author: Carton, J. A. D.

text:
    RED STAR EXPRESS LINES, A CORPORATION, PLAINTIFF-RESPONDENT, v. NATALE J. DESTEFANO, DEFENDANT-APPELLANT, UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 18, 1968
    Decided December 24, 1968.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Prank P. Addas argued the cause for appellant (iJames é Addas, attorneys).

      Mr. Alan Kraut argued the cause for respondent.
   The opinion of the court was delivered by

Carton, J. A. D.

Plaintiff Red Star Express Lines is a New York corporation authorized to transact business in New Jersey. It owns and maintains a large truck terminal in North Bergen from which it operates a considerable number of tractor-trailers and other automotive equipment. Certain of its vehicles are registered in this State while an undisclosed number are registered in New York.

In July 1966 one of Red Star’s tractor-trailers, which was registered in New York, was damaged when it collided with a vehicle driven by defendant DeStefano, who was uninsured. Red Star recovered a judgment in the amount of $1,184 against DeStefano for property damage. On application of Red Star, an order was entered directing the State Treasurer to pay the amount of the judgment out of the Unsatisfied Claim and Judgment Fund. The Fund appeals.

The narrow question presented is whether plaintiff is a “qualified person” under N. J. 8. A. 39 :6-62 so as to be entitled to payment from the Fund. That section defines “qualified person” to mean:

“* * a resident of this State or the owner of a motor vehicle registered in this Stale or a resident of another State, territory, or Federal district of the United States or Province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act.”

The section also defines the term “person” as specifically including “corporations.”

New York’s motor vehicle accident indemnification law does not provide a remedy for claims by nonresidents for property damage. N. Y. Ins. Law, § 600 (McKinney’s Consol. Laws, c. 28, 1966). Consequently, since the tractor-trailer was registered in New York, and since New York does not afford recourse of substantially similar character to residents of this State, plaintiff is not a qualified person under the reciprocity clause of the statute.

Hence, our primary inquiry is directed toward a consideration of whether plaintiff, as a New York corporation, was, on the date of the accident, a “resident of this State” within the meaning of the statute.

Our courts have enunciated the general principle that the Unsatisfied Judgment Fund Act is to receive a liberal interpretation, with due regard to fulfillment of the essential legislative design, while protecting the Fund against possible fraud and abuse. Corrigan v. Gassert, 27 N. J. 227, 237 (1958); Douglas v. Harris, 35 N. J. 270, 279 (1961). The Supreme Court iu Douglas described the purpose of the statute and emphasized the prudent manner in which it must be administered:

“The Fund is created for those purposes by charging fees to registrants of uninsured motor vehicles and by levying assessments against liability insurance companies doing business in New Jersey and is regarded as a trust fund for the stated purposes and the cost Of administration. Wormack v. Howard, 33 N. J. 139, 143 (1960). The public interest demands that the Fund, although a trust fund for those individuals injured by financially irresponsible or unidentified operators of motor vehicles, be administered in a fashion to assure that only those persons legitimately entitled to participate in its benefits are paid therefrom. This is a duty imposed by public policy and owed to the contributors as well as the general public. * * *” (at p. 279)

The cases which have considered the meaning of the term "resident,” as used in this statute, do not cover the precise situation before us. Each of them involved a determination of whether an individual had established a residence in New Jersey. Giacobbe v. Gassert, 51 N. J. Super. 111 (App. Div. 1958) (proof held adequate to show plaintiff had established a permanent home in this State prior to the accident); Collins v. Yancey, 55 N. J. Super. 514 (Law Div. 1959) (itinerant cook, working and living here some six months before he was injured, held qualified as a resident); Continos v. Parsekian, 68 N. J. Super. 54 (App. Div. 1961) (Greek citizen in this country under a student visa since 1956, living in rented room in Newark for two weeks before accident in 1958 while working in New York, held a mere sojourner and not a resident); Williamson, Adm’x v. Potter, 80 N. J. Super. 517 (Law Div. 1963) (member of regular Army on three-year tour of duty, residing here five months prior to fatal accident, held a resident).

However, Sullivan v. Saylor, 79 N. J. Super. 1 (App. Div. 1963), is relevant to the issue confronting us. The court there held that the motorist involved was not a resident of New Jersey within the meaning of the statute since he had regarded his Pennsylvania home as his place of permanent abode and merely had a summer residence here. Judge Conford commented:

“The very language of the statutory definition suggests to ns that the Legislature contemplated that, generally speaking, a prospective claimant would be either a ‘resident’ of this State, or a ‘resident’ of another, not of two states simultaneously.’’ (at p. 6)

Sullivan involved an individual claimant. But the context in which the term “resident” is used in the statute makes what was said in Sullivan equally applicable to a corporate claimant. The reason for this is that the general tendency and policy of legislatures and courts is to treat corporations, as far as their inherent nature will permit, on the same footing as individuals. See 17 Fletcher, Cyclopedia of Private Corporations, § 8300 (rev. ed. 1960). That policy is implicit in the statutory definition of “person” as including corporation.

The general rule is that statutes granting powers, privileges and immunities to corporations without any qualifying words will be construed as meaning domestic corporations in the absence of a plain indication to the contrary. See 17 Fletcher, op. cit, § 8301. Indeed, in some states that policy has been incorporated as a statutory rule of construction.

This general rule was adopted in State v. Garford Trucking, Inc., 4 N. J. 346 (1950), where the court considered the registration provision of the Motor Vehicle Law, N. J. S. A. 39:3-15:

“* * * A corporation created and existing under the laws of New Jersey may have a ‘commercial domicile’ or ‘business situs’ elsewhere for taxation and other purposes; but it is nonetheless domiciled and resident in the state of its creation, for a corporation is domiciled in the state or sovereignty under which it has its being, and there also it has the residence which is inseparable from domicile. A corporation lives and dwells in the jurisdiction whence it derives its existence, although it engages in business elsewhere under local authority. A corporate entity ‘must dwell in the place of its creation, and cannot migrate to another sovereignty.’ * * *” (at p. 351; emphasis supplied)

Nothing in the language of the Unsatisfied Claim and Judgment Pund Act leads us to the conclusion that the Legislature, in extending the benefits of that act to include resident corporations as qualified persons, evinced an intention of using the term “resident” in other than its usual sense, or intended to extend those benefits to foreign corporations whose vehicles are registered elsewhere. The very fact that the foreign corporation, by not registering such vehicles here, has thereby alleviated its burden of contributing to the Pund, points to the contrary.

Pertinent to this conclusion is the requirement of N. J. 8. A. 39:3-4 — that “every resident of this State and every nonresident whose automobile or motorcycle shall be driven in this State shall before using such vehicles on the public highways, register the same, and no automobile or motorcycle shall be driven unless so registered.” Violation of this section of the Motor Vehicle Act permits imposition of a maximum fine of $100. If plaintiff intended that it be considered a New Jersey resident, should not all its vehicles have' been registered in this State in order to receive the benefit of the Pund statute?

Nor are we persuaded that the character and extent of plaintiff’s activities in this State are such as to require a different conclusion. True, plaintiff has for some time paid, and is presently paying, its share of the operating costs of state and local government, and has indirectly contributed to the Pund through insurance premiums it pays upon its New Jersey-registered vehicles. N. J. S. A. 39 :6-63. There is, of course, no such contribution out of insurance premiums paid on New York-registered vehicles. The fact is that it chose the protection of New York incorporation and not that of New Jersey. Moreover, it chose .to register the tractor-trailer unit in question there rather than in this State.

Plaintiff’s alternative contention, that it is a qualified person by reason of the fact that it is “the owner of a motor vehicle registered in this State” (the reference is to those pieces of equipment it registered here) likewise lacks merit. The purpose of that provision is to confer the benefit of the statute only with respect to the vehicle so registered, and not to any other vehicle which may be registered elsewhere.

Reversed.


source: Caselaw Access Project

author: Aktasebse, A. J. S. C.

license: Public Domain

text:
    IN THE MATTER OF THE PETITION OF CARLOS SANTIAGO FOR A WRIT OF HABEAS CORPUS.

    Superior Court of New Jersey Law Division
    Decided December 18, 1968.

      Mr. William Goldberg for plaintiff {Mr. John J. Poioers, Hudson County Legal Services, attorney).

      Mr. Clinton E. Cronin for Attorney General of New Jersey {Mr. Arthur J. Sills, Attorney General, attorney).

      Mr. Anthony M. BePino, Assistant County Prosecutor, for the State of New Jersey {Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney; Mr. Charles D. Sapienza, Legal Assistant, on the brief).
   Aktasebse, A. J. S. C.

This is a complaint and order to show cause why a writ of habeas corpus should not issue on behalf of plaintiff Carlos Santiago, an inmate of the Hudson County Penitentiary. Plaintiff was sentenced by the Hobo-ken Municipal Court on June 13, 1968 for violation of N. J. S. 2A: 170-8 to a term of one year in the county penitentiary. His challenge to the legality of his confinement is based upon the alleged violation of his right to a jury trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The argument is premised upon the theory that Duncan v. Louisiana, 391 U. S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, decided May 20, 1968 (prior to the plaintiff’s conviction), vitiates the New Jersey practice of trying disorderly persons offenses without a jury. N. J. S. 2A:8—21(d) authorizes the trial of Disorderly Persons Offenses in the municipal court before a municipal Magistrate. N. J. S. 2A :169-4 provided a maximum sentence for conviction of such an offense of one year in the county penitentiary and a fine of $1,000., Plaintiff also asserts that N. J. S. 2A :170-8 is unconstitutional because its standard of proof is impermissively vague.

The court ordered that the Attorney General as well as the Hudson County Prosecutor be served with the complaint and order to show cause since there was a challenge to the constitutionality of a state statute.

The Attorney General appeared through his representative on the return date and advised the court that he did not wish to participate. Accordingly, the court granted his motion to withdraw from the action.

Although the complaint recites that plaintiff was found guilty in the municipal court, the prosecutor at oral argument produced the record from that court which showed that a plea of guilty had been entered by plaintiff. Defense counsel then conceded for the purpose of the present argument that a plea of guilty had been entered. However, he contended that this did not affect the validity of the legal position he was advancing. Apparently his position is that failure to advise plaintiff of a right to a trial by jury vitiates the plea of guilty. The plea of guilty presents, at least, a serious question of waiver of any purported right to a jury trial. However, because of its disposition of the underlying issue, that is, the existence of a right to a jury trial, the court finds it unnecessary to decide this issue of waiver.

Counsel for plaintiff sought initially to bring a class action for a writ of habeas corpus on behalf of plaintiff and all prisoners throughout the State similarly situated. The court deemed this procedure improper and inappropriate, and hence refused to issue such an order. However, at counsel’s request the court allowed him to brief and argue the propriety of such a class action so that he might have a record from which to appeal. The court has incorporated herein its reasons for rejecting those arguments.

Thus, before turning to the merits of plaintiff’s claim, two procedural questions must be answered. First, should plaintiff’s remedy be one of habeas corpus or post-conviction relief? Second, is he entitled to maintain a class action for the relief sought in the complaint on behalf of all persons similarly situated in the State?

As to the initial procedural question, plaintiff argues that he does not come under the post-conviction relief rules because R. R. 3:10A-1 applies only to persons convicted of a “criminal offense” which, by definition, would exclude disorderly persons offenses. This very literal reading of the rules overlooks the history and intent of the post-conviction procedure. The rules, R. R. 3:10A-1 et seq., were drafted to provide a comprehensive procedure by which all claims for post-conviction relief other than appeal could be processed, without the technical difficulties inherent in the former habeas corpus practice. N. J. S. 2A :67—1 et seq. See Report of Supreme Court Committee on Post-Conviction Rights of Indigents (October 22, 1962), pp. 3-6. The post-conviction relief procedure was made the exclusive means (other than by appeal) of challenging a judgment of conviction. R. R. 3:104 — 3. It includes attacks which were formerly made by habeas corpus. R. R. 3:104—2(d); State v. Loray, 46 N. J. 417, 419 (1966).

The same reasons which necessitated the development of a post-conviction procedure for indictable offenses applies to convictions in municipal courts. The drafters of the rules did not intend to leave persons subject to a year’s imprisonment without a remedy for illegal detention, or to relegate them to the labyrinth of habeas corpus with its maze of common law limitations. Plaintiff’s brief indicates these technical pitfalls under the old habeas corpus practice.

There are other indications that the post-conviction relief rules are not to be read so narrowly.

In R. R. 3 404-6 (a) assignment of counsel is covered even where defendant’s conviction was for a nonindictable offense. Eeeently Judge Kentz in State in the Interest of J. M. 103 N. J. Super. 88 (J. & D. R. Ct. 1968) treated an application for writ of habeas corpus, after an adjudication of delinquency in the Juvenile and Domestic Eelations Court, as a proceeding in the nature of post-conviction relief, and held that In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), was to be given retroactive effect. It has been the practice throughout the State to apply the post-conviction procedures to penal proceedings of all kinds, including disorderly persons offenses.

The court therefore concludes that the proper procedure open to plaintiff in this action is a petition for post-conviction relief, and it treats the present application accordingly.

As to the second procedural point, there does not appear to be any right under our rules to bring a class action for post-conviction relief. The procedure is basically a criminal proceeding entitled in the cause, and filed in the county where the conviction was obtained. B. B. 3 :10A-1 et seq. But even if the correct form of the action were habeas corpus, N. J. S. 2A :67-1 et seq., a class action would not lie in the present circumstances. Our rule, B. B. 4:36-l, which is taken from Buie 23 of the Federal• Buies of Civil Procedure, governs class actions. Plaintiff would be asserting at most a spurious class right. This is basically a permissive joinder device and judgment in such an action binds only original parties of record or those who intervene and become parties to the action. 3A Moore’s Federal Practice, ■§§ 23.10, 23.11.

Furthermore, it has been the general rule that several applicants cannot even join in one petition for writ of habeas corpus. 39 C. J. S. Habeas Corpus § 77a, p. 622. The theory behind the rule has been that a commitment to prison acts individually on each person committed, and a writ seeking his discharge on habeas corpus must likewise be individual. Ferree v. Douglas, 145 Pa. Super. 447, 21 A. 2d-472 (Super. Ct. 1941); In re Kosopud, 272 F. 330 (D. C. Ohio 1920); United States ex rel. Bowe v. Skeen, 107 F. Supp. 879 (D. C. W. Va. 1952).

In Riley v. City and County of Denver, 137 Colo. 312, 324 P. 2d 790 (Sup. Ct. 1958), two prisoners attempted to bring a class action essentially for habeas corpus type relief for themselves and all others similarly situated because of void judgments of the municipal courts of Denver. The court, relying on above theory, noted that

“Although habeas corpus is a civil proceeding * * * we hold that the Rules of Civil Procedure, providing for class actions, do not apply. The very nature of habeas corpus proceedings forfends class actions. * * *” (324 P. 2d at 791)

However, federal courts have entertained joint applications of habeas corpus which presented the common claims of two or more petitioners who were convicted at a joint trial. United States ex rel. Poret v. Sigler, 361 U. S. 375, 80 S. Ct. 404, 4 L. Ed. 2d 380 (1960); Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543 (1923); DeGrandis v. Fay, 335 F. 2d 173 (2 Cir. 1964); Curtis v. Boeger, 331 F. 2d 675 (8 Cir. 1964). Thus, it would seem that the older conceptualista rule has fallen to the more pragmatic considerations where a joint application is brought by defendants who were convicted at the same trial. The instant case, however, does not involve joinder. R. R. 4:33-1 requires for joinder that the action arise out of “the same transaction, occurrence, or series of transactions or occurrences * * *.” Although this phrase has never been given exact definitional limitation, the court holds that it does not cover the present factual pattern. See Schnitzer & Wildstein, N. J. Rules Sen. A-IV-1044 et seq.

In Adderly v. Wainwright, 272 F. Supp. 530 (D. C. Fla. 1967), and Hill v. Nelson, 272 F. Supp. 790 (D. C. Cal. 1967), two celebrated cases by occupants of death rows in Florida and California, the federal District Courts would not go so far as to say that there never could be a habeas corpus class action under any circumstances. However, in Adderly the record was not complete enough to determine if a class action was possible; and in Hill the court decided that a class action was too impractical a vehicle for the circumstances involved in that matter. Cf. “Multiparty Federal Habeas Corpus,” 81 Han. L. Rev. 1482 (1968), urging the use of class actions in certain federal habeas corpus actions.

The court nevertheless concludes that plaintiff has no right to bring such an action. Furthermore, insofar as its inherent power may be concerned, the court sees no useful purpose in maintaining such a class suit.

Passing to the merits of the claim herein, the court determines that plaintiff was not entitled to a jury trial. In Duncan v. Louisiana, 391 U. S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), the Supreme Court held that a state could not deny a jury trial to a person charged with a serious offense. The offense in that case was punishable by a maximum of two years imprisonment. It was admitted that petty offenses were still excluded from the jury trial requirements of the constitution. The court did not draw the line exactly between petty and serious offenses, although it did indicate that an offense with a maximum punishment of six months would qualify as petty. See also Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538 (1968), and Bloom v. Illinois, 391 U. S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 1522 (1968), decided the same day. Two New York City trial courts have split on whether a jury trial must be given to a person charged with an offense punishable by one-year imprisonment. Compare People v. Bowdoin, 57 Misc. 2d 536, 293 N. Y. S. 2d 748 (Crim. Ct. 1968), granting jury trial, with People v. Moses, 57 Misc. 2d 960, 294 N. Y. S. 2d 12 (Crim. Ct. 1968) denying jury trial.

Also subsequent to Duncan, Judge Goldmann in State v. Owens, 102 N. J. Super. 187 (App. Div. 1968), certification granted 52 N. J. 533 (1968), held that violations of our Disorderly Persons Act were petty offenses and not subject to jury trial requirements. Plaintiff first attempts to distinguish Owens on the grounds that the trial there was held prior to the relevant United States Supreme Court decisions. However, Judge Goldmann did not employ such a distinction in upholding the New Jersey statute but went to the merits when he said:

“* * s- are not persuaded that a disorderly persons offense of the kind here considered should be deemed other than petty because of the one year sentence that could be imposed, especially in light of State v. Maier, 13 N. J. 235, 236 (1953). where the history of the jurisdiction to try and punish simple assaults and batteries without indictment and without trial by jury was traced at some length and N. J. S. 2A :170-26 found constitutional by a divided court.” (at pp. 207-298)

Plaintiff also would distinguish Owens because it involved an assault and battery charge (N. J. S. 2A :170-26), whereas the present matter involves a narcotics charge (N. J. S. 2A:170-8). Although both offenses are violations of the Disorderly Persons Act and carry the same penal maximum sentences, plaintiff argues that the collateral consequences which flow from conviction of the narcotics offense indicate that N. J. s. 2A:170-8 is in the category of a “serious offense.” Under his theory that the collateral consequences of the narcotics charge raise it to the status of a “serious” offense, a defendant would have a right to a jury trial even under the amended statute which authorizes a maximum sentence of six months, or for that matter, even if no confinement were authorized. The collateral consequences to which plaintiff refers are N. J. s. 2A. :169A-1 et seq., dealing with registration of narcotics offenders, and N. J. S. A., Title 45, the New Jersey licensing laws, many provisions of which bar licensees convicted of narcotics offenses. The court does not interpret the presence of these collateral consequences as increasing the quality of the penal offense here involved. Many of the statutes referred to by plaintiff under the various sections of the licensing laws, supra, authorize the licensing authorities to deny, suspend or revoke licenses of persons who are habitual narcotic users. N. J. S. A. 45 :4 A—15; N. J. S. A. 45 :5-8; N. J. S. A. 45 :7-62. Under such a statute the licensee is affected, not by conviction for violation oí N. J. S. 2A :170—8, but rather by the determination that the licensee or applicant is a habitual user. Provisions are made in the various acts involved for administrative hearings with the usual procedural protections.

There are, however, some licensing statutes which authorize denial, suspension or revocation for conviction of a violation by the licensee or applicant of any federal or state law concerning narcotics. See N. J. s. A. 45:6-7 (h); N. J. S. A. 45:9-37.7; N. J. D. A. 45:9-16; N. J. S. A. 45:11-32; N. J. S. A. 45:14-12; N. J. S. A. 45:14B-24; N. J. S. A. 45 :16-6. A conviction under N. J. s. 2A :170-8 would subject a licensee or applicant under any of the above acts to possible denial, suspension or revocation of his license in the discretion of the licensing authority. The obvious intent of these acts was to remove from certain professions licensees who are narcotic users. These statutes like those previously enumerated, are basically aimed at the addict or habitual user. However, the administrative burden of proof is eased considerably by authorizing the licensing authorities to take remedial action upon proof of the licensee’s conviction of a violation of any state or federal law involving narcotics. Each of these statutes except N. J. S. A. 45:6-7 uses the discretionary verb “may” concerning the power of the licensing authority to take action upon proof of a proscribed status or activity of a licensee. (N. J. S. A. 45 :6-7 concerning the practice of dentistry uses mandatory language.) In addition, each statute above mentioned provides for reinstatement or relicensing in the discretion of the licensing authority. This would indicate that conviction under N. J. S. 2A:170-8 does not of itself operate to control the determination of the various state licensing bodies, when the disabling condition is discontinued.

The court, therefore, does not interpret these possible collateral consequences which may attend conviction under N. J. S. 2A :170-8 as elements which make the offense a “serious” one within the meaning of Duncan v. Louisiana, supra. Thus, since there is no valid distinction in the present case from State v. Owens, supra, the court determines that plaintiff had no right to a jury trial in the municipal court.

Plaintiff’s counsel in his brief also asserts that N. J. S. 2A :170—8 has an unconstitutionally arbitrary criterion for determining guilt. Although the complaint did not contain this claim, the court will consider the complaint amended to include it. The statute, in its challenged part, reads:

“* * * In a proseeution under this chapter, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific narcotic drug or drugs, but it shall be sufficient for a conviction under this chapter for the state to prove that the accused did use or was under the influence of some narcotic drug or drugs as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Pood and Drugs) by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug. * * *”

Plaintiff admits that State v. Dennis, 80 N. J. Super. 411 (App. Div. 1963), held that the statute was not void for vagueness in establishing a standard of proscribed conduct. Eather he attacks, the criterion for determining guilt as outlined in the quoted section. However, this issue was also foreclosed in State v. Dennis, where the court answered this very question in this wise:

“If the argument is addressed to the adequacy of the statutory criteria of guilt for purposes of assessing evidence and adjudicating guilt, under requirements of due process, we have no difficulty in sustaining it * * *” (at pp. 417-418)

Por the foregoing reasons, the relief sought is denied and the application dismissed.

        N. J. S. 2A :169-4 was amended on June 25, 1968 to change the maximum sentence thereunder to six months confinement and $500 fine. L. 1968, c. 113.


author: Pee Cueiam.

text:
    IN RE HUGO COLASANTI, PETITIONER-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 17, 1968
    Decided January 8, 1969.

      Before Judges Goldmans, Kolovsky and Cakton.

      Mr. Jeffrey Barton Calm argued the cause for appellant {Messrs. Schapira, Steiner & Walder, attorneys; Mr. Justin P. Walder, on the brief).

      Mr. M. Richard Altman, Assistant Prosecutor, argued the cause for the State of New Jersey {Mr. Joseph P. Lordi, Prosecutor, Essex County).
   Pee Cueiam.

Petitioner Colasanti appeals from a county court order which rejected his attack on the validity of his arrest under an extradition warrant issued by the Governor of New Jersey and ordered him turned over to representatives of New York state for return to that state.

Except as hereinafter noted, the basic facts are uncontradieted.

On December 28, 1967, the New York County Grand Jury returned an indictment against Colasanti charging that he had on October 17, 1967, in New York City, committed the crimes of criminal possession of stolen property in the first degree, criminal possession of a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree.

Pursuant to the “uniform criminal extradition law,” N. J. S. 2A :160-6, et seq., the Governor of New Jersey, in response to a demand for appellant’s extradition received from the Governor of New York, issued a warrant for petitioner’s arrest. See N. J. S. 2A :160-15. On March 25, 1968 petitioner was arrested under the authority of the Governor’s warrant and when taken before the court stated that he desired to test the legality of his arrest. See N. J. S. 2A :160—18.

Although N. J. S. 2A :160-18 contemplates a written application for a writ of habeas corpus, the county court entertained petitioner’s oral application therefor and conducted a plenary trial on May 13, 1968. In addition to hearing argument on the sufficiency of the extradition documents, the court heard the testimony of one Andrew Moore for the petitioner and of Detective Jeremiah Howard for the State of New York. Petitioner did not testify.

According to Moore, he was working with petitioner in New Jersey almost all day on October 17, 1967, the date when petitioner allegedly committed the offenses in New York. According to the detective, petitioner ivas in New York City on that day, at the corner of West and Houston Streets, under surveillance by the witness and other detectives from about 7:55 p. m. to 8:30 p. m., during which time petitioner among other things talked to one Ripa, a police undercover agent. Other New York City police officers who were at the hearing were not called, the prosecutor stating that their testimony would only corroborate what Detective Howard had said.

At the conclusion of the testimony, the court called for briefs and thereafter on May 31, 1968 delivered its oral opinion denying the relief sought by petitioner. It concluded that the testimony of the detective was more credible than that of Moore and found as a fact that petitioner was in New York at the time of the alleged offense and was a fugitive from justice in that state. The findings are fully supported by the record.

Petitioner’s initial and principal argument on appeal •—■ that “the warrant of extradition should be quashed because it was issued out of time” — is bottomed on the fact on December 18, 1967, prior to his indictment, and at the request of the New York City police, he had been arrested as a fugitive by Newark police officers. See N. J. S. 2A: 160-21, 22 authorizing such arrest. He was promptly brought before a magistrate, and having refused to waive extradition, was released on bail. See N. J. S. 2A :160-24.

Appellant argues that since N. J. S. 2A :160-23 provides that one arrested as a fugitive, as he was, may be committed

“to the county jail for such a time not exceeding 30 days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in section 2A:160-24 of this title, or until he shall be legally discharged,”

therefore the New Jersey Governor’s arrest warrant was invalid since it issued more than 30 days after petitioner’s original arrest as a fugitive.

The argument lacks substance. People ex rel. Green v. Nenna, 17 N. Y. 2d 815, 271 N. Y. S. 2d 267, 218 N. E. 2d 311 (Ct. of App. 1966), affirming 24 A. D. 2d 936, 264 N. Y. S. 2d 211 (App. Div. 1965), which had affirmed 53 Misc. 2d 525, 279 N. Y. S. 2d 324 (Sup. Ct. 1965). N. J. S. 2A:160-23 and 25 upon which petitioner relies in no wise limit the time within which a governor’s warrant may issue in extradition proceedings. The sections only limit the time during which one arrested as a fugitive may he kept in jail (or on bail in lieu thereof) pending the completion of extradition proceedings and the issuance of the governor’s arrest warrant. If the fugitive is not re-arrested under a governor’s arrest warrant before the time so limited, he is entitled to be released from the jail or bail in or on which he has been held- as a fugitive.

Petitioner’s other contentions on appeal also lack merit. Although the extradition documents were not marked as exhibits, they were before the court and had been examined by petitioner’s attorney who directed much of his argument to the alleged insufficiency thereof. It is clear however that the documents supporting the request for extradition, among which was a copy of the indictment, were in fact sufficient. See N. J. S. 2A .-160-11.

The final argument advanced by petitioner arises because it developed during the cross-examination of Detective Howard that he had a notebook with some notes relating to his activities on the night in question but had left it in New York City. Petitioner did not ask for a continuance of the detective’s cross-examination nor for a direction that the witness be required to produce those notes at an adjourned hearing. The issue was raised for the first time some 18 daj^s later when petitioner’s counsel and the prosecutor were before the court solely for the purpose of hearing the court’s oral decision. The point was raised too late, particularly since at the time of trial on May 13, 1968, several other New York detectives were present and available to testify to corroborate Howard.

The order is affirmed.


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

text:
    ALAN R. SCHMOLL, ESQUIRE, GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CORNELIUS PAYNTER, SR., DECEASED, PLAINTIFF-APPELLANT, v. ROSHIER G. CREECY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 12, 1968
    Decided January 10, 1969.

      Before Judges Goldmann, Koloysky and Carton.

      Mr. Walter Gollul argued the cause for appellant.

      Mr. Charles A. Cohen argued the cause for respondent (Messrs. Kisselman, Devine, D'eighan & Montano, attorneys).
   The opinion of the court was delivered by

Goldmann, S. J. A. D.

The main question on this appeal is whether an action may be maintained under the Death Act, N. J. S. 2A :31—1 et seq., on behalf of illegitimate children to recover for .the alleged wrongful death of their putative father. We hold that it may not.

The appeal conies before us on an agreed statement of facts in lieu of record, pursuit to R. R. 1:6-2.

On November 5, 1966 decedent Cornelius Paynter, Sr. was a passenger in an automobile owned and operated by defendant Creeey when it went off the road, .upset and overturned in a body of water. Paynter drowned.

Decedent had married Doris Jean Davis in Kentucky and had two children by her. In 1956 he separated from his wife and took up residence in Camden, N. J. At the time of his death the wife and two children were and continue to be residents of Kentucky. Decedent was under a court order to pay $15 a week for the support of the children.

In Camden decedent lived with Evereen Pandells, allegedly holding themselves out as man and wife. Five children were born to them and were allegedly members of their household at the time of decedent’s death.

The legal wife applied for letters of administration ad prosequendum, as did decedent’s mother. After the surrogate had certified the ease to be one of doubt and difficulty, the Camden County Court appointed plaintiff general administrator and administrator ad prosequendum of decedent’s estate. Plaintiff then brought an action against defendant under the Death Act on behalf o£ the Kentucky wife and her two children in the Superior Court, Law Division (Docket L-lSIof—66). He subsequently also instituted a similar action in the same court on behalf of the five illegitimate children “for the wrongful deprivation of their support” by reason of decedent’s death, as well as fra1 recovery of funeral expenses incurred by Evereen Pandells (Docket L-21595-66).

The two actions were ordered consolidated for trial. Defendant then moved to dismiss the complaint filed on behalf of the illegitimate children on the ground that they were not entitled to recover as a matter of law and plaintiff was not entitled to recover funeral expenses. Counsel for decedent’s legal wife and children joined in the argument in support of the motion. The trial judge filed a written opinion and entered the order here under appeal, dismissing the complaint.

Sometime after the notice of appeal was filed this court, on application of the attorney for appellant, entered an order relieving him from the necessity of filing his brief until the ease of Levy v. Louisiana, then pending in the United States Supreme Court, was decided. The opinion in that case came down on May 20, 1968, 391 U. S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436.

Although decedent’s wife and legitimate children (or plaintiff administrator ad prosequendum as to them) are not named as respondents on this appeal, they were parties to the motion below, have a direct pecuniary interest in our determination, and through counsel join in the brief filed by defendant.

N. J. S. 2A :31-4, part of the Death Act, as it read at the time of decedent’s death, provided:

“The amount recovered in proceedings under this chapter shall he for the exclusive benefit of the persons entitled to talce any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among- them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.” (Italics oux-s)

Although, as plaintiff notes in his brief, this case does not deal with the succession of property, yet since only persons who are capable of inheriting a decedent’s personal property can qualify for any portion of the recovery, the law dealing with such succession must be consulted. N. J. 8. 3A \4r-2 provides that in the case of a decedent dying intestate,

“One-third of the personal property shall be distributed to the intestate’s husband or widow, as the case may be, and the residue in equal portions among the intestate’s children and such persons as legally represent any child who may have died.”

And N. J. S. 3A :4-7, dealing with illegitimate children, provides:

“For the purpose of descent and distribution under this chapter [IV. J. S. 3A:4-1 et seq.J to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him, and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him nnder this chapter.” (Italics ours)

At common law an illegitimate child could not inherit from either his mother or putative father. Hammond v. Pennsylvania R. R. Co., 31 N. J. 244, 251 (1959). N. J. S. 3A :4-7 changed that rule insofar as permitting the illegitimate child to inherit through and from his mother, bio similar provision lias been adopted with respect to the father. It therefore follows that since an illegitimate child may not take by intestate succession from his father, he is precluded from maintaining a wrongful death action under N. J. S. 2A :31-4 when it is his father, rather than his mother, for whose death the tortfeasor is allegedly responsible. Cf. DiMedio v. Port Norris Express Co., Inc., 71 N. J. Super. 199 (Law Div. 1961) ; and see Annotation, “Eight of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent,” 72 A. L. R. 2d 1235, 1239 (1960).

Plaintiff contends that to deny illegitimate dependent minor children of the right to sue for the deprivation of thei r support and maintenance by reason of the alleged wrongful death of their natural father violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution as well as Article I, paragraphs 1 and 5 of the New Jersey Constitution (1947). As to the federal constitutional aspect, they rely on Levy v. Louisiana, above.

In that case appellant sued on behalf of five illegitimate children to recover under the Louisiana statute for the wrongful death of their mother. The statute (La. Civ. Code, AH. 2315) provided that the right to recover damages for the wrongful death of a person shall survive for a period of one year from death in favor of “the surviving spouse and child or children of the deceased, or either such spouse or such child or children.” The Louisiana District Court dismissed the suit. The Court of Appeal affirmed, holding that “child” in Article 2315 meant “legitimate child.” 192 So. 2d 193, 195 (1966). The Louisiana Supreme Court denied certiorari. 250 La. 25, 193 So. 2d 530 (1967).

On appeal, the United States Supreme Court reversed, three judges dissenting. The majority held that illegitimate children are not “nonpersons”; they are human beings and clearly “persons” within the meaning of the Equal Protection Clause, and while a state has broad power in making classifications, “it may not draw a line which constitutes an invidious discrimination against a particular class.” The test is “whether the line drawn is a rational one.” The court then went on to say:

“* * * The rights asserted here involve the intimate, familial relationship between a child and his own mother. * * *
Legitimacy or illegitimacy of birth has no relation to the nature •of the wrong allegedly inflicted on the mother by appellees. These ■children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.”

The majority of the court accordingly held that it would be invidious to discriminate against such children when no action of theirs was possibly relevant to the harm done their mother.

Justice Harlan’s vigorous dissenting opinion pointed out that at common law no person had a legally cognizable interest in the wrongful death of another, and no person could inherit the personal right of another to recover for tortious injuries to his body. Louisiana had by statute created both rights in favor of certain classes of persons. Like most other states, it had chosen to define those classes of proper plaintiffs in terms of their legal rather than their biological relation to the deceased. The rights at issue stemmed from the existence of a family relationship, and Louisiana had decided it would not recognize that relationship unless the formalities of marriage or the acknowledgment of children by the parent in question had been complied with. The dissentors found obvious justification for that decision, and held that fhe classification Louisiana had adopted was constitutionally permissible.

Basic to any consideration of the impact of the Levy case is the fact that our statute, N. J. S. 2A :31-4, differs significantly from Louisiana’s. As noted, the Louisiana wrongful death statute gave a right of action to “the surviving spouse and child or children of the deceased, or either such spouse or such child or children.” The problem in Levy was one of statutory construction: Did “children” include illegitimates? Compare the similar problem of statutory construction in In re Calogero, 51 N. J. 345 (1968) (“marry,” as used in N. J. S. 3A :4-7, embraces a bigamous ceremonial marriage so as to legitimize a child born out of wedlock for the purpose of descent and distribution to, through and from him); and Hammond v. Pennsylvania R. R. Co., above (illegitimate children held “children” within the meaning of the Federal Employers’ Liability Act, 45 U. S. C. A. § 51).

N. J. S. 2A :31-4, as it stood prior to 1948, gave a right of action “for the exclusive benefit of the widow, surviving husband, and next of kin of the decedent,” to be distributed to them “in the proportions provided by law for the distribution of the personal property of intestates,” L. 1917, c. 180, § 1 ; R. 8. 2:47-4, and this without regard to their legal ability to inherit from the deceased. Following amendments in 1943 (L. 1943, c. 79) and 1948 (L. 1948, c. 429) the 1951 Legislature, in revising Title 2 of the Revised Statutes, expressly provided that recovery in a Death Act proceeding “shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same.” This language remained unchanged when the statute was further amended by L. 1960, c. 194, so that at the time decedent died N. J. S. 2A :31-4 read as quoted earlier in this opinion.

The statutory plan that all entitled to take must first qualify as persons who would inherit any personal property of a decedent dying intestate, still remains in force. Membership in the class is an indispensable condition to the right of anjr part of the recovery. 2sTo such condition of eligibility is imposed by the Louisiana statute.

In applying the Equal Protection Clause to social and economic legislation, the United States Supreme Court has recognized that wide latitude must be given legislators in making classifications. Morey v. Doud, 354 U. S. 457, 465-466, 77 S. Ct. 1344, 1349-1351, 1 L. Ed. 2d 1485 (1957). Legislation which confers a mother’s intestate property on her illegitimate child, but which does not correspondingly transmit the father’s intestate property, does not, in our view, constitute an arbitrary classification. Reason supports the difference in treatment and, as defendant realistically points out, no observant person can fail to recognize at least some substance in the reason. A man, having had his will with the woman and physically untouched by the experience, too often goes on his way, leaving no trace behind him. With the woman, pregnancy soon becomes an obvious physical fact. With rare exception, she delivers her child in the presence of others — a recordable and registerable event. That a particular woman is the mother of the child is a fact not too difficult to prove in most cases. The child remains with the mother and is nourished and reared by her; the opposite is generally the case with the father. Apiart from all this, there is also the consideration that if a woman is promiscuous, she cannot be sure of just who is responsible for her pregnancy and the child born of her.

The line drawn by the Legislature is therefore a rational one. We find no invidious distinction made by its failure to enact a statute to include in N. J. S. 3A :4-7 a provision allowing intestate succession between a man and his illegitimate children.

All legislative attempts in recent years to provide for the descent and distribution of intestate property to, through and from illegitimate children with respect to the father have uniformly failed. Assembly Bill 630 of the 1963 Legislature would have amended N. J. S. 3A :4-7 by adding the following sentence:

“When the father of an illegitimate child has been determined bsr tlie order or judgment of a court of competent jurisdiction, such child shall be treated the same as if he were the legitimate child of such father, so that the child and his issue shall inherit and take from such father, and such father from the child and his issue.”

Tlie Statement attached to the bill noted that the amendment would satisfy the requirements of the federal law and qualify an illegitimate child for social security benefits, thereby making a new resource available for its support. The bill died in committee.

Assembly 630 (3 963) was reintroduced in the 1964 Legislature as Senate Bill 293. Although it passed both houses, the Governor filed it in the State Library without his approval, noting that in the interests of fairness and stability, such legislation ought expressly to be limited to cases where the death of the putative father occurred after the effective date of the hill. He further noted that the bill failed to specify any limitation upon the time after the father’s death within which a suit to establish paternity must be commenced.

In 1965 Assembly Bill 601 attempted to modify the first sentence of N. J. S. 2A :31-4 as follows:

“The amount recovered in proceedings under this chapter shall be for the [exclusive] benefit of the persons entitled to take any intestate property of the decedent, and for the benefit of illegitimate children of the decedent in the proportions in which they are entitled to take the same, and for this purpose illegitimate children are to he treated as legitimate children." (Brackets indicate omitted language, italics new material)

The Statement attached to the bill stated that under the Death Act, as interpreted in DiMedio v. Port Norris Express Co., Inc., above, 71 N. J. Super. 190 (Law Div. 1961), illegitimate children were not entitled to recover upon the death of a parent, even though supported by that parent. (This reading of DiMedio was, of course, too broad; there only could be no recovery for the death of the father.) The expressed purpose of the bill was to bring the Death Act into conformity with the Workmen’s Compensation Act, N. J. S. A. 34:15-13, which entitles illegitimate children to share as dependents in the distribution of compensation awarded for an employee’s death resulting from a work-connected accident. Assembly 601 (1965) died in committee.

The 1965 Legislature also had before it Senate Bill 296, which would have amended N. J. S. 3A :4—7 bj' adding the following 'after the first sentence:

“Where the relationship of father and child shall have been determined and established by a court of competent jurisdiction, provided that the action to determine and establish such a relationship was instituted before or within 1 year of the death of said father, such child shall be treated the same as if he were the legitimate child of said father, so that the child and his issue shall inherit and take from said father, and said father from his child and his issue.”

The amendment was not to be applicable if the father died prior to the effective date of the act. Senate 296 (1965) was obviously intended to meet the Governor’s objections to Senate 291 (1964). It passed both houses but was filed by the Governor in the State Library without his approval and so never became law.

Assembly Bill 191 of the 1966 Legislature was identical to Assembly 601 (1965). It died in the Senate Committee after having been passed bjf the Assembly.

The 1967 Legislature witnessed the introduction of Assembly Bill 720 which would have amended N. J. S. 2A: 31-4 to provide that the amount recovered in proceedings under the Death Act shall be “for the exclusive benefit of the surviving spouse, children, parents, brothers and sisters of the decedent, persons standing in loco parentis to the decedent and persons to whom the decedent stood in loco parentis.” In determining the proportions such persons were to take the court, sitting without a jury, was to consider “their dependency on the decedent,” as well as (as then provided by the statute) their age and physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability of other means of support, and any other relevant factors which would contribute to a fair and equitable apportionment of the amount recovered. The bill died in committee.

Senate Bill 398, introduced in the 1968 Legislature, was identical to Assembly 720 (1967) and suffered the same fate. The bill has been pre-filed for introduction in the 1969 session as Senate Bill 190.

In light of these attempts to amend the applicable legislation, it cannot be said that the legislative mind has not dwelt, albeit without positive result, on the subject of obliterating entirely the difference under the law between those born of a legal marriage and those born out of wedlock. New Jersey, through its Legislature and Governor, has shown that it is not yet ready to eliminate the classification which presently stands in the way of illegitimate children recovering under the Death Act for the death of their putative father.

To declare, as plaintiff urges, that the legislative classification as reflected in N. J. S. 2A :31-4 and 3A :L-7 is unconstitutional because it does not provide for inheritance from the father, would not profit the illegitimate children. To strike down the statute would return them to the common law rule under which they could inherit from neither mother nor father. Actually, what plaintiff asks us to do is to insert, by judicial fiat, statutory language which would give illegitimate children the right to inherit from their putative father and therefore the right to recover under the Death Act. Who shall inherit the property of an intestate is exclusively for the Legislature to declare by general law. As was said in Adams v. Atlantic County, 137 N. J. L. 648 (E. & A. 1948),

“* * * it is not the judicial function to add beneficiaries to those specified in the statutes. The specification of who shall benefit and under what conditions is a legislative function. Our function is to construe the statute as written and to interpret the legislative intent, but we cannot under the guise of interpretation extend a statute to include persons not intended. * * *” (at page 652)

Cf. Boque Electric Co. v. Board of Review, 21 N. J. 431, 435 (1956).

We have already noted that plaintiff further argues that to deny the illegitimate children the right to share in the recovery for decedent’s death violates Article I, paragraphs 1 and 5 of our 1947 Constitution —• paragraph 1 because they have a property right in the support of the father, and paragraph 5 because they have been discriminated against in the exercise of a civil right because of ancestry. The argument assumes its premise •— that a right exists. Such a right must be found in the statutory law.

Insofar as illegitimate children are concerned, the Legislature has for policy reasons, undoubtedly rooted in practical considerations, chosen to lift the common law rule of non-inheritance and to permit such children to share in a Death Act recovery, but as to their mother only. No such right exists as to the natural father, and we may not create one where the Legislature has withheld its hand.

Finally, .plaintiff claims that an action should lie against defendant for the recovery of funeral expenses incurred for the deceased. Prior to 1967 there could be no such recovery under the Death Act. L. 1967, c. 307, now N. J. S. 2A :31--5, made recovery possible. The 1967 act became effective on February 27, 1968. Section 2 recited that the act was not to apply in the case of injuries suffered prior to the effective date. Since the accident and death in question occurred on November 5, 1966, plaintiff is not entitled to recover funeral expenses.

The order is affirmed.


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

text:
    THOMAS F. SHEBELL, PLAINTIFF-RESPONDENT, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, STATE OF NEW JERSEY, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANTS-APPELLANTS, AND JAMES LIVELY AND HAROLD A. SHERMAN, DEFENDANTS-RESPONDENTS, AND MANUEL J. RAHTJEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1968
    Decided January 8, 1969.

      Before Judges Sullivan, Foley and Lewis.

      Mr. Thadeus Raczkowski, Deputy Attorney General, argued the cause for defendants-appellants (Mr. Thomas J. Savage, Deputy Attorney General, of counsel and on the brief; Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Harold A. Sherman argued the cause pro se (Messrs. Mandel, Wysoker, Sherman, Glassner, Weingartner & Feingold, attorneys).

      Mr. Thomas F. Shebell, Jr. argued the cause for defendant-respondent Manuel J. Eahtjen (Mr. Carl Olson, of counsel; Mr. Philip G. Becker, attorney).

      Thomas F. Shebell pro se filed a statement in lieu of brief.
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

This appeal in an interpleader case actually involves the effort of the Unsatisfied Claim and Judgment Eund Board to recover back $9,000 paid to one Manuel J. Rahtjen, under a court order which directed payment out of the Unsatisfied Claim and Judgment Eund of a $9,000 judgment entered against an uninsured motorist. The trial court held that the Board was not entitled to recover back the $9,000. The Director of the Division of Motor Vehicles and the Board have appealed this decision. Eor reasons hereinafter detailed we reverse.

On February 9, 1962 Manuel Rahtjen was seriously injured in a motor vehicle accident involving James Lively, an uninsured driver. Notice was given to the Unsatisfied Claim and Judgment Eund Board, and suit was commenced against Lively by Rahtjen, who was represented by Harold A. Sherman, Esq. Ultimately, a settlement was worked out with the Board and Lively and, on June 19, 1963, a consent judgment was entered in favor of Rahtjen and against Lively for $9,000 without costs.

Thereafter, Rahtjen applied for payment of said judgment out of the Unsatisfied Claim and Judgment Eund. As required by N. J. S. A. 39 :6-70, in liis sworn application he represented, among other things, that: “I am not a person covered with respect to the injury in this case by workmen’s compensation,” and “I have not recovered a judgment in any action against any other person against whom I have a cause of action in respect to the damages or bodily injuries arising out of this accident.” The application was not opposed by the Eund.

On July 15, 1963 the trial court ordered that Rahtjen be paid the amount of his judgment, out of the Eund. The order also required defendant Lively to repay the Fund the amount of $5 a month. An assignment of the judgment to the Director of the Division of Motor Vehicles was duly executed by Rahtjen. Out of the $9,000 received, Rahtjen paid his attorney Harold A. Sherman $2,200 for counsel fees and costs.

In February 1964 Rahtjen, through other counsel, filed a workmen’s compensation claim for the same injuries sustained by him in the February 9, 1962 automobile accident.

On March 25, 1966, while the workmen’s compensation proceedings were pending, an order entitled in the Rahtjen v. Lively cause was entered restraining Rahtjen and his attorney, Thomas F. Shebell, Esq., from disbursing the proceeds of any settlement or recovery entered in Rahtjen’s workmen’s compensation case until the further order of the court.

On November 2, 1966 the Division of Workmen’s Compensation, having received testimony and stipulations, ordered the dismissal of Rahtjen’s claim petition. At the same time respondent therein and its insurance carrier agreed to pay by way of compensation to Rahtjen the sum of $24,750, pursuant to N. J. S. A. 34:15-16, which payment was approved by Division order.

Counsel for Rahtjen then moved to vacate the order of March 25, 1966. As a result, a further order was entered directing Air. Shebell to retain $9,000 out of the proceeds received by Rahtjen in the workmen’s compensation proceeding and to file a complaint in interpleader as to the $9,000, joining all interested parties as defendants in the suit.

At the hearing in the interpleader suit the trial court rejected the claim that the Fund was entitled to recover back the $9,000 payment made to Rahtjen. The court held that there was no provision in the Unsatisfied Claim and Judgment Fund Lav/ which requires a person who has received payment from the Fund to repay or reimburse the Fund out of moneys received at a later date from another source for the same injuries. The court also held that the Fund was estopped to seek reimbursement, since it had participated in the investigation and defense of Rahtjen’s suit against Lively and had not disputed Rahtjen’s assertion that he met the eligibility requirements of N. J. 8. A. 39: 6-70 for payment of his judgment. The court ordered that the $9,000 be paid over to Manuel Rahtjen. As heretofore noted, the Director and the Board have appealed.

Preliminarily, it is to be noted that there is nothing in the record to indicate any concealment or fraud on the part of Rahtjen when he applied for and received payment of the judgment out of the Fund. Rahtjen’s assertion that the idea of possible recover}? in a compensation proceeding was conceived afterwards, and after he had consulted other counsel, is not disputed on this appeal.

The Unsatisfied Claim and Judgment Fund Law requires a claimant to satisfy specified conditions of eligibility before he can obtain payment of his judgment out of the Fund. In the instant case, Rahtjen was required, among other things, to show under N. J. S. A. 39 :6-70:

“(a) He is not a person covered with respect to such injury or death by any workmen’s compensation law, or the personal representative of such a person,
* * ****** (m) Whether or not he has recovered a judgment in an action against any other person against whom he has a cause of action in respect of his damages for bodily injury or death or damage to property arising out of the accident and what amounts, if any, he has received by way of payments upon the judgment, or by way of settlement of such cause of action, in whole or in part, from or on behalf of such other person.”

Section 71 of the statute (N. J. S. A. 39:6-71) provides for entry of an order for payment out of the Fund if the court is satisfied upon the hearing:

“(a) Of the truth of all matters required to be shown by the applicant by section 10 [N. J. S. A. 39:6-70], (b) That the applicant has fully pursued and exhausted all remedies available to him for recovering damages against all persons mentioned in subparagraph (m) of section 10 by
(1) Commencing action against all such persons against whom the applicant might reasonably be considered as having a cause of action in respect of such damages and prosecuting every such action in good faith to judgment and
(2) Taking- all reasonable steps available to him to collect on every judgment so obtained and by applying the proceeds of any judgment or recovery so obtained towards satisfaction of the amount due upon the judgment for payment of which the claim is made. Any amount which the plaintiff has received or can collect by way of payments upon the judgment or by way of settlement of the cause of action, in whole or in part, from or on behalf of any person other than the judgment debtor, described in subparagraph m of section 10, shall be deducted from the amount due upon the judgment for payment of which claim is made.”

It is true that there is no specific provision in the Unsatisfied Claim and Judgment Eund Law relating to the recovery of moneys paid to a claimant under a mistake of fact or law. However, it seems clear that such recovery may be had. This is a public trust fund established for the protection of persons injured in automobile accidents in this State. Where it is made to appear that there has been an improper or illegal payment out of the Fund, the recipient can be required to make repayment to preserve the integrity of the Fund and maintain the basic purpose which it serves. See 5 1 Villiston, Contracts (rev. ed. 1937), § 1590, p. 4436; Restatement, Restitution, § 46(a); State ex rel. Callaway v. Axtell, 74 N. M. 339, 393 P. 2d 451 (Sup. Ct. 1964).

In resisting the Fund’s claim to the $9,000, Rahtjen argues that in fact he was not covered under the Workmen’s Compensation Act for the injuries which he received in the automobile accident, as evidenced by the fact that his claim petition was dismissed.

We do not agree. The dismissal of the claim petition, and the concomitant agreement to make a payment to Eahtjen under N. J. S. A. 34:15-16, manifestly indicates that the matter was settled and the payment made to Rahtjen as part of the settlement. The order of the compensation judge approving the payment recites that the employer and its insurance carrier have “made known their desire to pay by way of compensation to the petitioner the sum of $24,750.”

In any event, it is not of critical importance whether this payment should be regarded as workmen’s compensation in view of the provisions of N. J. S. A. 39 ¡6-71, supra, that any amount which plaintiff has received or can collect from any person for the same injuries and damage shall be deducted from the amount which the Eund is called upon to pay.

In short, we conclude that the Fund is entitled to recover back the $9,000.

Rahtjen argues that in the event it is determined that the $9,000 should be turned over to the Eund, Mr. Sherman, his lawyer in the automobile accident case, could be called upon to repay Rahtjen the $2,200 for counsel fees and costs received by Sherman out of the $9,000 Eund payment.

Aside from the question whether this contention is properly before us, we find it lacking in merit. The judgment obtained by Rahtjen against Lively still remains in full force and effect. This judgment is to be reassigned to Rahtjen by the Eund. In addition, there should also be turned over to Rahtjen any payments made on account of said judgment. We also note that Mr. Sherman’s services were not limited to the obtaining of the money judgment, and that he secured the waiver of a hospital lien of approximately $11,000.

Rahtjen also argues that in the event it be determined that the Eund is entitled to be repaid the $9,000, that he be given a credit for the $4,800 counsel fee and the $100 medical fees awarded in the compensation court and paid by him out of the award, since these services have now resulted in a substantial benefit to the Eund.

It can be argued that this is only equitable to require the Eund to credit Rahtjen with a proportionate share of the medical and legal fees paid by him in the Workmen’s Compensation proceeding. Approximately 36% of the payment made to Rahtjen in that proceeding will be turned over to the Fund. However, we conclude that since payment of plaintiff’s judgment would not have been authorized under the statute, had the true facts been known at the time, the Fund should not he called upon to hear any portion of the fees in question.

The judgment is reversed and the matter remanded to the trial court for entry of judgment in conformity with this opinion.


author: Kilkenny, J. A. D.

text:
    CITY OF CLIFTON, PETITIONER-RESPONDENT, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 18, 1968
    Decided January 10, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Oscar R. WHensley argued the cause for appellant.

      Mr. Frank A. Garlet, Eirst Legal Assistant, argued the cause for respondent (Mr. Arthur J. Sullivan, Jr., attorney).

      Mr. Arthur J. Sills, Attorney General of New Jersey (Mr. William Gural, Deputy Attorney General, of counsel), filed a statement in lieu of brief on behalf of the Division of Tax Appeals.
   The opinion of the court was delivered by

Kilkenny, J. A. D.

North Jersey District Water Supply Commission (hereinafter Water Commission) appeals from two judgments of- the State Division of Tax Appeals (hereinafter State Division) fixing the assessed valuations for the year 1964 of certain lands owned by the "Water Commission and located in Clifton. One tract, known as Block 353, Lot 10, has been valued by the State Division at $151,200, the same as the city’s original assessment. The other tract. Block 353, Lots 60A—62A—65C, has been valued by the State Division at $38,000, as compared with the city’s $43,000. There is no cross-appeal by the city.

The Water Commission urges two grounds for reversal. It argues: (1) The premises are tax exempt, and (2) thev were not valued according to their actual use.

The Water Commission is a public water supply agency. It is organized and operates pursuant to R. S. 58 :5-l et seq. Its Wanaque reservoir is located in the boroughs of Wanaque and Bingwood, in Passaic County. The reservoir’s lands and protective area comprise approximately 6,300 acres. Extending for 18 miles from the reservoir through a number of municipalities is a right-of-way used for large transmission aqeducts. Lot 10 in Clifton is used primarily for a “balancing tank” for the purpose of equalizing water pressures through the pipelines leading to various municipalities. It is not a collecting reservoir or source of water supply, but it is an appurtenance to the transmission system. The tank holds 15 million gallons of water.

Clifton did not assess the improvements. It did assess the lands where the balancing tank is located, and it assessed the lands in its city which constitute part of the right-of-way for the large aqueducts of the transmission system.

Prom 1961 through 1963, Lot 10, consisting of 7.56 acres, was assessed at an average of $1,650 per acre. The other three plots, consisting of 1.9 acres, were assessed at an average of approximately $1,200 per acre. The assessments for 1964, now under review, averaged $20,000 and $21,500 per acre respectively. The Water Commission did not challenge the city’s right to assess these lands for tax purposes, or the amount of the assessed valuations, for many years prior to 1964 because of the relatively small amount of taxes involved. The substantial increases in the 1964 assessed valuations prompted the instant appeals.

The city’s right to assess the lands of the Water Commission is based upon B. 8. 54:4-3.3, which provides as follows:

“The lands of counties, municipalities, and other municipal and public agencies of this State used for the purpose and for the protection of a public water supply, shall be subject to taxation by the respective taxing districts where situated at the taxable value thereof without regard to any buildings or other improvements thereon, in the same manner and to the same extent as the lands of private persons, but all other property so used shall be exempt from taxation.” (Italics ours)

I

The Water Commission concedes that its watershed lands are taxable because they are used “for the purpose and for the protection of a public water supply.” (Emphasis added.) But it contends that the taxing statute, supra, does not authorize the taxing of its lands used for the transmission and distribution of water. It asks us to draw a distinction between lands used for the purpose and protection of a “public water supply,” expressed in the tax-allowing statute, and lands used in connection with a “public water supply system” for which it claims tax immunity as public lands not expressly permitted to be taxed by any statute.

We agree with the State Division that a fair interpretation of B. 8. 54:4-3.3 does not warrant such a distinction. Lands used “for the purpose and for the protection of a public water supply” would include the lands in question. They are for the purpose of a public water supply, albeit they are used as part of the system whereby that purpose is effected.

The Water Commission, as indicated by its own conduct over a long period of time in paying the annual tax levies upon the subject lands, never asserted the existence of the distinction for which it now contends. It paid similar tax assessments to the other municipalities through which its aqueduct right-of-way extends. Long-continued practical interpretation by the parties involved of a statutory provision, ■without legislative change, as in the instant case, supports the finding of concordant legislative intent. It is clear that the Water Commission has been motivated in seeking a different interpretation only because the assessments were substantially increased.

In Jersey City v. Blum, 101 N. J. L. 93 (E. & A. 1924), the court reviewed the validity of taxes levied by nine municipalities on lands owned by Jersey City on which were located:

“* * * the reservoir, dam, pipes, conduits, etc., constructed in or laid through these various municipalities, and used for the purpose of providing inhabitants of Jersey City with a xvater supply.” (at p. 93; italics ours)

It held that the tax was valid and enforceable, as a statutory exception to the general rule that property of the State or its poliical subdivisions is excluded from the operation of general statutes imposing taxation. In the Jersey Oily v. Blum case the taxing statute therein was a 1910 counterpart of the present B. 8. 54:4L-3.3 and contained practically identical language.

See, too, City of Newark v. West Milford Tp. in Passaic County, 9 N. J. 295 (1952), wherein the disputed tax assessment, levied pursuant to R. S. 54:4-3.3, involved 18,548 acres in West Milford. The court noted: “On part of the property a reservoir is located but the rest of the property can be classified as watershed property and part of the Newark water supply system.” (At p. 300 emphasis added.) Thus, no sharp distinction was made between lands used for the purpose of a public water supply and lands used for the purpose of a public water supply system.

II

The Water Commission’s second point is that the lands were not valued accordingly to their actual use for water distribution purposes.

B. 8. 54:L-3.3 provides that publicly held lands used for the purpose and for the protection of a public water supply shall be subject to taxation, without regard to any building or improvements thereon “in the same manner and to the same extent as the lands of private persons.”

Lot No. 10 is located in a residential A-l zone. The other three plots are in an office and research zone. The subject lands do not involve thousands of acres, as in City of Newark v. West Milford Tp. in Passaic County, supra, where there were 18,548 acres; or as in In re Appeal of East Orange, 80 N. J. Super. 219 (App. Div. 1963), certification denied 41 N. J. 200 (1963), wherein the Township of Livingston taxed 1,471 acres of watershed land in its municipality owned by East Orange. As noted above, the lands in issue in Clifton consist of 7.56 acres, constituting Lot 10, and 1'.9 acres comprising the other three parcels. Thus, we are not confronted with the problems inherent in the sale of very large tracts of land, as was the situation in the City of Newark and East Orange cases.

In the latter, Livingston argued that the value of East Orange’s water reserve lands should include the factor of the aquifer, the valuable underground water deposits. Its theory was that all land must be valued for taxation in the condition in which it is held by the owner. It argued that computing the value of the land for residential development, as opposed to its greater value as a source of potable water, was unrealistic. We held that the general rule, that land must be taxed “in the actual condition in which the owner holds it,” was not without qualification. 80 N. J. Super., at p. 230. Of importance is “what can be done with the property.” Id., at p. 231. See, too, D. L. & W. R. R. Co. v. City of Hoboken, 16 N. J. Super. 543, 570 (App. Div. 1951), reversed on other grounds, 10 N. J. 418 (1952).

In Division of Tax Appeals v. Ewing Tp., 72 N. J. Super. 238, 243 (App. Div. 1962), the subject property had been held and used as a farm. We held that its use as a farm would not preclude the tax assessor from considering “the possibility of sale to a buyer who intends a different use, unless such possibility is so remote as to have no real bearing upon current value.” Thereafter, the law was changed as to lands actually devoted to farm purposes. See N. J. S. A. 54:4-23 et seq., the Farmland Assessment Act of 1964.

So long as R. S. 54:4—3.3 requires water supply lands to be valued for tax purposes “in the same manner and to the same extent as the lands of private owners,” the proper rule was stated by us in In re Appeal of East Orange to be:

“It is the fitness and availability of property for particular uses which should be given consideration in arriving at its taxable value, rather than the fact of actual use as such.” 80 N. J. Super., at p. 231.

City of Newark v. West Milford Tp. in Passaic County, supra, 9 N. J., at p. 308, is in accord therewith. There, the Supreme Court said:

“The true value of these watershed lands can only be reasonably approximated and will have to be determined by comparison of the representative component parts of the various classifications of the lands ® * * with the true value o£ comparable parcels of land owned by private persons adjacent to the watershed or reasonably nearby in the township, measured by the standard of value established by a fair and bona fide sale at private contract.”

There was in this case substantial evidence of comparable sales sufficient to support the values fixed by the State Division. The taxpayer neither introduced into evidence nor attempted to introduce into evidence any true value of the property. We find no basis for disturbing the presumed correctness of the actions of this administrative agency. The under-assessment of the property in past years does not estop the taxing authorities from making a proper assessment for the year in question. We are told that there was a general revaluation of taxable property in Clifton for 1964, not merely that of appellant.

We can appreciate the Water Division’s position. But the remedy belongs more properly with the Legislature, whose own enactments mandate this judicial determination.

The judgments under review are affirmed.


author: Pee Cubiam.

text:
    NORMAN SCHANTZ AND SANDRA SCHANTZ, PLAINTIFFS-APPELLANTS, JOHN T. BROCKWELL AND ABBIE BROCKWELL, PLAINTIFFS-INTERVENORS-APPELLANTS, v. EDGAR L. RACHLIN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 6, 1969
    Decided January 15, 1969.
    Before Judges Sullivan, Eoley and Lewis.

      Mr. Philip J. Blanda, Jr., argued the cause for appellants (Messrs. Blanda and Blanda, attorneys).

      Mr. Albert G. Besser argued the cause for defendant-respondent (Messrs. Eannoch, Weisman, Stern & Besser, attorneys; Mr. Bruce Lubitz, on the brief).
   Pee Cubiam.

The judgment is affirmed substantially for the reasons given by Judge Lane in his opinion, reported at 101 N. J. Super. 334 (Ch. Div. 1968).

Affirmed.


author: Leonard, J. A. D.

text:
    DEBORAH BIASI, AN INFANT, BY THE GUARDIAN OF HER PERSON AND PROPERTY, MARION BIASI, PLAINTIFF-APPELLANT, v. ALLSTATE INSURANCE COMPANY, A CORPORATION, DEFENDANT-RESPONDENT, AND ELIZABETH DRESSLER, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued December 19, 1968
    Decided January 15, 1969.

      Before Judges Coneokd, Kilkenny and Leonard.

      Mr. Harvey Weissbard argued the cause for appellant (Messrs. Querques, Isles & Weissbard, attorneys).

      Mr. H. Curtis Meanor argued the cause for respondent (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff appeals from a summary judgment entered against her by the trial court.

On May 26, 1964 defendant Elizabeth Dressier (Dressier) while operating an automobile owned by her now deceased husband Henry Dressier struck the infant Deborah Biasi. On this date defendant Dressler’s vehicle was covered by a $10,000 limit automobile liability policy, issued by defendant Allstate Insurance Company.

The infant, through her parent, Marion Biasi, as guardian, and Marion Biasi individually, instituted suit against Dressier in the Hudson County Court. Eollowing trial, a judgment in the amount of $25,000 was entered in favor of the infant and a judgment of $1,000 in favor of her parent. The latter judgment was reduced by the trial judge to $411.42. Eollowing denial of defendant’s motion for a new trial, an appeal was taken to the Appellate Division which affirmed the judgment. Thereafter, Allstate paid to plaintiff the sum of $10,000 together with $969.87 interest and $221.65 court costs, leaving outstanding on plaintiffs judgment the sum of $15,411.42. Defendant Dressier has no available assets from which this judgment may be satisfied except weekly earnings of $75.

Subsequently, the attorneys for plaintiff suggested that defendant Dressier sue Allstate and forwarded to her for execution the form of an assignment. This instrument purported to assign to plaintiff Marion Biasi “all rights which I may have against Allstate * * * to recover against Allstate damages for the judgment recovered against me * * * in excess of the policy limits of my insurance policy with Allstate, said rights arising by reason of Allstate’s breach of the contract of insurance between the said Allstate and myself.” The assignment further provided that the consideration therefore was that upon the conclusion of the suit brought pursuant thereto by plaintiff Marion Biasi against Allstate Marion would give defendant Dressier a warrant of satisfaction of the judgment of record in "Biasi v. Dressler.” Defendant Dressier never executed this assignment nor did she accept the further suggestion made by plaintiff’s attorneys that she join as a party plaintiff in a suit to be filed by plaintiff against Allstate.

Thus, plaintiff instituted the present action against Allstate and joined Dressier as a party defendant. In her complaint plaintiff alleges that Allstate “breached the terms of the insurance policy * * * by its failure to exercise good faith and reasonable care in the preparation, investigation, settlement negotiations, trial and appeal of the ease of Deborah Biasi against Elizabeth Dressier, which breach proximately resulted in the * * * judgment against the defendant Elizabeth Dressier greatly in excess of the limits of her policy with the defendant, Allstate * * Plaintiff seeks to recover the unpaid portion of the outstanding judgment in her suit against Dressier, to wit, $15,411.42.

Defendant Allstate moved for summary judgment. Annexed to its motion was an affidavit by Dressier in which she states that she told plaintiff’s attorney that she would not sue Allstate because she felt that the company had “handled the case all right” and further, that “I am completely satisfied with the way Allstate handled my case and I do not wish to sue Allstate nor do I want the Biasis to do so.” The trial judge granted the motion for summary judgment.

At oral argument before us plaintiff confined its contention that Allstate had breached its insurance policy solely to the allegation that the insurer did not exercise good faith and reasonable care in that it failed to settle plaintiff’s case for an amount less than the policy limits. Upon inquiry by us as to what would have been a reasonably acceptable settlement offer, counsel for plaintiff responded, “$7,500.”

Plaintiff contends that a party injured in an automobile accident who recovers a judgment against another motorist, who caused the injury, for a sum in excess of the liability policy limits of defendant motorist’s insurance coverage can, without holding an assignment from the insured, bring an action against the insurance company for breach of the latter’s obligation to act in good faith in reference to negotiation of settlement of the claim prior to judgment. Plaintiff bottoms its contention upon the argument that plaintiff has a common law right to succeed to any claim arising out of the policy which the assured could prosecute against the insurance company.

In the instant case, however, the assured has refused to give plaintiff an assignment of any rights that she might have against Allstate by reason of the recovery of the judgment against her in excess of the policy limits. To the contrary, she states that she does not “wish to sue Allstate.”

Further, plaintiff has not been aggrieved by any alleged failure of Allstate to have performed an obligation to the assured to exercise due care and good faith toward her in making a determination as to whether to settle her case or let it go to judgment. If Allstate had settled the case for less than the policy limits, for example, for $7,500, because it felt that there was a potentiality of a judgment considerably in excess of its policy limits, plaintiff would be in a worse position than she presently is. Instead of realizing only $7,500, she has been paid $10,000 plus interest and court costs, and has a judgment against defendant Dressier for whatever that judgment may yield in the future. Thus, plaintiff cannot rationally claim to be aggrieved by Allstate’s alleged breach of duty as she asserts.

The right of the assured to recover against the insurer for its failure to exercise good faith in settling a claim within the limits of a liability policy, as was adjudicated in Bowers v. Camden Fire Ins. Ass’n, 51 N. J. 62 (1968), is predicated upon the potential damage to the assured in being subjected to a judgment in excess of her policy limits and the consequent subjection of her assets to the satisfaction of such judgment. The damage is peculiarly to the assured by reason of breach of an implied condition of the policy contract. The injured third party is a stranger in that sense. Moreover, public policy does not mandate that the injured party in the accident should be deemed the intended beneficiary of the company’s contractual duty to its policyholder to act in good faith regarding settlement.

Nor does N. J. S. A. 17:28-2 give the injured party such a right. It merely provides that the bankruptcy or insolvency of the assured against whom an injured party has recovered a judgment shall not release the insurance carrier and, in such an event, the injured party may file an action directly against the carrier under the terms of the policy for the amount of the judgment but “not exceeding the amount of the policy.” This statute is not applicable to the present situation.

Under the circumstances here present we conclude that plaintiff does not have a legal cause of action against Allstate or the status to maintain the present suit. Therefore we find that the trial court properly entered summary judgment against her. See Duncan v. Lumbermen’s Mutual Casualty Co., 91 N. H. 349, 23 A. 2d 325 (Sup. Ct. 1941); Wessing v. American Indemnity Co. of Galveston, 127 F. Supp. 775 (D. C. W. D. Mo. 1955); Chittick v. State Farm Mutual Automobile Ins. Co., 170 F. Supp. 276 (D. C. Del. 1958); Murray v. Mossman, 56 Wash. 2d 909, 355 P. 2d 985 (Sup. Ct. 1960); Ammerman v. Farmers Insurance Exchange, 19 Utah 2d 261, 430 P. 2d 576 (Sup. Ct. 1967). See also, Keeton, “Liability Insurance and Responsibility For Settlement,” 67 Harv. L. Rev. 1136, 1176 (1954).

Atlantic City v. American Casualty Insurance Co., 254 F. Supp. 396 (D. C. N. J. 1966), relied upon by plaintiff is inapposite. In that case plaintiff did possess a partial assignment from the assured (Atlantic City) of its claim against the insurance carrier for the carrier’s unreasonable refusal to settle. Thus, any discussion therein by the court as to the rights of the injured party to sue the insurance company without an assignment was dictum.

Judgment affirmed.