author: Patrick J. McGann, Jr., J. S. C.

text:
    IN THE MATTER OF NEIL LUCAS, FUGITIVE FROM THE STATE OF NEVADA.
    Superior Court of New Jersey Law Division (Criminal)
    Decided May 12, 1975.

      Mr. Michael B. Schottland argued the cause for Neil Lucas (Messrs. Chamlin, Schottland and Rosen, attorneys).

      Mr. Robert S. Raymar argued the cause on behalf of Honorable Brendan T. Byrne, Governor of the State of New Jersey (Mr. Lewis B. Kaden, Special Counsel to the Governor, attorney).

      Mr. Marc J. Friedman, Deputy Attorney General argued the cause for the Attorney General of New Jersey appearing amicus curiae (William J. Hyland, attorney).

      Mr. Donald W. Peppler, Jr., Assistant Prosecutor of Monmouth County argued the cause for the Prosecutor of Monmouth County appearing amicus curiae (James M. Coleman, Jr., attorney).
   Patrick J. McGann, Jr., J. S. C.

This is an extradition matter. In it an appeal has been taken from an order of this court dated May 29, 1975, based on an oral determination made May 12, 1975. This opinion is filed pursuant to R. 2:5-1(b). The precise issue is not easily stated without a review of the procedural history of the matter.

On March 6, 1973 a warrant of arrest was issued in the State of Nevada for Neil J. Lucas, a/k/a Dr. Julius B. Hoffman, a/k/a Dr. Antonio R. Luciano, a/k/a Carl Del Ventiselti. He was charged with two counts of obtaining money under false pretenses, in violation of Nevada law. The offenses allegedly had occurred on November 24 and November 27, 1972. The warrant and complaint were forwarded to the Monmouth County Prosecutor’s Office by the Sheriff of Clark County, Nevada, on April 30, 1973, and received May 4, 1973. Lucas was arrested on May 8, 1973. N. J. S. A. 2A:160-21.

The Grand Jury of Monmouth County had previously, on February 6, 1973, returned Indictment No. 584-72 against Lucas, charging him with three counts of obtaining money under false pretenses, in violation of New Jersey law based on incidents occurring October 11, November 3 and November 16, 1972. On those charges he had, through counsel, entered a not guilty plea by mail on April 27, 1973. He was represented then and throughout all proceedings to the present by the same firm of attorneys. Under Indictment No. 584-72 defendant actively pursued all pretrial procedures and remedies, including discovery applications and a motion to suppress evidence.

His arrest, on May 8, 1973, was a technical one since he had arranged through counsel to appear before the court. He indicated then that he would oppose any extradition to Nevada and simultaneously moved before the assignment judge that bail be set. It was in the amount of $10,000. Bail was posted. N. J. S. A. 2A:160-23 and 24.

Thereafter, on May 21, 1973 the Governor of Nevada issued his requisition warrant N. J. S. A. 2A:160-11. It was duly received and processed, and on May 31, 1973 Governor Cahill issued his arrest and rendition warrant (N. J. S. A. 2A:160-15 and 16) and forwarded it to the Monmouth County Prosecutor. At that point defendant was aware that formal extradition had been initiated; the State-was aware that he intended to contest it; defendant was free on bail. Although defendant did not formally apply for a writ of habeas corpus to test the validity of the extradition, the assignment judge nevertheless entered an order fixing a hearing date for August 7, 1973. That date passed without a hearing and neither defendant nor the State took any affirmative action to bring the extradition hearing on, although the prosecutor, on August 20, 1973, wrote to defense counsel noting the lack of a hearing on August 7. At that point the fact that both sides tacitly agreed to allow the extradition matter to be quiescent was understandable since both were girding for the upcoming trial on the New Jersey charges. That trial took place from October 1 through 3, 1973. Lucas was found guilty and sentenced on October 26, 1973 to the Youth Correctional Institution Complex. He was paroled on September 6, 1974.

The extradition hearing which had been held in abeyance was conducted by this court on November 1, 14, 15 and 25, 1974. On November 26, 1974 an order was entered directing that Lucas be turned over to the custody of the proper Nevada authorities and returned forthwith to Nevada. Defendant promptly applied for continuation of his release on bail pending bis appeal of that rendition order. This court denied the bail application. Lucas surrendered to the custody of the Sheriff of Monmouth County as directed by this court, pending the outcome of his appeal. Bail was denied based on the determination that there was no provision in the law for the same; that the Uniform Extradition Act and the interstate rendition clause of U. S. Const., Art. IV, § 2, par. 2, required immediate surrender to the demanding state; that if bail were to be set it should be done by the courts of Nevada — the state whose laws defendant had allegedly offended. In re DeGina, 94 N. J. Super. 267 (App. Div. 1967).

Lucas filed his notice of appeal with the Appellate Division and sought from that court the setting of bail pending his appeal. His motion was denied. He moved for the setting of bail before our Supreme Court. His motion was denied. He then petitioned for writ of habeas corpus to the United States District Court for the District of New Jersey. That application was denied on February 28, 1975, together with his motion for bail.

Curiously enough, concomitant with the appellate relief he sought on bail pending review of the rendition order, Lucas’ counsel was in contact with Governor Byrne’s office and furnished the Governor’s special counsel with copies of all appellate briefs and proceedings.

Governor Byrne apparently determined that he would set bail. His special counsel spoke with the Monmouth County Prosecutor’s Office, and communicated that intent. The prosecutor voiced opposition to that procedure, but faced with the executive determination agreed that $20,000 would be an adequate amount of bail security. The document (a copy of which is appended hereto as Exhibit J-1) then was signed by the Governor and Secretary of State and delivered to Lucas’ counsel. He, in turn, presented it to the county clerk and demanded that Lucas be allowed to post the bail. The clerk sought judicial instruction from the court. The matter was listed for hearing as to the efficacy of the “Amended Arrest Warrant”; the participation of Governor’s special counsel was solicited, and the county prosecutor and the Attorney General were asked to appear amicus curiae.

Three related questions are involved:

1. Does the Chief Executive, in issuing an arrest warrant, have the right to provide therein that when the accused is arrested he shall be immediately bailed on terms set by the Chief Executive?

2. After an arrest warrant in the usual form has been issued by the Chief Executive may he, after the arrest of the accused, exercise a bail-setting determination?

3. May a successor Governor to the one originally issuing the arrest warrant, after the execution of the warrant, act to “amend” the original warrant and set bail — after the bail application has been denied by the Supreme Court of this State?

There is no right to bail pending appeal of an extradition proceeding

At the outset it should be noted that the authority for extradition is our Federal Constitution. U. S. Const., Art. IV, § 2, cl. 2. See State v. Phillips, 62 N. J. Super. 70 (App. Div. 1960); In re Cohen, 23 N. J. Super. 209 (App. Div. 1952).

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime. [U. S. Const., Art. IV, § 2, cl. 2]

The constitutional mandate imposes “an absolute obligation on each state to surrender criminals fleeing from the justice of another state”. In re Peter Voorhees, 32 N. J. L. 141, 145 (Sup. Ct. 1867), cited with approval in In re Thompson, 85 N. J. Eq. 221, 227 (Ch. 1915).

Implementation for the constitutional mandate is found in N. J. S. 2A:160-1 et seq. There it is stated that “it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state * * * any person charged in that state with treason, felony or other crime * * N. J. S. A. 2A:160-10.

The Uniform Criminal Extradition Act, adopted in New Jersey in 1936, authorizes the defendant’s release on bail until such time as a warrant of arrest is issued by the Governor. N. J. S. A. 2A :160-24:

* * A judge or magistrate in this state may admit the person arrested to bail by bond or undertaking, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond or undertaking, and for his surrender, to be arrested upon the warrant of the governor of this state.

There is no further provision in the Extradition Act which authorizes bail for a person under process for extradition.

The leading New Jersey case on the subject is In re Thompson, 85 N. J. Eq. 221 (Ch. 1915). As stated therein by Chancellor Walker (at 264), “there is no statute of this state authorizing a person charged with crime in another state, and arrested on our governor’s warrant of extradition, to be admitted to bail here.”

No right to bail exists at common law in favor of a person taken up on an extradition warrant, for extradition is not a proceeding aecoi'ding to the course of the common law * * *. In other words, there is no such thing as a common law right of bail in favor of persons taken up on extradition warrants. [Id at 264]

The policy reason for the denial of post-warrant bail in extradition proceedings was set forth by the United States Supreme Court in Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 L. Ed. 948.

The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international demand; and the regaining of the custody of the accused obviously would be surrounded with serious embarrassment. [190 U. S. 62, 23 S. Ct. 786, 47 L. Ed. 955]

This position that a defendant is not entitled to bail after issuance of the warrant is supported by State v. Second Judicial District Court, County of Washoe, 86 Nev. 531, 471 P. 2d 224 (Sup. Ct. 1970). There a fugitive was being held under a warrant of the governor for a crime punishable by death or life imprisonment under the laws of the demanding state, California. The accused exercised his right to test the legality of his arrest and additionally filed a petition for admission to bail. Bail was granted and the State appealed, claiming that the court had exceeded its jurisdiction in entering the bail order.

The Supreme Court of Nevada, noting that its State had adopted the Uniform Criminal Extradition Act, observed that the act provided for admission to bail in all cases, unless the offense charged was punishable by death or life imprisonment, “pending the issuance of the governor’s warrant for the fugitive’s arrest.” Id. at 225. Like the New Jersey act, the Nevada act made no provision for bail after the governor had issued his warrant. In vacating the order admitting the accused to bail, the Supreme Court of Nevada noted that

* * * The Uniform Criminal Extradition Act sets forth tbe conditions when a fugitive may be admitted to bail during extradition proceedings, it covers only the period from the fugitive’s arrest to the issuance of the governor’s warrant, and not the period thereafter, [at 225]

In considering the right to bail under the Uniform Criminal Extradition Act, the Supreme Court of Iowa reached the same result as that reached by the Supreme Court of Nevada in State v. Second Judicial District Court, County of Washoe, supra. In Allen v. Wild, 249 Iowa 255, 86 N. W. 2d 839 (1957), the accused petitioned for a writ of habeas corpus to test the legality of his arrest. His petition was subsequently dismissed and he was released on bail pending appeal. The issue before the court was “whether the district court was empowered to order that, pending determination of an appeal therefrom its judgment annulling the writ of habeas corpus be superseded and Mack released from custody upon his furnishing a supersedeas bond.”

The court indicated that the portion of the Constitution of Iowa requiring bail was not repugnant to the disallowance of bail pending appeal from a denial of a writ of habeas corpus reviewing the legality of a governor’s arrest warrant; that the state constitutional guarantee of bail applied only to oifenses against the State of Iowa and did not apply to defendants who were being held pursuant to the Extradition Act. The court then recognized that the section of the Uniform Extradition Act which permits admission to bail applies “only while the person is being held to await requisition and before the warrant for his arrest is issued by the Governor.” Id. at 842. The court was of the belief that the act contained no provision for bail after the arrest upon such a warrant and that “it may be fairly inferred the omission of such provision was intentional.” Id. It was recognized by the Supreme Court of Iowa that the weight of authority clearly supported the view that there is no power to grant bail under such circumstances. Most of the cases cited by the court for this proposition arose out of states that had similar constitutional and statutory provisions to Iowa. Included among the cases cited was In re Thompson, supra.

A similar result obtained in Walden v. Mosley, 312 F. Supp. 855 (N. D. Miss. 1970). There petitioner raised the issue of whether he was entitled to bail pending the determination of a habeas corpus proceeding challenging his extradition. The federal district court noted (at 860) that “the eases have often held that such provisions [for bail] are inapplicable to extradition proceedings.” The court recognized that in those few reported cases where a petitioner had been admitted to bail pending a habeas corpus hearing on extradition, it had almost uniformly been before the governor of the asylum state had issued his warrant of rendition. Because the governor of Mississippi had issued such a warrant, the court found that (at 860) petitioner’s admission to bail would be improper.

Other cases supporting this position are listed and described in the annotation at 56 A. L. R. 2d 668, 676. It appears from these eases that there is a general rule denying bail pending habeas corpus review after the warrant has issued from the governor. See In re Amundson, 74 N. D. 83, 19 N. W. 2d 918 (Sup. Ct. 1945); State ex rel. Stringer v. Quigg, 91 Fla. 197, 107 So. 409 (Sup. Ct. 1926); Ex parte Grabel, 248 S. W. 2d 343 (Ky. Ct. App. 1952); Grano v. State, 257 A. 2d 768 (Del. Super. Ct. 1969); Buchanan v. State, 166 So. 2d 596 (Fla. Ct. App. 1964). Little authority can be found for the proposition that the court has the power to grant bail after the warrant has issued. The denial of bail in this situation is not violative of any state constitution because the accused is not being held for violation of the law of the holding state. But his federal and state constitutional right to bail will be afforded to him upon his reaching the requesting state. Policy considerations, supported by legal precedents, require that once a warrant issues, the accused cannot be admitted to bail by the state of his arrest.

The Governor’s Powers in Connection with Extradition Matters are Narrowly Limited.

The courts of this State have uniformly held that one of the purposes of the provisions of the Federal Constitution was “to impose an absolute obligation on each state to surrender criminals fleeing from the justice of another state”, and that if the demand be made in due form and the requisite documents exhibited showing that the fugitive is charged with crime, the duty to surrender becomes merely a ministerial one. In re Cohen, 23 N. J. Super. 209 (App. Div. 1952), citing In re Voorhees, supra, 32 N. J. L. at 145, 146 (Sup. Ct. 1867); In re Thompson, supra; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544 (1885).

When considering the matter, the Governor need only find that the accused is the party named in the requisition and that he is a fugitive from justice. State v. Phillips, 62 N. J. Super. 70 (App. Div. 1960), citing Passalaqua v. Biehler, 46 N. J. Super. 63, 67 (App. Div. 1957).. In determining whether he is a fugitive from justice there-need be a finding that “in substance a crime is alleged [citation omitted], and that the accused having committed said crime has 'fled’ from the 'demanding’ jurisdiction.” Id. at 75. It must also appear that the accused was present in the demanding state at the time the crime was committed. Id.

Upon finding the foregoing conditions to exist, the Governor issues the executive warrant. At that time the accused is entitled to test the legality of his arrest. N. J. S. A. 2A :160-18.

The only discretion held by the Governor in these matters is in his determination of “whether a case contemplated by the Constitution and the laws of the United States has been presented for his action.” In re Cohen, supra, 23 N. J. Super, at 215. If he should decide that no such crime is charged, there can be no interference with this exercise of discretion. Id., citing 22 Am. Jur. Extradition, § 34 at 272, 273. There is no way to compel the Governor to issue his warrant should be refuse to do so. In re Cohen, supra.

In the present case Governor Cahill met the threshold questions and determined that a proper case had been presented for his action. This is evidenced by his having signed the warrant in question. Once a Governor has reached this decision, his function is merely ministerial and he is required to proceed pursuant to the Extradition Act. The act requires that the warrant be issued and does not permit qualifications or conditions to be placed upon the issuance.

Even where the Governor has reservations regarding the fate of defendant after the issuance of the warrant, he is not authorized to refuse the issuance. In re Paramore, 95 N. J. Eq. 386 (Ch. 1924). In that case the Governor conducted a hearing and indicated that he feared the prisoner would be lynched were he to be returned to the State of Georgia. The court said:

In granting the extradition, the Governor very properly concluded that the fear and apprehension of the prisoner that he would be lynched could not be lawfully entertained by him as a justification for refusing the request of the Governor of Georgia, [at 388]

It was held that the United States Constitution and the federal statute “made it obligatory upon him [the Governor] to honor the requisition.” Id. at 388, citing In re Thompson, supra.

The Governor has no Power to Grant Bail

Our Constitution divides the powers of government among three distinct branches, the legislative, executive and judicial. N. J. Const. (1947), Art. III, par. 1. The executive power is specifically vested in the Governor by Art. V, §I, par. 1, and the judicial power is vested in the Supreme Court, Superior Court, County Courts and inferior courts of limited jurisdiction by Art. VI, §I, par. 1. The Supreme Court is specifically empowered to “make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” Art. VI, § II, par. 3.

Rule 1 :1-2 of our court rules states that the court rules, inclusively, shall be “construed to secure a just- determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

The authority to admit a defendant to bail is specifically vested in judges of the Superior Court or the County Courts in the county in which an offense was committed or an arrest made. R. 3:26-2. No authority can be found which gives the Governor the power to admit a defendant to bail. Such a course of action is inconsistent with the separation of powers of Article III of the Constitution of 1947.

That conclusion is confirmed by a fair reading of the Uniform Criminal Extradition Act N. J. S. A. 2A:160-6 et seq. It is patent that any references to the setting of bail therein are in the traditional sense, viz., that admission to bail is a judicial function. See, for example, N. J. S. A. 2A:160-24. It is equally clear that the act contains no provision granting bail powers to the Executive. 8 Am. Jur. 2d, Bail § 9 at 788.

Conceding this, Governor’s counsel points to N. J. S. A. 2A:160-29 as granting sufficient latitude to the actions of the Chief Executive so that bail-granting power may be inferred therefrom. That section states that “The governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.”

The dearth of annotations under that section may indicate that its brief and easily understood language has not required judicial explanation in the past. Be that as it may, the interpretation sought here by the Executive would result in a torturing of the legislative language beyond all common sense of it. This court will not do so.

For the foregoing reasons I determine that a Governor has no power to allow bail when issuing his arrest warrant under the Uniform Criminal Extradition Act. A fortiori, a successor Governor has no power to amend a fully executed arrest warrant issued by his predecessor for the purpose of setting bail.

Exhibit J-l

STATE OF NEW JERSEY

EXECUTIVE DEPARTMENT

THE GOVERNOR OF THE STATE OF NEW JERSEY, TO THE SHERIFF AND WARDEN OF THE COUNTY OF MONMOUTH AND ANY OTHER PEACE OFFICERS OF AND IN THE SEVERAL COUNTIES, CITIES AND MUNICIPALITIES IN AND OF THIS STATE, GREETING:

WHEREAS, the Honorable Governor William Cahill did on the 31st day of May, 1973, issue a Warrant for the arrest of one Neil J. Lucas, a/k/a Dr. Julius B. Hoffman, a/k/a Dr. Antonio R. Luciano, a/k/a Carl Del Ventisetti, being one and the same person and pursuant thereto, that person was taken into custody by representatives of law enforcement agencies of the State of New Jersey and the said person, being one and the same person as Neil J. Lucas, and it appearing that that person is presently incarcerated in the Monmouth County Correction Institution, Freehold, New Jersey, under the care, custody and control of the Sheriff of Monmouth County and the Warden of said correction institution;

And it further appearing that an appeal is presently pending in the Superior Court of New Jersey, Appellate Division, bearing Docket No. A-910-74;

And it further appearing that on January 8, 1975, the Superior Court, Appellate Division, granted to said Neil J. Lucas a stay of his extradition to the State of Nevada;

It is therefore OEDEEED on this seventh day of May, 1975, that the warrant of May 31, 1973 be and is hereby amended to provide that Neil J. Lucas be immediately released from incarceration at the Monmouth County Correction Institution; that upon his release he remain within the jurisdiction of the State of New Jersey and that he shall upon the lifting of the stay issued by the Superior Court, Appellate Division, present himself to such appropriate authority as I designate for extradition to the State of Nevada. This Order providing for the release of said Neil J. Lucas, shall not go into effect unless and until the said Neil J. Lucas has signed a personal recognizance in the amount of $20,000.00, which amount was found to be satisfactory by the Prosecutor of Monmouth County to secure his presence to answer the further Order of the Governor to be further guaranteed by the execution of a personal and property recognizance by his parents, John T. Lucas and Althea Lucas, in accordance with the practice and procedure of the Court Clerk’s Office of the County of Monmouth.

IN TESTIMONY WHEEEOE, I have hereunto set my hand and caused the Great Seal of the State to be affixed at Trenton, this seventh day of May in the [SEAL] year of our Lord one thousand

nine hundred and seventy-five. By the Governor:

/s/ Brendan T. Byrne, Governor /s/ J. Edward Crabiel,

Secretary of State

       As will appear, infra, his bail at this point should have been revoked. He was no longer entitled to it. N. J. S. A. 2A:160-24.

        See Artukovic v. Boyle, 107 F. Supp. 11 (D. C. Cal. 1952), rev’d on other grounds, 211 F. 2d 565 (9 Cir. 1952), cert. den. 348 U. S. 818, 75 S. Ct. 28, 99 L. Ed. 645, reh. den. 348 U. S. 889, 75 S. Ct. 202, 99 L. Ed. 698 (1954); and Ruther v. Sweeney, Ohio App., 137 N. E. 2d 292 (App. Ct. 1956).

         Cf. 8 C. J. S., Bail, §40 at 112, wherein it is stated that power to allow and fix hail is not incident to a governor’s power to reprieve.


source: Caselaw Access Project

author: Dowden, J. C. C.

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF JERRY J. KOVALYSHYN, DECEASED.
    Hudson County Court Probate Division
    June 26, 1975.

      Mr. Norman H. Roth for plaintiff (Messrs. Davis, Roth & Beck, attorneys).

      Mr. William E. Andersen for defendant (Jesse Moskowitz, attorney).
   Dowden, J. C. C.

This matter concerns the disputed ownership of certain funds and their availability, for use to satisfy debts of an otherwise insolvent decedent’s estate.

Decedent died owning certain shares of a mutual fund, more specifically identified as Certificate No. 458740, National Investors Corporation (hereinafter “the Fund”), title to which is now contested by Marie Kuhn Kovalyshyn as executrix of decedent’s estate and by her individually because of her status as the residuary beneficiary under the terms of decedent’s last will and testament. The dispute arises because title to the property is claimed by Jaroslav B. Kovalyshyn who was named sole beneficiary of a certain inter vivos trust created by decedent upon the occasion of his having commenced his investment program in February 1962. The trust corpus represents the value of those accumulated fund shares.

The decedent’s other assets are insufficient to satisfy the debts resulting from his final illness and expenses incident to his burial aud the conclusion of his worldly affairs. However, the date-of-death value of these mutual fund shares is sufficient to satisfy all such obligations and yet leave a balance for payment to its rightful owner, subject to the payment of New Jersey inheritance taxes. The beneficiary of the inter vivos trust asserts ownership to the exclusion of the creditors’ claims while acknowledging his state tax obliga-iion. The residuary beneficiary under decedent’s probated will also claims title to these proceeds, subject to satisfaction of all estate debts, obligations and inheritance taxes.

The pertinent terms of the declaration of trust and decedent’s will must be outlined prior to focusing upon the legal issues. Tn February 1962 Kovalyshyn agreed to make monthly payments of $100 to Investors Planning Corporation of America (I. P. C.), which amount, after certain agreed deductions, was to be used to purchase capital stock in the National Investors Corporation (the Fund). In short, the investor was buying shares in a mutual fund. He also made a written declaration of trust concerning those fund shares and all accumulations thereto, whereby he acknowledged that he held such shares and accumulations for certain “uses and purposes” and subject to specified “conditions and limitations.” The investor settlor agreed to hold the trust estate for the use and benefit of his son Jaroslav B. Kovalyshyn, of the Ukraine in the Soviet Union. The conditions and limitations of this trust included a reservation of the unilateral power to change beneficiaries during the settlor’s lifetime, by elimination, substitution or addition. Further, the trust provided for the settlor to receive income and distributions of such fund shares during his lifetime and for the continued investment of same. The agreement terminated upon the death of the investor and distribution was to be made to the named beneficiary. It was specifically stated that the “only interests of any” beneficiary shall be such as expressly conferred and which interests occur upon the death of the settlor.

Finally, the trust agreement states that the custodian of those funds shall regard the settlor as the sole owner of the trust estate until the custodian receives notice of the set-tlor’s death. At that time the named beneficiary shall be regarded as the sole owner, and the custodian is absolved of any liability for the post-death payments to one other than the beneficiary, absent a written notice of the settlor’s death. The procedure for changing beneficiaries is set forth in paragraph (4).

The probated will named Marie Kuhn Kovalyshyn as the residuary beneficiary of all assets after payments of all just debts and estate expenses.

This factual episode presents several legal questions: Considering the terms and conditions of the declaration of trust, was a valid inter vivos trust created? Can a settlor change the beneficiary of this trust agreement by a method other than that provided under the terms of that agreement? If a settlor of such a trust dies insolvent, may these .trust proceeds be applied to the satisfaction of the settlor-decedent’s just debts and estate administration expenses?

The courts of New Jersey have not yet examined a trust instrument such as this in order to determine whether it creates a valid inter vivos trust. This mutual fund alone has 3,800 such standard declarations of trust currently operative in New Jersey. Further, it is reasonable to say that this trust agreement is representative of such agreements utilized by the mutual fund industry in this State. Absent judicial guidance from New Jersey courts, resort to judicial expressions from the courts of sister states and treatise evaluations is necessary and appropriate.

Professor Scott sets the tone when he indicates in his recognized treatise that a trust is a flexible device utilized for the disposition of property. It is unique to our system. The purposes for which trusts may be created are unlimited; there are no technical rules restricting the creations of trusts. 1 Scott on Trusts (3 ed. 1967), § 1 at 3 et seq. This child of equity has grown and evolved through judicial decisions and has been codified in several states. Hence the trust has been used in family and other fiduciary relationships, such as with infants, the senile, the mental incompetent and the spendthrift.

The elasticity and adaptability of the trust instrument is most valuable and desirable, having proven its worth through the test of time and its continuing acceptability in the ongoing evolution of this country’s political and economic climate. We have had charitable trusts, insurance trusts and business trusts, and now we have the latest device, the mutual fund inter vivos trust. Inter vivos trusts have involved real and personal property alike.

An express trust is based upon the manifested intent of the settlor; a resulting trust is based upon the presumed or inferred intent of the settlor; a constructive trust is created by court action in order to work out justice without regard to the intent of the parties. The instrument is the outward manifestation of the settlor’s intention to create the trust for the benefit of the named beneficiary; to impose upon himself or another as trustee, equitable duties to deal with the property for the benefit of another person. 1 Scott op. cit., § 23 at 190. The retention of the power to invade, to control or to revoke the trust does not invalidate an inter vivos trust once it has properly been created. Dor all its adaptability, however, the inter vivos trust may not be a substitute for testamentary disposition which takes effect only upon the death of the testator unless the prescribed formalities set forth in the New Jersey Statute on Wills are followed.

Mutual fund inter vivos trusts have been the subject of judicial review in several states. While each case deals with a particular trust instrument, it appears that the following cases reveal sufficient factual statements as to the retained powers, etc., of the settlor to indicate how other courts have dealt with instruments strikingly similar to the one under review here: Farkas v. Williams, 5 Ill. 2d 417, 123 N. E. 2d 600 (Sup. Ct. 1955); Ridge v. Bright, 244 N. C. 345, 93 S. E. 2d 607 (Sup. Ct. 1956); Investors Stock Fund, Inc. v. Roberts, 179 F. Supp. 185 (D. C. Mont. 1959), aff’d sub. nom. Roberts v. Roberts, 286 F. 2d. 647 (9 Cir. 1961). See also, United B. & L. Ass’n v. Garrett, 64 F. Supp. 460 (D. C. Ark. 1946).

In essence, these cases reviewed and evaluated each of the powers reserved by the settlor and determined that the retention of some or all of the powers did not prevent the creation of a valid inter vivos trust or indicate an intention to the contrary. The views of the highest courts of these states is consistent with the view of 1 Scott, op. cit., §§ 56 to 57.2, and Bogert, Trusts and Trustees (2 ed. 1965), § 103-104. In New Jersey our courts have reviewed each of these powers and ruled that the existence of any or all of them in an int&r vivos trust instrument does not invalidate it. However, New Jersey has never reviewed these powers as they appear collectively in this mutual fund. In this case the court deals with an instrument designed to be an express inter vivos trust whereby the settlor intended to create a present beneficial interest in favor of the named beneficiary while postponing his enjoyment thereof until the settlor’s death. Further, the settlor manifested his intention clearly, specifically and unequivocally. In light of the past expression of New Jersey courts concerning the legal concept of valid inter vivos trusts and their potential includable powers and limitations, I find that this instrument is consistent therewith and valid. See Wolf v. Wolf, 136 N. J. Eq. 403 (E. & A. 1945); Nat’l Newark & Essex Banking Corp. v. Rosahl, 97 N. J. Eq. 74 (Ch. 1925); Bassin v. Enoch-Pearl Co., 140 N. J. Eq. 428 (E. & A. 1917); Savings, Investment & Trust Co. v. Little, 135 N. J. Eq. 546 (Ch. 1944).

The second question to be resolved is whether decedent effectuated a valid change of beneficiary of the inter vivos trust by the subsequent execution of his probated will. It is undisputed that the settlor had named his son as beneficiary when he executed the declaration of trust and never advised the custodian bank of any change during his lifetime. Plaintiff claims title to these proceeds, asserting that the deceased made her the beneficiary when he executed his will. Plaintiff contends that the settlor relied upon the advice of his lawyer, now deceased, who assured him that a valid change of beneficiary could be made by the execution of a will.

The declaration of trust sets forth this procedure:

The power to change beneficiaries as provided in Article (1) may be exercised from time to time during my lifetime, in my sole and uncontrolled discretion without the consent of any beneficiary, which change or changes shall be effected by an instrument in writing signed by me and delivered to The Bank.

The question to be resolved is whether the deceased’s will qualifies as an appropriate written instrument required by the declaration of trust. An examination of the case law indicates that a will is not the proper instrument to revoke or modify a trust when the power to do so is an inter vivos power. In In re Henning’s Estate, 116 N. J. Super. 491 (Ch. Div. 1971), it was asserted that the settlor had revoked the trust by her will. The trust agreement contained the following:

The settlor hereby reserves the right to terminate this trust or to modify or amend it at any time or from time to time, by an instrument in writing delivered to the said Trustee during the settlor’s lifetime. [at 494]

The court emphasized that the deed of trust specified that any changes must be made during the settlor’s lifetime.

The will could not, in the absence of language to the contrary in the deed of trust, be such an instrument in writing because it did not have any legal efficacy until after the death of the testatrix, [at 495]

Restatement, Trusts 2d, § 330, comment (j), is also relevant:

If the settlor reserves a power to revoke the trust only in a particular manner or under particular circumstances, he can revoke the trust only in that manner or under those circumstances.
If the settlor reserves a power to revoke the trust by a transaction inter vivos, as for example, by a notice to the trustee, he cannot revoke the trust by his will, [at 139]

A similar statement is made in § 331 of the Restatement, comment (d) at 144, regarding modification of a trust. Bogert, op. cit., § 993 at 432, also addresses this problem: “If the method of exercising the power of modification is described in the trust instrument, such a provision will control. * * * Notice of amendment to the trustee should be a requirement. * * *”

In Mayer v. Tucker, 102 N. J. Eq. 524 (E. & A. 1928), the husband of the settlor argued that the words “my estate” included a trust over which the settlor had retained a power of revocation. The court found insufficient evidence in the will or extrinsic evidence that the settlor had intended that her will accomplish the alleged result.

It was also held that the will could not revoke the deed of trust since the right of revocation had to be exercised during the life of the settlor. The will referred to “my estate” and the trust deed provided that the settlor “reserves the right and power to revoke the trust hereby created.” (At 525-526). The court also held that the words “my estate” did not have any latent ambiguity which would justify the reception of extrinsic evidence.

In another case, Clark v. Freeman, 121 N. J. Eq. 35 (Ch. 1936), it was held that where a husband and wife held a joint power of revocation and the husband renounced his power, the wife could not exercise the power alone. “The power can be exercised only in the manner specified and by the persons to whom the power is given or the attempted revocation is void.” (At 36; emphasis supplied).

Plaintiff relies on Bauer v. Crummy, 56 N. J. 400 (1970), to support her position that a will can revoke or modify a trust. That case involved a joint bank account which a woman and her son had opened strictly for her convenience. Although the form they signed provided for survivorship, the Supreme Court allowed a disposition by will of the account to others not including the son. However, the will specifically referred to the joint bank account, and the court also stated that it would allow a testamentary disposition “if he is its sole owner, * * * by an explicit provision of his last will and testament, * * *” (At 413; emphasis supplied). See also, In re Slein’s Will, 42 Misc. 2d 787, 249 N. Y. S. 2d 223 (Surr. Ct. 1964), where an attempted testamentary change of beneficiaries of a trust of the same mutual fund as in the present case was held ineffective. The same result occurred in Ridge v. Bright, supra.

In view of the above ease law it is obvious that the execution of a valid will can not accomplish the desired inter vivos change.

Plaintiff seeks equitable relief in this case claiming that the settlor relied upon his lawyer as to the legal effect of his act of executing his will and that such an act was the equivalent of compliance with the requirements of Article (4) of the trust agreement.

Passing the question as to whether equitable relief can be given under these circumstances and examining the proof submitted in support of this proposition, it is the court’s conclusion that the record falls far short of the necessary clear and convincing evidence warranting judicial intervention to reform an otherwise valid agreement.

The criteria that must guide the court is established in Brodzinski v. Pulek, 70 N. J. Super. 63 (Ch. Div. 1961), mod. 75 N. J. Super. 40 (App. Div. 1962):

The adjudicated cases, in this State at least, have uniformly held that a court of equity will not grant the high and extraordinary remedy of reformation except upon the production of proof, clear, convincing and free from doubt that the contract in its reformed, and not original, form is the one that the contracting parties understood and meant it to be; and as, in fact, it was but for the alleged mistake in its drafting. The same quantum of proof is required where reformation is sought on the ground of unilateral mistake and inequitable conduct of the defendant with respect thereto. [70 N. J. Super, at 71 emphasis supplied]

In light thereof and having reviewed the testimony, I do not find it persuasive to any degree. It consists of the testimony of plaintiff herself and a will couched in general terms with no reference to the ownership of this Fund upon testator’s death. The testimony of plaintiff is not supported by any of the witnesses who were present when the will was executed. The proofs are too meager to support equitable intervention.

The executrix of this otherwise insolvent estate seeks to compel the resisting beneficiary of this trust to contribute an amount necessary to help satisfy decedent’s debts and estate obligations. The estate fiduciary asserts a prior right to only that portion of the trust res without which these debts cannot be paid, it being undisputed that the other estate assets are inadequate. Further, there is no assertion or proof that the settlor created this trust fraudulently as to existing or future creditors. The terms of this trust demonstrate conclusively that this is a revocable trust.

Seen in its totality, this trust tolerated almost absolute control, provided the settlor conformed to the terms of the declaration of trust. This is quite similar to savings account trusts which are usually identified as “Totten trusts”. Professor Scott speaks of such savings account trusts as “tentative trusts” and seems to distinguish such trusts from those otherwise classified as revocable trusts. 1 Scott, op. cit., §§ 58.2 to 58.5 at 524 et seq. Such savings deposit trusts were the subject of much litigation and ultimately their validity in New Jersey was predicated upon statutory law, N. J. S. A. 17:9A — 216 and 46:37-2.

This mutual fund declaration of trust manifests clearly the settlor’s intention to create and maintain a trust. Therefore, this trust cannot be classified as “tentative”, lest that term indicate a lack of genuine validity as a revocable trust. The savings deposit trust has the same essential characteristics of continued control over the funds. The similarity o£ both types of revocable trusts calls for a similar interpretation of each type vis-a-vis creditors of the settlor. This is valid because of the inherent flexibility of the trust concept. Making the trust res accessible to the settlor’s creditors does not do violence to the trust under these circumstances, anymore than it does in savings deposit situations.

In New Jersey such bank deposits are accessible to a settlor’s creditors during his lifetime. Passaic Nat'l Bank & Trust Co. v. Taub, 137 A. J. Eq. 544 (E. & A. 1946). In New York, if such a depositor dies insolvent without revoking the trust, his creditors can reach the trust. 1 Scott, op. cit., § 58.5 at 543, n. 3. This is so because the depositor is considered to have such complete control over the funds during his lifetime that the situation is distinguishable from the ordinary trust where a settlor merely reserves a power of revocation. Such funds are also available to pay his funeral expenses and the expenses of the administration of his estate if his other assets are insufficient for these purposes. 1 Scott, op. cit., at 543-544.

The application of the same legal reasoning and the use of such legal principles in mutual fund trusts is compulsive, given the similarity of each type trust and the firmness of the trust commitment. As circumstances determined, the settlor died impoverished and in debt, needing access to this money to regain solvency. Obviously, decedent did not intend to strip himself of control of or access to these funds during his lifetime, intending only to give to the beneficiary what was left, if anything, at his death. If he had terminated the trust during his lifetime in order to pay his debts, no one could have complained. In effect, the beneficiary says that death cheated the settlor and his creditors of their opportunity to settle these just debts. It is inconsistent with justice or the reality of the situation to accept the beneficiary’s argument which, in effect, shelters this asset from accessibility for satisfaction of debts. Under these circumstances the court invokes that ancient equity maxim: “A man must be just before he is generous”. Merchants’ & Miners’ Transp. Co. v. Borland, 53 N. J. Eq. 282 (Ch. 1895).

An appropriate order is to be submitted.


author: Per Curiam.

text:
    TOWNSHIP OF WAYNE IN THE COUNTY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MARVIN KOSOFF AND LEON A. CONSALES, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided July 15, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Michael K. Diamond argued the cause for appellant.

      Mr. Michael A. Cerreto argued the cause for respondents (Messrs. Cerreto & La Penna, attorneys).
   Per Curiam.

Plaintiff instituted condemnation proceedings on June 7, 1970 in order to acquire a 3.3-acre portion of a larger tract of vacant land owned by defendants and located within the Township of Wayne in an area designated as an urban renewal plan by the township and the Department of Housing and Urban Development. On April 15, 1971 the condemnation commissioners filed their report awarding defendants $372,250 for the taking, which amount included damages to the remaining tract, a parcel slightly in excess of four acres. Plaintiff and defendant both appealed this award to the Superior Court, Law Division. Several months after the matter was first listed for trial, the Eminent Domain Act of 1971, N. J. S. A. 20:3-1 et seq., became effective. The new act afforded the property owner, subjected to a partial taking, the right to compel condemnation of the remaining property where the remainder has “little or no economic value.” N. J. S. A. 20:3-37. In the exercise of this new right defendants, in April 1972, obtained an order requiring plaintiff to acquire the remaining four-acre parcel. The Department of Housing and Urban Development, however, expressed reluctance to finance this additional purchase since the four-acre parcel fell outside the boundaries of the urban renewal plan. As a result plaintiff attempted, through a series of applications, to delay trial of the condemnation suit until some decision was made by the Department of Housing and Urban Development as to payment therefor. An unsuccessful attempt at relief in the federal courts was made.

At any rate, shortly before the ease was finally tried plaintiff filed a motion for an order appointing an independent appraiser inasmuch as there was nearly a half million dollars difference between the amount offered by plaintiff and the amount sought by defendants. Plaintiff’s motion was denied on the ground that it had been interposed primarily for purposes of further delay. Moreover, the trial judge expressed concern as to the proper procedure in presenting the testimony of an independent or court-appointed appraiser to a jury. It is the denial of this motion that provides one of the principal grounds of this appeal.

At the time the motion was made, and for a substantial period of time prior thereto, the parties were aware of a wide disparity between the appraisals made by the parties’ respective expert witnesses. Plaintiff’s appraiser placed a value of $490,000 on the subject property. Defendants’ appraiser valued it at $937,250, the precise value accepted by the jury in its verdict. Plaintiff contends that in these circumstances, demonstrating such a wide divergence in opinion as to value of the subject property, the trial judge mistakenly exercised its discretion in refusing to appoint an independent appraiser despite the many delays in bringing the matter to trial. We agree.

There can no longer be any doubt but that a trial judge possesses the inherent power to appoint an independent expert in a condemnation case as an aid in its “quest for the elusive truth of the matter.” State v. Lanza, 74 N. J. Super. 362, 374 (App. Div. 1962), aff'd 39 N. J. 595 (1963), app. dism. 375 U. S. 451, 84 S. Ct. 525, 11 L. Ed. 2d 477 (1964); Jersey City Redev. v. Weisenfeld, 124 N. J. Super. 291, 294-295 (App. Div. 1973), certif. den. 63 N. J. 563 (1973).

In both the Lanza and the Weisenfeld cases the trial judge, sitting as the trier of the facts, was confronted with widely disparate valuations placed on the property sought to be condemned. In Lanza the trial judge's initiative in seeking aid in resolving the dilemma by resort to an independent expert was approved. In Weisenfeld, the trial judge sought no such aid, and his failure to do so provided one of the bases for the reversal of its judgment.

Widely disparate opinions of value are highly suggestive of exaggerated partisanship of the experts retained by the parties and place the trier of the fact, be it judge or jury, in the position of attempting to ascertain just compensation from evidence of suspect reliability. The sole purpose of a condemnation proceeding is to ascertain just compensation for the public acquisition of private property. Wide variations in appraisal of value frustrate the achievement of that purpose, and where it occurs, as it did in the present case, the trial judge should exercise his discretion toward providing the fact finder with data from which the element of partisanship has been removed.

The appointment of disinterested ewpert witnesses by the Court is one of the expedients employed for reforming the defects of the partisan system of providing * * testimony. [9 Wigmore (3 ed. 1940), § 2484 at 270; see also § 563 at 644 et seq.]

See also, McCormick, “Some Observation Upon the Opinion Rule and Expert Testimony,” 23 Texas L. Rev. 109, 131 (1945). Such additional data can only be of aid in insuring that the constitutional goal of just compensation is achieved, and should be freely resorted to whenever the results of undue partisanship become evident. Such aid is as available to a jury as it is to a judge who sits as a trier of the fact; indeed, a jury, less accustomed than a judge to making difficult determinations of value, would be more in need of such additional assistance. Scott v. Spanjer Bros., Inc., 298 F. 2d 928 (2 Cir. 1962).

An appropriate response to the questioned propriety of obtaining disinterested expert testimony in a jury trial was voiced by the court in Scott v. Spanjer Bros., Inc., supra:

We believe that the appointment of an impartial medical expert by the court in the exercise of its sound discretion is an equitable and forward looking technique for promoting the fair trial of a lawsuit. It is now well accepted that the trial judge is not a mere umpire at the trial; indeed, there may be circumstances in which he would have a duty to seek impartial assistance in order to enlighten the jury and himself on issues which have become confused because of partisanship in presentation. In the instant case the judge was confronted with a young infant plaintiff who might have suffered injuries of a serious nature which were difficult to diagnose and explain. We believe that he exercised sound judgment, [at 930-931; emphasis supplied]

New Jersey has incorporated into its rules of court the foregoing point of tdew as it pertains to personal injury or wrongful death actions when the nature, extent or cause of injuries or cause of death is in dispute. R. 4:20. Case law has recognized its particular applicability to questions of valuation in condemnation actions. State v. Lanza, supra.

That a jury may give decisive weight to the court’s expert witness is an insufficient reason to abstain from obtaining needed enlightenment. 2 Wigmore, op. cit., § 563 at 648 (3d Ed. 1940). That a jury may recognize unseemly partisanship as the basis for grossly disparate opinions of value and choose to credit that expert who can have no such bias provides, perhaps, the best reason for summoning such disinterested assistance. The jury should, however, be instructed that the mere fact that the witness has been called by the judge does not, of itself, entitle the testimony of that witness to greater weight.

We therefore conclude that the trial judge mistakenly exercised his discretion in denying plaintiff’s motion for the appointment of a disinterested and impartial expert witness despite the relatively brief delay such a procedure would have entailed. Unnecessary trial delays should, of course, be avoided. Prompt disposition of controversies is a desirable goal. Such considerations should not, however, result in detracting from or minimizing the overriding importance of the ultimate goal of all litigation which is to achieve substantial justice for the parties. R. 1:1-2. N. J. Highway Authority v. Renner, 18 N. J. 485, 495 (1955); X. L. Liquor v. Taylor, 17 N. J. 444, 454 (1955).

The judgment is reversed and the matter remanded for a retrial. Prior thereto, the trial judge shall, on notice to the parties, determine the manner in which the impartial expert shall be selected. If the parties can agree on a mutually acceptable expert, the judge should give substantial weight to that agreement. In the event of an inability to agree, the judge should feel free to select such available expert who he deems to be the most quaiiñed. After selection, the expert should be supplied with the reports of the experts retained by the parties, together with comparables and other data relied on by each, and should be permitted to view the subject premises. His report reflecting his conclusions and the reasons therefor is to be submitted to the parties and the court. Either party should be permitted to call him as a witness. The other party not calling him should bo permitted to cross-examine. If neither party wishes to call him, the judge may exercise his option to produce him for testimony. If he does testify at the judge’s request, both parties may subject his testimony to cross-examination. No matter who calls him, the jury should be informed that he was appointed by the court (R. 4:20), and the cost of his retainer should be shared by the parties on an equal basis whatever the result.

Because of the basis for the opinion herein, the remaining grounds for appeal need not be decided.

Reversed and remanded for proceedings consistent with this opinion.


text:
    JOHN BORLAND, JR., ET AL., PLAINTIFFS-APPELLANTS, v. BAYONNE HOSPITAL, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued June 3, 1976
    Decided July 3, 1975.
    Before Judges Matthews, Fritz and Botter.

      Mr. Harold Krieger argued the cause for appellants (Messrs. Krieger & Chodash, attorneys; Mr. Frank L. Brunetti, on the brief).

      Mr. Bruce D. Shoulson argued the cause on behalf of all respondent hospitals (Messrs. Lowenstein, Sandler, Brochin, Kohl & Fisher, attorneys for respondent Beth Israel Medical Center; Mr. Michael L. Rodburg, on the brief).

      Mr. Omer F. Brown, II, Deputy Attorney General, argued the cause for respondent Commissioners of Insurance and Health (Mr. William F. Hyland, Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   Per Curiam.

We affirm substantially for the reasons expressed by Judge Fink in his opinion reported at 122 N. J. Super. 387 (Ch. Div. 1973). See also 135 N. J. Super. 200.


author: Bigley, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MARIO FERRARI, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 7, 1975

      Mr. Archibald Kreiger, Assistant Prosecutor, for plaintiff (Mr. Thomas Shusted, Camden County Prosecutor, attorney).

      Mr. Saverio R. Principato, attorney for defendant.
   Bigley, J. C. C.,

Temporarily Assigned. Defendant, a deputy police chief in the Camden Police Department, has been indicted for conspiracy, obstruction of justice and misconduct in office. The charges arise from an alleged attempt to “fix” traffic tickets. Ferrari now brings this motion to suppress the incriminating evidence seized from his office desk at the police department’s Patrol Division headquarters. The evidence was discovered during a search conducted by the Chief of Police of Camden and several others between one and two o’clock on the morning of August 6, 1974. Testimony revealed that after an attempted forcible entry the office was entered by using a key obtained from defendant’s secretary. It appears that the only other key to the office was in defendant’s possession. The desk was forcibly opened with some sort of instrument because the secretary had no key to it. Found within the desk were the two traffic tickets presently the subject of this motion.

The question presented by this motion to suppress is whether the Fourth Amendment to the U. S. Constitution precludes the use of evidence seized by an employer without a warrant when the employer is the government. It appears that the courts of New Jersey have not previously considered this issue. Proper resolution of the question requires, initially, a review of the basic goals of the Fourth Amendment.

Since Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), it has been recognized that the Fourth Amendment

* * * protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.

Justice Powell has observed that the Fourth Amendment protects the “areas of an individual’s life about which he entertains legitimate expectations of privacy”. United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (Powell, J. concurring). This protection guarantees freedom from unreasonable governmental intrusions into a person’s privacy, but it does extend to acts of private individuals. As the Supreme Court stated in Bur-deau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921):

The Fourth Amendment gives protection against unlawful searches and seizures ... its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies ... (at 475, 41 S. Ct. at 576).

This means that an employer may search those areas of the place of employment that are dedicated to the private personal use of his employees, and if the employer finds evidence of illegal activity, that evidence may be turned over to the police for use in a criminal prosecution. This may be done without the Fourth Amendment requiring suppression of the material. State v. Robinson, 86 N. J. Super. 308 (Law Div. 1965). But where there is collusive activity by the officers of the government and private citizens, the Fourth Amendment precludes the use of evidence which is the product of such activity. Lustig v. United States, 338 U. S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949); State v. Scrotsky, 39 N. J. 410 (1963); State v. Roccasecca, 130 N. J. Super. 585 (Law Div. 1974).

What must be clearly understood is that this case does not involve the inadvertent discovery of incriminating evidence in the desk of a government employee by either a coworker or supervisor who is looking for something necessary to conduct the day-to-day business of the office. Evi-denee discovered under these circumstances would not be barred by the Fourth Amendment. That Amendment was never intended to totally insulate individuals from governmental intrusions into their lives.

Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution. (389 U. S. at 350, 88 S. Ct. at 511 n. 5)

Searches conducted by the government are always measured against a standard of reasonableness. Only those searches deemed unreasonable under the facts of a particular case are to be condemned. Thus, in the case of inadvertent discovery, to read the Fourth Amendment as precluding the use of evidence so obtained would be an unreasonable hindrance in the operation of government offices.

The State’s argument against suppression is that an employer has the right to investigate criminal activity engaged in by its employees and to conduct searches of the employees’ work and personal areas incidental to such investigations, regardless of whether the employer is private or governmental. In support of this position the State relies on United States v. Robinson, supra, and Shaffer v. Field, 339 F. Supp. 997 (D. C. Gal. 1972), aff’d 484 F. 2d 1196 (9 Cir. 1973).

Robinson involved the search by an employer of his employee’s locker. In the course of upholding the search the court states, “An employer has a right which it can lawfully exercise * * * to obtain the return of its own materials * * * [n]ot to permit an employer to do so places him at the mercy of his employees.” However, there the employer was a private citizen and the police were not involved in the search. Thus, the Fourth Amendment does not apply under the rule of Burdeau. This major factual distinction renders Robinson inapposite to the instant situation.

In Shaffer a deputy sheriff was charged with murder in connection with the shooting of a burglary suspect. A pistol was found near the victim and there was reason to believe that the gun was planted by the deputy. The deputy had a locker at the sheriff’s station which was searched. This search produced incriminating evidence. Lockers assigned to deputy sheriffs were owned by the sheriff’s department and the commanding officer had a master key to all of them. Also, the locks on the lockers could he changed at will, and on at least three previous occasions deputies’ lockers had been searched without their permission. Under these circumstances the Mnth Circuit Court of Appeals ruled that the search did not violate the Eouxth Amendment because there was no reasonable expectation of privacy in the use of lockers.

A clear distinction exists between the situation in Shaffer and that of the instant case. Here, it appears that despite the fact that the office and desk were owned by the police department, only defendant Ferrari and his secretary had keys to the office itself and only defendant had keys to the desk. From these facts it would appear that defendant enjoyed exclusive use of the office and desk. Furthermore, there is no indication in the record of any previous searches or inspections being made of defendant’s office area or even that searches of any part of the building were commonplace. It is this limited exposure of defendant’s desk and office area to other members of the police department which leads to the conclusion that Ferrari was justified in believing that the contents of his desk would be free from intrusion by the government acting in an investigatory capacity.

Support for this conclusion is drawn from several sources. In Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), it was held that government employees are not subject to “watered down” versions of constitutional rights by reason of their public employment. Also, implicit in the Shaffer court’s finding that the locker was not an area where a reasonable expectation of privacy existed is the recognition that there are some areas where a public employee might enjoy such an expectation, or it would have declared that public employees do not have any privacy rights at work.

The pre-Katz decision of United Slates v. Blok, 88 U. S. App. D. C. 326, 188 F. 2d 1019 (D. C. Cir. 1951), while not speaking in terms of a reasonable expectation of privacy, nevertheless appreciated its existence when it held that a government employee, who had an exclusive right to use the desk assigned to her, was protected by the Fourth Amendment from her supervisor consenting to a search of it by police. What else could the “exclusive use” doctrine mean but that one who enjoys the exclusive use of an area may expect no one else will have access to it without the user willingly permitting access, even though the area is owned by the government?

United States v. Kahan, 350 F. Supp. 784 (S. D. N. Y. 1972), aff’d on other grounds 415 U. S. 239, 94 S. Ct. 1179, 39 L. Ed. 2d 297 (1974), is the most recent case dealing with searches of government employees at their places of employment. There, the seizure of papers from the wastebasket of an Immigration and Naturalization Sendee employee was declared to be a violation of the Fourth Amendment. The court concluded that the government employee had a reasonable expectation of privacy in the “limited area of the office which is devoted to his exclusive use” and that right of privacy “must be protected from intrusions by the investigative and prosecutory arms of government.” In the course of her opinion Judge Motley acknowledged certain parallels between the management of private offices and government offices and the need in both situations for supervisors to oversee the work of employees to assure honesty and efficiency. But, as she aptly observed,

* * * when a government supervisor begins an investigation of suspected criminal activities of an employee in the course of his work, the supervisor’s role is no longer that of a manager of an office but that of a criminal investigator for the government. The purpose of tlie supervisor’s surveillance is no longer simply to preserve efficiency in the office. It is specifically designed to prepare a criminal prosecution against the employee. [350 F. Supp. at 791]

Therefore, the Fourth Amendment applies to evidence seized as the result of a surveillance or search so conducted, whereas it would not apply to a private employer. In the context of an investigation by the government supervisor the court could

* * * see no distinction between a search of a government office specifically for the purpose of uncovering incriminating evidence and a similar search of a private office. Certainly, government employees have as much reason as private employees to expect that their desks and their wastebaskets will be free from the invasion of criminal investigators of the government. [Id. at 792]

In the case at bar testimony revealed that Ferrari was suspected of having dossiers in his office which allegedly posed a threat to the welfare of the people of the City and County of Camden. Presumably, such material was considered by those who searched his office and desk to be illegal; therefore, it is appropriate to conclude that the search was part of a criminal investigation and was not mere supervision of defendant’s work. This conclusion is bolstered by the fact that the search was conducted between one and two in the morning when defendant was not in his office. Additionally, the suspicion of criminal activity, the forcible entry, and the late hour completely remove from consideration the possibility that those who conducted the search were looking for items necessary to conduct the day-to-day business of the police department.

From the previously cited cases it appears that government employees do not sacrifice their Fourth Amendment rights as a condition of their employment. Indeed, in certain situations they may have greater protection than a private employee whose employer’s seizure of evidence might not be barred by the Fourth Amendment. Therefore, since this court has found the defendant was entitled to a reasonable expectation of privacy in his desk and that a criminal investigation was being conducted, the Fourth Amendment bars the use of the seized evidence.

Accordingly, defendant’s motion to suppress is granted.


author: Loftus, J. C. C.,

text:
    EMELINA BETANCOURT AND LAWRENCE BETANCOURT, PLAINTIFFS, v. DR. E. LESLIE GAYLOR ET AL., DEDENFANTS.
    Superior Court of New Jersey Law Division
    July 30, 1975.

      Mr. Malcolm H. Greenberg, Attorney for Plaintiffs.

      Mr. Neil Reiseman (Messrs. Conway, Reiseman, Michals & Wahl), Attorney for Defendant, Dr. E. Leslie Gaylor.

      Mr. Eugene M. Purcell, (Messrs. Purcell, Ries & Shannon), attorneys for defendant, Dr. Shigeo Kondo.

      Mr. Jeffrey K. McKinley, (Messrs. Stevens & Mathias), attorney for defendant, Hospital Center at Orange.

      Mr. Anthony J. Andolino, (Messrs. Schwartz and Ando-lino), attorney for defendant, Planned Parenthood Essex County.
   Loftus, J. C. C.,

Temporarily Assigned. This is an ac-

tion brought by plaintiffs Emelina and Lawrence Betancourt, husband and wife, against defendants Dr. E. Leslie Gaylor, Planned Parenthood Essex County, Hospital Center at Orange and Dr. Shigeo Kondo. The action seeks money damages for the alleged negligence of defendants with regard to the failure of a sterilization operation performed on Mrs. Betancourt. The complaint generally makes a demand of judgment against defendants jointly and - severally, together with costs of suit. In answers to interrogatories propounded by defendants, plaintiffs allege as a measure of damages the costs, emotional upset and physical inconvenience of rearing the child born subsequent to the allegedly negligent sterilization operation. Defendants moved for summary judgment dismissing the complaint. This motion was amended nunc pro tunc to dismiss only those allegations of the complaint as set forth in answers to interrogatories alleging as damages the costs, emotional upset and physical inconvenience of rearing the child in question.

A motion for summary judgment of dismissal concedes, for purposes of the motion, the truth of plaintiffs’ evidence and every inference that can legitimately be drawn therefrom which is favorable to plaintiff and denies only its sufficiency in law. Melone v. Jersey Central Power and Light Co., 18 N. J. 163, 170 (1955); Heavener v. Uniroyal, Inc., 63 N. J. 130, 133 (1973); Hirsch v. Travelers Ins. Co., 134 N. J. Super. 466 (App. Div. 1975).

Plaintiffs’ evidence and all the legitimate inferences therefrom indicate that on August 17, 1971 Mrs. Betancourt contacted defendant Planned Parenthood in order to avail herself of its family planning services and medical care. On its recommendation she was referred to Dr. E. Leslie Gay-lor, who performed the sterilization operation (a bilateral tubal ligation) on plaintiff, Mrs. Betancourt. Defendant Dr. Kondo acted in his capacity as a pathologist on the staff of defendant Hospital Center at Orange, and examined the tissue removed from plaintiff. Some 18 months later, in March 1973, plaintiff ascertained that she was pregnant. She subsequently gave birth to a healthy, normal child.

Defendants rely upon the case of Gleitman v. Cosgrove, 49 N. J. 22 (1967), in support of their motion to dismiss those allegations of the complaint as set forth in answers to interrogatories which seek as money damages the costs, emotional upset and physical inconvenience of rearing the child born subsequent to the allegedly negligent sterilization. Gleitman was an action brought on behalf of an infant and his parents against the defendant physicians for malpractice. The allegations of negligence in that case were that the doctors had failed to advise Mrs. Gleitman of the likelihood that she might give birth to a deformed child because of her contraction of rubella (German measles) early during her pregnancy. As a result of this alleged negligence Mrs. Gleitman did not seek a therapeutic abortion and subsequently gave birth to a deformed child. The trial judge dismissed all counts of the complaint without submitting any of them to the jury. With regard to the claim by the parents for compensatory damages, our Supreme Court, in an opinion expressing the views of three of the seven members of the court, held that denial of the claim for damages was required on the one hand, because substantial policy reasons prevented the court from allowing tort damages for the denial of the opportunity to take an embryonic life and, secondly, and of principal relevancy to the case before us, because compensatory damages were too uncertain to be awarded. The court stated:

In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child, [at 29 and 30]

The Gleitman court denied damages to plaintiff parents on the ground that the doctors’ failure to advise plaintiff mother of the availability of an abortion was not actionable at law at a time when abortions were unlawful in New Jersey. The court concluded that the benefits in being the parents of a defective child, as weighed against the emotional losses involved, were so complex and interwined as not to be capable of measurement. The question before this court is whether the decision in Gleitman is controlling in the circumstances of the present case.

At the outset, the factual distinction between the case before this court and Gleitman v. Cosgrove should be noted. Mrs. Gleitman, upon first consulting with her doctor, had already conceived a child. Mrs. Betancourt, however, had not been pregnant when she first consulted defendants. Rather, she consulted defendants for the clear purpose of preventing conception. There was no evidence that Mrs. Gleitman did not wish to conceive a child. The complaint of Mrs. Gleitman was that she wished to be assured of a healthy child or no child at all. Mrs. Betancourt, when consulting her doctors, sought to prevent any conception at all. In addition, it should be noted that the thrust of Mrs. Gleitman’s complaint was that her doctor negligent^ failed to give her advice where it was questionable whether such advice was within her doctor’s duty to give. However, Mrs. Betancourt’s complaint is that her doctor performed surgery upon her in a negligent manner causing to bring about the very event which surgery was designed to prevent. The Gleitman court, speaking through Mr. Justice Proctor in explaining its holding, said as follows:

Denial of the claim for damages by adult plaintiffs is also required by a close look at exactly what it is they are here seeking. The thrust of their complaint is that they were denied the opportunity to terminate the life of their child while he was an embryo. [49 N. J. at 30]

The thrust of the Betancourts’ complaint is that they were denied the opportunity to be free of the added expenses of an additional child through the negligence of defendants in performing the sterilization operation that was designed to bring about that result.

Based upon these factual distinctions, the holding in the Gleitman case should read as follows: where a parent gains benefits through the birth of a child but suffers losses because of some physical defect in the child, the complex coexistence of benefit and loss will operate to preclude a court from establishing a reasonable measure of damages from which a jury could determine compensatory damages. The same complex coexistence of benefit and loss that existed in Gleitman does not exist in the present ease. Here, the elements of benefit and loss are separate. The loss is the financial expense which plaintiffs sought to obviate by submitting to surgery. The benefit is whatever benefit a jury may reasonably conclude has accrued to plaintiffs as a result of the newborn child. These are relatively tangible and measurable factors for a jury to consider separate from each other, unlike the intangible, unmeasurable and complex factors involved in Gleitman. The rule in Gleitman is therefore not applicable.

In light of the law’s recent recognition of a woman’s right to control her own bodily functions, as evidenced by the United States Supreme Court decision in Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); cf. Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1967), the trier of the facts should be permitted to evaluate whatever damages plaintiffs are entitled to.

In West v. Underwood, 132 N. J. L. 325 (E. & A. 1944), the Court of Errors and Appeals held that if there are proofs from which a jury could find that defendant had undertaken to sterilize plaintiff and negligently failed to do so, plaintiffs were entitled to recover for all pain and suffering, mental and physical, together with the loss of services and “any other loss or damage proximately resulting from such negligence.”

The exceptional rule stated in Gleitman not being here applicable, the normal measure of damages in tort actions should be applied. As stated in Gleitman, 49 N. J. at 28, the normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had defendants not been negligent, with plaintiffs’ impaired condition as a result of the negligence. See also Zugmaniak v. Kawasaki Motors Corp., U. S. A., 131 N. J. Super. 403 (Law Div. 1974). Here, if it is certain that some damage has resulted from defendants’ alleged negligence, an issue on which this court expresses no opinion, mere uncertainty as to the amount of damage should not preclude the right of recovery. The approved practice is to leave it to the good sense of the jury to form the best estimate that can be made under the circumstances. Betenbaugh v. Princeton Hospital, 50 N. J. 390 (1967).

The attention of this court has been directed to decisions in other jurisdictions involving the area of law dealing with compensatory damages for negligent sterilizations. On the question of whether plaintiff parents would be entitled to the costs of rearing a child born as a result of a negligent sterilization, the courts of other jurisdictions are divided. The Court of Appeals of Michigan in Troppi v. Scarf, 31 Mich. App. 240, 187 N. W. 2d 511 (1971) held that the question of damages for the cost of rearing a child born subsequent to a negligently filled prescription for birth control pills was a question for the trier of the fact. The United States District Court for the Southern District of West Virginia, in Bishop v. Byrne, 265 F. Supp. 460 (1967), ruled that an action could be maintained by a woman for alleged negligence and breach of warranty in the performance of a sterilization operation and that the question of damages and their amount, if any, would be a question for the jury. The California Court of Appeals, in Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967), held that if physicians negligently perform a sterilization operation whereby a normal child was born without any resulting physical injury to the mother as a result of the pregnancy, more than nominal damages could be recovered. The District Court of Appeal of Florida in Jackson v. Anderson, 230 So. 2d 503 (1970), held that an action could be maintained notwithstanding the fact that the pregnancy following the sterilization operation was uneventful and culminated in the normal delivery of a healthy child, but the court expressed no opinion on the measure of damages.

However, the Superior Court of Delaware, in Coleman v. Garrison, 327 A. 2d 757 (1974), in an action by parents for damages alleging the performance of an improper sterilization operation, held that no cause of action would lie for “wrongful life” but that a cause of action would exist for “wrongful pregnancy,” thereby limiting the scope of the injury to the expenses attending the unexpected pregnancy of a woman. The Court of Civil Appeals of Texas in the case of Terrell v. Garcia, 496 S. W. 2d 124 (1973), held that even if negligence on the part of the physician in performance of the sterilization operation were assumed, plaintiffs would not be entitled to recover damages. The Supreme Court of Wisconsin in Rieck v. Medical Protective Co. of Fort Wayne, Ind., 219 N. W. 2d 242, 64 Wis. 2d 514 (1974), an action brought by parents to recover the costs of rearing a child on the theory that defendant’s failed to determine that the mother was pregnant in time to permit an operation to terminate the pregnancy, held that the complaint did not state a cause of action.

While a review of these cases provide the arguments pro and con, this court is bound by the decision of the Court of Errors and Appeals in West v. Underwood, 132 N. J. L. 325 (E. & A. 1944). Thus “any other loss or damage proximately resulting from” the negligent sterilization operation, including the costs, emotional upset and the physical inconvenience of rearing a child may be recovered at law.

Thus, defendants are not entitled to summary judgment as a matter of law under R. 4:46-2. The motions for summary judgment are hereby denied.


author: Susser, P. J. D. C.

text:
    CY PRESBERG, INDIVIDUALLY AND STANDARD GASKET INC. A NEW JERSEY CORPORATION, PLAINTIFFS, v. CHELTON REALTY INC., A NEW JERSEY CORPORATION AND ELLIOT TARADASH AND MAX GROSSMAN, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    District Court — Passaic County
    July 11, 1975.

      Mr. J. George Ivler appearing for plaintiffs (Mr. Robert B. Feuchibaum and Mr. Ivler, attorneys).

      Mr. Philip Tanis appearing for defendants (Mr. Michael A. Sternick and Mr. Tanis, attorneys).
   Susser, P. J. D. C.

Plaintiff’s legal argument in opposition to defendant’s motion for summary judgment presents an issue of first impression. Are the provisions of N. J. S. A. 46:8-21.1 applicable to a nonresidential tenancy; that is, may a commercial tenant recover double the amount of his security upon landlord’s failure to return the same within 30 days.

Plaintiff, a commercial tenant, leased nonresidential space from defendant landlord. Security was deposited by it for the faithful performance of the lease. It is alleged by plaintiff that it vacated the premises on March 15, 1974 and that within 30 days after the expiration of the term of the lease the landlord-lessor had failed to deliver tenant’s security plus its portion of the interest earned thereon less an}*charges expended in accordance with the terms of the lease agreement. Por this failure plaintiff is seeking double the amount of its security deposit.

Defendant-landlord seeks summary judgment on the ground that the statute upon which plaintiff relies is applicable only to residential property. N. J. S. A. 46:8-21.1 reads as follows:

Within 30 days after the expiration of the term of the tenant’s lease or licensee’s agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant’s portion of the interest earned thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement. Any such deductions shall be itemized and the tenant or licensee notified thereof by registered or certified mail. In any action by a tenant or licensee for the return of moneys due under this section, the court upon finding for the tenant or licensee shall award, recovery of double the amount of said moneys, together with full costs of any action and, in the court’s discretion, reasonable attorney’s fees.

N. J. S. A. 46:8-26 sets forth the type of premises to which § 21.1 applies.

' The provisions of this act shall apply to all rental premises or units used for dwelling purposes except owner-occupied premises with not more than two rental units.

It is plaintiffs contention in opposition to the motion for summary judgment that by use of the phrase “all rental premises” it was the legislative intent to include every type of rental, whether commercial or residential, and that the wording “or units used for dwelling purposes except owner-occupied premises with not more than two rental units,” merely limits the type of residential property to which the act is to be applied. Defendant contends, however, that the term, “used for dwelling purposes,” refers to both “premises or units” and that the statute is to be applied solely to residential property except owner-occupied premises with not more than two rental units. The interpretation urged by plaintiff appears to be a tortured one not reflective of the legislative intent.

Our courts have uniformly held, in construing a statute with two imperfect expressions, that the court should select that view which accords with the probable legislative intent. Roman v. Sharper, 53 N. J. 338 (1969). Of course, in statutory construction the legislative intent may be implied from language used or inferred on grounds of policy or reasonableness. Harvey v. Essex Cty. Bd. of Freeholders, 30 N. J. 381 (1959).

In construing this statute the task of the court is to seek out the legislative intent, and to that end it should consider any history which may be of aid. State v. Madden, 61 N. J. 377, 389 (1972).

N. J. S. A. 46:8-21.1 (L. 1971, c. 223, § 3) and other similarly landlord-tenant-orientated legislation appear to have been motivated by the recommendations contained in the interim report to the Governor and Legislature of the Landlord and Tenant Relationship Study Commission. Report of Landlord Tenant Relationship Study Commission (April 1970). The clear purpose of this study commission was to suggest legislation to correct many of the inequities existing between landlord and tenant in residential housing. It recognized “that the acute shortage of housing is of such magnitude that the market itself no longer suffices to provide adequate prospects for either the required construetion of housing or for the protection of the public interest.” Report at 9 (emphasis added). This same conclusion was subsequently expressed as part of the rationale in Inganamort v. Fort Lee, 120 N. J. Super. 286 (Law Div. 1973). As a result of the recommendations of the study commission the Legislature passed not only the subject act but also legislation relating to retaliatory evictions, N. J. S. A. 2A :42-10.10 et seq.; self-help evictions, N. J. S. A. 2A:39-1 et seq.; an increase in the small claims maximum jurisdiction to permit suits for return of security deposits, N. J. S. A. 2A:6-44, and similar statutes within the framework of residential housing abuses.

A study of the Security Deposit Act and its subsequent legislative amendments is even more indueive to a determination that the act was intended to apply solely to residential property. The statute first became effective January 1, 1968. Its provisions were to apply “only to owners of rental property consisting of more than 4 rental units.” L. 1967, c. 265, § 8. To correct any misinterpretation that might arise as to its application to property other than residential property, the Legislature a short time thereafter amended the act as follows: “The provisions of this act shall apply only to owners of residential rental property * * * “L. 1968, c. 46, § 1, effective May 22, 1968 (emphasis added). What other purpose would there have been for this amendment than to clearly indicate the legislative intent that the act relating to security deposits was to apply only to residential rental property.

Subsequently, § 8 of the act was again amended to its present posture (L. 1971, c. 223, § 7). In light of the legislative history it would clearly appear that the legislative intent with respect to this amendment was solely to broaden the scope of the act’s application so that it applied to all residential 'property except the small owner-occupied premises with'.not more than two rental units. To construe otherwise would be wholly inconsistent with the clear intendment of the act, especially in view of the fact that as recently as 1973, when our Legislature took another look at this very same act and once again amended it, the title of the amenda-tory law read as follows:

Ail act concerning security deposits made in connection with contracts, leases or licenses, for the use or rental of certain residential real property and amending P. L. 1967, c. 265. L. 1973, c. 195. [Emphasis added]

To hold that the 1971 amendment to § 8 of the Security Deposit Act intended the inclusion of commercial property therein would bo a distortion of legislative intent, since the “true meaning of an enactment and the intention of the Legislature in enacting it must be gained, not alone from the words used within the confines of the particular section involved, but from those words when read in connection with the entire enactment of which it is an integral part.” Petition of Sheffield Farms Co., 22 N. J. 548, 554 (1956). “The over-all intention of the Legislature is the controlling factor in the interpretation of its enactment.” N. J. State Bd. of Optometrists v. Reiss, 83 N. J. Super. 47, 54 (App. Div. 1964). If there is in fact any doubt as to the expressed meaning of § 8 that doubt should be resolved with an interpretation most consonant with the common sense of the situation, and here common sense dictates that the Legislature intended by a series of acts to rectify abuses existing in the housing field. It has been held that, in interpreting a statute, “if a literal reading of a part will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter of the law.” State v. Campobasso, 125 N. J. Super. 103, 108 (Law Div. 1973); N. J. Builders, etc., Ass’n v. Blair, 60 N. J. 330, 338 (1972); Dvorkin v. Dover Tp., 29 N. J. 303, 315 (1959).

Finally, the plaintiff has raised the spector of equal protection, asserting that the 1971 amendment to § 8 intended the inclusion of commercial rental property and that a contrary interpretation would be a violation of a commercial tenant’s equal protection rights rendering the act unconstitutional. Our highest courts have consistently held otherwise. “The question as to the reach of the statute is one of legislative responsibility, essentially outside the judicial realm.” Ind. Elect. Ass'n of N. J. v N. J. Bd. of Exam'rs, 54 N. J. 466, 481 (1969). The rule of law has been best expressed in N. J. Chap. American Inst. of Planners v. N. J. State Bd. of Prof. Planners, 48 N. J. 581 (1967), in the following language:

In short, equal protection does not demand immediate logical tidiness; nor is it violated because the legislation as enacted does not bring about the full reform or result intended to be produced. In an area of many competing pressures, the constitution is satisfied if the Legislature, in responding to what it conceived to be living facts calling for regulation, did not disregard reason in drawing its lines. That those lines might have been drawn more suitably in the light of the whole problem is not a matter for judicial re-examination. Classification is a perennial and difficult problem, capable of no doctrinaire solution. Basically the solution resides in the legislative domain and the judiciary will not intrude unless the classes established for separate treatment represent invidious discrimination, that is, treatment which has no rational basis in relation to the specific objective of the regulatory legislation. [603-603]

The Legislature may very well deal with a classification consisting of residential property to the exclusion of nonresidential property to meet what it clearly deemed an existing evil in the housing field.

Por the reasons here expressed, the court finds that the provisions of N. J. S. A. 46:8-21.1 are not applicable to commercial property and therefore defendants’ motion for summary judgment is hereby granted.