text:
    MERCER COUNCIL #4, NEW JERSEY CIVIL SERVICE ASSOCIATION, INC., A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT, v. JAMES ALLOWAY, PRESIDENT NEW JERSEY CIVIL SERVICE COMMISSION, NEW JERSEY DEPARTMENT OF CIVIL SERVICE, AND THE NEW JERSEY CIVIL SERVICE COMMISSION AND THE NEW JERSEY DEPARTMENT OF CIVIL SERVICE, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 20, 1972
    Decided April 28, 1972.

      Before Judges Coneoed, Matthews and Eeitz.

      Mr. Vincent J. Dotoli argued the cause for appellant {Mr. Joel I. Fern, attorney).

      Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondents {Mr. George F. Kugler, Jr., Attorney General, attorney).
   Per Curiam.

The question presented is whether the Civil Service Commission has not exceeded its statutory rule-making authority by promulgating an amendment of N. J. A. C. 4:1-3.8 authorizing the Chief Examiner and Secretary of the Commission, under the supervision and direction of the President of the agency, to assign to the various state operating departments outside Civil Service, on a one-year trial basis, duties and functions which the Civil Service Act imposes on and delegates to the Chief Examiner and Secretary himself, involving “classification programs, compensation programs, administrative procedures and promotional examinations in state service” (quoting from the rule amendment).

The expanded authority thus vested in the Chief Examiner and Secretary has been exercised by him by a limited sub-delegation to the operating state departments, subject to certain reserved supervisory guidance and oversight by the Commission itself, of functions of the type mentioned, for the period July 1, 1971 to June 30, 1972. This has been done in partial implementation of broad recommendations made by a Governor’s Management Commission (“Field Commission”), acting pursuant to an Executive Order, which surveyed and reported upon a study of the functions and operations of the Executive Branch of the State Government in November 1970. This study, among many other things, criticized the efficiency of the fundamental organizational structure and operating procedures of the Civil Service Commission under the existing provisions of Title 11 of the Revised Statutes and recommended a complete reorganization of the Department of Civil Service and a substantial degree of what it denominates “decentralization” throughout the other state departments of personnel practices and procedures affecting State Government now vested in the Civil Service Department by statute. The merits of those recommendations are, of course, not now before us for review, but only the legality of the partial implementation thereof by the rule-making action of the Civil Service Commission aforesaid, taken without express legislative sanction.

It is initially useful to consider the degree of specificity of existing legislative provisions for performance of the subdelegated functions in question by the Commission and the Chief Examiner and Secretary.

That officer is required by N. J. S. A. 11:6—2(a) to establish and maintain a roster of all employees in the state classified service, recording titles of positions, rates of compensation, changes in status of employees, etc.; (b) to study and report to the Commission from time to time on rates paid in the Civil Service; (c) to regulate shedules of compensation; (d) to test and pass upon the qualifications of applicants for appointment to and promotion in the service, establish employment and reemployment lists, certify names of eligibles for employment and promotion, and numerous other ancillary administrative functions. N. J. S. A. 11:7—1 details the requirements of the classification plan to be established by the Chief Examiner and Secretary and specifies that “the allocation of positions to the several classes by the chief examiner and secretary as provided by law and as approved by the commission, shall place each position to its proper class and each employee whose position has been so allocated shall assume and retain the classification title for his position.” N. J. S. A. 11:7-5 requires the Chief Examiner and Secretary to certify as to the continuing need for existing positions and prohibits the creation of new positions until that officer has certified to the appointing department the necessity for such position.

In short, the Chief Examiner and Secretary, subject to the approval of the Commission, is vested by statute with primary, original, administrative authority and responsibility in the broad range of classification of positions, determination of compensation and working status and regulations, and of testing for appointment or promotion and certification of eligibles for either appointment or promotion in the whole range of the state classified service. Moreover, those duties and responsibilities are spelled out by the statute in considerable detail.

The foregoing is not to suggest that in some of the indicated respects it was not contemplated that the operating state departments should initiate requests for action by the Civil Service Department or that in many of them a good deal of cooperation between the other agencies and the Department was not envisaged, if not absolutely essential. But the operative effect of the particular action to be taken, in the categories mentioned, depends under the act upon the prior administrative decision or approval by Civil Service.

A summary of the subdelegation of functions and powers, previously exercised solely by Civil Service under the statute, effected by the President and Chief Examiner and Secretary of the Commission under- the rule amendment, is as follows:

1. In the case of all employees at or below the salary range of $13,363 to .$1.7,37.1, with the. exception of certain specified “key” titles, the operating department is given direct authority to reclassify and rotitle positions. It uses for this purpose a manual of genera! guidelines supplied by Civil Service.

2. Certification of names for appointments from promotional employment lists is authorized to be done by the operating department.

3. The entire promotional examination process is to be conducted by the operating department whenever there are not in excess of ten interested eligibles beyond the number of vacancies to be filled.

4. The operating department is to issue promotional employment lists.

Dissatisfaction of an employee with any action in the. foregoing categories is required to be appealed to the Department of Civil Service in writing within seven days of the action taken.

The Department of Civil Service will conduct periodic reviews of the general operation of the delegated functions by the operating departments and a total review" of the experience under the rule change to determine whether it should be made permanent after July 1, 1972.

We are clearly of the view that the Department of Civil Service has transcended its legitimate rule-making power by the rule here adopted and its implementing sub-delegations of classification and promotional functions to the operating departments. The general rule is that a power or duty delegated by statute to an administrative agency cannot be subdelegated in the absence of any indication that the Legislature so intends. R. H. Macy & Co., Inc. v. Director, Div. of Taxation, 77 N. J. Super. 155, 174-175 (App. Div. 1962), aff'd o.b. 41 N. J. 3 (1963). We find no indication from the statute or its general purposes and objectives of any legislative intent that the employee classification and promotional functions and duties expressly vested by the statute in the Commission itself, and particularly in the Chief Examiner and Secretary, or any substantial portion of them, were intended to be permitted to be transferred by either the Commission or that officer to- the very operating departments which are contemplated for control in respect of classification and promotional practices by the Civil Service Department. If the rule-making power extended that far, it would logically sustain extension in that manner of “decentralization” to testing for original appointments and without any of the limitations fixed for the delegated functions here involved.

The respondent argues such intent from the statutory power of the Chief Examiner and Secretary to appoint examiners, classifiers, etc., and such other employees as may be necessary to carry out the provisions of the statute. N. J. S. A. 11:6-1 (a). However, this merely authorizes engaging assistants and employees to operate within the Department of Civil Service. For is there any comfort to respondent in N. J. S. A. 11:9-5, permitting the Chief Examiner to “obtain the assistance of other persons not on the regular staff of the commission, either within or without the classified service,” in giving tests for the classified service. Here, again, the Department may hire technicians to aid it in the performance by itself of the administrative responsibility of testing.

The position of the respondent is not supported by the cases it cites sustaining the applicability of principles of flexibility and broad exercise of discretion in the manner by which the Civil Service Commission may exercise its responsibilities. They are not pertinent in the context of the issue presented by the present litigation. The specificity with which the subdelegated functions and duties in question have been allocated by the Legislature to the Commission itself and to its principal administrative officer, in the light of the general purposes of the Civil Service Act as a whole in constituting the Civil Service Department as the monitor of all other state agencies in order to achieve and maintain a merit system in career public employment, impels the view that the administrative functions here involved were not intended to be transferred out of the Civil Service Department to the other operating state departments.

The foregoing is not to say that we agree with appellant’s argument that the practice here challenged tends to destroy the basic civil service concept or that it violates the state constitutional provision for appointments and promotions in the state civil service according to merit and fitness and by competitive examination where practicable. N. J. Const. (1947), Art. VII, § I, par. 2. We are inclined to disagree with the position that the principles of merit and elimination of favoritism and partisanship in public employment are necessarily inconsistent with the course here taken. But we do not reach that question. It is enough that we think the Legislature has not authorized it, expressly or by reasonable implication. All reasonable intendment from the statute is to the contrary. Express sand ion for a plan so far divergent from the existing statutory scheme should be sought from the Legislature.

The rule amendment is herewith reversed and set aside as invalid. However, in view of the substantial administrative reliance upon it to date, no administrative action heretofore taken pursuant to the rule or which may be taken within 45 days from the filing of the opinion herein shall be deemed invalid or otherwise affected by this decision. No costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    OLIN MATHIESON CHEMICAL CORPORATION, PETITIONER-APPELLANT, v. WILLIAM KINGSLEY, ACTING DIRECTOR OF THE DIVISION OF TAXATION OF THE DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 21, 1972
    Decided May 1, 1972.

      Before Judges Goudmank, Halpern and Lora.

      Mr. Russell W. Annich, Jr. argued the cause for appellant (Messrs. Mason, Griffin & Moore, attorneys).

      Mr. Herbert K. Glichman, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

Petitioner Olin Mathieson Chemical Corporation appeals from a judgment of the Division of Taxation ordering it to pay to the State the additional corporation business tax assessments for the years 1959, 1960 and 1961 and dismissing its petitions challenging those assessments. Involved here is the applicability of N. J. S. A. 54:10A-19.1(b) to the case at baud.

The facts are stipulated. Olin Mathieson, a Virginia corporation authorized to do business in this State since 1952, filed New Jersey corporation business tax returns for the tax years in question and paid the full amount of its indicated tax obligations. The final return for 1959 was filed October 10, 1960, for 1960 on October 18, 1961, and for 1961 on October 16, 1962. On August 15, 1967 the United States Treasury Department advised petitioner that, for the purpose of computing federal income taxes, its 1959 and 1960 returns had been recomputed and adjusted upwards. Three days later petitioner, as it was obliged to do within 90 days by N. J. S. A. 54:10A-13, notified the Corporation Tax Bureau in the Division of Taxation of this recomputation. The Bureau requested petitioner to furnish certified copies of its federal tax returns for 1959 and 1960; Olin Mathieson complied with that request but indicated that if the Bureau levied additional assessments for 1959 and 1960, it would protest them because more than five years, the period specified in the applicable statute of limitations (N. J. S. A. 54:10A-19.1(b)), had passed since it filed its final returns for those years. Nonetheless, the Bureau as a result of the recomputations levied additional assessments against petitioner on September 6, 1967, in the amount of $5,163.16 for 1959 and $3,614 for 1960, with 6% annual interest from the original due dates of the respective returns.

A similar sequence of events occurred with regard to petitioner’s 1961 tax. Olin Mathieson received word of the recomputation of its 1961 taxable income from the Internal Bevenue Service, apparently in the early spring of 1968. The corporation notified the State of this on April 16, 1968. On May 1, 1968 the Bureau levied an additional assessment in the amount of $3,503.99,- with 6% annual interest from the original due date of the 1961 tax return.

Olin Mathieson timely appealed from these additional assessments to the Division of Tax Appeals and furnished appropriate security pursuant to N. J. S. A. 54:10A-19.2. Petitioner did not quarrel with the result of the federal recomputations or with the accuracy of the Bureau’s computations of assessments. However, it contended that it was not subject to additional assessments because of the expiration of the applicable five-year statute of limitations. The State’s position was that N. J. S. A. 54:10A-19.1(b), when read in the context of the entire Corporation Business Tax Act, did not foreclose its levy of the additional assess-merits in question. It conceded tliat all of petitioner’s actions in this matter were taken in good faith.

N. J. S. A. 54:10A-19.1(b) provides in pertinent part:

Except in the case of willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than five years from the date of the filing of a return; provided, that where no return has been filed as provided by law, the tax may be assessed at any time. * • *

The State relies on Regulation 16 :10-6.100 promulgated by the State Tax Commissioner under the authority given him by N. J. S. A. 54:10A-27 to prescribe and issue rules and regulations consistent with the Corporation Business Tax Act for the interpretation and application of its provisions. That regulation was designed to effectuate N. J. S. A. 54:10A-13, which contains this relevant language:

If the amount, of the taxable income for any year of any taxpayer as returned to the United States Treasury Department is changed or corrected by the Commissioner of Internal Revenue * * * such taxpayer shall report such changed or corrected taxable income * * * within 90 days after the final determination of such change or correction * * * or as required by the commissioner, and shall concede the accuracy of such determination or state wherein it is erroneous. Any taxpayer filing an amended return with such department shall also file within 90 days thereafter an amended report with the commissioner.

Regulation 16:10-6.100 specifies in pertinent part:

If the amount of the taxable income for any year of any taxpayer as returned to the United States Treasury Department is changed or corrected by the Commissioner of Internal Revenue * * * the taxpayer shall file a report of such change or correction or an amended return within 90 days after the final determination of any such change, correction * * *. At any time thereafter, within five years from the date of filing of the report of sueh change or eorreetion or an amended return, the director may reexamine the return, recompute and reassess the tax * * * and shall notify the taxpayer thereof. [Emphasis added]

Petitioner argued before the Division of Tax Appeals that this regulation was inconsistent with the clear prohibition against additional assessments made more than five years after the filing of the tax returns, contained in N. J. S. A. 54:10A-19.1(b), and accordingly was void because it exceeded the authority given the State Tax Commissioner by N. J. S. A. 54:10A-27 to issue rules and regulations — absent a showing of an affirmative attempt to evade taxation, a situation not present here.

The Division of Tax Appeals did not agree with this argument. Presiding Judge Lario indicated in his written opinion that the case was one of first impression in New Jersey and there was no persuasive precedent from other jurisdictions. He acknowledged that there is a seeming contradiction between N. J. S. A. 19:10A-13 and N. J. S. A. 54:10A-19.1(b), but construing them as in pari materia, he concluded that Regulation 16:10-6.100 was reasonable and not inconsistent with the legislative purpose. In sustaining the imposition of the additional tax assessments he proceeded on the assumption that “the Legislature knew that Government re-examination of the tax returns, while theoretically within three years, are [ate] often postponed by actions of the parties themselves and drag on sometimes interminably.”

When the Corporation Business Tax Act was passed in 1945, and when the five-year statute of limitations found in N. J. S. A. 54:10A-19.1(b) was added two years later, the net worth of the corporation was the factor determinative of the tax liability. However, in 1958 the act was amended to provide for the imposition of a tax on corporate net income as well as on corporate net worth. L. 1958, c. 63. Thus, part of a corporation’s tax obligation to New Jersey depends on what the United States Treasury Department considers to be its taxable income for federal income tax purposes.

N. J. S. A. 54:10A-4(k) states that for the purpose of the Corporation Business Tax Act, the taxpayer’s entire net income “shall be deemed prima facie to be equal in amount to the taxable income, before net operating loss deduction and special deductions, which the taxpayer is' required to report to the United States Treasury Department for the purpose of computing its Federal income tax * * * "

As a consequence of the 1958 act, N. J. S. A. 54:10A-13 was amended (L. 1958, c. 63, § 6) to impose on the corporate taxpayer an obligation to report to the Division of Taxation any recomputation of income by the Internal Revenue Service. The Legislature did not free the corporation from this obligation by reason of the passage of any fixed amount of time between its good-faith filing of a state tax return and a federal recomputation of its taxable income.

The Federal Government is, of course, in the unique position of determining and reevaluating a taxpayer’s income for a given year. A state whose corporation tax depends to some extent on the taxpayer’s net income and which established a time limitation running from the date on which a return is filed would find itself at the mercy of the federal bureaucracy. Whenever the federal authorities did not audit a return within the established time period (in our case within five years), which is apparently a fairly common occurrence despite a stated three-year limitation, that state would lose deserved revenue. There would also be present the possibility — not suggested as present here — that a corporation could take certain steps which would delay the federal audit beyond a state’s statute of limitations, and whether those steps were taken in good or bad faith would be difficult to determine and should be irrelevant. It cannot be presumed that our Legislature intended to place New Jersey and its citizens in so disadvantageous a position. On the contrary, we deem it reasonable to assume that the Legislature intended that the five-year limitation of N. J. S. A. 54:10A-19.1(b) should begin to run from the date that a report of the federal recomputation of a corporation’s taxable income is filed with the Division of Taxation.

To interpret N. J. S. A. 54:10A-19.1(b) and 54:10A-13 as petitioner would have us do would trespass upon what has long been considered a fundamental rule in statutory construction, namely, that where two constructions of a statute are possible, that one should be adopted which effectuates rather than defeats the legislative purpose. The five-year period can only run from the time the taxpayer reports its final federal taxable income figure to the Division of Taxation pursuant to N. J. S. A. 54:10A-13.

We observe that the Division has consistently held that the five-year period of subsection 19:1 (b) begins to run only upon the filing of the report called for by subsection 13. This practice is implied in Regulation 16:10-6.100, promulgated March 9, 1959. Where an agency charged with administering an act has given it a certain construction, that construction must be accorded weight in ascertaining the statutory meaning, particularly where the interpretation is of some years’ standing and uniformity. Pringle v. New Jersey Dept. of Civil Service, 45 N. J. 329 (1965). Although the Legislature has since 1959 amended certain sections of the Corporation Business Tax Act, it has never amended subsection 13, thereby arguably agreeing with the Division’s interpretation of that section.

The decision below is consistent with the general principles that everyone should shoulder a just portion of the weight of taxation and that doubts about proper statutory construction should be resolved against those seeking to escape that equitable burden. In re Estate of Lambert, 118 N. J. Super. 121, 127 (App. Div. 1972).

Affirmed.


author: Arnone, J. J. D. R. C.

text:
    ROBERT WEINER, PLAINTIFF, v. BEATRICE WEINER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 19, 1972.

      Mr. Benjamin D. Braelow, attorney for plaintiff.

      Mr. Ira J. Katchcn, attorney for defendant.
   Arnone, J. J. D. R. C.

(temporarily assigned). This matter is before this court to determine if a counsel fee should be awarded defendant-wife’s attorney although a voluntary dismissal of the complaint was taken by plaintiff-husband and an alleged reconciliation took place.

On February 24, 1971, plaintiff, Bobert Weiner, commenced a- divorce action based On the ground of extreme cruelty, against defendant, Beatrice Weiner.

The matter proceeded with all the concomitant motions interspersed between the date of the filing of the complaint to the actual trial date scheduled for October 12, 1971. On that date, and in a conference in chambers, plaintiff’s attorney disclosed that plaintiff desired to withdraw his complaint. The basis set forth by plaintiff for his voluntary dismissal was that the parties had reconciled. Defendant’s attorney questioned the bona fide aspect of the reconciliation. Nonetheless, on October 19, 1971 an order was entered dismissing the complaint and granting leave to defendant’s attorney to make application for counsel fees.

On January 4, 1972 defendant’s attorney, Ira J. Katchen, Esq., by motion applied for counsel fee less credit for what plaintiff had already paid him pendente Hie — a total additional request of $3,500. A detailed affidavit of legal services rendered accompanied the motion.

On January 10, 1972 plaintiff responded that at the date of the hearing (October 12, 1971) he and his wife had reconciled and were still living together, and because of this reconciliation, the attorney for defendant was not entitled to any additional fee, and further, plaintiff argues that the pendente lite fee should be returned to him.

Defense attorney in his reply affidavit states that the order of dismissal reserved to him the right to apply for counsel fees upon the filing of his affidavit of services. In addition, he states that his client has informed him that there is presently no reconciliation between the parties and that plaintiff is living in Florida and defendant in New Jersey. This is supported by defendant’s affidavit wherein she submits that although she is still plaintiff’s wife, he has abandoned and deserted her and is refusing to live with her or to adequately maintain her.

Plaintiff claims that a reconciliation was effected but that defendant refused to accompany him to Florida. He alleges that a settlement agreement was informally reached without either attorney present, but that defendant would not sign it because lier attorney told her that if plaintiff did not pay his fees, he would sue her for the amount.

The court, in its discretion, may make an allowance to counsel in a matrimonial action. R. 4:42-9 (a) (1). However, this rule was applied where the matrimonial action was terminated by the progress of the litigation to final judgment. Anything short of final judgment was deemed a bar to the fee. This strict limitation was applied accordingly.

Thus, the attorney for a wife who dropped her suit for separate maintenance and whose husband in turn dropped his counterclaim for divorce, was denied a final counsel fee. The final fee was denied even though the attorney for plaintiff-wife was responsible, by his efforts, for the reconciliation of the parties, and notwithstanding that he had a retainer agreement with the wife. See Cole v. Cole, 30 N. J. Super. 433 (Ch. Div. 1954).

It was stated in Sutphen v. Sutphen, 103 N. J. Eq. 203 (Ch. 1928), that a cause of action for divorce terminates at the death of wife if she dies prior to the final hearing. Further, it was held that a claim for alimony pendente lite and for counsel fees and costs could not be allowed because the suit had abated by the wife’s death.

In Iovino v. Iovino, 58 N. J. Super. 138 (App. Div. 1959), it was held that no counsel fee was due the attorney for a wife who had been successful in obtaining a judgment nisi and who subsequently entered into a reconciliation with her husband. The court reasoned that once the judgment nisi was vacated upon her own application, the judgment was vacated in toto and the counsel fee, being part of that judgment, was also required to be vacated.

Wilson v. Wilson, 99 N. J. Super. 427 (Ch. Div. 1968), continued this line of reasoning and held that a judgment of dismissal of a divorce action predicated on a reconciliation cannot contain a reservation of a pendente lite order awarding counsel fees even though the purpose of such pendente lite fee was to enable the wife to prepare her case for trial.

Underlying this decisional law was the strong public policy ordaining that the marital status be maintained; that it was the duty of counsel as officers of the court to encourage settlement of actions disruptive of the marital status even at the cost of legal fees to counsel, and that the reconciliation of the parties abrogates the cause of action as a legal proceeding. See Wilson v. Wilson, supra; Cole v. Cole, supra; Shaffer v. Shaffer, 129 N. J. Eq. 42 (E. & A. 1941); Kuntz v. Kuntz, 80 N. J. Eq. 429 (Ch. 1912).

Such was the decisional law and public policy affecting the award of counsel fees to attorneys in matrimonial actions which never reached finality until the New Jersey Supreme Court decision in Williams v. Williams, 59 N. J. 229 (1971). In that ease the court was confronted with the question of the award of counsel fees to the attorney for Mrs. Williams who had died during the pendency of the action, thus abating the suit before final judgment.

There is language in Williams which this court determines relates to and should be extended to suits terminated as a result of reconciliation or the fact that the complaining party moves for a voluntary dismissal of his action.

In referring to Sutphen v. Sutphen, supra, the court in Williams, states:

In our view, the Sutphen court’s equation of permanent alimony with counsel fees and costs is plainly wrong. In the counsel fee and cost situation, such as presented here, unlike the situation where an award of permanent alimony is sought after the wife’s death, her death does not extinguish the need for the award. Her estate remains liable to the attorney as the contracting party and the only consequence of the abatement doctrine is to relieve the husband of any liability for such moneys. We think the exemption of the husband in such circumstances is unfair and incompatible with the policy underlying the grant of counsel fees and costs. [At 232-233]

The court also finds that counsel fees and costs in a divorce action are properly made the obligation of the husband and are not unlike other categories of “necessities” which the law compels the husband, the usual repository of family finances, to furnish the wife. The test used to determine the applicability of such an award is that if there can be no dispute that applicant would be entitled to an award for fees and costs had the litigation proceeded to final judgment, then the applicant would be entitled to an award of fees and costs when the suit is terminated short of final judgment. Williams v. Williams, supra.

This does not bar counsel from applying for an award of a counsel fee directly to himself, since the court determined that attorneys in- such cases have the standing as unpaid solicitors, and while counsel fees and costs are awarded to the litigant, -they properly “belong” to counsel. The allowances are to be held in trust for the attorneys who furnished the services. Williams v. Williams, supra.

Besides the strong language in the Williams case, this court strongly believes that to-. deny counsel fees in cases where reconciliation has been effected would in reality thwart the underlying public policy of encouraging attorneys to preserve the marital status by diligent efforts to. secure a reconciliation. It seems illogical that a fee should not be awarded for services rendered to promote the public policy of maintaining the marital status while a fee is awarded for services rendered in dissolving the marital' status which public policy seeks to maintain.

Considering the strong and broad language in Williams and the public policy of preserving the marital status,. I find that the law as expressed in Williams, with respect to the award of counsel fees and costs the attorney of a party dying prior to a final- judgment but after the start of the suit, is also the law with respect to a reconciliation effected during the pendency of the suit as well as with respect to a termination of the suit by a voluntary dismissal of the action by a party.

•. It is, therefore, the view of this court that the, application by defendant’s attorney, for: costs and. cpunsel fees should be granted. The question remains as to what amount should be allowed. An examination of the filed affidavit of services indicates that some of the services rendered were in a Juvenile and Domestic Delations Court action for contempt, wherein the-attorney indicated he would not apply for fees and costs, in relation to that matter. Taking this into consideration, I feel the additional requested fee of $3,500 should be-reduced. The total fee remaining to be paid is $1,500 plus costs.


author: Huot, J. D. C.

text:
    AGNES CAHAYLA, PLAINTIFF, v. DONALD SAIKEVICH, DEFENDANT.
    District Court, Bergen County
    Decided April 20, 1972.

      Mr. Louis J. Dinice, attorney for Plaintiff.

      Mr. Donald Saikevich, pro se.
   Huot, J. D. C.

This is an action to dispossess defendant from an apartment which he occupies at 68 Steinberg Avenue, Garfield, New Jersey. Plaintiff is a tenant by the entirety with her husband, George Cahayla, from whom she has been separated since 1967. She resides in the first-floor apartment; her husband does not reside with her or upon the premises. Defendant is in possession of the second-floor apartment by virtue of an agreement made with the husband, to whom he does and has paid the rent.

On November 36, 1971, plaintiff served written notice upon defendant to vacate the premises as of January 1, 1973. The husband did not join in this notice, nor in this action.

The question raised by the facts of this case is the right of this court to entertain'the action.

A summary dispossess action is a creature of the Legislature and, as such, jurisdiction is limited by the statutes. Such jurisdiction is conferred upon the county district courts by N. J. S. A. 2A:6-34 but is limited by the provisions of N. J. S. A. 2A:18-51 et seq.

The prime requisite for a summary dispossess action is the existence of a landlord-tenant relationship between the parties. A plaintiff’s right to possession of property without such relationship is not cognizable by a county district court. Without a landlord-tenant relationship a plaintiff must seek possession of property through a Superior Court ejectment action. Title to the property from which á defendant is sought to be dispossessed is not a requisite to jurisdiction in the court; in fact, if proof of title is required, the court loses jurisdiction of the action.

N. J. S. A. 2A:18-53 provides

If upon trial of a landlord and tenancy proceeding the plaintiff shall not be able to prove, by lease or other evidence, his right to the possession of the premises claimed by him without proving title to lands, tenements and hereditaments, the cause shall be dismissed, provided however that an assignee or grantee of a landlord may, at the trial or hearing, offer in evidence a deed or other writing for the purpose of showing the assignment or grant by the landlord. Furthermore a deed or other writing may be received for the purpose of showing the right to possession of the premises for the recovery of which the proceedings are brought.

There are very few cases wherein, this statute has been construed, and none of recent vintage. Nor are there any wherein the plaintiff was a tenant by the entirety seeking to dispossess a tenant who came into possession under authority of the other tenant by the entirety.

Gatti v. Meyer, 9 N. J. L. J. 271 (D. Ct. 1886), was a summary judgment under the Landlord and Tenant Act brought by a purchaser of the fee against the tenant. It was there held that “the contract of letting is one that attaches to the estate, and runs with the land. It is not a personal contract. The purchaser becomes a substituted landlord, and by virtue of his privity of estate with the original landlord he becomes a party to the contract. (Citations omitted).” (at 272). To similar effect, Watson v. Idler, 54 N. J. L. 467 (Sup. Ct. 1892).

But plaintiff here is not a purchaser of the property from the landlord.

In Eitner, Inc. v. McGuire, 9 N. J. Misc. 205, 153 A. 372 (Sup. Ct. 1931), plaintiff was the purchaser of the property at an execution sale in foreclosure proceedings. Defendant was a tenant by virtue of an agreement with the owner foreclosed against. The court said:

The situation here plainly presented is that the respondent, being called upon to produce proof of his right to possession of the premises, was unable to do so except by proving title, and under the plain terms of the statute, before referred to, [3 Comp. Stat. 3074, § 18F of the Landlord Tenant Act (L. 1913, c. 13, § 6)], when put to this, the court below was without jurisdiction, [at 208.]

It thus reversed the judgment for possession entered by the Second District Court of Newark.

This court has been unable to discover any other New Jersey cases concerning the question. The statutory law of New Jersey has been consistent in its prohibition of proof of title as grounds for a plaintiff’s right of possession.

L. 1898, c. 228 (an Act Concerning District Courts), § 112 says with reference to landlord and tenant cases:

If upon tlie said trial the plaintiff shall not he able to prove, by lease or tker evidence, his right to posession of the premises claimed by him without proving title to lands, tenements and hereditaments, it shall be the duty of the said judge to dismiss the action.

L. 1903, c. 13, § 6, an amendment to the Landlord and Tenant Act of 1874, says:

If upon the said trial the plaintiff shall not be able to prove, by lease or other evidence, his right to possession of the premises claimed by him without proving title to lands, tenements and hereditaments, it shall be the duty of the said judge or justice of the peace to dismiss the action.

In L. 1904, c. 124, a slight change was made to permit the acceptance into evidence of a deed to show right of possession if the action were by an assignee or grantee and the deed was by the landlord to the plaintiff. This was a legislative codification of the determination that the contract of letting attaches to the estate and runs with the land, as expressed in Gatti v. Meyer and Watson v. Idler, supra. This permission was repeated and enlarged in L. 1905, c. 253, to permit an owner, grantee, assignee or agent to introduce a deed to show right of possession where the lands were leased by an agent of the owner in the name of the agent individually or as agent.

Thus the legislative intent has been clearly set forth and repeated. If it is necessary for a plaintiff to prove title to the lands, the case must be dismissed.

Plaintiff, however, contends that she is entitled to maintain this action and obtain a judgment for possession by virtue of her estate as a tenant by the entirety. She concededly admits she can find no case law on this question in New Jersey and classifies this action as one of “first impression in this jurisdiction.” She cites and relies upon Pastore v. Hecker, 26 Misc. 2d 43, 205 N. Y. S. 2d 403 (City. Ct. 1960), where that court, without discussion or citation, said:

The law is clear that either tenant by the entirety is entitled to possession of premises jointly owned and either could commence a summary proceeding such as this. [205 N. Y. S. at 405]

Pastore v. Hecker involved a summary proceeding for dispossession against a holdover tenant. Plaintiff’s husband (the other tenant by the entirety) had been adjudicated a bankrupt and the trustee in bankruptcy had succeeded to his interest. The trustee was not a party to the proceedings but had made or sanctioned a rental arrangement with the tenant. A reading oí the case indicates that the decision was based, not on the right oí a tenant by the entirety to possession, but upon the court’s conclusion of no right in the trustee to make any rental arrangement with the defendant. As the court there said, “The Trustee’s rights would seem to be limited to income from the property receivable by the bankrupt and any rights of ownership subject, of course, to survivorship of the bankrupt.” There is no indication that New York has a statute similar to ours.

In another New York case, Cataldi v. Cataldi, 34 Misc. 2d 748, 229 N. Y. S. 2d 919 (Sup. Ct. 1962), one eotenant by the entirety could not dispossess the lessee of the other cotenant by the entirety. In agreement with this position is Motor Aid v. Ray, 53 Ga. App. 722, 187 S. E. 120 (Ct. App. 1936), where a nonjoining cotenant could not obtain a dispossessory warrant to evict the lessee of the other eotenant. This appears to be the majority rule. “Effect of lease given by part only of cotenants.” 49 A. L. R. 2d 797, § 6 at 812.

However, none of these authorities is controlling in New Jersey. Since this is a case of novel impression it is far from clear that either tenant by the entirety is entitled to possession of premises jointly owned, in a summary dispossess proceeding brought in the county district court.

Plaintiff thus raises a question of the rights which attached to each tenant of an estate held by the entirety. Specifically, in this case, she raises two questions: (1) May one tenant rent a portion of the estate to a third party? (2) May the other tenant terminate that tenancy and obtain possession by a summary dispossess proceeding?

The attributes of an estate by the entirety is succinctly set forth in Dvorken v. Barrett, 100 N. J. Super. 306 (App. Div. 1968), aff’d 53 N. J. 20 (1968) :

An estate by the entirety has been described as a remnant of other times (Weintraub, C. J., dissenting in King v. Greene, supra, 30 N. J. [395] at p. 413). Its anomalous nature has been fully set forth in numerous decisions. King v. Greene, supra; Mueller v. Mueller, 95 N. J. Super. 244 (App. Div. 1967). Suffice it to note that in an estate by the entirety, husband and wife in effect hold as tenants in common for their joint lives; that survivorship exists which is indestructible by unilateral action, and that the rights of each spouse in the estate are alienable, the purchaser becoming a tenant in common with the remaining spouse for the joint lives of- the husband and wife and acquiring the fee if the grantor spouse becomes the survivor. Creditors of a debtor spouse can levy upon and sell the debtor spouse’s one-half interest in the life estate for the joint lives as well as that spouse’s right of survivorship. King v. Greene, supra, 30 N. J. at pp. 412-413. However, during coverture, neither spouse may have partition of an estate by the entirety. Gery v. Gery, 113 N. J. Eq. 59, 64-65 (E. & A. 1933.) ; Mueller v. Mueller, supra. A levying creditor, or purchaser at an execution sale, acquires no greater rights in the property than those of the debtor spouse. In King v. Greene, supra, our Supreme Court held that the levying creditor could sell the debtor spouse’s one-half interest in the life estate for the joint lives as well as the debtor spouse’s right of survivorship. However, nowhere was it indicated that the fee could be sold free of the survivorship interest of the non-debtor spouse. [100 N. J. Super. at 308]

Since it seems clear that the husband could convey to a purchaser his rights in the estate, and since a creditor could levy upon and sell the husband’s interest in the life estate for the joint lives, it would appear that the husband may do something less than that. If there can be a conveyance of his entire interest and his right of survivorship in the tenancy by the entirety, then, certainly, he can convey that right or those rights for a fixed period of time short of a full conveyance of his rights, subject always to the wife’s right of survivorship and possession. 49 A. L. R. 2d, supra, § 4 at 804. Thus, the first question must be answered in the affirmative, that is, one tenant by the entirety may lease a portion of the estate to a third party.

The second question must be answered in the negative because the landlord-tenant relationship was established between defendant and plaintiff’s husband. Plaintiff had no part in the establishment of such relationship and is not able to establish her right to possession based upon a landlord-tenant relationship. That being so, this court does not have jurisdiction to determine plaintiff’s right to that property which may be based upon legal theory other than landlord-tenancy.

There will be a judgment entered in favor of the defendant and against the plaintiff of no cause for action.


author: Kapp, J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF ROBERT FORTENBACH, PETITIONER.
    Essex County Court, Law Division—Criminal
    Decided April 19, 1972.

      Mr. Philip N. Soiel for petitioner.

      Mrs. Gloria II. Murphy, Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).
   Kapp, J. C. C.

This is an application by petitioner Robert Fortenbach to expunge the record of his arrest on August 21, 1960 in the City of Newark for lewdness and indecent dress, for the reason that the complaints to which he had pleaded “not guilty” were dismissed; the indecent dress charge in the municipal court and the charge of lewdness by the grand jury on January 25, 1961. There is no subsequent record of an arrest or conviction of any criminal or gMasi-criminal offense.

The petitioner is 40 years of age; he has been a resident of Newark for many years. He is engaged in the construction industry as an asbestos worker and claims that while working for the Newark Housing Authority he was discharged when his employer learned of his arrest for lewdness in 1960 even though that complaint against him had been dismissed. He states that his supervisor had informed him that he, in turn, had been instructed by the superintendent of construction to terminate his employment because of the odious nature of the offense for which he had been arrested.

Fortenbach contends that he has thereby been deprived of the opportunity to compete fairly in the labor market. He alleges that on subsequent occasions, whenever the record of his arrest had surfaced, he was likewise prejudiced and denied employment.

Lewdness is an indictable offense.' It is defined as the “irregular indulgence of lust, whether public or private.” State v. Baldino, 11 N. J. Super. 158, 162 (App. Div. 1951). The police record in the ease at bar is suggestive of some form of sexual aberration. It is readily conceivable that a prospective employer would look askance and hesitate to engage an individual who carries the stigma of an arrest by the authorities for a sex offense, albeit his láter exoneration of the charge.

The relief which the pétitioner seeks is bottomed upon N. J. S. A. 2A:164-28, which, in its pertinent part, provides that:

In all cases wherein a criminal conviction has been entered against any person whereon sentence was'suspended, or a fine imposed of not more than $1,000, and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of 10 years from the date of such conviction for the person so convicted to present a duly verified petition to the court wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided. for in this section. ,
Upon reading and filing such petition such court may by order fix a time, * * * for the hearing of the matter, * * * and if no material objection, is made and 'no reason appears to the contrary, an order may be granted directing the clerk of such court to expunge from the records all evidence of said conviction and that the person against whom .such conviction was entered shall be forthwith thereafter relieved from such disabilities as may have heretofore existed by-reason thereof, excepting convictions involving the following crimes: treason, misprison of treason, anarchy, all capital cases, kidnapping, perjury, carrying-concealed weapons or weapons of any deadly nature or type, rape, seduction, aiding, assisting or concealing persons accused of high misdemeanors, or aiding the escape of inmates of prisons, embracery, arson, robbery or burglary. * * *

He contends that.while the statute merely relates to the' record of a “conviction,” it is reasonable to infer that it was the intent of.-, the Legislature that an arrest, which usually precedes conviction, for a criminal offense, should also be brought within the .ambit of its beneficent scope. and considered for expungement.

. It is common knowledge that when a person applies for employment and responds to a question. concerning any previous arrests — that have not led to convictions — he actually places himself in double jeopardy, facing, without procedural safeguards, a “second trial” in which he is then and there called upon to establish his innocence against a presumption of guilt. Many persons with arrest records do not even qualify for such a second “trial,” since the disclosure of any previous arrests disqualify them pro se and instanier. Employment agencies tend to make no distinction between persons with arrest records and those with convictions, and most employers equate both categories and brand them as bad employment risks. Ordinarily it is difficult to prove that the arrest record of an applicant was the cause for rejection, but in the present case petitioner had already been employed and then discharged, but only after intelligence concerning his arrest was brought to the' attention of his employer.

Since the passage of N. J. S. A. 2A:164-28, supra, the’ Legislature has enacted remedial legislation which expresses the current trend to delete the' “legal stigma” that attaches to persons who have been arrested and convicted of certain offenses, so as to relieve them of that disability and thereby obtain gainful employment.

More recently our Legislature demonstrated its awareness of and concern for the severity of the record of an arrest and conviction, particularly in the case of first and youthful offenders, for the violation of the Narcotic and Controlled Dangerous Substance Drugs Act by the enactment of N. J. S. A. 24:21-27 and N. J. S. A. 24:21-28 (1970).

In Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940), aff’d 125 N. J. L. 367 (E. & A. 1940), Justice Heher rightly noted that:

A statute often speaks as plainly by inference, and by means of the purpose which underlies it. as in any other manner. That which is clearly implied is as much a part of the law as that which is expressed, [at 142]
See also, Pine v. Okzewski, 112 N. J. L. 429 (E. & A. 1933) ; In re Loch Arbour, 25 N. J. 258 (1957) ; Dvorkin v. Dover Tp., 29 N. J. 303 (1959) ; Juzek v. Hackensack Water Co., 48 N. J. 302 (1966).

Clearty, then, since the statute authorizes, under certain conditions, the expungement of a conviction for “lewdness,” a fortiori why not the arrest? Here the maxim, om,ne majus continet in se minus, which Broom, Legal Maxims (8th Amer. ed. 1882) at 177, translates for us as “The greater contains the less,” seems appropriate.

It should be noted that only a conviction for an indictable offense carries any legal significance. State v. Blinsinger, 114 N. J. Super. 318, 320 (App. Div. 1971). This was tellingly illustrated in Schware v. Board of Bar Examiners, 353 U. S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), wherein the court stated:

The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated, [at 241, 77 S. Ct. at 757]

Likewise, an indictment has no probative or evidential value. It is a mere accusation and raises no presumption of guilt. As expressed by Justice Case in State v. Ellenstein, 121 N. J. L. 304, 312 (Sup. Ct. 1938), the indictment “proves nothing,” “carries no element of guilt,” and does not in any degree “take from the accused his presumption of innocence.” Similarly, in Coyne v. United States, 246 F. 120, 121 (5 Cir. 1917), the court stated that it was “not uncommon for entirely innocent persons” to be indicted, and that the indicted person was to be presumed innocent until his guilt was established “by legal evidence beyond a reasonable doubt, in a court of competent jurisdiction.” See 3 Wigmore on Evidence (3d ed. 1940), § 980(a). See also, State v. Orecchio, 16 N. J. 125, 132.

Factually, petitioner has maintained an unblemished record since the time of his arrest. But, in consequence of that arrest, he has suffered the loss of economic benefits and psychological embarrassment. Moreover, in Roesch v. Ferber, 48 N. J. Super. 231, 249-250 (App. Div. 1957), the court expressed the view that

* * * each case should be decided on its own facts, for it is conceivable that a case justifying relief might arise. * * * We have seen that courts recognize that situations may possibly arise where the equitable relief such as that sought here may be warranted. However, the equities must be strongly in favor of the comj)lainant for this court to interfere with the valid administrative procedures of our law enforcement agencies.

Here the injury is real and the equities involved justify relief.

In view of the foregoing, the record of petitioner’s arrest on August 21, 1960 for lewdness and indecent dress is expunged, within the contemplation of N. J. S. A. 2A:164-28, supra, and the information concerning that record shall not hereafter be disseminated or made available to any other governmental or private agency or person.

      See Hess and Le Poole, “Abuse of the Record of Arrest Not Leading to Conviction,” 13 Crime and Delinquency 494 (1966).
      The Duncan report entitled “Report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the District of Columbia” (1967), found that the use of arrest records by prospective employers was widespread, and the consequences of a person having' been arrested, even if the charges were subsequently dismissed, were severe. The report recommended that the commissioners adopt rules prohibiting the dissemination to employers of records of arrests where no conviction resulted. Morrow v. District of Columbia, 135 U. S. App. D. C. 160, 417 F. 2d 728 (1969).

        N. J. S. A. 2A:169-1.1 provides that the record of conviction of disorderly persons may be expunged after five years from the date thereof, provided there has been no subsequent criminal conviction.

        N. J. S. A. 24:21-27 provides that a person convicted for the first time under any law relating to narcotic drugs, marijuana, stimulant, depressant, or hallucinogenic drugs may be placed on probation. Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings without adjudication of guilt. The proceedings shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense.
      N. J. S. A. 24:21-28 provides that a person who at the time of the offense was 21 years old or younger may after a period of at least six months upon the expiration of the probationary term petition the court to expunge the record of his arrest, trial and conviction. The effect of such an order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial, and he shall not be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial in response to any inquiry made of him for any purpose.


text:
    RAMSEY ASSOCIATES, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF BERNARDSVILLE AND SAMUEL CONKLIN (NOW TED VALLACHI), BUILDING INSPECTOR, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 18, 1972
    Decided May 4, 1972

      Before Judges Labb.bcque, Kolovsky and Allcobit.

      Mr. J ohn T. Lynch argued the cause for defendants.

      Mr. William P. Westling argued the cause for plaintiff (Messrs. Imbriani and Westling, attorneys).
   Per Curiam.

Defendants appeal from a Law Division judgment which (1) reversed the board of adjustment’s denial of a variance sought by plaintiff under N. J. S. A. 40:55-39(c) to permit the construction of a residence on an “undersized” lot; (2) granted plaintiff the requested variance, and (3) ordered the building inspector to issue a building permit authorizing the construction of the residence.

Plaintiff cross-appeals from an interlocutory order which adjudged that it was not entitled to the benefit of a variance which had been granted to a predecessor in title some 5y2 years before plaintiff purchased the property. The court ruled that the variance had expired by virtue of section 1709 of the borough zoning ordinance which provides that a variance or exception granted by the board “shall expire if no construction, alteration or conversion has been commenced within one year from the date of granting such variance or exception.” The court rejected plaintiff’s contention that the ordinance limitation is invalid.

The cross-appeal lacks merit. It has long been settled that a municipality may by ordinance limit the time within •which work must.start under a building permit. Sun Oil Co. v. Bradley Beach, 136 N. J. L. 307 (Sup. Ct. 1947), aff’d o.b. 137 N. J. L. 658 (E. & A. 1948); 9 McQuillin, Municipal Corporations (3 rev. ed. 1964), § 26.219 at 566,

In Sun Oil Co. v. Bradley Beach the court said:

We cannot say that placing a time limit for the commencement of work under a building permit is unreasonable. It does not seem desirable that a permit holder should indefinitely delay the commencement of work. It is not unreasonable that there be a time limit when work must start under a building permit. [136 N. J. L. at 309]

The same considerations are applicable to and support the validity of an ordinance provision such as section 1709 fixing a reasonable period within which construction authorized by the grant of a variance must commence. It is not unreasonable or improper to require a new application for a building permit or a variance to be filed if construction pursuant to the permit or variance theretofore granted is not begun within the time limited by the ordinance.

Board of Education, Fort Lee v. Mayor, etc., Fort Lee, 31 N. J. Super. 22, 29 (App. Div. 1954), on which plaintiff relies, is not to the contrary. In Fort Lee, supra, the ordinance did not contain a limitation of time “within which a building permit may be issued following the grant of a variance.” The decision in that case was but an application of the rule stated in 2 Rathkopf, Zoning and Planning (3 ed. 1966), c. 46 at 46—1 et seq:

When a variance or special exception is granted the use permitted thereby becomes a conforming use and such use is not lost through non-exercise, in the absence of a time limitation set forth in the variance itself or in the zoning ordinance. [Emphasis added]

We turn next to defendants’ appeal. Plaintiff, on March 31, 1967, had purchased property designated as lots 9 and 10 in Block 49 on the Bernardsville tax map. Under zoning ordinance 230, adopted January 22, 1959, the lots are in an B-5 Besidential zone in which each building lot is required to have a frontage of at least 50 feet. Lots 9 and 10 each have a frontage of only 41.75 feet.

A house had been constructed on lot 10 in the 1920’s. The board of adjustment in its resolution of July 1, 1970 found from the evidence offered before it that:

A. The house located on Lot 10 is set back 27 feet from the street. The said house is 16 feet 6 inches wide and the right side yard is 12 feet and the left side yard is 12 feet six inches.
B. The lot in question, being Lot 9, Block 45, on the Tax Map of the Borough of Bernardsville, has been for more than 40 years last past a vacant lot used in common with the adjoining Lot 10 as if both were a single lot or home site (sic), there having been during said period of over 40 years:
1. a lawn covering and common to both said Lots 9 and 10 and maintained by the resident, from time to time, of the house on Lot 10;
2. a common row of shrubbery running across the frontage of both lots and maintained by the resident, from time to time, of the home located on Lot 10;
3. a garden maintained and used for some years on Lot 9 by the resident, from time to time, of the home located on Lot 10; and
4. no natural or artificial boundary or division line between said Lots 9 and 10,

and concluded that by reason of the incorporation and maintenance over the years of lot 9 as part and parcel of the homesite, there was no showing of “hardship,” an element which must be shown to warrant a variance under N. J. S. A. 40:55-39(e), and no justification for granting a variance “which in effect would subdivide [plaintiff’s] premises into two non-conforming parcels.” Bove v. Board of Adjust., Emerson, 100 N. J. Super. 95, 101 (App. Div. 1968).

Plaintiff, to quote from its brief,

* * * recognize[s] the proposition that property owners have been denied variances for some substandard lots where the lot in question has, as a matter of use, been “incorporated” into (usually) the house-lot from which the owner now seeks its separation. The issue thus tendered goes to whether there is in fact a bona fide hardship for the owner, or whether the “hardship” really results from a second guess by the owner as to how he wishes to use the property.

However, it argues that the trial court was correct in its conclusion that the evidence does “not support the Board of Adjustment’s findings that the two lots have been so closely-tied together by use over the years so as to constitute one homesite.”

We disagree. We conclude from our study of the record that the evidence furnishes adequate support for the board’s findings and that its conclusions were neither arbitrary or unreasonable. See Bove, supra.

The final judgment in plaintiff’s favor from which defendants appealed is reversed. The interlocutory order from which plaintiff cross-appealed is affirmed.


text:
    TOWNSHIP OF LACEY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MARY MOTT MAHR AND KARL C. MAHR, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 17, 1972
    Decided May 10, 1972.

      Before Judges Coneoed, Matthews and Peitz.

      Mr. Joel A. Mott, Jr., attorney for appellants.

      Mr. John F. Russo, attorney for respondent.
   Per Curiam.

Defendants are the owners of certain real property in plaintiff township on which is presently located the remains of what was Ye Olde Greyhound Inn. The property and inn building were purchased by defendants in 1954. During 1957 the third and fourth floors of the building were damaged by fire. When these floors were removed 50 rooms were rebuilt on the first floor.

In 1967 the township amended its zoning ordinance to require a 50-foot building line setback in its highway business zone which runs along both sides of New Jersey Highway 9 as it passes through the township. Defendants’ property is located in this zone. After the adoption of the zoning amendment defendants’ inn became a nonconforming use because of violation of front and side yard setbacks. (The front yard encroachment exceeds 40 feet and the side yard encroachment exceeds 14 feet).

On January 10, 1968 the inn was again extensively damaged by fire. After the fire defendants attempted to restore portions of the building as living quarters for themselves. The township thereupon instituted these proceedings, contending that the destruction of the inn building was so extensive as to preclude defendants’ right to restore it.

At the trial in the Chancery Division the township contended that approximately 69% of the building was totally destroyed and that approximately an additional 14% was badly gutted. Defendants contended that one-third of the structure remains. They seek to restore certain portions of this claimed one-third for residential purposes. Expert testimony was produced by both sides.

The Chancery Division judge determined that the destruction of the inn building was so extensive as to exceed “partial” destruction referred to in N. J. S. A. 40:55-48. Accordingly, he enjoined defendants from rebuilding any portion of the structure and directed them to demolish it. The trial judge also directed that should defendants fail to demolish the structure within 60 days of the entry of judgment, then the township would accomplish the task, adding the cost thereof to the taxes assessed on the property for the year, said amount to become a lien thereon.

In reaching his determination the trial judge properly did not rely upon the provisions of plaintiff’s zoning ordinance which prohibits the rebuilding of a nonconforming structure after damage thereto- exceeds 75% thereof. H. Behlen & Bros. v. Mayor, etc., Kearny, 31 N. J. Super. 30 (App. Div. 1954). Instead, as indicated, he concluded that the destruction of the building exceeded partial destruction within the meaning of N. J. S. A. 40:55-48, accepting the testimony of plaintiff’s experts.

N. J. S. A. 40:55—48 permits the restoration or repair of a nonconforming use in the event of its partial destruction. The use of the- word “partial” in the statute has created speculation as to its precise meaning. See e. g., H. Behlen & Bros. v. Mayor, etc., Kearny, supra at 39; Hay v. Board of Adjustment, Ft. Lee, 37 N. J. Super. 461, 465 (App. Div. 1955); D’Agostino v. Jaguar Realty Co., 22 N. J. Super. 74, 77 (Ch. Div. 1952). We need not consider, under the facts reviewed here, whether in using the word the Legislature referred to all destruction less than total, since we are satisfied that the trial judge in accepting the testimony of the township’s experts, found that the use of the building as an inn was substantially totally destroyed by the fire and therefore its destruction exceeded partial destruction within the meaning of the statute. We find his conclusions to this effect amply supported in the record.

We do not agree, however, with the trial judge’s direction that the cost of demolition, if performed by the township, should be added to the taxes assessed on the property. We find nothing in the inherent power of an equity court to exercise such power, absent specific legislative grant to do so. See, e. g., N. J. S. A. 40:48-2.3 et seq., a statute not relied upon by plaintiff in these proceedings.

We do not question the power to abate a nuisance. Certainly nuisances can be abated by an equity court upon proper complaint. The remedy used to abate, however, must not exceed what is necessary to accomplish abatement, so that no injury is done to private rights beyond that necessary to insure abatement. Ajamian v. North Bergen Tp., 103 N. J. Super. 61, 80 (Law Div. 1968), aff’d 107 N. J. Super. 175 (App. Div. 1969), cert. den. 398 U. S. 952, 90 S. Ct. 1873, 26 L. Ed. 2d 292 (1970).

As modified by this opinion, the judgment of the Chancery Division is affirmed.


author: Lane, J. S. C.,

text:
    J. D. CONSTRUCTION CORP., A NEW JERSEY CORP., PLAINTIFF, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FREEHOLD AND TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS. FREEHOLD DEVELOPMENT CO., A PARTNERSHIP, PLAINTIFF, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FREEHOLD AND THE TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 18, 1972.

      Mr. John B. Salieran for plaintiff J. D. Construction Corp. (Messrs. Giordano, Giordano <& Salieran, attorneys).

      Mr. Marvin E. Schaefer for plaintiff Freehold Development Co.

      Mr. Bernard I. Weinstein argued the cause for defendant Board of Adjustment of the Township of Freehold.

      Mr. John A. Kaye argued the cause for defendant The Township of Freehold.
   Lane, J. S. C.,

In these consolidated actions in lieu of prerogative writs plaintiffs, each of which sought a special exception under N. J. S. A. 40:55-39(b) to construct a garden apartment complex, appealed from denials by the defendant Board of Adjustment of the Township of Freehold and also contested the validity of certain provisions of the Zoning Ordinance of defendant Township of Freehold. At the conclusion of the final hearing the Court orally determined the appeals from the denials by the Board and decided an attack on certain provisions of the Zoning Ordinance. This opinion disposes of the two remaining issues, the validity of Article 10.26-9, subparagraph (W), and Article 7.1-3 of the Zoning Ordinance. Both plaintiffs challenge Article 10.26-9, subparagraph (W); plaintiff Freehold Development Co. challenges Article 7.1-3.

Article 10.26-9, subparagraph (W), provides:

The total number of individual apartment units in all apartment projects within the Township of Freehold shall not exceed fifteen (15) per cent of the total number of single family residences situated within the limits of the Township of Freehold.

Article 7.1-3 provides:

Parking facilities may be located in any yard area in all zones. In single family residential zones any parking facilities with a capacity of more than four (4) vehicles shall be permitted only in a side or rear yard.

Municipalities have no inherent authority to enact zoning ordinances. Kirsch Holding Co. v. Borough of Manasquan, 111 N. J. Super. 359, 365 (Law Div. 1970), rev’d on other grounds 59 N. J. 241 (1971); Piscitelli v. Township Comm. of Tp. of Scotch Plains, 103 N. J. Super. 589, 594 (Law Div. 1968). Such authority is limited to that given by statute. Kohl v. Mayor and Council of Borough of Fair Lawn, 50 N. J. 268, 275 (1967); Morris v. Postma, 41 N. J. 354, 359 (1964); New York Cent. R. Co. v. Borough of Ridgefield, 84 N. J. Super. 85, 92 (App. Div. 1964); Piscitelli v. Township Comm. of Tp. of Scotch Plains, supra, 103 N. J. Super. at 594.

N. J. Const., Art. IV, § VI, par. 2, grants the Legislature power to enact enabling legislation to empower the municipalities to enact zoning legislation. N. J. S. A. 40:55-30 specifically gives municipalities authority to “limit and restrict to specified districts * * * regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land * * N. J. S. A. 40:55-31 authorizes municipalities to create and regulate districts in order to carry out the purposes of the statute. All such regulations must be uniform for each class or kind of structure or use throughout the district, but the regulations in one district may differ from those in another. N. J. S. A. 40:55-32 sets forth the purposes of zoning legislation and the essential considerations. It provides:

Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, flood, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings ; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.

Zoning ordinances must be given a reasonable construction and application. They are to be liberally construed in favor of the municipality. N. J. Const., Art. IV, § VII, par. 11; Place v. Board of Adjustment of Borough of Saddle River, 42 N. J. 324 (1964); Yates v. Board of Adjustment of Franklin Tp., 112 N. J. Super. 156, 158 (Law Div. 1970).

Substantive due process demands that zoning powers, like all police power, must be reasonably exercised. A zoning regulation must not be unreasonable, arbitrary or capricious. The means selected must have a real and substantial relation to the object sought to be attained. The regulation must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not have the offensive character of those which cause the problem sought to be ameliorated. Kirsch Holding Co. v. Borough of Manasquan, supra, 59 N. J. at 251; Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 414 (1952); Gabe Collins Really, Inc. v. City of Margate City, 112 N. J. Super. 341, 346 (App. Div. 1970). The regulation must not impress unnecessary and excessive restrictions on the use of private property. Kalobimar Realty Co. v. Webster, 20 N. J. 114, 122-123 (1955); Kent v. Borough of Mendham, 111 N. J. Super. 67, 77 (App. Div. 3970).

The test of the validity of a municipal zoning ordinance is the reasonableness of the ordinance viewed in light of existing circumstances in the community and the physical characteristics of the area. Cognizance must be taken of the problem to be solved by the municipality. Vickers v. Township Com. of Gloucester Tp., 37 N. J. 232, 245 (1962), cert. den. and app. dism. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963); Tidewater Oil Co. v. Mayor and Council of Borough of Carteret, 84 N. J. Super. 525, 536 (App. Div. 1964), aff'd 44 N. J. 338 (1965); Glen Rock Realty Co. v. Board of Adjustment of Borough of Glen Rock, 80 N. J. Super. 79, 88 (App. Div. 1963); Kirsch Holding Co. v. Borough of Manasquan, supra, 111 N. J. Super. at 365.

The party attacking the validity of a zoning ordinance has a heavy burden of affirmatively showing it bears no reasonable relationship to public health, morals, safety or welfare. Proof of unreasonableness must be beyond debate. Barone v. Bridgewater Tp., 45 N. J. 224, 226 (1965); Vickers v. Township Com. of Gloucester Tp., supra, 37 N. J. at 242; Fischer v. Township of Bedminister, 11 N. J. 194, 204 (1952); Johnson v. Montville Tp., 109 N. J. Super. 511, 519 (App. Div. 1970); Bellings v. Denville Tp. in Morris County, 96 N. J. Super. 351, 356 (App. Div. 1967); Graves v. Bloomfield Planning Bd., 97 N. J. Super. 306, 314 (Law Div. 1967). The presumption may be overcome by a showing on its face or in the light of facts of which judicial notice can be taken, of transgression of constitutional limitations or bounds of reason. Moyant v. Paramus, 30 N. J. 528, 535 (1959).

The judicial role in reviewing a zoning ordinance is tightly circumscribed. There is a strong presumption in favor of its validity. A court cannot pass upon the wisdom or lack of wisdom of an ordinance. It may only invalidate a zoning ordinance if the presumption in favor of its validity is overcome by a clear, affirmative showing that it is arbitrary or unreasonable. Harvard Ent., Inc. v. Board of Adj. of Madison, 56 N. J. 362, 368 (1970); Morris v. Postma, supra, 41 N. J. at 359; Vickers v. Township Com. of Gloucester Tp., supra, 37 N. J. at 242; Bogert v. Washington Tp., 25 N. J. 57, 62 (1957).

The functions of the legislative bodies and the judicial forums are distinct. The wisdom of a particular course chosen by a governing body is reviewable only at the polls. Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957); Johnson v. Township of Montville, supra, 109 N. J. Super. at 519; Bellings v. Denville Tp., supra, 96 N. J. Super. at 356; Kirsch Holding Co. v. Borough of Manasquan, supra, 111 N. J. Super. at 367. In Kozesnik, supra, Chief Justice Weintraub (then Justice), said:

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge's private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. [24 N. J. at 167]

The total factual setting must be evaluated in each •case. If the validity of the ordinance is in doubt, the ordinance must be upheld. Euclid v. Ambler Realty Co., 272 U. S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Harvard Ent., Inc. v. Board of Adj. of Tp. of Madison, supra, 56 N J. at 369; Vickers v. Township Com. of Gloucester Tp., supra, 37 N. J. at 242; Bogert v. Washington Tp., supra, 25 N. J. at 62; Yanow v. Seven Oaks Park, Inc., 11 N. J. 341, 353 (1953); Bellings v. Denville Tp. in Morris County, supra, 96 N. J. Super. at 356.

The essence of zoning is to provide a balanced and well ordered scheme for all activity deemed essential to the particular municipality. Kozesnik v. Montgomery Tp., supra, 24 N. J. at 169; Berdan v. City of Paterson, 1 N. J. 199, 205 (1948); Oakwood at Madison, Inc. v. Township of Madison, 117 N. J. Super. 11, 18 (Law Div. 1971).

Plaintiffs argue that Article 10.26-9, subparagraph (W), limiting the number of apartment units to not more than 15% of the single-family residences, is arbitrary, unreasonable and capricious. They allege invalidity on the grounds that the 15% ratio is unrelated to any valid purposes of zoning set forth in N. J. S. A. 40:55-32 and that there are insufficient standards set forth to govern its application.

Defendant Township contends that the 15% ratio regulates the extent of the use of property situated within a residential district for apartments pursuant to N. J. S. A. 40:55-31. It argues that (a) the 15% ratio “lessens congestion in the streets”; (b) “promotes health, morals or general welfare,” since as the relationship of the number of apartments increases the health, morals and general welfare of the community as a whole decreases, and (c) the ratio prevents overcrowding of land and buildings and undue concentration of population. Essentially it argues the ratio regulates density.

Control of density of population is a proper zoning objective. Problems of congestion and overcrowding are legitimate concerns of the municipality and may be regulated by zoning ordinances. See Gruber v. Mayor, etc. of Raritan Tp., 39 N. J. 1, 9 (1962); Vickers v. Township Com. of Gloucester Tp., supra, 37 N. J. at 246-248; Lionshead Lake v. Township of Wayne, 10 N. J. 165, 173-174 (1952), app. dism. 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953); Mountcrest Estates, Inc. v. Rockaway Mayor and Tp. Com., 96 N. J. Super. 149, 154-155 (App. Div.), certif. den. 50 N. J. 295 (1967); Clary v. Borough of Eatontown, 41 N. J. Super. 47, 66 (App. Div. 1956). Cf. Kirsch Holding Co. v. Borough of Manasquan, supra, 59 N. J. at 253-254.

■ The Township argues that it has determined that to provide a well-balanced community it adopted the 15% ratio in accordance with the purposes set forth in N. J. S. A. 40:55-32. However, since the number of apartment units depends ón the number of single-family residential units existing at any one time, the ratio does not accomplish any of the- purposes set forth in N. J. S. A. 40:55-32. In fact, as the number of single-family residential units increases, the ratio could operate in such a way as to violate the statutory purposes.

It may be, although no opinion is expressed, that a ratio determined by a fixed number of single-family residences would be- a valid device to prevent overdeveloping • of land, avoid undue concentration of population and lesson congestion in the streets. However, the present ratio by which the number of available apartment units is determined operates in such a manner that with each increase in the number of single-family residences the number of available apartment units likewise increases. Thus, the means attempted to be used to obtain valid purposes of zoning does not in fact operate to attain those purposes. Even assuming the means used did operate to attain valid purposes, the ratio would nonetheless be invalid as impressing an unnecessary and restrictive regulation on the use of private property. Density, overpopulation and congestion in the streets are proper considerations in a determination on a special exception application. The 35% ratio to promote those purposes is unnecessary.

Plaintiffs also argue that because Article 10.26-9, sub-paragraph (W), does not specify how the ratio is to be applied, the zoning officials are allowed to determine indiscriminately the procedure, with the result that the actual procedure used is arbitrary.

A zoning ordinance must be clear and explicit in its terms, setting forth adequate standards to prevent arbitrary and indiscriminate interpretation and application by local officials. Schack v. Trimble, 48 N. J. Super. 45, 53 (App. Div. 1957), aff’d 28 N. J. 40 (1958); Jantausch v. Borough of Verona, 41 N. J. Super. 89, 104 (Law Div. 1956). aff’d 24 N. J. 326 (1957). See 8 McQuillin, Municipal Corporations (3d ed. rev’d 1965), § 25.59 at 147; Id., § 25.62 at 157. It should be noted that while the court ascribes to the requirement of clear terms and adequate standards, it questions so much of Schock and Jantausch as could be read to hold that zoning ordinances are to be strictly construed.

Article 30.26-9, subparagraph (W), does not specify how a determination of the available number of apartment units is to be determined. The practice has been to determine the number of single-family residential units by the number of certificates of occupancy which have been issued. However, the number of existing apartment units is not determined by the number of certificates of occupancy issued but by the number of units authorized by special exception, regardless of whether such units have been constructed. The effect is that an applicant may be denied a special exception because of an application of the 15% ratio, based on a number of apartment units which do not exist and may never be constructed. There is no rational basis for the method by which the number of available apartment units is determined. A rational method would bo to determine the number of both existing single-family residences and existing apartment units on the same basis, either by the number of certificates of occupancy issued or by the number of building permits.

Article 10.26-9, subparagraph (W), clearly does not fulfill any of the purposes of zoning set forth in N. J. S. A. 40:55-32 and fails to set forth sufficient standards to govern its application. It is invalid.

Plaintiff Freehold Development Co. argues that Article 7.1-3 is invalid because it “bears no reasonable relationship to the application of Company.' In the alternative, the same is vague, uncertain and unconstitutional.” This provision limits parking of four or more vehicles to a side or rear yard. In its oral decision the Court held that by the terms of the Zoning Ordinance, this Article applied to special exception applications for garden apartments.

The only possible prirpose for the restriction would be for aesthetic considerations, to conserve the value of property and encourage its most appropriate use. See United Advertising Corp. v. Metuchen, 42 N. J. 1, 6 (1964); Vickers v. Township Com. of Gloucester Tp., supra, 37 N. J. at 247-248; Piscitelli v. Township Comm. of Tp. of Scotch Plains, supra, 103 N. J. Super. at 597-598. While the restriction may bear a reasonable relationship to such a purpose as applied to single-family residences in a single-family residential district, it bears no such relationship as applied to garden apartment complexes in which apartment buildings and parking facilities are frequently arranged at various angles and positions in relation to the property’s “frontage” on a public street.

Plaintiff argues that the Article when applied to garden apartment complexes is vague, uncertain and indefinite. “Front yard” parking for four or more cars is prohibited in single-family residential zones. The definition of “front yard” set forth in the ordinance is vague and uncertain as applied to plaintiff’s proposed use where there are internal private roadways. The definition of “front yard” in the ordinance does not readily apply to the present situation, and the determination of what is a “front yard” is therefore left largely up to the Board. A similar situation exists with the the definitions of a “rear yard” and a “side yard.”

Article 7.1-3 as applied to apartment complexes is invalid.

This determination, of course, will not affect the ruling on the Board’s denial of plaintiff Freehold Development Co.’s application for a special exception since plaintiff failed to show that the exception could be granted without substantial detriment to the public good regardless of the off-street parking facilities.

Judgment dealing with all issues will he submitted in accordance with R. 4:42-1 by the attorneys for J. D. Construction Corp.


author: McGrath, J. D. C.

text:
    JOHN T. LYNCH AND JEAN LYNCH, HIS WIFE, PLAINTIFFS, v. RONALD M. HEYMANN, DIRECTOR OF MOTOR VEHICLES, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 28, 1972.

      Mr. Edwin J. McGreedy for plaintiffs (Messrs. Conant, TIcilberstadter &_ McGuire, attorneys)'.

      Mr. Augustus 8. Dreier for defendant.
   McGrath, J. D. C.

(temporarily assigned). This matter comes before the court on a motion to settle the form of judgment. Plaintiff John Lynch sued the Unsatisfied Claim and Judgment Fund for injuries to him resulting from an accident caused by a hit-and-run driver. A jury awarded him $5,000 on February 10, 1972. Plaintiff submitted an order allowing the judgment of $5,000 and added interest of 6% from July 14, 1970, the date of institution of the suit to the date of the jury verdict, citing R. 4:42-11(b). Defendant objects to the award of interest under the rule, citing Lindsay v. Boles, 61 N. J. Super. 516 (Law Div. 1960), as authority for immunity of a governmental agency from the scope of the rule.

The New Jersey Supreme Court, pursuant to the State Constitution, has promulgated and changed from time to time rules for the administration and the practice and procedure in all courts of this State. N. J. Const. Art. VI, § II par. 3. On December 21, 1971 the Supreme Court accordingly added to its rules to provide in R. 4:42-11 (b) as follows:

Tort Actions. In tort actions, including products liability actions, the court shall include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. The contingent fee of an attorney shall not be computed on the interest so included in the judgment.

This rule became effective January 31, 1972. Absent immunity by defendant, therefore, this rule would apply to the judgment in this case.

It must be noted that nowhere under the provision of the Unsatisfied Claim and Judgment Fund Law (N. J. S. A. 39:6-61 et seq.) is there any provision for the allowance of such interest as is sought here. In Lindsay v. Boles, supra, it was held that the statute did not obligate the Fund created thereunder to pay an unsatisfied judgment creditor interest on the amount of the judgment recovered in an action arising out of an automobile accident, which interest accrued during the period from the date of the judgment to the date when the judgment creditor submitted a verified claim requesting payment out of the Fund. The court in that case reflected upon the limitations placed by the Legislature on the availability of the funds when it stated that “the primary object of the [Fund Law] is to provide a measure of relief for persons who sustain losses or injuries inflicted by financially irresponsible or unidentified owners or operators of motor vehicles, where such persons would otherwise be remediless,” quoting Corrigan v. Gassert, 27 N. J. 227, 233 (1958), and again, “There is no absolute indemnity provided for, * * * the statute does not reflect an intention to make every claimant completely whole, but rather to provide some measure of relief,” quoting Dixon v. Gassert, 26 N. J. 1, 8 (1958). 61 N. J. Super. at 519. The provisions of the act clearly demonstrate the limitations within which the Fund becomes available. The Fund law sets up in detail the circumstances, conditions and provisions under which and the extent to which a person who has recovered a judgment may resort to the Fund for “some measure of relief.”

Under the law the Fund was not intended to be, nor is it, a liability insurance company for noninsured drivers. The Fund, when it is the defendant, is not the ordinary defendant and has not been treated as an ordinary judgment creditor. Lindsay v. Boles, supra. Defendant, rather, is a trustee administering monies which were paid to and are held by the State Treasurer in trust for the carrying out of the purpose of the Fund law itself and the costs of its administration. N. J. S. A. 39:6-88.

Historically, interest, when allowed, is in contemplation of law damages for the illegal detention of a legitimate claim or indebtedness. Fidelity Mutual Life Ins. Co. v. Wilkes-Barre & Hazelton R.R. Co., 98 N. J. L. 507 (E. & A. 1923). The general rule is that interest is payable as damages for the improper withholding of funds by a governmental agency only when provided for by statute. Consolidated Police and Firemen’s Pension Fund Comm’n v. Passaic, 23 N. J. 645, 654 (1957), citing Brophy v. Prudential Ins. Co. of America, 271 N. Y. 644, 3 N. E. 2d 464 (Ct. App. 1936).

While the rule-making authority of the Supreme Court is clear under the Constitution, supra, I find no authority for extending R. 4:42-11(b) to apply to funds held under a statutory trust. It was the Legislature’s intent that only such monies be paid by the State Treasurer as are permitted by the terms of the fund statutes themselves.

The form of judgment which may be submitted shall provide for a judgment in the sum of $5,000, together with costs to be taxed but without any interest.