source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILLIAM BARAN, PLAINTIFF-RESPONDENT, v. WILLIAM F. KELLY, JR., DEFENDANT-APPELLANT. ROBERT S. BURROWS and THOMAS E. GALLAGHER, PLAINTIFFS-RESPONDENTS, v. WILLIAM F. KELLY, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 22, 1972
    Decided June 22, 1972.
    Before Judges Labrecqtje, Mintz and AlIíCobn.

      Mr. Spencer N. Miller argued the cause for appellant William F. Kelly (Spencer N. Miller and James A. Galdieri, attorneys).

      Mr. George J. Kaplan argued the cause for respondent William V. Musió.

      Mr. John Tomasin argued the cause for respondents Robert S. Burrows and Thomas E. Gallagher.

      Mr. James E. Flynn argued the cause for respondents William Baran and Francis G. Fitzpatrick.

   Per Curiam.

William E. Kelly, Jr., outgoing chairman of the Democratic County Committee of Hudson County, appeals from a final judgment dated June 21, 1972 which provides, in substance, that a new meeting of the committee be scheduled for Tuesday, June 27, 1972; that there shall be admitted to said meeting, among others, the chairmen of the municipal Democratic committees in said county, without vote or voice on the floor; appoints the Honorable Victor S. Kilkenny as master, with power to act as temporary chairman of said new meeting in accordance with said order; and provides that the vote at said meeting to determine whether the balloting for the election of officers shall be open or secret shall be by open roll-call vote. The judgment contains various other provisions which are not challenged on this appeal.

All parties to this controversy concede that the county committee itself, by vote of its membership, has the authority to determine whether the vote on the election of the chairman and other officers shall be by open or secret vote. The law is well settled that, absent any controlling statute or by-law to the contrary, general parliamentary procedures, with certain exceptions not here applicable, call for open voting. Robert’s Rules of Order Newly Revised (1970), § 4, at 36-37; § 44 at 346-348; Demeter’s Manual of Parliamentary Law and Procedure (1969), c. 3, II at 32.

Appellant’s basic contention is that there should be a secret ballot on the question of whether balloting for the election of the chairman and other officers of the committee shall be open or secret. We hold that Judge Darner properly concluded that the vote to determine whether the halloting for the respective positions should be open or secret shall be by open roll-call vote. Members of the county committee, in organizing and balloting for the election of their officers, perform a function imposed upon them by N. J. S. A. 19:5-3. As such, their function partakes of that of “trustees of the party interests for the registered voters of the party in the countju” Deamer v. Jones, 42 N. J. 516, 520 (1964); Bontempo v. Carey, 64 N. J. Super. 51, 57 (Law Div. 1960). In the absence of a statutory or a bylaw provision to the contrary, we incline to the view that an open roll-call vote is required. Only in this way will “their constituents * * * know how they voted.” Deamer v. Jones, supra, 42 N. J. at 521.

We are met by the argument that to require an open vote would subject members of the county committee who are themselves or who may have members of their families employed by a municipality to reprisals should their votes not accord with the views of their superiors. The court below found this implication to be an insufficient basis for intruding upon the fundamental right of the committee to itself determine the method of voting. We may not assume that municipal officials in this or any other county will so improperly use their positions. Assuming that such reprisals were to result, however, the affected committee members would not necessarily be without remedy.

We find ample justification in the record for the conclusion of the trial judge that the chairmen of the various municipal committees should be permitted to be present, without voice or vote; and for his further conclusion that the facts found by him justify the appointment of the designated master as temporary chairman to preside at the organizational meeting of the committee.

The final judgment in all respects is affirmed. No costs.


text:
    CONTINENTAL NATIONAL AMERICAN GROUP, GEORGE TOMA and PARKWAY AUTO BODY COMPANY, PLAINTIFFS-RESPONDENTS, v. PEDRO PLUDA, PETER MATERA and NATIONAL UNION INSURANCE COMPANY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 13, 1972
    Decided June 22, 1972.
    Before Judges Lewis, Halpern and Lora.

      Messrs. Bergamino & Be Gouge, attorneys for appellants Peter Matera and National Union Insurance Company.

      Respondents filed no briefs.
   Per Curiam.

The facts leading up to this suit are amply set forth in the trial court’s opinion reported at 115 N. J. Super. 206 and will not be repeated herein. Since the filing of the opinion National Union Insurance Company (N. U. I.) assumed Toma’s defense and settled the negligence suits brought by Pluda against Toma and Matera. We are left with the dispute as to primary responsibility between N. U. I., the insurance carrier for Matera, and Continental National American Group (C. N. A.), the insurance carrier for Toma.

The record before the trial court on C. N. A.’s motion for summary judgment, and the record before us, does not contain the policy of insurance issued by N. U. I. to Matera. Through some inadvertence, which we do not understand, the trial court in rendering its decision relied upon and quoted from the exclusionary clause in the C. N. A. policy while referring to the N. U. I. policy. Our problem is compounded by the fact that respondent, for reasons best known to it, has not filed a brief in opposition to this appeal. Nor has appellant seen fit to attach the policy it issued to Matera.

In view of the inadequate record, summary judgment should not have been granted. Anderson v. Sills, 56 N. J. 210, 215 (1970); Jackson v. Muhlenberg Hospital, 53 N. J. 138, 142 (1969).

Reversed and remanded for further proceedings not inconsistent with this opinion.


text:
    MEADOWLAND REGIONAL DEVELOPMENT AGENCY, et als., PLAINTIFFS-APPELLANTS, v. HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION, et als., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 19, 1972
    Decided June 26, 1972.

      Before Judges Sullivan, Leonabd and Caeton.

      Mr. Alfred A. Porro, Jr. argued the cause for appellants (Messrs. Porro, Flynn & Murray, attorneys).

      Mr. David S. Litwin, Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Shill-man, Assistant Attorney General, of counsel).
   Per Curiam.

This appeal involves the constitutionality of certain temporary zoning regulations adopted by the Hackensack Meadowlands Development Commission which placed a “freeze” on the use of 10,000 acres of land in the Hackensack Meadowlands.

The Meadowlands Commission was created by the New Jersey Legislature in 1968 for the purpose of overseeing the orderly development of the Meadowlands (N. J. S. A. 13:17-1 et seq.). The Commission was empowered to prepare and adopt “a master plan or portion thereof for the physical development of all lands lying within the district, which plan may include proposals for various stages in the future development of the district.” N. J. S. A. 13:17-9.

The constitutionality of that act was upheld in Meadowlands Regional Development Agency v. State, 112 N. J. Super. 89, 122-124 (Ch. Div. 1970). That case is now before the New Jersey Supreme Court.

The Commission, in 1969, proposed resolutions establishing' interim zoning regulations and other land use controls for the Meadowlands District. It then submitted these resolutions, as required by the act, to the Hackensack Meadowlands Committee, consisting of the mayor or chief executive or his designated representative of each of the 14 municipalities which include within their borders lands of the District. The Committee unanimously rejected these resolutions. However, on April 23, 1970 the Commission overrode the Committee’s rejection and adopted the resolutions.

The Commission explained its adoption of the interim zoning and first stage master plan as opposed to a final plan on the following basis:

In the Declaration and Purpose of tlie Meadowlands Act, the New Jersey Legislature declares that comprehensive development of the Meadowlands “can no longer be deferred,” and expresses fear that the “incalculable opportunity for new jobs, homes and recreational sites” represented by the Meadowlands “may be lost to the State through piecemeal and unplanned development.” The rapid deterioration of the physical environment of the Meadowlands and the growing threat that disorganized patterns of development there might soon become irreversible explain the Legislature’s evident intent that the Commission adopt and commence the implementation of a Master Plan for the Meadowlands District at the earliest possible moment.
The preparation of a Master Plan containing the components enumerated in the Meadowlands Act cannot be accomplished in a short time. Comprehensive studies have to be undertaken to enable the Commission to plan intelligently and effectively with respect to each of these components. The resources, contributions and requirements of the constituent municipalities, the State, and appropriate fedex-al agencies must be identified and coordinated. Recognizing that the Commission would be unable to prepare a definitive Master Plan immediately after its creation, the Legislature expressly authorized it to adopt the Master Plan in portions and stressed that the Plan “may include proposals for various stages in the future development of the district.” In accordance with this authorization, the Commission has decided to adopt the Master Plan in stages. By this means it seeks both to comply with the Legislature’s direction to commence x-egulation of development within the Meadowlands as soon as possible, and to avoid the dangers inherent in the adoption of an ill-conceived or poorly coordinated Master Plan.

The present appeal deals with the interim zoning regulations relating to the establishment of “Planning Areas” within the District. These areas comprise some 10,000 acres in the District which allegedly are still so substantially undeveloped or free of a definite pattern of development as to allow for alternate uses of the land. Other areas of the District, described as “Development Areas,” are more highly developed and in the Commission’s view are not available for other uses.

The interim zoning regulations permit the following uses within the Planning Areas: (A) any use of land not involving the construction, use or occupancy of structures or buildings; (B) certain temporary uses as described in the resolution; (C) any use of existing but unused buildings or structures terminating within two years from the effective date of the resolution and complying with certain performance standards; and (D) signs, in accordance with conditions set forth in the resolution.

The following general uses are permitted subject to certain conditions and controls: Christmas tree sales in certain districts for a period not to exceed 60 days; contractor’s office and equipment sheds; real estate offices; carnivals or circuses in specified districts for periods not exceeding three weeks; and promotional activities of retail merchants involving outside display of goods and merchandise for specified periods and under certain specified conditions.

Appellant Meadowland Regional Development Agency brought a declaratory judgment action in the Law Division seeking to declare the interim zoning regulations to be unconstitutional as constituting a taking of property without due process of law. The action was transferred to this court since it embodies a challenge to the validity of rules of a State agency.

At the outset, it should be pointed out that we are concerned here only with temporary or interim zoning regulations. The original resolutions, by their terms, were to operate for a period of two years and expired May 1, 1972. That termination date was extended by resolution of the Commission for an additional period not to exceed 60 days, that is, July 1, 1972.

The Supreme Court has approved freeze or interim zoning regulations under certain conditions. As the court said in Monmouth Lumber Co. v. Ocean Tp., 9 N. J. 64 (1952),

* * * It is entirely consistent with the theory of planning to provide, after study of the conditions of the community, a means of preventing changes in the character thereof which might be opposed to the theory of planning and zoning pending the formulation of a detailed and complete “comprehensive plan” for the municipality, either new or in substitution for an outmoded plan. * * * [at 75]

Where the interim zoning regulations, by reason of their longevity, would impose too great a burden on the owners of the properties being regulated, such regulations have been struck down. Deal Gardens, Inc. v. Board of Trustees of Loch Arbour, 48 N. J. 492 (1967).

In Campana v. Clark Tp., 82 N. J. Super. 392 (Law Div. 1964), a case' which was cited favorably in Deal Gardens, supra, it was held that a period of 31 months during which an interim zoning ordinance was in effect was not an unreasonable period under the circumstances there involved. The court in that ease observed that the mere passage of time is not the sole determining factor of reasonableness and that it was necessary to look to the progress of the study, its nearness to completion and the prospects for passage of a new zoning ordinance. Although the court recognized the duty of protecting the rights of individual owners, it held that there was also a duty to the community as a whole not to thwart reasonable efforts to adjust land use to modern trends.

The court in Deal Gardens, supra, noted that it was impossible to establish an inflexible rule when dealing with interim zoning regulations. “Each situation must be assayed in its own particular factual setting to ascertain whether the elapsed time during which the ordinance has been in effect is reasonable.” 48 N. J. at 500.

Morris County Land Improvement Co. v. Parsippany-Troy Hills Tp., 40 N. J. 539 (1963), which was decided before Deal Gardens, supra, does not condemn interim zoning ordinances of the kind here involved. In that case a township ordinance greatly restricted use of certain swamplands with the objective of preserving them in their natural state and to use them at least partially as a flood control basin. The court held that the ordinance constituted a taking of land for public purposes without just compensation. The court pointed out that “stop-gap” or freezing regulations which had been enacted with the expectation or hope that a higher governmental authority might acquire the area were superseded by the permanent zoning ordinance which the court declared was unreasonably restrictive and confiscatory. The court did not pass upon the validity of the “stop-gap” ordinance.

The scheme envisioned by the Legislature for development of the meadowlands area is a unique one. It contemplates an imaginative and innovative approach to the solution of numerous and difficult problems. The Commission to which that task has been assigned is entitled to reasonable time to study them and to devise methods to resolve them. The nature of the meadowlands area, the vast potential it has in the public interest, the dangers of a too rapid decision and the consequences of a hastily and improperly drawn final plan underscore the necessity for a very careful study of the entire environmental impact of the final plan and possible alternatives thereto. We conclude that the two-year period provided in the original interim zoning regulations and the additional two-month extension thereof are not unreasonable under the circumstances shown by this record. We express no opinion as to whether, for any reason, such regulation may be further extended.

We see no merit in the additional contention advanced by appellant that even if the interim freeze regulations be held legal, the State must pay compensation for the period of the interim regulations becase of the very limited uses allowed under the resolution. Lomarch Corp. v. Mayor, etc. Englewood, 51 N. J. 108 (1968), upon which the appellant relies, is not applicable to the present situation. The court held in that case that there was an implied obligation on the part of the municipality to pay compensation for land reserved for a one-year period under the option clause of the Official Map Act, N. J. S. A. 40:55-1.32 and 40:55-1.38. In effect, the court held that the reservation to use the land for public purposes amounted to an option to purchase for which the owner was entitled to payment.

The interim regulations adopted by the Commission in this case are in no way indicative of a plan to acquire any of the property or to obtain an option for its purchase in the future. Their purpose is simply to allow the agency sufficient time to prepare a comprehensive scheme for the development of the district in the interest of both the public and the various property owners.

We see no merit to the further argument that the interim regulations constitute a denial of equal protection because they deal exclusively with planning areas. Suffice it to say that there is a rational basis in fact for treating the planning areas differently.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, IN THE MATTER OF THE CONTEMPT OF ESTHER S. FRANKEL, AN ATTORNEY AT LAW OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 12, 1972
    Decided June 27, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Leopold Frarilcel argued the cause for appellant (Messrs. Frarilcel & Frarilcel, attorneys).

      Mr. John A. Brogan, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Appellant Esther S. Erankel, an attorney at law of the State of New Jersey, was found guilty of contempt for wilfully refusing an assignment to represent an indigent defendant in a disorderly persons case in the Paterson Municipal Court.

On a trial de novo on the record in the County Court, the finding of contempt was sustained, and further appeal is made to this court.

The issue is a narrow one. Appellant acknowledges that she was assigned to represent an indigent defendant in a municipal court proceeding and that she wilfully refused to accept the assignment. Her basic contention is that the present system of requiring attorneys to accept assignments to represent indigent defendants in municipal court cases without compensation is unlawful, immoral and unconstitutional. She argues that her refusal to accept the assignment was not shown to have obstructed justice, nor did it evidence an intent to do so.

We have reviewed the full record and are in accord with the legal conclusions set forth in the comprehensive opinion of the County Court and, except as hereinafter noted, adopt them as our own. The opinion is reported at 117 N. J. Super. 296. On the undisputed facts, we find that appellant’s refusal to accept the assignment in question constituted a contempt of court in violation of N. J. S. A. 2A:10-1. We hold that the assignment and the system on which it was based was lawful and proper, and appellant was under a duty to accept it. Moreover, her challenge of the assignment should not have been by defying the court. Walher v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967). The proper procedure would have been either to seek leave to appeal from the order of assignment, or accept the same and apply for compensation thereafter.

In deciding this appeal we find it unnecessary to pass upon the trial court’s dictum (at 302 of 117 N. J. Super.) that “Any right to compensation is purely statutory.”

We find appellant guilty of the contempt charged and fine her $50 and costs, payable to the clerk of the Paterson Municipal Court.


text:
    ROSS DE LIA, INDIVIDUALLY, AND SEASIDE HEIGHTS PROPERTY OWNERS ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-RESPONDENTS, v. LEO KIERNAN, TAX ASSESSOR OF THE BOROUGH OF SEASIDE HEIGHTS, NEW, JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 12, 1972
    Decided June 27, 1972.

      Before Judges Sullivan, Leonaed and Caeton.

      Mr. Bussell Fleming, Jr. argued the cause for appellant {Messrs. Sailer, Fleming & Baczkowski, attorneys).

      Mr. Norman A. Doyle, Jr. argued the cause for respondents.
   Per Curiam.

Plaintiffs DeLia, a citizen and taxpayer of the Borough of Seaside Heights, and Seaside Heights Property Owners Association brought this action seeking a declaratory judgment that certain items in the possession of defendant tax assessor, including property record cards, were public records, and that the public has a right to inspect them. DeLia also sought an adjudication that he had a justifiable reason to examine these records.

The court pointed out that there is no statute which mandates the preparation and keeping of such cards, and that therefore such records are not public records within the meaning of the Right to Know Law. Consequently, they are not generally available to the public for inspection under that statute. Cf. Tagliabue v. North Bergen, 9 N. J. 32 (1952).

However, the court ruled that DeLia, who had a tax assessment discrimination appeal pending before the Division of Taz Appeals, was entitled to inspect the cards because he had an interest in the subject matter. The court observed that examination of such records

* * * may reveal to plaintiff information which may not only be beneficial to him in the disposition of his appeal, but it may be enlightening to the taxpayers of the municipality who may contend that the tax assessment is not being done according to law.

Defendant tax assessor appeals, arguing that the property record cards are protected from inspection by plaintiff by the work product rule. Plaintiffs have not cross-appealed from the determination that the property record cards are not public records.

We agree with the trial court’s determination that the individual plaintiff, DeLia, as a property owner and as a taxpayer whose tax appeal is pending, has a sufficient interest so as to justify inspection of the property record cards. Such records, although not required to be maintained by statute, are commonly used by tax assessors for the purpose of recording a wide variety of information. Such record cards tend to follow the format devised by the Local Property Tax Bureau of the State of New Jersey as set forth in the Real Property Appraisal Manual (1963). These cards reflect information concerning the character of the property, such as its topography, use, extent of acreage, and other factors which may have a bearing on the valuation appearing in the assessments.

It is true that the information contained thereon is prepared primarily for the use of the tax assessor. However, much of such information is of a factual nature and as such is relevant to questions ordinarily involved in tax appeals. It may also be relevant and material to the taxpayers’ legitimate interest in knowing that the tax assessments are being made according to law.

We see no valid reason why the information appearing on such records should be withheld from the public view, either on the theory that they contain confidential information or that they belong to the assessor. Nor are we persuaded that such records should be protected from public view by reason of the work product privilege. We do not view Newark v. Division of Tax Appeals, Dept. of Treasury, 7 N. J. 8 (1951), to hold to the contrary. Property record cards do not, in any real sense, reflect or embody the mental processes, impressions, conclusions and opinions of the assessor.

Nor do we perceive any basis for defendant’s apprehension of harassment because of the opening, under appropriate circumstances, of these records for inspection. Any inspection would be permissible only subject to reasonable controls as to time, place, copying, etc. See N. J. S. A. 47:1A-2 which sets up guidelines in these areas under the Right to Know Law. The court has inherent power to impose any restrictions necessary to prevent abuse and to protect the public officials involved.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS ROUNDTREE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 19, 1972
    Decided June 28, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Hugh J. Mahoney, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Thomas J. Kapsak, Assistant Prosecutor, argued the cause for respondent (Mr. John 8. Kuhlthau, Middlesex County Prosecutor, attorney).
   Per Curiam.

Defendant, with leave first granted, appeals from an order of the trial court denying his motion to suspend proceedings against him (upon an indictment for unlawful possession of heroin) pursuant to N. J. S. A. 24:21-27(a)(1).

In an affidavit affixed to the aforesaid motion, defendant’s attorney stated that defendant had no prior record and he indicated that he was willing to receive “drug” treatment.

Prior to making his motion, defendant had pleaded not guilty to the indictment. The trial court in denying the motion stated that there was a fixed policy that “we will not suspend the proceedings unless the defendant is prepared to plead guilty.” Consequently, the court refused to consider the motion without such a guilty plea. Defendant refused to so plead.

Such a policy as enunciated by the trial judge is contrary to the present specific provisions of N. J. S. A. 24:21-27(a). This act grants the court the authority to suspend proceedings of a person who has not been previously convicted of any drug-related offense, who is “charged with or convicted” of any such offense. [Emphasis added].

The provision contained in the original act (L. 1970, c. 226, § 27) which limited the authority to suspend proceedings solely to the situations when defendant “pleads guilty or is found guilty” was eliminated and replaced by the above-quoted language presently contained in the act (L. 1971, c. 3, § 11).

That the Legislature fully intended that a plea of guilty should not be a prerequisite to suspension of proceedings is further demonstrated in § b. of the present act. This section provides that “[U]pon violation of a term or condition of supervisory treatment the court may * * * where there lias been no plea of guilt or finding of guilt, resume proceedings.”

Under these circumstances, the order of the trial court is reversed and the matter is remanded for a hearing upon defendant’s motion. At this hearing the trial judge shall exercise the discretion vested in him pursuant to N. J. S. A. 24:21-27, without first requiring defendant to plead guilty.

Reversed and remanded in accordance herewith.


text:
    KENNETH MARSHALL & COMPANY, A NEW JERSEY CORPORATION, APPELLANT, v. THE STATE OF NEW JERSEY, BUREAU OF SECURITIES, GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND JOSEPH F. KRUPSKY, CHIEF, BUREAU OF SECURITIES, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 13, 1972
    Decided June 28, 1972.

      Before Judges Labrecque, Kolovsky and Allcork.

      Mr. John B. M. Frohling, attorney for appellant (Messrs. Donald P. Sharkey and Charles U. Brandi, on the brief).

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondents (Mr. Charles B. Parker, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

In February 1970 appellant filed a verified application with the Bureau of Securities seeking registration as a broker-dealer pursuant to N. J. S. A. 49:3—57, a section of the Uniform Securities Law (1967), N. J. S. A. 49:3-47, et seq.

The application form called for an answer to the following question:

13. Will the applicant in the course of its business have custody of client's funds or securities?

Appellant’s answer was “Yes,” an answer which under the Bureau’s regulation 13:13-3 mandated that its net capital be at least $25,000. Appellant’s answer to question 15 indicated that the rule requirement was satisfied — its net capital was given as $36,498.45.

In view of the information set forth in the application, the Bureau had no objection thereto and the registration became effective.

However, appellant’s compliance with the minimum capital requirement was short-lived. By July 10, 1970 its capital was reduced to $1970 (if the testimony given by the Bureau’s investigator is accepted) or to $5100 (if appellant’s calculations are correct). Appellant thereafter obtained additional capital so that its capital, as of the end of the months September 1970 to February 1971, inclusive, varied from a high of $15,927 to a low of $9766.15. In March 1971, $25,000 additional capital was put into the company so that its capital as of March 31, 1971 was $34,971.66.

The Bureau of Securities did not learn of the depletion in appellant’s capital until appellant, in response to the Bureau’s reminder notice of April 6, 1971 that its annual certified report of financial condition was due, submitted a report as of July 10, 1970. Investigation by the Bureau followed and resulted in the service on appellant of notice dated April 29, 1971 that its registration as a broker-dealer was “proposed to be revoked.” At the same time appellant was served with a “notice of preliminary findings and opportunity for a hearing.” Appellant requested a hearing. The hearing was held before the chief of the Bureau.

The chief thereafter filed his “findings of fact and conclusions of law” in which, after rejecting several preliminary motions made by appellant and setting forth his findings, he concluded:

The undersigned finds and concludes that Respondent on several and frequent occasions in 1970 and 1971 failed to maintain the minimum capital of $25,000. which was required by Regulation 13:13-3 and which was promulgated pursuant to N. J. S. A. 49:3-57 (e), and as a consequence Respondent violated N. J. S. A. 49:3-58 (a) (2)(ii).
The undersigned holds that when a broker-dealer receives from the Sovereign a privilege and opportunity of custody of other peoples money and property, and where in connection therewith that broker-dealer exercises albeit restrictedly said privilege, and where that broker-dealer on several and frequent occasions violates the minimum capital requirement for the custodial class in which the broker-dealer is situate, that broker-dealer has engaged in a “course of business which . . . would operate as a . . . deceit upon any person” within the spirit and meaning of N. J. S. A. 49:3-52(c).
The undersigned finds and concludes that Respondent violated N. J. S. A. 49:3-52 (c).
An api>ropriate Order of Suspension of the registration of Respondent as a broker-dealer for seventy-five (75) consecutive calendar days shall be entered herewith.

Appellant appealed to this court and, at the same time, applied to the chief of the Bureau for, and obtained, a stay of the 75-day suspension pending determination of the appeal.

Appellant argues that “there are no bases in the statute for a rule requiring a broker-dealer to have more than 100,000 minimum capital.” We disagree.

In addition to the general power to adopt rules and regulations set out in N. J. S. A. 49:3—67, the statute contains two provisions, N. J. S. A. 49:3-57(d) and (e), granting the chief of the Bureau of Securities power to adopt rules requiring a minimum capital for registered broker-dealers. In our view, authority to adopt Regulation 1313-3 which provides:

No registration as a broker-dealer shall be issued to an applicant having custody of clients’ funds or securities unless such applicant has a minimum capital of $25,000 or has posted with the Bureau of Securities a surety bond in the amount of $25,000,

is granted by N. J. S. A. 49:3-57(e). The $10,000 limitation found in N. J. S. A. 49:3-57(d) to which appellant refers applies only to broker-dealers who do not propose to have “custody of clients’ funds or securities.”

Since the registration statement as filed by appellant and accepted by the Bureau authorized appellant to have “custody of clients’ funds or securities,” it was incumbent upon it to maintain a minimum capital of $25,000, as long as the authorization so granted to it continued to exist. In re Ridgway, 116 N. J. Super. 172 (App. Div. 1971). (It may be noted that the fact that a broker-dealer has such minimum capital is the statutory justification for not requiring it to file a surety bond in the same minimum amount under N. J. S. A. 49:3-57(e).)

It is therefore irrelevant, even if true, (1) that defendant’s answer to question 13 was, as it contends, inadvertently given as “Yes,” because it did not understand the question— which we note is not at all ambiguous—and (2) that, as appellant also contends, the instances in which it had kept a customer’s securities or credit balance were in “special circumstances * * * beyond its control, instances not fairly to be classified as involving ‘custody of clients’ funds or securities.’ ”

The record contains substantial credible evidence to support the Bureau chief’s findings that the proofs warranted his exercising the power granted him by N. J. S. A. 49:3-58(a) to suspend appellant’s registration because “the order [of suspension] is in the public interest” and because appellant had “wilfully violated [and] wilfully failed to comply with” the regulation above discussed, and had engaged in a “course of business which * * * would operate as a * * * deceit, upon any person.” N. J. S. A. 49:3-52(c).

TT]he term “willfully” does not require proof of evil motive, or intent to violate the law, or knowledge that the law was being violated. All that is required is proof that the violator acted intentionally in the sense that he was aware of what he was doing. [State v. Russell, 119 N. J. Super. 344 1972.].

Finally, in the circumstances revealed by the record in this ease, we conclude that appellant has failed to demonstrate that the 75-day suspension was arbitrary, capricious or unreasonable.

The order of the Bureau of Securities is affirmed.


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

text:
    JOSEPH CEVA, LUCIAN NIEMEYER, RICHARD A. KURLAND AND MARILYN KURLAND, HIS WIFE, PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF RIVER VALE, BOROUGH OF CLOSTER, BOROUGH OF DEMAREST, BOROUGH OF HARRINGTON PARK, AND BOROUGH OF NORWOOD, DEFENDANTS-APPELLANTS, AND BERGEN COUNTY SEWER AUTHORITY, DEFENDANT-RESPONDENT, AND BOROUGH OF NORTHVALE, BOROUGH OF HAWORTH, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 1, 1972
    Decided June 28, 1972.

      Before Judges Contobd, Matthews and Eeitz.

      Mr. Richard A. Kurland argued the cause for plaintiffs-appellants.

      Mr. William A. Fasolo argued the cause for defendant-appellant Borough of Demarest.

      Mr. Edward J. Cahill argued the cause for defendant-appellant Borough of Closter.

      Mr. Victor W. Hart argued the cause for defendant-appellant Township of Biver Vale (Messrs. Gladstone, Hart, Kronenberg, Manáis, Rathe & Shedd, attorneys).

      Mr. Marvin Click argued the cause for defendant-appellant Borough of Norwood (Messrs. Gruen, Sorkow and Sorkovj, attorneys).

      Mr. Joseph A. Rizzi argued the cause for defendant-appellant Borough of Harrington Park (Messrs. Wirme & Bant-a, attomej's).

      Mr. James B. Demetrakis argued the cause for defendant-respondent Bergen County Sewer Authority (Messrs. Gross, Demetrakis & Donohue, attorneys; Mr. Joel M. Ellis, on the brief).
   The opinion of the court was delivered by

Conford, P. J. A. D.

This is an appeal by the four individual plaintiffs, taxpayers of the Township of Biver Vale, and by five municipalities, including Biver Vale, originally made defendants, from a summary judgment entered by the Law Division in favor of defendant Bergen County Sewer Authority (“Authority”). By stipulation of the parties on entry of judgment the only issue remaining, and reserved for appeal, is the validity of a certain “base charge” for participation by the seven defendant municipalities in what is described as the Northern Valley extension of the sewerage system maintained by the Authority under and by virtue of L. 1946, c. 123 (N. J. S. A. 40:36A-1 et seq.). That participation was agreed upon by formal contract of the seven municipalities with the Authority which bears date of October 7, 1969. Biver Yale’s enabling ordinance was adopted September 10, 1970. The bond resolution for constructing the extension was adopted by the Authority December 2, 1970.

The complaint was filed November 2, 1970. It was not decided below, and the Authority does not here argue, that the proceedings were not timely instituted nor that the appealing municipalities are without standing by reason of their entry into the agreement aforesaid or for any other reason. We therefore deal with the merits of the only question properly before us—the validity of the base charge.

An understanding of the nature and operation of the base charge requires some background.

The presently controlling 1946 statute stems from a predecessor enactment, L. 1933, c. 373, creating the Hackensack Biver Sewerage District, adopted for the general purpose of reducing pollution in the drainage area of that stream by collection and disposal of sewerage therein. A 1945 revision of that act (which repealed it) (L. 1945, c. 300) was held unconstitutional as special legislation not properly enacted. Sherwood v. Bergen-Hackensack, etc., Authority, 135 N. J. L. 304 (E. & A. 1947). The present act, dealing in general terms with streams in first or second class counties whose drainage areas include more than one municipality and where the degree of pollution is or threatens to be a danger to the public health in the judgment of the board of freeholders, permits the establishment ¡of county sewer districts by such boards. Section 1. The constitutionality of this act was upheld in Little Ferry v. Bergen Bounty Sewer Authority, 9 N. J. 536 (1952).

Sections 29 and 30 of the act provide that prior to the creation of a district sewer system or any part of it the Authority shall procure a project report which, among other things, is to make estimates (1) of the percentage of sewage volume from existing municipal or private sewage systems which must flow into the district system “in order to make possible and advisable the advantageous and economical construction and operation of the proposed * * * system” and its financing, par. (d); (2) of the cost of construction and financing up to the beginning of the first fiscal year, par. (e); (3) of the amount of money required annually for the first 40 years of operation of the system, par. (f); (4) “of such rates to be charged in each year and * * * paid to the authority * * * sufficient [with funds already received] to raise the * * * money required by the authority for at least the first ten fiscal years * * *” to meet the estimates fixed in par. (f), par. (g).

Section 43 reads as follows:

After the commencement of operation of a district sewer system of an authority under this act the authority may prescribe and change from time to time rates to be charged for the discharge and disposal of sewage through its district sewer system. Said rates shall be prescribed and from time to time revised as hereinafter provided, so that an authority and its district sewer system shall be and always remain self-supporting with earnings sufficient to provide for all expenses of operation, maintenance, depreciation and repair and the payment of the principal and interest of any bonds issued or to be issued pursuant to this act, so as to prevent the accrual of any deficit. Such rates being in tke nature of use or service charges, shall be uniform throughout a district for the same type, class and amount of use or service of a district sewer system and shall be based upon the total annual volume of sewerage from each municipality, private sewer company or institution; but may give weight to the characteristics of the sewage and other wastes and any other special matter affecting the cost of treatment and disposal thereof, including chlorine demand, biochemical oxygen demand, concentration of solids and chemical composition. (Emphasis added)

Section 45 reads in part:

* * * The rate referred to in section forty-three of this act shall be calculated to provide such amount as such authority reasonably estimates will be required (in addition to any funds on hand applicable to such purposes) during such fiscal year for security or payments of principal and interest of any of the bonds or other obligations authorized by this act and for the cost of the operation, maintenance, depreciation and repair of its district sewer system, including establishment and maintenance of working capital and reserves, and in any event shall be sufficient to provide all such amounts as may be required by the terms of any resolution of such authority authorizing the issuance of its bonds or notes.

In section 47, after directing the certification by the Authority annually to each participating municipality, etc., of the amount due from it for the year, the act says:

* * * Such amount shall be calculated by such authority by applying the rate to the volume of sewage delivered and discharged into its district seioer system by the municipality, private sewer company or industry, during the yearly period ending on the last day of the preceding December, as shown by the records of such authority. If the terms and provisions of a contract so entered into by a municipality, private sewer company or industry require payment of any other or different amount to an authority, then such other or different amount shall be fixed and determined by such authority pursuant to the contract and shall be certified to such municipality, private sewer company or industry as hereinabove provided. If the terms and provisions of a contract so entered into by any industry require payments to an authority of a further amount in addition to the amount of money calculated as hereinabove provided, then such further and additional amount shall be fixed and determined by such authority and added to the amount calculated by it as hereinabove provided and the sum of such amounts shall be certified to such industry as hereinabove provided. In any year in which any municipality, private sewer company or industry shall not have used a district sewer system of an authority under this act for a full year prior to such last day of December, the volume of sewage to be used in calculating the amount which such municipality, private sewer company or industry shall pay to such authority shall be the volume which such authority at such time estimates will be delivered and discharged by such municipality, private sewer company, or industry during the first full year of operation of its district sewer system. In the event that any part or parts of a district sewer system shall be put into operation prior to the beginning of the first fiscal year such authority shall certify from time to time to the municipalities, private sewer companies or industries which may discharge sewage into said part or parts prior to the first fiscal year an amount or amounts which in the case of each such municipality, private sewer company and industry shall be sufficient to pay its share of the cost of operation and maintenance of said part or parts during the period of operation prior to said fiscal year based upon Us proportion of the total volume of sewage so discharged into said part or parts of such district sewer systeei. (Emphasis added)

It is apparent that the only kind of general charge for service to a municipality by the Authority expressly specified in the act is what has been generally referred to as “rate-times-ílow,” i. e., the gross gallonage of sewage into the system from the municipality multiplied by a uniform system-wide rate per gallonage unit (generally per million gallons)—the said rate calculated by division of tbe total financial requirements of the system at large for total costs of every nature, i. e., construction, financing, maintenance and operation, by the total gallonage of sewage put into the system the prior year by all participating municipalities, private sewer companies and industries.

The Authority’s first service contract was signed with 11 of the original 13 participating municipalities in 1948, and the rate scheme was in accord with the foregoing. The base charge hero in contention was conceived by the Authority for the first time in 195G, and was used in connection with its third participation agreement, that with Englewood Cliffs. While there was a primary provision for compensation on the basis of rate-times flow, this was made subject to a minimum “base charge.” This consisted of the amount aggregated by (1) the principal and interest payable by the Authority on any bonds or other obligations issued to finance costs of construction of the Englewood Cliffs extension alone, and (2) that part of the costs estimated by the Authority for operation and maintenance, etc., of the entire system for the year deemed properly attributable to the handling of the sewage and wastes delivered into the system by Englewood Cliffs through the Englewood Cliffs extension. A credit was to be given against the base charge for sewage delivered to the system other than through the Englewood Cliffs extension. If the net base charge for any fiscal year exceeded the charge resulting from rate-times-flow, the former would be applicable for that year.

Similar base charges (some varying in respect of the kinds of credits allowed) were included in some but not all the later extension contracts entered into by the Authority with various municipalities, including the Northern Valley extension agreement here in litigation. In most of the instances of such stipulations the base charge was either not activated at all or for only one or two years. The base charge for the Northern Valley extension allows no such credit as was allowed to Englewood Cliffs or to other prior participants subjected to a base charge.

We cannot find in this ponderous record the precise method by which the Authority calculates the second element of the base charge—i. e., the portion of total system costs attributable to servicing the municipality in question.

The Authority concedes in its brief that where base charges are in effect anywhere in the system the application of the statutory rate-times-flow formula in relation to participants not subject to the base charge is in practice necessarily modified. There is deducted from total costs of system financing, operation and maintenance the corresponding costs applicable to the municipalities with operative base charges and there is also deducted from total system gallonage the gallonage of those municipalities. This results, as appellants point out, in none of the participants in the system paying on the straight rate-times-flow basis prima facie required by sections 43, 45 and 47. Hco hypothesis the municipalities not subject to a base charge in a particular year pay less than what they would on straight rate-times-flow. This benefit does not necessarily accrue solely to the “original” or “older” participants in the system, as the record shows that some participants admitted to the system without provision for a base charge came in after others who were subjected to such a charge.

It is further pointed out by appellants that absolute susceptibility to a base charge in any of the later years of participation by a newcomer is based, according to the evidence, upon a determination of the Authority founded upon the project report required under sections 29 and 30 (although nothing in those sections purports to authorize anything like a base charge); that estimates pursuant to said sections of costs of construction frequently are erroneous and that prognostications of anticipated sewage flow in a municipality for any substantial number of years ahead are subject to many uncertainties, including variations in rainfall, declining or increasing population or industry, etc. Yet upon such inherently variable factors the Authority makes initial determinations of future absolute susceptibility to or absolute exemption from the incidence of a base charge.

We find the scheme of the act as a whole, and particularly the regulations as to rate in sections 43, 45 and 47, to speak impellingly to the objective that, essentially, rates to municipalities are to be fixed annually on the proportion of relative volume of sewage input against total cost of operation and maintenance of the system as a whole, including all capital and financing charges attributable to any part of the system and its constituents then unpaid and requiring payment in that year. The intent that earlier participants are not to be insulated from participation in costs of financing later extensions is borne out by the second sentence of section 43 which mandates that “rates” for all participants shall be calculated to provide funds to meet, inter alia, the principal and interest “of any bonds issued or to be issued” pursuant to this act so as to prevent the accrual of any deficit.” (Emphasis added)

Totally contrary to the plain statutory scheme of uniform treatment of all municipal participants, as viewed above, is the Authority’s concept that the intent of the act is that, contingent upon its advance estimates of a new participant’s discrete capital costs and potential sewage gallonage over a long term, the Authority may at the outset brand it once and for all, in effect a Class B member of the system, to be admitted subject to imposition in any year of a charge (base charge) based solely on the cost of building the new extension and the attributed cost to the system of serving it (except in years when its gallonage is such that the formula of rate-times-flow produces a sum in excess of that amount). There results from this two classes of participants in the system. One consists of true partners, paying uniformly and always an amount based on rate-times-flow (or less, as noted above); the other, of parties dealt with on a straight estimated cost of participation basis when it profits the Authority to do so but on a rate-times-flow basis when that is more favorable to the Authority.

The Authority argues that the implication of the act that any project must be “advantageous and economical” (Section 30) and the direction that rates shall always be fixed so that the system will be self-supporting with earnings sufficient to provide for all expenses of operation, maintenance, depreciation, repair and payment of bonds and interest (Section 43) somehow support the concept of a dual rate classification for municipal participants. It contends that it is thereby indicated that earlier participants must be protected from rate increases which would accrue from admission of later ones. We find nothing in the cited sections or the import of the act as a whole to support that idea. Rather is the emphasis in the cited sections on the consideration that the uniform rate shall be sufficient to provide adequate revenue for all system costs and expenses of whatever nature. However, the rate-times-flow formula by statutory definition does accomplish that objective. The reference in section 30 to an estimate of the quantity or percentage of flow of sewage needed for an “advantageous and economical construction and operation” does not imply more than that the applying participant’s prospective sewage flow may be considered by the Authority in deciding whether to contract with the municipality at all—not that when it admits it the Authority may fix a special onerous rate for it to protect prior members from rate increases.

While the language of the act is so clear as not to require illumination of its intent by analogous case authority, some support for the foregoing views is afforded by our decision in Landy v. Bellmawr Sewerage Auth., 61 N. J. Super. 396 (App. Div. 1960), affirming Kline v. Bellmawr Sewerage Authority, 55 N. J. Super. 153 (Ch. Div. 1959). That case involved N. J. S. A. 40:14A-1 et seq., authorizing formation and operation of county or municipal sewage disposal systems and compensating reservoirs. The section thereof that regulates rates or charges (section 8(b)) significantly resembles the third sentence of section 43 of N. J. S. A. 40:36A although it contains language giving the 14A authority eonsiderabfy more latitude and discretion in the means allowed to effect uniform rates than does the statute before us. Yet the courts in that case forbade a municipal sewerage authority from charging domestic customers in a newly sewered area of a town at rates substantially higher than what was being charged in a previously sewered area, although the authority sought to justify the difference on the ground, also argued here, that the old area had already paid substantially for capital outlays to the benefit of the new area. It was held that the command of the statute that the rates “shall as nearly as the sewerage authority shall deem practicable and equitable be uniform throughout the district for the same type, class and amount of use or service” forbade the rate differential sought to be established.

The Authority attempts to support its contention that the rate-times-flow provisions of the act are not intended to be the exclusive basis for rate charging, citing the third sentence of section 47 (the second sentence of the excerpt therefrom quoted above). This was also a factor strongly relied upon by the trial court in sustaining the base charge. While it is a fair assumption from the statutory provision that a contract calling for payment of another or different amount, but consistent with basic use of the rate-times-flow formula, may be entered into between a municipality and the Authority, cardinal principles of statutory construction would prevent implying an intent to permit a contractual stipulation that would under any circumstances totally displace the fundamental rate-times-flow charge enjoined by sections 43, 45 and 47, read together. See Alexander v. N. J. Power & Light Co., 21 N. J. 373, 378-379 (1956). An effort must be made to accommodate the "other or different amount” language in section 47 to the basic rate-times-flow mandate rather than to countermand it, all being in pari materia. This is most satisfactorily done by ascribing to the former an intended reference to the weighting charge which may be imposed on the flow-element in accordance with any special characteristics of the sewage affecting the costs of treatment, as specifically allowed by section 43, or to any other special factor uniquely affecting costs of the Authority in servicing the particular municipality. It is to be noted that these special weighting factors are denominated "surcharges” in the Northern Valley extension contract.

It may be of some significance that section 47 does allow contracts to pay the Authority "a further amount in addition to” rate-times-flow but only in the case of industry contracts. The base charge is in a sense “a further amount in addition to” rate-times-flow, but, as noted, the section does not purport to permit the latter in a municipal contract. We further note that the prototype 1933 statute (c. 373), in section 219, after providing for the basic rate-times-flow formula in section 217, set forth a series of provisos which, in addition to the “other or different amount” and the “further amount in addition to” (for industries) clauses also found in current section 47, included one which permitted contracts with municipalities “at any higher rate”—a formula missing from section 47 of 40:36A. That expression is probably explainable by reference to section 304 of the 1933 act which contained a mandatory provision for higher rates for those municipalities which could have entered the system in a year earlier than they did. The current statute of course contains no such provision.

The existence of the foregoing provisions in the 1933 act manifests that the Legislature well knew how to articulate unambiguously the concept that an authority and a municipality were free to contract for rates higher than rate-times-flow or for amounts additional thereto where such was indeed its intent.

In any event, whatever the current “other or different amount” language in section 47 may be thought to contemplate, it is inconceivable to us that it has the intent of permitting total displacement of the rate-times-flow factor as the basic statutory element in fixing the charge, in favor of an ad hoc cost-of-construction and service-to-the-municipality base charge, as here, on the absolute and permanently effective a priori judgment and dictate of the Authority.

We feel further sustained in these conclusions by the consideration that the overriding purpose and plan of the statute is to reduce and eliminate pollution of our waterways. See section 1. This is not simply the commercial marketing of a service. A contemplated advantage to all municipalities in any such system, as well as. the primary purpose of the legislation, as already noted, is the public health benefits of the reduction in area-wide pollution. The statute implicitly bespeaks the message that any undue burden to later unsewered participants which would tend to discourage their entry into the system should be avoided if reasonably possible. By the same token, the benefits to earlier participants of joinder in the system by municipalities coming in later are not limited to the cost economy promoted by the addition of another member’s sewage flow, but also, and perhaps of greater ultimate import, in reducing or eliminating the pollution of the common waterway by the previously unsewered newcomer. (Some or all of the Northern Valley municipalities, all now unsewered, are upriver to many of the older participants in the system.)

We find no support for the Authority’s position in two decisions it relies on. In Airwick Industries, Inc. v. Carlstadt, Sewerage Auth., 57 N. J. 107 (1970) (written by a justice who participated as a judge in the Appellate Division decision in Landy v. Bellmawr Sewerage Auth., supra), involving a municipal sewerage authority’s power to fix connection fees for individual consumers under N. J. S. A. 40.14A-1 et seq., the court held valid a schedule of connection fees escalating with passage of time. It was noted that by a 1968 supplement to the act a charge distinct from the periodic service charge, in the nature of a connection or tapping fee, was expressly authorized. While it was required to be uniform within each class of users it was otherwise to be within the discretion of the authority. The court held that since the system had always been available to the later connector, and enhanced the value of his property, the escalation in the fee could be justified as requiring a potential user to absorb a fair proportion of the sum theretofore paid by the actual users for bond costs. There is no fair analogy therein to the present case, on either the facts or the respective statutes. The particular statutory mandate in the instant statute respecting charges is controlling.

In Middlesex County Sewer. Auth. v. Borough of Middlesex, 74 N. J. Super. 591 (Law Div. 1962), aff’d o. b. 79 N. J. Super. 24 (App. Div. 1963), again dealing with N. J. S. A. 40:14A-1 et seq., the attack was upon a schedule of charges by a county sewerage authority calling for a declining rate with increasing amounts of sewerage delivered to the contracting municipality. While section 8(b) of N. J. S. A. 40:14A contains the uniformity provisions alluded to above in connection with the discussion of that act in relation to Landy v. Bellmawr Sewerage Auth., supra, there is also a section 23 which permits the contract to be on any terms and conditions approved and agreed to by the parties. It was held that since the complaining municipality agreed to the sliding rate schedule it was bound by it. This decision is obviously of no pertinence here where we are, in effect, construing the instant statute as precluding freedom to contract for a substituted charge totally different from the rate-times-flow charge we deem mandated by this act.

In view of the foregoing conclusions it is not material whether plaintiffs’ allegations of fraud by the Authority have merit. In any event, contested issues of fact are presented which would require a plenary hearing to decide.

However, we grant the motion of the Authority to strike the allegations as to fraud and other matter unrelated to the issue of the legality of the base charge contained in the briefs filed by plaintiffs and the Borough of Closter as we regard the plain, deliberate and unequivocal stipulation of the parties in the judgment, mentioned above, as controlling to eliminate such issues from the case.

A motion by the Borough of Closter to require the Authority to take certain steps at once in connection with the effectuation of the Northern Valley extension is denied without prejudice, the subject matter thereof being deemed more appropriately within the purview of the trial court rather than this one.

Judgment reversed, without costs.

      Generalized references hereinafter to “the act” or to “sections” of the act will be to sections of N. J. S. A. 40:36A.

      Whether not provided for at all in tlie original contract, or, if provided for, not activated in that year by virtue of the base charge terms.

      Note that a municipality contracting without provision for a base charge is forever exempt therefrom even though, were such a provision in its contract, it might become subject to its incidence in one or more later years because of such factors as diminished gallonage (perhaps because of weather) or increased cost of handling its sewage or for other pertinent reasons.


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

text:
    T. C. FOX & SONS, INC., PLAINTIFF-RESPONDENT, v. IDA LAMPERT, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ALTER LAMPERT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 13, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Bhennan, Je.

      Mr. Garl Ifiss'elman argued the cause for defendant-appellant (Mr. Harry Adler, attorney).

      Mr. Lynwood Lord argued the cause for plaintiff-respondent.
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

On this appeal tho sole question is whether Ida Lampert, individually, is liable for the value of the feed, amounting to $2,488.35, delivered to her during the two months following tho date of death of her husband.

Alter Lampert, a chicken farmer, purchased goods from the plaintiff on a hook account in his name from January, 1947, until his death on December 4, 1947. At the time of his death he owed the plaintiff approximately $5,778.37 on this hook account. After the death of decedent, the book account was continued for approximately two months in the name of “A. Lampert Estate” and additional net charges of approximately $2,488.35 were made to the hook account for feed delivered to Ida Lamport, wife of Alter Lampert and the executrix of his estate. TVhen the hook account w'as closed on February 9, 1948, the total balance due was $4,266.72.

The testimony was that at the time of Alter Lamport’s death ho had on his chicken farm a number of chickens, estimated at 7,500, which were four to five weeks old. Chickens must he at least 10 to 12 weeks old in order to be salable. About two days after Alter’s Lamport’s death Alfred C. Fox, a member of plaintiff’s firm, accompanied by plaintiff’s field man, Mr. Beck, went to the Lampert farm and talked to Ida Lampert “about the chickens that were there and what wo were going to do with them.” In the discussions which ensued, Ida Lampert agreed that she and her son Jack would continue to take care of the chickens and would raise them on the farm until salable, if the plaintiff furnished the necessary feed. The plaintiff refused to furnish the feed for the chickens unless Ida Lampert and her son Jack signed a note for $4,000. The $4.000 figure was arrived at by computing the maximum cost of the additional feed which the plaintiff would have to supply until the chickens reached a salable age. Ida Lampert and her son Jack signed a note for $4,000, payable in 60 days, and the plaintiff furnished $2,488.35 worth of feed until the chickens were sold. Tho agreement was that the note would be paid off from the proceeds of the sale of the chickens. When the chickens were eventually sold, the proceeds amounted to $4,286.70 and from the proceeds the note of $4,000 was paid and the balance of $286.70 was used to defray funeral expenses of the decedent. The plaintiff in crediting the $4,000 payment on the note signed by Ida Lampert and her son Jack applied the- payment to a reduction of the $5,778.37 owed by Alter Lampert on the book account at the time of his death.

The court below apparently found that the debt of $2,488.35 for feed delivered to Ida Lampert after the death of her husband was a debt contracted by her in the continuation of the business of her husband, that it was unpaid, and that she was personally liable therefor. Cf. Doolittle v. Willet, 57 N.J.L. 398 (E.& A. 1894).

The general rule is that an executor or administrator who continues the business of the decedent renders himself liable for all debts contracted in so doing. 6 Clapp, Wills and Administration, § 541 (1950), and cases cited. But this general rule is subject to the right of contract and the parties may, by their contract, change this general rule as to liability. Here, the parties specifically contracted as to the liability to be incurred. The plaintiff refused to deliver on credit the feed necessary to continue the business of the decedent; before it would deliver the feed, it required the defendant, individually, and her son to sign a note for $4,000. Plaintiff’s witness, Alfred C. Eox, testified that this note was demanded and accepted “for furnishing feed in the future.” The parties agreed that the note was to be paid from the proceeds of the sale of the chickens. It was clearly intended that payments on the note were to be applied first to the cost of the feed delivered after the death of the decedent and, if a surplus remained, then to the book account of the decedent. The plaintiff, by this arrangement, had the benefit of labor performed by the defendant and her son without expense to it; received payment in full for all deliveries made after Alter Lampert’s death; and, in addition, received a payment amounting to $1,582.82 in reduction of the $5,778.37 owed by decedent at the time of his death. If the plaintiff had given proper credit, there would be no debt owing for any deliveries made after Alter Lampert’s death.

We conclude that there was no debt owing to plaintiff contracted by the defendant Ida Lampert, either individually or as executrix, in the continuation of the business of her husband, which was unpaid.

Since it is conceded by the defendant Ida Lampert, as executrix of tlxe estate of Alter Lampert, that the balance due on the book account is a debt of the estate of Alter Lamport, the judgment of the court below is reversed and the cause is returned to the Law Division for entry of judgment in favor of defendant Ida Lampert, individually, and against the plaintiff, and in favor of the plaintiff and against the defendant Ida Lampert, executrix of the estate of Alter Lampert, for S4,266.72 and costs.


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

text:
    JAMES N. GREAVES AND RUTH M. GREAVES, HIS WIFE, PLAINTIFFS-APPELLANTS. v. GEORGE FOGEL, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided February 13, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Charles 8. Moore argued the cause for the appellants (Messrs. Moore, Butler McGee and John C. Shipley, attorneys) .

      Mr. Bertram M. Saxe argued the- cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment entered in the Chancery Division dismissing the plaintiffs’ complaint pursuant to opinion reported in Greaves v. Fogel, 9 N. J. Super. 301 (1950).

The plaintiff James N. Greaves is the adopted son of the decedent James Greaves. He was born in Pennsylvania in 1906, lived since infancy with the decedent and his wife who were domiciled in Pennsylvania, and was adopted by the decedent in 1920, after his wife’s death, by formal decree entered in the Common Pleas Court of Delaware County, Pennsylvania. Pursuant to this decree the plaintiff acquired, under the law of Pennsylvania, “the rights of a child and heir” of the decedent. In 1947 the decedent died intestate without children other than his adopted son. In 1948 the plaintiffs agreed to sell to the defendant certain real property located in New Jersey and owned by the decedent at the time of his death. Question was raised as to whether plaintiffs had title to the property under New Jersey law and they instituted action for specific performance. The Chancery Division dismissed their complaint on the sole ground that it felt constrained to follow the decision of Vice-Chancellor Church in Frey v. Nielson, 99) N. J. Eq. 135 (Ch. 1926), to tiie effect that a child adopted in a foreign state does not inherit New Jersey land upon the death of his adopting parent intestate.

In Dayton, v. Adkisson, 45 N. J. Eq. 603 (Ch. 1889), Vice-Chancellor Pitney dealt with the right of a child to inherit New Jersey land where it appeared that he had been born to Pennsylvania domiciliarles who later married and thereby legitimated his birth under the law of Pennsylvania. He recognized that the courts of England, with reliance upon the so-called statute of Merton, had denied such right under similar circumstances (Birtwhistle v. Vardill, 7 Cl. & Fin. 895 (H. of L. 1840)), but declined to accept their views, preferring those to the contrary expressed by Chief Justice Gray in the leading case of Ross v. Ross, 129 Mass. 243 (1880). Cf. In re, Bowdoin’s Estate, 87 N. J. Eq. 368, 369 (E. & A. 1917). He stressed the fact that many persons with lawfully adopted and legitimated children come to us from foreign states and lands and that it would be neither just nor desirable to deny their status insofar as inheritance of New Jersey lands in concerned. His conclusion that a child duly legitimated in a state having jurisdiction over his status may inherit land in other states was in accord with the weight of American authority, at least where such legitimation was not against the public policy of the state where the land was located. See 2 Beale, Conflict of Laws, p. 966 (1935). Admittedly, there is no policy in New Jersey against such legitimation ; on the contrary, our Legislature has expressly provided that, children born out of wedlock shall be legitimated by the intermarriage of their natural parents and entitled to all the rights and privileges of children born during wedlock. See B. 8. 9:15-1; R. S. 9:15-2. Of. The Legitimacy Act, adopted in England in 1926. 16 & 17 Geo. 5, c. 60, § 8.

In Frey v. Nielson, Vice-Chancellor Church declined to follow the implications of Dayton v. Adkisson and, relying upon the English authorities, held that a child adopted under the law of Hew York could not inherit land in the State of Hew Jersey’-. He cited Hood v. McGehee, 237 U. S. 611, 59 L. Ed. 1144 (1915), where the court held that Alabama being the "sole mistress of the devolution of Alabama land by descent” was not obliged under the full faith and credit clause of the United States Constitution to permit a child adopted in Louisiana to inherit Alabama land. See also Olmsted v. Olmsted, 216 U. s. 386, 54 L. Ed. 530 (1910). While this decision indicates that there is no constitutional compulsion upon a state to permit foreign adoptees to inherit local land, it in no wise curbs the power of each state to make its own determination on the basic question presented. Most American courts have determined that issue in favor of the foreign adoptee’s right to inherit local land, at least where there were local adoption statutes. See Ross v. Ross, supra; McLaughlin v. People, 403 Ill. 493, 87 N. E. 2d 637, 640 (1949); Beale, supra, p. 967; 1 Am. Jur. 668 (1936). Similarly, the Conflict of Laws Bestatement, § 143 (1934), provides that where the status of adoption is created by a state having jurisdiction it "will be given the same effect in another state as is given by the latter state to the status of adoption when created by its own law.” In this connection it may be noted that the provision in the Hew Jersey Adoption Act vesting an adopted child with the right to inherit upon the intestacy of his adopting parent, is similar to that of Pennsylvania. B. S. 9 :3-9.

In Re Finkenzeller’s Estate, 105 N. J. Eq. 44 (Prerog. 1929); affirmed, 107 N. J. Eq. 180 (E. & A. 1930), Vice-Ordinary Fielder questioned the authority of Frey v. Nielson and, although not called upon to deal with local real property, held that a child properly adopted in another state would be recognized as having “the same status as a lawful child so far as concerns the personal estate” of his adopting parent. In Dulfon v. Keasbey, 111 N. J. Eq. 223, 226 (Ch. 1932), Vice-Chancellor Backes indicated his approval of the Finlcenzeller case and the prevailing American view, as expressed in 1 Wharton, Conflict of Laws, p. 569 (3d ed. 1905), that a foreign adoptee "will be recognized both for the purpose of the descent of real, and the distribution of personal, property in other states or counties, at least in those whose laws provide for adoption.” See Fidelity Union Trust Co. v. Potter, 8 N. J. Super. 533, 538 (Ch. Div. 1950).

Prior to 1931 the pertinent New Jersey act regulated descent of real estate in the event of intestacy where there were two or more lawful children but made no express provision where there was one child. In P. L. 1931, c. 11 (B. S. 3 :3 — 2) this was corrected and the act now provides that where a person seized of real estate dies intestate leaving “one or more lawful children” then the real estate shall descend to the child or children. In the instant matter the respondent’s position must be that this act is to be construed to exclude children of domiciliarles of our neighboring states who were lawfully adopted or legitimated under the laws of those states. We find no basis either in the statutory language or in reason for such narrow construction. Cf. In re Peddie, 20 N. J. L. J. 279 (Orph. Ct. 1897). It would seem to us to represent a provincial point of view hardly consistent with proper relations between states and their broadening policies in favor of adoption and legitimation. We are satisfied that, under the the terms of our Descent Act and consistent with judicial determinations in most American jurisdictions, the plaintiff James N. Greaves, although adopted in Pennsylvania, was a lawful child entitled to inherit the decedent’s New Jersey land upon his intestacy. See Clapp, Wills and Administration, § 801 (1950).

The Chancery Division intimated agreement with the foregoing views but expressed the thought that it ought, nevertheless, follow Frey v. Nielson since it affected property rights and had not been expressly overruled during the past 25 years. We need not concern ourselves with the controversy as to when the policy supporting the doctrine of stare decisis is sufficiently weighty to justify the result that a socially undesirable determination of the court of last resort is to be perpetuated solely because of its antiquity. See Fox v. Snow, 6 N. J. 12, 14 (1950). Frey v. Nielson was a decision of the Court of Chancery and represented the views of a single Vice-Chancellor which were inconsistent with those expressed earlier by another Vice-Chancellor and were shortly thereafter .questioned by a Vice-Ordinary in an opinion approved by the Court of Errors and Appeals. Under the circumstances it was not entitled to the controlling weight which was given to it by .the Chancery Division without regard to its reasoning and merit and, since we have reached a contrary conclusion, it may be considered overruled.

The judgment is reversed.


author: Jaytste, J. A. I).

text:
    CLAUDE B. COPELAND AND HELEN C. COPELAND, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. ALMA O. CLAFLIN (NOW ALMA O. AHLRICHS), DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division,
    Argued February 12, 1951 —
    Decided February 21, 1951.

      Before Judges MoGtsbiian', Jayye and Wi. J. Beennaít, Je.

      Mr. Louis B. LeDuc argued the cause for appellant.

      Mr. J ames M. Davis, J r., argued the cause for respondent.
   The opinion of the court was delivered by

Jaytste, J. A. I).

It is expedient to summarize the factual events from which the present litigation originated.

One Wilbur A. Claflin, now deceased, was the owner of a tract of land of approximately 92 acres situate in Pemberton Township, Burlington County. He conceived the purpose of utilizing the land for the cultivation of blueberries as a commercial enterprise. In furtherance of his purpose he caused the organization■ of Billsmere Corporation, to which he and his wife, the defendant, on February 24, 1941, conveyed the tract of land. Claflin subscribed in the aggregate to 400 shares of the common stock of the corporation, of which 20 shares were issued to his wife, and Eichard A. Beyer and his wife, Caroline A. Beyer, acquired 23 shares and 22 shares respectively. Claflin was president; his wife, treasurer; Caroline Beyer, secretary, and her husband, vice-president of the company.

In 1941 the plaintiffs Claude B. Copeland and his wife, Helen C. Copeland, who was Claflin’s daughter by a former marriage, were afforded living quarters at the plantation and engaged to aid in the development of the enterprise.

The company was soon in need of funds and Copeland procured three successive loans from his father reaching, on or about June 1, 1942, the total sum of $1,750, which were admittedly received and expended by Claflin to defray the costs and expenses of the company.

In August of 1942 the Copelands resolved to terminate their employment and return to Massachusetts where they then contemplated the establishment of a blueberry plantation of their own. It was thereupon agreed between Mr. Claflin, Mr. Copeland, and with the acquiescence of the latter’s father, that in substitution of the obligation to repay the debt of $1,750 in money, there should be delivered to the plaintiffs 10,000 of the blueberry plants which had been placed in-the nursery that spring.

It is acknowledged that neither the indebtedness of $1,750 has been paid nor have the blueberry plants or any of them been delivered.

It is advantageous to exhibit here an excerpt from paragraph 28 of the answer of the defendant:

“28. Answering Paragraph 28, defendant admits a demand by complainants upon her for the delivery of the aforesaid 10,000 blueberry plants or of their money value but denies that she refused to deliver the same or that she made any response to the said demand.”

To resume the narrative of events, it is significant to relate that Mr. Claflin died on July 22,1943, leaving a will in which he devised.and bequeathed his entire estate to the defendant, and pursuant to the testator’s nomination the defendant as the sole executrix assumed the administration of the decedent’s estate. The defendant thereupon purchased the shares of capital stock in Billsmere Corporation held by Mr. and Mrs. Eeyer, and since the corporation had no creditors other than the plaintiffs, the defendant proceeded to dissolve it. In consideration of the surrender and cancellation of the stock certificates, the tract of land constituting the plantation of the company was conveyed by the trustees in dissolution to the defendant in December, 1944. The corporation was dissolved on May 26, 1944. Thus the defendant acquired all the estate of her husband and all of the assets of the corporation.

It is to be observed that the defendant was a trustee in the dissolution of the corporation and the sole legatee under the last will and testament of Wilbur Claflin, deceased. In the latter capacity she executed a refunding bond in the penal sum of $11,840.

The present action was instituted in the former Court of Chancery and the final hearing was conducted before the late Vice-Chancellor Woodruff, who died before the announcement of his decision. The transcript of the evidence and. the briefs were submitted by agreement of counsel to Judge Eogers of the Superior Court, who assumed the determination of the issues and authorized the entry of a judgment in the sum of $2,500 in favor of the plaintiffs and against the defendant which should be a lien "paramount and prior, both at law and in equity, to any rights of the defendant” in the tract of real estate to which we have referred.

It is sufficient to state that our examination of the factual issues (Rules 1:2-20 and 4:2-6) persuades us that the findings of fact by Judge Eogers are supported by the proofs.

The pressure of the argument of the appellant is noticeably applied to the contention that the bill of complaint did not allege, nor did the proofs sustain, a cause of action cognizable by the Court of Chancery. The supporting reason given is that there was an adequate remedy at law. "Sweetest Echo, sweetest nymph, that liv’st unseen within thy airy shell.”

We pause first io reflect upon the manner in which this cause of action was ultimately presented for consideration and determination.

Issue having been joined, the testimony was taken and the evidence introduced before the vice-chancellor. The cause remained undetermined at his death. The Court of Chancery was absorbed. Counsel then by agreement and for reasons of expediency transported the transcript of the evidence previously introduced in the Court of Chancery to the Superior Court having jurisdiction both at law and in equity, where they voluntarily submitted the cause of action for determination. At no stage of the proceedings did the defendant demand a trial by jury. See, however, in this particular, Richman v. Schwartz, 130 N. J. Eq. 495 (Ch. 1941); Weber v. L. G. Trucking Corp., 140 N. J. Eq. 96 (E. & A. 1947).

Counsel for the appellant in his oral argument before us frankly acknowledged that in the circumstances the judgment ought not be reversed merely because there was not a trial by jury. But it is evident that he now conjectures that it would be advantageous to the defendant to be afforded a jury trial, and hence the essence of the reason for the requested reversal of the judgment on the ground assigned is to enable the defendant to attain that opportunity by having the case returned to the Law Division instead of the Chancery Division of this court for a retrial.

However, whether viewed as a cause of action against the defendant for the breach of her fiduciary duty as trustee of the assets, of Billsmere Corporation in dissolution, R. S. 14:13 — 5; Keen v. Maple Shade Land & Imp. Co., 63 N. J. Eq. 321 (E. & A. 1901); Fox v. Radel Leather Mfg. Co., 121 N. J. Eq. 291 (E. & A. 1937); Matawan Bank v. Matawan Tile Co., 2 N. J. 116 (1949), or as one by a creditor against the defendant as the legatee of the decedent allegedly the debtor, Fidelity Union Trust Co. v. Carber, 121 N. J. Eq. 78 (Ch. 1936), obviously the plaintiffs on either basis pursued their equitable right as creditors to follow assets which had been distributed without providing for their debt and so'ught to establish an equitable liability. Restatement, Restitution, 650, § 161.

It is our conclusion that the cross-appeal should be dismissed and that the judgment for the plaintiffs should be affirmed.


author: Jayne, J. A. D.

text:
    NEW JERSEY ANNUAL CONFERENCE OF FIRST EPISCOPAL DISTRICT OF THE AFRICAN METHODIST EPISCOPAL CHURCH, THEODORE R. KELLY, ROBERT S. SMALLS. GERALDINE S. WEBSTER, ROBERT HALL, RUFUS ARMSTRONG, GEORGE D. JACKSON, JAMES HAMM, ALFRED P. WHITE AND JAMES W. SIMMS, MEMBERS, TRUSTEES AND TITULAR OWNERS OF THE MT. ZION AFRICAN METHODIST EPISCOPAL CHURCH OF PLAINFIELD, NEW JERSEY, PLAINTIFFS-RESPONDENTS, v. OVIE E. LATTIMORE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided February 13, 1951.

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

      Mr. Robert 8. Hartgrove argued the cause for the appellant.

      Mr. Joseph Steiner argued the cause for the respondents (Mr. David Silver, attorney).
   The opinion of the court was delivered by

Jayne, J. A. D.

Upon the theory that the order of the judge of the Chancery Division denying the defendant’s motion to strike the amended complaint filed by leave of court in this action involved the determination of a question of jurisdiction, the present appeal comes before us. Rule 4:2-2 (a) (3). Since the propriety of the prosecution of the appeal has not been a subject of debate, we express no opinion on that feature of the case. But see, Rossbach v. The Evening News Pub. Co., 3 N. J. Super. 143 (App. Div. 1949); Petersen v. Falzarano, 9 N. J. Super. 106 (App. Div. 1950); Behrman v. Egan, 9 N. J. Super. 171 (App. Div. 1950).

A few words will be informative of the sequence of events in the progress of this action. The litigation was inaugurated on May 13, 1949, in the Chancery Division of this court by the plaintiff, New Jersey Annual Conference of First Episcopal District of the African Methodist Episcopal Church primarily to enjoin the defendant from acting as pastor of the Mt. Zion Church of Plainfield, New Jersey, and to restrain him and all others from interfering with the pastor appointed by the bishop to serve that congregation. Compare, Mathis v. Holmes, 134 N. J. Eq. 186 (Ch. 1943).

On May 31, 1949, restraint was granted pendente lite. No appeal has been taken from that order. Buie 4:2-2 (a) (1). On July 22, 1949, the defendant was ordered to show cause why he should not vacate not only the church building, but also the adjoining parsonage. On August 26, 1949, an order issued commanding the defendant to relinquish his occupancy of the parsonage. On September 12, 1949, an order followed directing the defendant to show cause why he should not be adjudged in contempt for his disobedience of the order of August 26, 1949. On September 23, 1949, the defendant was adjudged guilty of civil contempt.

It was from the last-mentioned adjudication that the defeirdant prosecuted an appeal to this Division. On appeal it was resolved that “since no one asserting any property right, legal or equitable, was joined as party plaintiff or party petitioner, there was no one before the court who had any standing to question the use of this property (the parsonage) of the church; consequently, the court lacked jurisdiction to make the order of August 26, 1949.” 6 N. J. Super. 348, 352 (App. Div. 1950).

Thereafter, and obviously in consequence of the decision of the appellate tribunal, a motion was made in the trial division upon, due notice to the defendant for leave to add as eo-plaintiffs in the action certain persons represented to be trustees and members of the Mt. Zion Church, and to make the appropriate amendments to the original complaint. Vide, Everett v. First Presbyterian Church, 53 N. J. Eq. 500 (Ch. 1895); Skinner v. Holmes, 133 N. J. Eq. 593 (Ch. 1943); R. S. 16 :1 — 25.

The application was resisted and briefs submitted. On August 7, 1950, an order was filed directing that the designated persons “be admitted as co-plaintiffs, and as members and trustees of Mt. Zion African Methodist Episcopal Church of Plainfield with the present plaintiff and on the same set of pleadings now before the court and the present plaintiff shall have leave to file an amended complaint within 10 days; and that the intervenors be permitted to adopt all allegations of the complaint where applicable and pray for the same relief now asked for in the complaint.” Permission was accorded the defendant to respond by further pleading or otherwise to the complaint as amended.

The amended complaint was filed forthwith. No appeal was taken from the order of August 7, 1950, but on or about August 31, 1950, counsel for the defendant served notice that on September 6, 1950, he would “move for the dismissal of the amended complaint” for the following reasons:

“1. The said Amended Complaint is not verified.
■ 2. The original Complaint as filed herein is not annexed to the said Amended Complaint.
3. The said Amended Complaint seeks to set forth a new cause of action, in violation of Rule 3:15-3.
4. The said Amended Complaint seeks to present a valid cause of action before the Court where none existed under the original Complaint filed herein.
0. The non-joinder of proper parties plaintiff.
6. The said Amended Complaint does not set forth a cause of action, or, in the alternative.
7. To strike the 20th paragraph of the said Amended Complaint upon the ground that the same does not form a part of the original Complaint and can not be incorporated into the Amended Complaint by reference.”

The propriety of the order dismissing the defendant’s motion constitutes the subject matter of the present appeal.

We perceive nothing in the action of the court which is either offensive to the philosophy of our modern practice and procedure or harmful and prejudicial to the defendant.

Essentially, the admission of the additional parties and the appropriate consequential changes in the original complaint were, in effect, an augmentation to enable the court to grant, if warranted, some auxiliary injunctive relief appertaining to the same basic controversy.

The grounds of appeal, as presented to us by the argument and brief of counsel for the appellant appear to be hypothetically predicated upon the assumption that the original complaint failed to allege a cause of action within the jurisdiction of the court. That postulate is not before us for review. We incidentally note that the defendant has filed an answer to the original complaint. The cause of action alleged in the original complaint with issue joined therefore awaits trial.

No application for more expansive restraint embracing the use of the parsonage appears to have been made under the amended complaint. For many years past a bill of complaint in the former Court of Chancery was not required to be verified unless the complainant desired some ex parte relief under it. In re Ungaro’s Will, 88 N. J. Eq. 25 (Ch. 1917). So today, Rule 3:11.

We are not aware of any existing rule that an amendment which merely amplifies the structure of the original complaint must of necessity have attached to it a verification of its supplementary allegations. New parties may be brought into the litigation. Rule 3 :21. The court is empowered to allow amendments which allege “a new or different claim or defense in the pleading.” Rule 3 :15~3. The contention that upon filing the amended complaint, it must under our modern practice have annexed to it a copy of the original complaint is frivolous.

The conspicuously predominant objective of our new rules of practice is to diminish the traditional formularies of the common law technology of procedure in the more expeditious and complete determination of the rights of litigants in the controversy considered in its entirety in the one action unless in so doing the substantial rights of the parties are jeopardized and the administration of justice rendered impracticable.

The present appeal is dismissed.