, was a resident of New Jersey. There is no presumption that she knew the precise terms of the New York statute, or the effect given the statute by the courts of that state. Shannon v. Ryan, 91 N. J. Eq. 491 (E. & A. 1920). On plaintiff’s cross-examination, counsel repeatedly pressed the point:

“And you knew then that you couldn’t be married in New York if the Olerk raised that question (of the divorce) ? Well, if he married us, why we could be married in New York, couldn’t we?”
“And you knew then that you couldn’t get married in New York because the divorce had been procured against you? Well, we got married-; that is all I know.”
“You knew that the Clerk wouldn’t issue the license? He did issue the license.”
“And when you got your marriage license, you were then married by the Clerk? Yes.”
“And you then regarded yourself and Nathan as man and wife? Yes.”

Taking the proofs as a whole, nothing whatever indicates that plaintiff was seeking the status of mistress. She wanted to be, and believed that she had become, the defendant’s wife. If wo accept defendant’s unflattering appraisal of her character — she wanted the legal right to financial support that accompanies the status of wife. The defendant likewise desired the plaintiff as his wife.

For several years — as long as the parties lived together— they thought of themselves as married because of the ceremony performed by the clerk in the Municipal Building in New York. Does the circumstance that the parties believed their marital relation to be the result of a marriage ceremony which we have found to be void, prevent reliance now on a common-law marriage ? Vice-Chancellor Van Fleet answered the question in the affirmative in Voorhees v. Voorhees, 46 N. J. Eq. 411 (Ch. 1890). He held that where there has been a ceremonial marriage, whether legal or illegal, the subsequent cohabitation of the parties and their reputation as husband and wife do not raise a presumption of a second marriage at a later date, and are not evidence of a common law marriage. The Chancery decree was affirmed by the Court of Errors and Appeals, which neither adopted the Vice-Chancellor’s opinion nor presented one of its own. Collins v. Voorhees, 47 N. J. Eq. 315 (1890). Justice Garrison, then beginning his long and distinguished career on the bench, dissented. He pointed out that the policy of the law requires “that all matrimonial conduct shall, if possible, be referred to a matrimonial status.”

“If an actual marriage has been solemnized, that circumstance, so far from frustrating the policy of the law, affords the strongest possible case for its application; for where the character of the consent is not in question, but simply its legality, the status of marriage should arise at the earliest moment when the parties are enabled lawfully to do that which they had theretofore ineffectually attempted.”

At the next term of court, in response to a motion for a reaxgument, Chief Justice Beasley presented a vigorous defense of the affirmance. 47 N. J. Eq. 555 (1890). He supported the decree on the same ground relied upon by the Vice-Chancellor, and also on a second theory:

“When the parties have intended marriage, being ignorant of an existing impediment, all that is to be established by cohabitation apparently matrimonial, subsequent to the removal of such impediment, is the carrying into effect by the parties of their original purpose ; but when the original purpose was to live in adultery, the evidence, under similar circumstances, must be sufficient to show an abandonment of such purpose and the execution of a new one.”

Our law was clarified in Chamberlain v. Chamberlain, 68 N. J. Eq. 414 (Ch. 1905), affirmed Id. 736 (E. & A. 1905). The plaintiff, having a husband from whom she had not heard for some years and whom she mistakenly assumed to be dead, married the defendant. But soon thereafter, as a precaution, she filed a petition and obtained a decree of divorce from her first husband, although she still supposed him dead. She and Chamberlain, the defendant, never went through a second ceremony after the divorce. Under the theory followed by Vice-Chancellor Van Fleet in the Voorhees case, the Chamberlains would have been adjudged not to be man and wife, for their cohabitation would have been referred to the void marriage ceremony. But Vice-Chancellor Stevenson held to the contrary and the appellate court did the like. The latter court found in the evidence “a manifestation of an intent to live together as husband and wife, and with the intention and the actual so living, an actual marriage is established.” The court relied on the second ground advanced by the Chief Justice in the earlier case. To the same effect are Robinson v. Robinson, 83 N. J. Eq. 150 (Ch. 1914), affirmed 84 N. J. Eq. 201 (E. & A. 1915), and Dolan v. Wagner, 96 N. J. Eq. 298 (E. & A. 1924). In these cases, the test adopted is whether the parties still mutually desired marriage — in the present tense, at a time when they were both free to marry. If such was their wish and intention, the law esteems them man and wife. Our cases continue to reiterate that marriage is a civil contract, but the expression means little except that entrance into the married state comes only with the simultaneous, voluntary consent of both parties. The cohabitation, the adoption by the woman of the man’s name and all the other circumstances giving rise to a matrimonial repute, are not weighed as evidence of the fact that at some time or other the parties said to each other, “I take you to be my wife” or “husband.” But rather the circumstances are treated as evidence of their common desire and intention to be man and wife.

Excellent studies on common law marriage and related problems, by Judge Arthur L. Wilder, may be found in L. R. A. 1915 E, 8, 60, 91 and 113. And see annotation in 104 A. L. R. 6.

The proofs clearly establish that plaintiff and defendant were man and wife.

The trial court declined to allow a counsel fee to the plaintiff. We think one should have been allowed but, instead of fixing it ourselves, we would prefer that the trial court reconsider the matter when the record is remanded. Let the judgment of the Chancery Division be modified in accordance with this opinion. As is customary in cases of this character, the defendant will bear the costs of all parties.

Jacobs, S. J. A. I),

(concurring). I consider that the decree dismissing the 1939 bill of complaint with prejudice was intended to and did operate as an adjudication on the merits which, there being no appeal, effectively barred the plaintiff from reasserting the same cause of action in a later proceeding. The fact that the Court of Chancery in reaching its determination to dismiss the bill of complaint may perhaps erroneously have considered that the action could not be maintained (1) because the plaintiff obtained her foreign divorce before the enactment of P. L. 1938, c. 235, p. 538, or (2) because of the consummation of the Florida agreement for payment of $1,000 in cash and $15,000 in securities does not have significance. Cf. Miller v. McCutcheon, 117 N. J. Eq. 123, 130 (E. & A. 1934). In either event there was, in effect, an adjudication that regardless of her need or the defendant’s financial capacity she could not assert further claim for alimony.

The plaintiff’s present complaint sets forth in its first count the entry of the Florida decree, the payment of the $16,000, her need and the defendant’s financial capacity, and seeks an order directing the payment of alimony. In substance it is identical with the 1939 bill of complaint and its prosecution is precluded by the decree of dismissal therein. The second and third counts, however, seek judgment for divorce and alimony and necessarily rest upon the alternative claim (Rule 3:8-5) that the Florida decree divorcing the parties was invalid and their marriage status therefore continued. Although question has been raised as to the lower court’s conclusion that the Florida decree was not entitled to frill faith and credit (see 64 Harv. L. Rev. 496 (1951); Johnson v. Muelberger, 71 S. Ct. 474 (1951); but cf. Staedler v. Staedler, 6 N. J. 380 (1951); 37 A. B. A. J. 107, 169 (1951)), I need not pursue this issue since I believe that the plaintiff should not in any event be permitted to attack it. In 1937 she freely instituted her Florida proceeding and obtained the Florida divorce as well as the lump sum payment in lieu of alimony. Restatement, Conflict of Laws § 112 (1934). She thereafter instituted her 1939 action in Few' Jersey for further alimony on the basis of the validity of her Florida divorce. In the meantime the defendant had remarried and a child of this marriage was born, a second child being born thereafter in 1945. She did not institute her present action attacking the Florida divorce until 1949, four years after the birth of this second child. Although another proceeding for divorce had been instituted by her in Few Jersey in 3940 it withheld reference to the Florida decree and was not prosecuted after denial of a preliminary application for alimony in 1940.

It seems to me that the situation calls for the application of pertinent equitable principles which would preclude the plaintiff’s attempt to attack the validity of the Florida divorce. See Herr, Marriage, Divorce and Separation (2d ed. 1,950) § 1589; 1 Beale, Conflict of Laws, p. 479 (1935). It was fairly obtained from a court presumably having jurisdiction (Herr, supra, § 1590), in a proceeding participated in by both parties. It has been openly relied upon in the past by all concerned, there has been a second marriage and the birth of children, and the lapse of 12 years before the institution of the present proceeding. Due consideration for the interests of the innocent parties suggests, as does the public interest generally, that under these particular circumstances the divorce remain free from the attack sought to be pressed by the plaintiff. See Sleeper v. Sleeper, 129 N. J. Eq. 94, 99 (E. & A. 1941).

On the foregoing grounds I would dismiss the plaintiff’s complaint without more and without expression of any views on the other issues discussed in Judge Bigelow’s opinion. Such dismissal would leave untouched the Florida decree of divorce, regular on its face, and remove the particular jeopardy which underlay the intervening defendant’s claim for a declaration that the Florida decree was valid. Insofar as the main defendant is concerned, he did not seek to question the validity of the Florida divorce and was hardly in any position to do so. Restatement, supra.


author: Jacobs, S. J. A. D.

text:
    RAYMON HEUTER, PLAINTIFF-APPELLANT, v. COASTAL AIR LINES, INC., A CORPORATION OF DELAWARE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1951 —
    Decided March 20, 1951.

      Before Judges Jacobs, Eastwood and Btgelow.

      Mr. Robert E. Pollan argued the cause for the appellant (Mr. Benjamin Osherov, attorney).

      Mr. George Winne argued the cause for the respondent (Messrs. Winne ■& Banta, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The plaintiff filed an amended complaint in the Essex County Court seeking recovery because of injuries sustained in an airplane crash on January 7, 1948, in the vicinity of Savannah, Georgia. He alleged that he was a passenger on an airplane negligently operated by the defendant, a common carrier, and demanded damages in the sum of $36,500. The defendant’s answer denied liability and set forth that on January 14, 1948, the plaintiff had executed a general release. The plaintiff’s amended reply denied the execution of a release but admitted the signing, by his mark, of a paper the contents of which were unknown to him. It further asserted that the alleged release was obtained by fraud, misrepresentation and undue influence.

The plaintiff is an uneducated Puerto Rican who does not read, write or understand English but understands Spanish. The defendant took his deposition through an interpreter and although his recollection was impaired the following story may properly be gathered from his testimony, ikfter the accident he found himself bandaged and in bed at a Savannah hospital and he remained there for approximately 15 days. At the hospital he was visited daily by several men whom he did not know; it now appears that they were employees of an agency engaged by the defendant to effect a settlement on its behalf. On January 14, 1948, they told him that since he “was feeling pretty good” they were going to take him downtown to buy him “some clothes” and give him “some money.” Thereupon they took him from the hospital while dressed in bathrobe and slippers, clothed and gave him $316 in cash, and brought him back to the hospital. He admitted that he signed his X mark on the paper which is the release relied upon by the defendant but denied that the contents of the papers were ever read or explained to him. When asked why he made his mark and took money from strangers he said simply, “I don’t know nothing because I was sick.”

After the plaintiff’s deposition was completed the defendant moved for summary judgment. In support it relied upon the deposition and an affidavit by Prank P. Howell, an employee of the agency engaged by the defendant to negotiate a settlement wifh the plaintiff. Mr. Howell’s affidavit states that the release for the stated sum of $1,457 was executed by the plaintiff “of his own voluntary act and he executed by his mark, because lie stated that he did not know how to write his name.” It does not assert that the release was ever read to the plaintiff or that he was in any wise advised as to its contents, nor does it deny any of the testimony as to how the release was obtained. The motion came on before a Superior Court Judge assigned to the Law Division and on September 11, 1950, he ordered that summary judgment he entered in favor of the defendant. The plaintiff has duly appealed therefrom.

There has been considerable litigation with respect to the validity of releases from accident claims and an increasing awareness of the broad policy supporting a suggested requirement that they he fairly obtained. Cf. Ricketts v. Pennsylvania 72. Co., 153 F. 2d 757, 760 (2d Cir. 1946); 1 Stan. L. Rev. 298 (1949); 14 Ford. L. Rev. 135 (1945); 164 A. L. R. 402, 410. In our State most of the pertinent cases arose before the Constitution of 1947 and must he considered in the light of the then complete separation between law and equity. At law a person’s signature on a release was considered binding unless it was “obtained by fraud or imposition practiced upon him with the intention of deceiving him as to the purport of the paper signed.” Kearney v. National Grain Yeast, Corp., 126 N. J. L. 307, 312 (E. & A. 1941) ; Mannion v. Hudson & Manhattan, R. R. Co., 125 N. J. L. 606, 607 (Sup. Ct. 1941), affirmed 127 N. J. L. 230 (E. & A. 1941). The failure of the signer to comprehend the effect of his act was said to be insufficient in the absence of fraudulent representation or similar misconduct by the person being released. Kearney v. National Grain Yeast Corp., supra; Vellekoup v. Fullerton & Co., 79 N. J. L. 16, 18 (Sup. Ct. 1909). But see Burik v. Dundee Woolen Co., 66 N. J. L. 420, 422 (Sup. Ct. 1901).

In equity, however, the rule permitting avoidance of a release was more broadly stated and in McGrail v. Jersey Central Traction Co., 84 N. J. Eq. 261, 267 (Ch. 1915), Vice-Chancellor Emery granted relief where he concluded that “upon the whole evidence relating to the negotiations fox settlement and the execution of the release, it appears that such an unfair and inequitable advantage was taken by the company’s agents, that the release must be set aside.” See Dundee Chemical Works v. Connor, 46 N. J. Eq. 576, 582 (E. & A. 1890); Mullaney v. Mullaney, 65 N. J. Eq. 384, 396 (E. & A. 1903). In the Connor ease, supra, Justice Magie pointed out that it is only when the release is obtained “from the illiterate, the weak-minded or distressed party, under circumstances which indicate that it was procured by artifice or deception, or by undue pressure and importunity inducing action without advice or time for deliberation, or by advantage taken of distress, or for no or an inadequate consideration, or is otherwise inequitable, that it will come under condemnation.”

Since the adoption of the Constitution of 1947 and the creation of our new judicial structure, the earlier complete separation between law and equity has been terminated. Legal and equitable relief may now be granted by each of the trial divisions of the Superior Court. Constitution of 1947, Art. VI, § 3, par. 4; O'Neill v. Vreeland, 6 N. J. 158, 166 (1951); Massari v. Einsiedler, 6 N. J. 303, 309 (1951). Similarly where, as here, an action within its jurisdiction is brought in the Law Division of the County Court it may grant legal and equitable relief so that all matters in controversy between the parties may be completely determined. Art. VI, § 4, par. 5; Stier v. Schreiber, 3 N. J. Super. 450 (Cty. Ct. 1949). The plaintiff’s amended reply, although perhaps in artistically worded and subject to amendment, was sufficient to set forth equitable as well as legal issues and he was entitled to have them determined in regular course. Cf. Rule 3:39-2; Volker v. Connecticut Fire Ins. Co., 11 N. J. Super. 225, 231 (App. Div. 1951). The danger of the loss of equitable principles in the administration of equity “by judges with only a legal point of view” has been noticed. Bordwell, The Resurgence of Equity, 1 U. of Chi. L. Rev. 741, 747 (1934). If the high hopes of the framers of our new judicial structure are to be attained without such loss there must be constant awareness by the bar as well as the trial bench of their appropriate applicability in proceedings in the Law Division of the Superior or County Court.

In Templeton v. Glen Rock, 11 N. J. Super. 1 (App. Div. 1950) we recently pointed out that the court in considering a motion for summary judgment should be critical of the moving but not the opposing papers and should grant it only upon a clear showing. In the instant matter, the plaintiff was entitled to the benefit of all the testimony in his favor including the reasonable inferences which might properly be drawn therefrom; we are satisfied that it was entirely sufficient to withstand the motion for summary judgment. The defendant’s position to the contrary is apparently based on the contention that, unlike the situation in Evangelista v. Public Service Coordinated Transp., 7 N. J. Super. 164, 167 (App. Div. 1950), there was no evidence of any affirmative misstatement by its agents sufficient to vitiate the release at law. We reject this contention because of our view that, even assuming the agents refrained from making any affirmative misstatement, their conduct, upon the present showing, was nevertheless such as to warrant submission to the jury of the issue as to whether there had been “imposition practiced upon the signer with intent to deceive him as to the purport of the paper signed.” Evangelista v. Public Service Coordinated Transp., supra. Willful silence where, as here, the circumstances gave rise to a clear duty to speak and explain may not be differentiated from willful misstatement. See Restatement, Contracts, ■§§ 471, 472 (1932); 23 Am. Jur. p. 854 (1939). Furthermore, as we have already indicated, the plaintiff was not confined to a sufficient showing at law as the defendant suggests. To avoid the release he could properly rely upon the evidence of his illiteracy, his illness, the absence of friends and counsel, his lack of understanding and the omission of all explanation, the haste, pressure and somewhat startling circumstances surrounding the procurement of his mark, and invoke pertinent equitable principles based upon unfair and unconscionable conduct of the defendant. Dundee Chemical Works v. Connor, supra; McGrail v. Jersey Central Traction Co., supra.

The judgment is reversed with costs to abide the event of trial.


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

text:
    IDA MALKIN, PLAINTIFF-APPELLANT, v. HARRY MALKIN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951 —
    Decided April 4, 1951.

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

      Mr. Irving Siegler argued the cause for plaintiff-appellant (Messrs. Siegler \& Siegler, attorneys).

      Mr. Herbert J. Kenarih argued the cause for defendant-respondent.
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The plaintiff was granted a decree nisi on August 14, 1946, under which the plaintiff was awarded the custody of the two infant children of the marriage and the defendant was ordered to pay to the plaintiff the sum of $60 per week for the support and maintenance of the plaintiff and the two infant children, to pay the carrying charges on the home occupied by the plaintiff and the children, and to purchase the clothing for the children. On March 17, 1950, a consent order was entered which struck from the decree nisi the order that the defendant pay the carrying charges on the home occupied by the plaintiff and the children, and added to the decree nisi a further order requiring the defendant to furnish each child with a complete four-year college education, upon certain terms not pertinent to this appeal.

The plaintiff remarried on July 30, 1950. After July 24, 1950, the defendant made no further payments to the plaintiff for her support and maintenance or for the support and maintenance of the children. On September 26, 1950, the plaintiff gave notice of a motion for (1) an order adjudging the defendant in contempt for failure to comply with the terms of the decree nisi, as modified by the order of March 17, 1950; and (2) an order to determine the amount of support and maintenance for the infant children in lieu of “the present order.” On November 1, 1950, the order, presently under appeal, was entered. This order denied the plaintiff’s application to hold the defendant in contempt and continued all provisions of the decree nisi, as amended and modified by the order of March 17, 1950, except the provision requiring the defendant to pay to plaintiff $60 per week for the support and maintenance of the plaintiff and the two infant children, which provision was amended to read: “Ordered the said defendant to pay to the plaintiff the sum of $25.00 per week at the beginning of each and every week from the 20th day of October, 1950, for the support and maintenance of the two infant children of the marriage.”

The plaintiff argues (1) that the award of $25 per week for the support and maintenance of the two children is grossly inadequate based on the facts presented below, and (2) that the trial court erred in allowing defendant to escape payment for the support and maintenance of his infant children for the period between July 24, 1950, and October 20, 1950.

The matter was heard below on the affidavit of the plaintiff and the answering affidavits of the defendant. The allegations in the affidavits as to the defendant’s assets, earnings and scale of living were in conflict. Although the defendant offered to substantiate the allegations in his affidavits, the plaintiff sought no opportunity for examination thereon, but chose to have the whole matter determined on the affidavits. Cf. Rufner v. Rufner, 131 N. J. Eq. 193 (E. & A. 1942). The trial court found that, under all the circumstances, adequate and reasonable provision for the children would be made by requiring the defendant to pay $25 per week for their support and maintenance, in addition to paying for their clothing and furnishing a college education. There is sufficient support in the record for this finding and we see no justification for disturbing it.

Under B. S. 2 :50-38, the remarriage of the plaintiff terminated her right to alimony; and the provisions of the decree nisi and the modifying order of March 17, 1950, requiring the defendant to make payments for the support and maintenance of the plaintiff became ineffective as of the date of such remarriage. Madden v. Madden, 136 N. J. Eq. 132 (E. & A. 1945); Houghland v. Houghland, 19 N. J. Misc. 474 (Ch. 1941); cf. Savoie v. Savoie, 26 N. J. Misc. 67 (Ch. 1947). This statute, however, does-uot affect the obligation of the father to provide for the support and maintenance of his children; the obligation is a continuing one and does not cease simply because the mother remarries. After the mother’s remarriage, the provisions of the order requiring the defendant to purchase the clothing for the children, to furnish a college education for each child, and to make weekly payments for the support and maintenance of the children continued in effect, but the amount of the weekly contribution was left undetermined. In such case, when the periodic amount which the father should contribute is determined, and it appears — as it does here-v-that he has not made such contribution during the interim, the order should ordinarily require him to do so. Cf. Davis v. Davis, 5 N. J. Super 59 (App. Div. 1949). This defendant made no contribution after July 24, 1950. No reason was given bjr the trial court and no satisfactory reason has been advanced before us for the failure to require the defendant to make the weekly payments beginning as of Juty 24, 1950.

The order under appeal, as so modified, is affirmed. The defendant shall pay the plaintiff’s costs and a counsel fee of $100 on this appeal.


author: IYtltuaw J. Bbenxan, Jb., J. A. D.

text:
    SCHLOSSMAN’S, INC., A CORPORATION, PLAINTIFF-APPELLANT, v. WILLIAM NIEWINSKI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951 —
    Decided March 26, 1951.

      Before Judges MoGeehan, Jayne and Wi. J. Bkennan, Jk.

      Mr. Abraham P. Bab argued the cause for plaintiff-appellant.

      Mr. Bernard Feinberg argued the cause for defendant-respondent (Jir. Feinberg and Mr. Sam Monchak, attorneys).
   The opinion of the court was delivered by

IYtltuaw J. Bbenxan, Jb., J. A. D.

Plaintiff sold defendant three furniture, slip covers for a price of $92.04, payable in installments. The contract was in writing and contained no warranty of any kind. When defendant’s wife washed the slip covers their various colors bled freely into one another, damaging them. Defendant promptly informed the plaintiff, by registered mail, that the slip covers were not washable as orally represented bjr plaintiff’s salesman and demanded that adjustment be made or his money returned. Defendant had paid $31.04 on account of the purchase price. Plaintiff brought suit in the Passaic County District Court for the $61 balance. Defendant filed a counterclaim alleging that the contract had been rescinded because of the fraudulent misrepresentations of plaintiff’s salesman that the slip covers were washable and sought a judgment for the return of the amount paid. Judgment was entered in defendant’s favor on the counterclaim and plaintiff appeals.

Defendant and his wife were permitted to testify over the objection of plaintiff’s attorney that before the signing of the agreement they discussed with plaintiff’s salesman the question whether the slip covers would be washable, that they told the salesman they were persons of moderate financial circumstances and could not afford to have the slip covers dry cleaned, that the wife insisted on having slip covers which were washable and that “they received positive assurance from the salesman that the slip covers which they selected were washable,” that, relying upon that representation, and induced thereby, defendant signed the agreement.

The salesman did not testify. The trial court accepted the testimony of defendant and his wife and found that the salesman had made “a positive representation” to the defendant that the slip covers were washable, that defendant had relied upon that representation and was induced thereby to enter into and execute the contract, that the representation made by the salesman was false and fraudulent in,that “the slip covers, the subject matter of this contract, were not washable as represented.”

It is insisted by counsel for appellant that the admission of the verbal representations enlarged and varied the written contract. He therefore evokes the rule of evidence that when parties have put their contract into writing oral testimony cannot be substituted for or added to the written evidence of the agreement. Naumberg v. Young, 44 N. J. L. 331 (Sup. Ct. 1882). But this rule of evidence is not infringed by the admission of parol testimony which is not intended as a substitution for or an addition to a written contract, but which goes to show that the instrument is void or voidable, and that it never had any legal existence or binding force by reason of fraud. Duralith Corp. v. Van Houlen, 113 N. J. L. 374 (E. & A. 1934); Timken Silent Automatic Corporation v. Velrovec, 119 N. J. L. 500 (Sup. Ct. 1938) ; Cummings v. Cass, 52 N. J. L. 77 (Sup. Ct. 1889); Thompson v. Koewing, 79 N. J. L. 246 (Sup. Ct. 1910) ; Crosby v. Wells, 73 N. J. L. 790 (E. & A. 1907); Hanrahan v. National Building, Loan & Provident Association, 66 N. J. L. 80 (Sup. Ct. 1901); Annotation, 56 A. L. R. 13.

The case of Schlossman’s, Inc. v. Rudcliffe, 3 N. J. 430 (1950), urged on us by appellant as requiring a reversal here, was tried on a different theory and is not in point. The plaintiff here was also the plaintiff in that case and brought suit on a contract substantially identical with that involved here. The wife, of the defendant purchaser in the Badcliffe case was permitted by the trial court to testify that during the negotiations for the slip covers she told the salesman she wanted washable slip covers and he assured her that the material was cotton gabardine and was a washable fabric, that after using the covers for several months she washed them and as a result of the washing they shrunk to an extraordinary degree, broke at the seams, and no longer fit the furniture. The admission of that testimony was held by the Supreme Court to be reversible error because the defendant offered it in support of an alleged oral warranty which was deemed by the court to have been intended as an addition to the written contract and not admissible within the settled rule that parol evidence of a warranty made prior to or contemporaneously with the contract "will not be admitted to add to or vary such a writing, nor will a warranty be implied therein where, as here, the contract by its very terms is made the 'entire agreement’ between the parties which 'cannot be changed orally’.”

The testimony was not offered here as an addition to the written contract but to avoid the contract in toto on the ground of fraud. The distinction between such representations as add to the contract and such as avoid the contract, because of their fraudulent character, is firmly established. The admission of parol evidence for the purpose of avoiding a written contract on the ground of fraud is not confined to such testimony as goes to the execution of the contract, for example, to show that a party was lured into making a contract other than that intended, as by the substitution of one contract for another by trickery, or by misreading a contract to an illiterate person. The rule admitting parol evidence extends also to proof of fraudulent misrepresentations as to the subject matter of the contract. Cummings v. Cass, supra; Annotation, 56 A. L. R., at p. 42. Nor, since fraud in the inducement is charged, is the testimony made inadmissible because the contract in suit includes a provision, ''This is our entire agreement, and cannot be changed orally.” Duralith Corp. v. Van Houten, supra; Series Publishers, Inc., v. Greene, 9 N. J. Super. 166 (App. Div. 1950).

We conclude, therefore, that if the evidence established fraudulent conduct on the part of plaintiff’s salesman, the testimony was properly admitted There remains, however, the question whether that testimony was sufficient, in any aspect in which the trier of fact might view it, to establish fraud.

Yiewed in the light most favorable to the appellant, the rescission of the contract or the defense against the action required that defendant prove the elements of fraud which supply the foundation for an action for deceit. The representation must concern a material fact, must induce to the execution of the contract, and must be falsely made. Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc., 3 N. J. 149 (1949). The substantial question in this case is whether there was sufficient evidence to support the finding oí the trier oí fact that the representation was made falsely.

“This falsity may consist in making a representation of a material fact knowing it to be false, or it may consist in making a representation which is untrue without knowledge whether it is true or false, and by coupling with the representation an expressed or implied affirmation that it is known to be true of personal-knowledge.” Cummings v. Cass, supra, at p. 83; Plimpton v. Friedburg, 110 N. J. L. 427 (E. & A. 1933).

In the present case no attempt was made to prove knowledge on the part of the salesman of the falsity of the statements. Nor is there any proof that the salesman expressly stated that the thing affirmed was true of ■ his own knowledge. “In examining the cases, however, we discover that an express affirmance of personal knowledge is not always requisite, as such affirmance may be implied.” Cummings v. Cass, at p. 84.

The determination whether such affirmation is proved is made to depend not so much upon the consideration whether an expressed assertion of personal knowledge is absent or present in the proofs, as upon the character of the subject matter alleged to be true. Mr. Justice Depue, in Cowley v. Smyth, 46 N. J. L. 380, 388-390 (Sup. Ct. 1881), enunciated the rule in this wise:

“In other cases of actionable frauds, the probative force and effect of the evidence to establish the fraudulent intent will depend upon the circumstances of the particular case. This question is presented in a complex form where the defendant has added to a representation — which turns out to be untrue, but was not false to his knowledge — an affirmation that he made the representation as of his own knowledge. In such eases the force and effect of the evidence will depend, in a great measure, upon the nature of the subject concerning which the representation was made. If it be with respect to a specific fact or facts susceptible of exact knowledge, and the subject matter be such as that the affirmation of knowledge is to be taken in its strict sense, and not merely as a strong expression of belief, the falsehood in such a representation lies in the defendant’s affirmation that he had the requisite knowledge to vouch for the truth of his assertions, and that being untrue, the falsehood would be wilful and therefore fraudulent. But where the representation is concerning a condition of affairs not susceptible of exact knowledge, such as representations with respect to the credit and solvency of a third person, or the condition or credit of a financial institution, the assertion of knowledge, as was held in Haycraft v. Greasy (2 Bast 92), ‘is to be taken secundum subjectam materlam, as meaning no other than a strong belief founded upon what appeared to the defendant to be reasonable and certain grounds.’ In such a ease the question is wholly one of good faith. The form of the affirmation will cast the burden of proof on the defendant, but when the evidence is in, the issue is whether the defendant honestly believed the representation to be true. In support of such an issue the defendant may, by way of exculpation, resort to evidence not admissible in actions for other kinds of deceit. He may, as in Haycraft v. Greasy, give evidence that the person whose ability he affirmed lived in a style, and with such appearances of property and means, as gave assurances of affluence. He may give in evidence the information he had upon the subject, (Shrewsbury v. Blount, 2 M. & G. 475), and show the general reputation for trustworthiness of the person whose credit he affirmed. Sheen v. Bumpsted, 2 H. & C. 193. In fine, he may avail himself of any evidence which may tend to show good faith or probable grounds for his belief, leaving the question to be determined upon all the evidence, whether his conduct was bona fide — whether, at the time he made the representation, he honestly believed that his representation was true.”

And it was said by Mr. Justice Reed in Oummings v. Oass, “Therefore, without regard to whether the affirmance of personal knowledge was express or otherwise, the existence of such affirmation depends upon the form of the affirmation of fact, and of the character of subject matter concerning which the affirmation was made. From these circumstances, it must be considered, * * * whether the party assumed or intended to. convey the impression that he had actual knowledge, though conscious that he had not.”

The proofs here are that the salesman gave “positive assurance” that the slip covers were washable. That was-a representation of a thing which was susceptible of exact knowledge. The simple process of washing the fabric was all that was required to determine whether the goods could be-cleaned in that manner and remain colorfast. Appellant does not contend that the washing done by defendant’s wife was done in an improper manner or, indeed, that the manner of ■washing has any bearing on whether the goods will remain -colorfast. It is common knowledge that the washability of textile goods is an important factor in the housewife’s decision whether or not to buy. Here the defendant’s wife made it very plain to the salesman that she would not have the slip covers if they were not washable and had to be cleaned at the greater expense of dry cleaning them. In that situation the form of the affirmation — “positive assurance” — was such that the trier of fact could reasonably conclude the salesman implied an affirmation of personal knowledge of the truth of that material and ascertainable fact, intending the defendant to believe that he had such personal knowledge, so that, there being no evidence by the salesman or otherwise bearing on the honesty of his belief in the truth of his representation, its form and content, it being untrue in fact, if not evidencing actual knowledge of the falsity of the asserted fact, at least supported an inference that the salesman was conscious that he did not know whether his affirmation was true or not, and sufficed in the circumstances as proof of legal fraud. The representation was plainly not of the class which is considered in law to be simply a statement of a strong belief in the truth of a thing not susceptible of exact knowledge. Cowley v. Smyth, supra.

Affirmed.


text:
    BENJAMIN EDELSTEIN, PLAINTIFF-APPELLANT, v. CITY OF ASBURY PARK, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951 —
    Decided March 19, 1951.

      Before Judges Jacobs, Bigelow and Douges.

      3Ir. Benjamin Edelstein argued the cause for the appellant {Messrs. Edelstein •& Edelstein, attorneys).

      Mr. Abraham, Frank el argued the cause for the respondents.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The plaintiff, a taxpayer of the City of Asbury Park, filed his complaint in the Law Division of the Superior Court seeking to set aside an ordinance creating the office of superintendent of police and the appointment of Howard O. Horner thereunder. Judgment of dismissal was entered at the close of the taking of testimony on the plaintiffs behalf and he has duly appealed.

In 1946 a civil-service examination was held for the position of chief of the Asbury Park Police Department. As a result of the examination Mr. Leroy Holloway became entitled to the appointment and in course he was appointed in compliance with a writ of mandamus issued by the former Supreme Court and directed to the City of Asbury Park, its mayor and council and Mr. J. Oliver Armstrong, its city manager. Under the applicable rules and regulations the chief was the executive officer of the police department with .“control of the entire police force, subject to the direction of the City Manager” ; orders to the chief emanated “only from the City Manager” and orders to the police department were issued by the chief.

Thereafter Mr. Leroy Holloway duly functioned as chief of police. By 1949 dissatisfaction with his conduct of the police department was openly voiced by municipal officials. ' Before the lower court the mayor testified that the department was not being run satisfactorily and the city manager testified that the department’s morale was low and complaints were received that the “general laws in the City of As-bury Park” were not being enforced. In a newspaper statement the city manager asserted that the conduct of the chief had been the subject of many complaints but suggested he could not “make charges and try the cases too.” It is conceded that the chief could not have been discharged or demoted without charges and hearing and no charges were ever preferred against him. See R. S. 40:47-6; R. S. 11:22-24; O’Neill v. Bayonne, 99 N. J. L. 430 (E. & A. 1924). Cf. R. S. 11:22-38. Instead, the city manager recommended the creation of the office of superintendent of police and that was done, first by resolution, and later by ordinance passed February 7, 1950. Section 2 of the ordinance provided that the superintendent of police “shall have general charge arrd supervision of the Police Department” and “full and complete authority over the Chief of Police and any and all members of the Police Department.” Mr. Howard 0. Iiorner was appointed as superintendent of police and the rules and regulations of the police department were amended to provide that the chief’s control over the department would be subject additionally to the direction of the superintendent of police.

Mr. Iloiloway testified that he was directed by the city manager that Mr. Horner would be in full charge of the police department, make all assignments, and sign all required documents including requisitions and payrolls. His office space was reduced in size and his private telephone was transferred to Mr. Horner. He was instructed by Mr. Horner to stay at his desk in uniform as much as possible between nine and five and “not to make any arrests or any raids or do any police work without first consulting him.” At the close of Mr. Holloway’s testimony the plaintiff rested his case and the lower court then continued the matter. Thereafter, and without any testimony on the defendants’ behalf, it rendered its opinion that the plaintiff had “failed by a preponderance of the evidence to prove that the creation of the position of Superintendent of Police is part and parcel of a scheme to demote the duly appointed Chief of Police” and the complaint should be dismissed.

At this stage of the proceeding the plaintiff is entitled to the benefit of the testimony in his favor including the reasonable inferences therefrom. We consider that it sufficiently established that the ordinance of February 7, 1950, and the appointment of Mr. Horner were intended to and did in substance, although perhaps not in form, displace Mr. Holloway as the functioning chief of the Asbury Park Police Department. Therefore he had been in charge of his department subject only to the general over-all control exercised by the city manager as chief executive and administrative official of the municipality with coextensive authority over all departments. B. S. 40:82-4. Thereafter he was no longer in control of the police department but Mr. Horner exercised such control subject to the over-all direction of the city manager. Our courts have held similar displacement to constitute improper action warranting judicial intervention; the fact that the chief retained his salary and his nominal title while being stripped of his authority as chief was not of sufficient significance. See McConnell v. Commissioners of Orange, 98 N. J. L. 642 (Sup. Ct. 1923); Vandervalk v. Board of Commissioners, Hawthorne, 8 N. J. Misc. 741 (Sup. Ct. 1930); Harrington v. Borough of Carteret, 1 N. J. Misc. 167 (Sup. Ct. 1923).

The defendants’ brief contains two points. The first asserts, as the lower court ruled, that “the plaintiff failed to make out a prima facie case”; for the reasons hereinbefore stated we consider this point to be without merit. The second apparently seeks to assert that the office of superintendent of police was properly created by the mayor and council (B. S. 40:81-10) within the unclassified service as a deputy or first assistant of the city manager (B. S. ll:22-2(j)) “authorized by law to act generally for and in place of his principal.” Assuming, solely for present purposes, that the mayor and council may properly provide for such a deputy or first assistant, we are satisfied that the conclusion may not be reached on the plaintiff’s showing that they did so; it seems clear that the ordinance neither in purpose nor terms delegated to the superintendent of police any authority to act generally in the performance of the duties laid upon the city manager. See Davaillon v. Elizabeth, 121 N. J. L. 380, 386 (Sup. Ct. 1938).

We have concluded that the judgment of dismissal entered below should be reversed with opportunity to the defendants to proceed with their defense. In reaching this conclusion we have refrained from considering other issues which may be involved in the controversy (Higgins v. Krogman, 142 N. J. Eq. 691, 694 (E. & A. 1948)), largely because of representations by counsel at the argument on appeal as to important changes which have occurred since the determination below. Mr. Holloway has voluntarity resigned and has been succeeded by a new chief of police duly appointed, Mr. Horn-er’s term of one year as superintendent of police has expired and no further appointment to that office has been made or contemplated, and perhaps the ordinance is being repealed. The plaintiff asserted during the argument on the appeal that his proceeding was based upon the fear that the taxpayers of Asbury Park would be subjected to the payment of independent salaries to two persons, one bearing the title and the other functioning as chief of police. In view of the altered circumstances it may be that his proceeding will be withdrawn or have become moot or he may be deemed no longer to have sufficient interest and standing. In any event, these matters may in the first instance be remitted for the lower court’s consideration in conjunction with such additional issues as may properly be presented to it for determina! ion.

Reversed and remanded without costs.