author: Lteokak'd, J. A. D.

text:
    EMMA KLOTZ, EXECUTRIX OF THE ESTATE OF CHARLES H. KLOTZ, SR., DECEASED, PLAINTIFF-RESPONDENT, v. SELECTED RISKS INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 27, 1969
    Decided February 28, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Michael Patrick King argued the cause for defendant-appellant (Messrs. Kisselman, Devine, Deighan & Montano, attorneys; Mr. Carl Kisselman, of counsel).

      Mr. Frank W. Thatcher argued the cause for plaintiff-respondent (Mr. Joseph B. Moss, attorney).
   Tlie opinion of the court was delivered by

Lteokak'd, J. A. D.

Defendant, with leave first granted, appeals from a denial of its motion for summary judgment.

On September 22, 1966 defendant issued an “automobile personal accident policy” of insurance to plaintiffs decedent, Charles II. Klotz. The premium was $10 per year and the principal sum payable in the event of death was $7,500. The pertinent portions of the policy follow;

“ ‘INJURY’ whenever used in this policy means Bodily injury caused by an accident occurring while this policy is in force as to the Covered Person whose injury is the basis of claim and resulting directly and independently of all other causes as follows:
A. While driving or riding in a private passenger automobile; or
B. While riding as a passenger in a public passenger automobile; or
$ $ :■< # &
D. By being struck or run down by an automobile.”
* * * * * * * *
“EXCLUSIONS”
“This insurance shall not apply to any loss caused or contributed to by * * * (8) driving or operating an automobile for compensation or hire, (9) operating, driving, riding in any vehicle except a four-wheel automobile of the private passenger type.”

On May 18, 1967, while the policy was in full force and effect, plaintiff’s decedent in the course of his employment was operating a Ford truck owned by his employer. He was involved in a collision with a tractor trailer that struck his vehicle in attempting to pass it. By reason thereof decedent’s truck left the highway and plunged into a creek in an overturned position. Decedent drowned.

Plaintiff, decedent’s executrix, instituted suit for total benefits due under the policy, i. e., $7,500. Each party moved for summary judgment. The trial court, in denying both motions, found that (1) decedent was admittedly not driving or riding in a private passenger automobile of the pleasure-car type and was therefore, not entitled to insurance coverage under the provisions of clause A of the policy, (2) the word “automobile” in clause D is used generieally and includes the truck which collided with decedent’s; (3) since the policy does not define what is meant in clause D by “being struck or run down,” and since it does not explicitly delimit the coverage to pedestrians, this clause should not be so construed; (4) clause D covers a situation where the insured, while sitting or riding in a truck, is struck or run down by a negligently operated or runaway vehicle through no fault of his own, and (5) the exclusionary clause excludes only losses “caused or contributed to” by the insured, even though at the time of the accident he is operating, driving or riding in a vehicle not of the passenger type. Based upon these findings the trial court concluded that an issue of material fact existed, i. e., “whether decedent caused or contributed to the collision.”

Defendant first contends that viewing the policy as a whole, decedent does not fall within any coverage provision thereof since he was driving his employer’s truck at the time of the accident. Specifically, it urges that decedent was not covered by clause D of the policy. Defendant further argues that even if it be determined that he was so covered by clause D, the exclusionary clause of the policy bars recovery.

On the other hand, plaintiff asserts that a policy of insurance which purports to be an “automobile accident policy” should be held to provide coverage for any loss resulting from a truck accident. Plaintiff bottoms this contention upon the fact that there is imprinted in red ink across the first page of the policy the statement, “This Policy Is Limited to Automobile Accidents. Read It Carefully.” Thus, he argues that a layman, not versed in legal terms, were he to read the whole policy, would reasonably expect that coverage would be afforded in all instances where he was injured in an automobile accident, whether between two trucks or otherwise. Plaintiff further contends that in the instant case clause D extends coverage to decedent and that this coverage is not barred by the exclusionary provisions of the policy.

Viewing the policy as a whole, we conclude that plaintiff is not entitled to recover and that accordingly the trial court erred in not entering summary judgment for defendant. A reading of the coverage provisions and the exclusionary clause, taken as a whole and in context, clearly indicates that the policy covers only accidental injuries to an individual that occur while he is driving or riding as a passenger in a “private passenger automobile of the pleasure car type,” or while riding as a passenger in a “public passenger automobile,” and that it does not cover injuries that occur while he is operating a truck or other commercial vehicle. The legend, “This Policy Is Limited To Automobile Accidents. Eead It Carefully,” which is printed across the first page of the policy, cannot be read to subvert what we find was clearly communicated to an average reader in the body of the policy. We so hold with full regard for the settled principle that a policy should be read to afford coverage to the full extent that any fair interpretation will allow.

We turn to consideration of the contentions concerning the specific provisions of the policy. The trial court determined that since decedent admittedly was not driving or riding in a passenger automobile of the pleasure-car type, he was not covered under clause A of the policy. Plaintiff on this appeal does not challenge this determination, and we are in agreement therewith.

Plaintiff contends that the trial court correctly concluded that clause D does not restrict coverage solely to a situation where the assured is “struck or run down” as a pedestrian. Belying on LaBracio v. Northern Ins. Co. of New York, 66 N. J. Super. 216 (Law Div. 1961); Elrod v. Prudence Mutual Casualty Company, 246 S. C. 129, 142 S. E. 2d 857 (Sup. Ct. 1965), and DiMartino v. State Farm Mutual Aulo Ins. Co., 201 Pa. Super. 142, 192 A. 2d 157 (Super. Ct. 1963), he argues that it is not necessary for coverage under this clause that there be direct contact between the assured’s body and the other vehicle, it being sufficient if the other vehicle strikes a vehicle in which the assured is driving or sitting. However, the issue here involved is not whether the words “struck or run down by an automobile” generally require direct physical contact between the body of the assured and an automobile. Rather, the problem here is whether, in the light of clauses A and B, decedent is covered under clause D in the instant circumstances. We hold that he is not.

In the first place, to adopt plaintiff’s contention would be practically to eliminate the need for clauses A and B, since D would cover almost every situation.

Moreover, the following considerations are pertinent in arriving at the intent of the policy. Clause D would assuredly cover a pedestrian struck by an automobile. Assuming, arguendo, it is not limited to pedestrians but may apply to occupants of vehicles, it must be construed with the aid of clauses A and B and exclusions (8) and (9). So aided we conclude that clause D does not cover an employee of the owner of a truck injured while driving the truck.

Clauses (8) and (9) of the “Exclusions” affirmatively preclude recovery. At the time of the accident decedent was operating his employer’s truck in the course of his employment. Thus, he was driving or operating the same “for compensation or hire.” Further, he was operating a truck, obviously not “a four-wheel automobile of the private passenger type.”

We do not agree with the trial court’s apparent determination that in order for exclusions (8) and (9) to become effective it must he first established that the accident was “caused or contributed to” by the fault or negligence of the assured. The exclusions in the policy do not speak in terms of negligent causation or contribution by the assured. They merely describe conditions or status under which the loss is contemplated to be excluded. Under (8), driving any vehicle generically constituting an automobile for compensation or hire is excluded. Under (9), occupancy of any kind, even riding in a truck, is also excluded. We therefore conclude that the mere fact that decedent was driving a truck for compensation bars recovery- under both exclusions (8) and (9). Consequently, no disputed issue of a material fact existed and the trial court erred in refusing to enter summary judgment for defendant.

Reversed and remanded to the trial court for the entry of a judgment in favor of defendant.


source: Caselaw Access Project

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

license: Public Domain

text:
    ROBERT K. HAELIG, WILLIAM KLOMPUS AND EDWARD WASSER, PLAINTIFFS-APPELLANTS, v. MAYOR AND COUNCIL OF THE BOROUGH OF BOUND BROOK, DEFENDANT-RESPONDENT, v. THE FIRST NATIONAL BANK OF SOMERSET COUNTY, N. J., A NATIONAL BANKING CORPORATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted February 3, 1969
    Decided March 3, 1969.

      Before Judges G-atjlkin, Collestek and Labkecque.

      Messrs. Freint and Jacobs appeared for plaintiffs.

      Messrs. Imbriani, Hughes, Westling & Lucas appeared for The First National Bank of Somerset County, New J ersey.
    No appearance on behalf of the Mayor and Council of the Borough of Bound Brook.
   The opinion of the court was delivered by

Gaulktn, S. J. A. D.

“The contract shall provide that the property shall be used solely and exclusively for a banking facility substantially of the type set forth in plans submitted by the Hirst National Bank of Somerset County, N. J. * * * The building shall thereafter be occupied by the successful bidder.”

At the meeting of May 21, 1968, no other bids were offered and the borough adopted a resolution accepting the bank’s offer.

Plaintiffs brought an action in the Law Division seeking to enjoin the borough from completing the sale, alleging (1) inadequacy of price, (2) unreasonably restrictive conditions of sale, (3) the bank’s bid was not accepted at a public sale, and (4) advertisement for the public sale was not made in accordance with N. J. 8. A. 40 :60-26(e). The bank intervened. Plaintiffs then moved and defendants counter-moved for summary judgment on the single issue of the legality of one of the allegedly overly restrictive conditions — that “the building shall thereafter be occupied by the successful bidder.” The validity of the broader restriction, that the property be used solely for the described banking facility, was admitted by plaintiffs “for the purposes of [the] motion.”

The court denied plaintiffs’ motion and granted defendants’ counter-motion on this single issue. In other words, the court held that this one condition was not illegally restrictive. The remaining issues were reserved for trial, and plaintiffs intend to press them. Thinking that it could make its ruling immediately appealable under B. B. 4:55-2, the court entered an order for summary judgment on this one issue which recited that it appeared “that there is no just reason for delay and that this court should issue an express direction for the entry of judgment on the issue before the court.”

All counsel apparently believed that the above-quoted recital made the order immediately appealable without leave of this court, for they agreed to the form of the order. Plaintiffs then appealed. However, defendant bank now has concluded that such a single issue cannot be made appealable under B. B. 4:55-2, at least not without leave of this court, and it moves to dismiss the appeal. We agree and dismiss the appeal.

B. B. 4:55-2 provides as follows:

“Judgment Upon Multiple Claims
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more, but less than all of the claims, only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

It is well settled that, aside from the “narrow exception” of B. B. 4:55-2, the Supreme Court rules “prohibit direct appeal unless final judgment has been entered disposing of all issues as to all parties. B. B. 1:2-l; 2:2-l.” Hudson v. Hudson, 36 N. J. 549, 553 (1962); Petersen v. Falzarano, 6 N. J. 447, 453 (1951). This conclusion is based on the court’s strong disapproval of piecemeal adjudication of controversies. Hudson v. Hudson, supra. It is also clear that, although a trial court has the power to enter a partial summary judgment, adjudicating fewer than all the issues in a case, B. B. 4:58-4, such judgment cannot be made appealable unless the disposition of that issue or issues completely disposes of the claim with reference to which that issue or issues is tendered. If the claim may yet prevail (or be defeated) upon the basis of grounds or theories or counts advanced in the pleadings other than the adjudicated issues, B. B. 4:55-2 cannot make those issues appealable. Applestein v. United Board & Carton Corp., 35 N. J. 343, 351-352 (1961). For example, a plaintiff might sue for personal injuries alleging, in separate counts, negligence, breach of express warranty, breach of implied warranty, violation of a statute, etc. If the trial judge strikes one or more of these counts, but leaves others to be tried, his order cannot be made appealable under B. B. 4:55-2. Plaintiff’s single claim in such case is for compensation for his injuries, and if he can recover such compensation on any count remaining in the case his claim has not been finally adjudicated.

By its terms, the rule applies only “when more than one claim for relief is presented in an action” and, in allowing the trial court to make a partial summary judgment final, it states that “the court may direct the entry of a final judgment upon one or more, but less than all of the claims * * The question becomes, therefore, whether the action at hand comprises multiple claims, in which case B. B. 4:55-2 would apply, or a single claim with multiple grounds of support, as to which the rule is, by its terms, inapplicable. See Applestein v. United Board & Carton Corp., supra, at p. 353, n. 3.

The background and decisions under the analogous federal rule, Fed. R. Civ. P. 54(6), are instructive. In its note to the 1946 revision of Buie 54(6), the Federal Advisory Committee observed that Buie 54(6) was originally adopted “in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case. It was not designed to overturn the settled federal rule” that appeals be taken only from final judgments to avoid piecemeal litigation. (Emphasis added.) The committee noted that confusion had arisen under the original rule, in which “district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of.” By its 1946 amendment, the committee sought to retain the intent of the general rule but clarify its application. 6 Moore, Federal Practice, § 54.01[6], pp. 10-12 (1966). B. B. 4: 55-2 is identical to Buie 54(6) as amended in 1946.

Although there has been some dispute as to the meaning of the word “claim” in Buie 54(6), and no clear rule has evolved to define it in close eases, see 6 Moore, Federal Practice, §§ 54.24, 54.27[3], 54.33 (1966), generally “a separate claim is said to be that which is entirely distinct from other claims in an action and which arises from a different occurrence or transaction.” Town of Clarksville v. United States, 198 F. 2d 238, 240 (4 Cir. 1952), certiorari denied 344 U. S. 927, 73 S. Ct. 495, 97 L. Ed. 714 (1953); Reeves v. Beardall, 316 U. S. 283, 62 S. Ct. 1085, 86 L. Ed. 1478 (1942).

Whatever the difficulties of applying this distinction in a close case, it is apparent that plaintiffs’ contentions here are not separate claims. Plaintiffs simply allege that the borough’s sale of property to the bank was improper and should be enjoined. They seek only one judgment, i. e., for an injunction. Although they seek it for several reasons, their claim is single. Their contentions — inadequate price, unreasonably restrictive sale conditions, lack of public sale, and improper advertising — are merely several grounds in support of this single claim. Therefore, since only one claim is presented in the action, B. B. 4:55-2 is not applicable. And, since it is admitted that the judgment of the Law Division did not dispose of the claim but only of a part of plaintiffs’ contentions, it was not final and could not be made the subject of a direct appeal by the trial court.

The motion to dismiss the appeal is granted and the cause is remanded to the trial court for further proceedings.

No costs.

       In. 1961, Rule 54(b) was amended again to apply to adjudications as to fewer than all parties to an action as well as all claims. This result has apparently been reached under R. R. 4:55-2, without amendment. See Mortgage Corp. of N. J. v. Aetna Cas. & Surety Co., 19 N. J. 24, 28 (1955).


author: Mintz, J. S. C.

text:
    ALEXANDER’S DEPARTMENT STORES OF NEW JERSEY, INC., A NEW JERSEY CORPORATION, AND EXANDER PROPERTIES, INC., A NEW JERSEY CORPORATION, PLAINTIFFS, v. ARNOLD CONSTABLE CORPORATION, A NEW JERSEY CORPORATION, DEFENDANT. ARNOLD CONSTABLE CORPORATION, A CORPORATION, PLAINTIFF, v. ESSEX GREEN SHOPPING PLAZA ASSOCIATES, ESSEX GREEN, INC., SOL G. ATLAS, WILLIAM DOELGER, PROSPECT ACRES, INC. AND PLEASANT ACRES COMPANY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 28, 1969.

      Mr. Morris M. Schnitzer for Alexander’s Department Stores of New Jersey, Inc., Exander Properties, Inc., Essex Green, Inc., Essex Green Shopping Plaza Associates, Sol G. Atlas, Prospect Acres, Inc. and Pleasant Acres Company (Messrs. Kasen, Schnitzer & Kraemer, attorneys).

      Mr. Murry D. Brochin for Arnold Constable Corporation (Messrs. Lowenstein, Sandler, Brochin & Kohl, attorneys).
   Mintz, J. S. C.

This matter is before the court on Arnold Constable Corporation’s (“Arnold Constable”) motion for summary judgment. In the first-captioned proceeding Alexander’s Department Stores of New Jersey, Inc. (“Alexander’s”) and its subsidiary, Exander Properties, Inc. (“Exander”), seek a declaratory judgment that certain restrictions in Arnold Constable’s recorded lease of premises in the Essex Green Shopping Plaza in West Orange, New Jersey, do not bar Alexander’s from operating a proposed department store on properties adjoining the Arnold Constable store. In its answer Arnold Constable alleges that the operation of an Alexander’s store on said properties would be in violation of its lease and counterclaims for an injunction to prevent the construction and operation of an Alexander’s department store on all three parcels of land involved in this litigation. Although not specifically set forth in its answer, Arnold Constable also urges that it is entitled to specifically enforce restrictive covenants in deeds covering two of the three contiguous parcels upon which Alexander’s proposes to erect a department store. Since this issue was presented and argued without objection, the answer will be deemed amended to include the same. In the second-captioned action Arnold Constable seeks to hold defendants liable for damages, including legal fees, arising out of the alleged breach of the leasehold obligations to Arnold Constable. Defendant Doelger moved for summary judgment and his motion was granted.

In 1956 Ridge Holding Company conveyed three contiguous parcels of land in West Orange to three separate entities, namely, Essex Green, Inc., Pleasant Acres Company and Prospect Acres, Inc. The three deeds were each dated March 29, 1956 and were consecutively recorded in the Essex County Register’s Office on April 30, 1956. Essex Green, Inc. acquired title to a tract consisting of 48.08 acres fronting on the northwesterly side of Prospect Avenue in West Orange. An adjoining parcel to the north was acquired by Pleasant Acres Company, and an adjacent parcel to the north and west of the Essex Green, Inc. property was acquired by Prospect Acres, Inc. The deeds to the Pleasant Acres Company and Prospect Acres, Inc. tracts each contained a restrictive covenant which reads as follows:

“The party of the second part, in accepting this deed, does for itself, its successors and assigns covenant and agree to and with the party of the first part, its successors and assigns, that no portion of the above described premises, nor any building or structure now or hereafter erected thereon shall be used for a shopping center or for a store or stores. This covenant shall attach to and run with the lands above described and this covenant is expressly made for the benefit of said lands of the party of the first part consisting of 48.08 acres fronting on the northwesterly line of Prospect Avenue, West Orange, New Jersey and to be conveyed by deed of even date herewith by the party of the first part to Essex Green, Inc., a corporation of New Jersey.”

In 1959 Essex Green, Inc. constructed the Essex Green Shopping Plaza on part of the land acquired from Ridge Holding Company. On September 8, 1959 Arnold Constable as tenant, entered into a lease with Essex Green, Inc. as landlord, for a portion of the shopping center premises for use as a department store and/or specialty store. The lease was executed on behalf of Essex Green, Inc. by its president, Sol G Atlas, then a leading developer of shopping centers. The lease is for a term of 25 years with three 10-year renewal options and a rental based upon a percentage of the tenant’s gross annual volume of business. However, after the first five years of the term there is a guaranteed minimum annual rental based upon the average rent paid during the first five years.

Paragraph 27 (b) of the lease provides that:

“Landlord and Sol G. Atlas and William Doelger shall not directly or indirectly construct or own or operate or control or have a controlling interest in any shopping center and further agree not to lease to any of the stores as shown in Paragraph 51 herein within a radius of five (5) miles from the premises during the term of this lease or any extension or renewal thereof.”

Paragraph 51 of the lease states that:

“Provided the Tenant is not in default of the payment of the fixed annual minimum rental, Landlord will not, without the prior written consent of Tenant, lease or permit the occupancy of any portion of the Shopping Center for any store to be used, occupied, operated or managed, directly or indirectly, by the following persons, firms or corporations, or any parent, subsidiary or affiliate thereof: S. Klein of Union Square, New York, N. Y., May’s of Pulton Street, Brooklyn, N. Y., Ohrbach’s of 34th Street, New York, N. Y., Lane’s of 14th Street, New York, N. Y., Alexander’s of Pordham Road and Grand Concourse, Bronx, N. Y., E. J. Korvette of New York, N. Y., Master’s, Inc. of New York, N. Y., Strauss Stores Corp., Modell’s, Yim or Davega of New York, Inc., or any other discount-house type of retail business. Landlord shall not without Tenant’s prior consent lease or permit the occupancy of any portion of the Shopping Center by any competing department or specialty store.”

A “short form” of lease including the foregoing restrictions was duly recorded in the Essex County Register’s Office and constitutes constructive notice to Alexander’s and Exander. Cwiakala v. Giunta, 23 N. J. Super. 261 (Ch. Div. 1952).

In 1961 Essex Green, Inc. sold a 40-aere tract upon which the shopping center is constructed to Essex Green Ereeway, Inc., which in turn conveyed it to Essex Green Property Plaza Associates (“Associates”) the present owner. Essex Green, Inc. retained title to an eight-acre tract north of and immediately adjacent to this tract. Approximately one-half an acre of this parcel has been taken by the State for highway purposes.

On October 21, 1965 Essex Green, Inc., Prospect Acres, Inc. and Pleasant Acres Company entered into a contract with Exander to convey their contiguous lands to Exander. It is upon this assembled tract that Exander proposes to erect an Alexander’s Department Store with parking facilities. On November 30, 1965 Associates and Essex Green, Inc. released the covenant prohibiting the use of the Prospect Acres, Inc. and Pleasant Acres Company tracts for a shopping center or store. Associates also entered into an agreement with Exander wherein it granted Exander, its successors and assigns a perpetual easement over the parking facilities now in being or to come into being on its shopping center property. Apparently Associates has received a reciprocal easement over the proposed Alexander’s parking area and the plan is to integrate the Alexander’s store with the Essex Green Shopping Plaza. On May 27, 1966, by a single common deed from Essex Green, Inc., Prospect Acres, Inc. and Pleasant Acres Company, the aforesaid three properties were conveyed to Exander.

In view of the fact that Exander has acquired title to the three tracts from three separate entities, it is necessary in the first instance to deal separately with the applicability of the lease restrictions to the 7)^-acre tract. This tract, acquired by Exander from Essex Green, Inc., immediately adjoins the present shopping center and was originally a part of the 48-acre tract owned by Essex Green, Inc. when it entered into the lease arrangement with Arnold Constable. Attached to the lease agreement is a map entitled “Essex Green Shopping Plaza.” On this map the original eight-acre tract, now reduced to ri1/2 acres, is labeled “For Future Construction.” Paragraph 28(b) of the Arnold Constable lease states:

“Landlord hereby reserves the right at any time to construct other buildings or improvements in the Essex Green Shopping Plaza or to make alterations or additions to buildings or improvements in the Essex Green Shopping Plaza, as shown on the attached Exhibit ‘D’, except that Landlord shall not (subject to paragraph 51) rent to any tenant who will occupy retail selling space of 25,000 square feet or more in the Shopping Center without first obtaining Tenant’s written consent, which consent shall not be unreasonably withheld.”

Clearly, the parties to the lease contemplated the expansion of the shopping center to include the area on the map attached to the lease designated “For Future Construction,” and intended that paragraph 51 of the lease apply to the area so specified. See Daitch Crystal Dairies, Inc. v. Neisloss, 16 Misc. 2d 504, 185 N. Y. S. 2d 188 (Sup. Ct. 1959), affirmed 8 A. D. 2d 965, 190 N. Y. S. 2d 737 (App. Div. 1959), affirmed on opinion below 8 N. Y. 2d 723, 201 N. Y. S. 2d 101, 167 N. E. 2d 643 (Ct. App. 1960).

Alexander’s argues that while the 7%-aere tract may have been a part of the proposed shopping center as originally contemplated in 1959 when the Arnold Constable lease was signed, the shopping center has not been expanded and, in fact, there has been a severance in the ownership of the original 48-acre tract. It is therefore urged that the 7^2-acre parcel is freed from the restrictive effect of paragraph 51 of the lease. I find no merit in this argument. Arnold Constable did not consent to a release of the restrictions imposed on the 7J^-acre tract by the leasehold agreement and certainly such release cannot be effected unilaterally.

Assuming arguendo that the proposed Alexander’s Department Store will not be erected on the shopping center but on a site immediately adjacent to it, the conveyance of the 7^-acre tract from Essex Green, Inc. to Exander is violative of paragraph 27(b) of the Arnold Constable lease which prohibits the landlord from leasing to any of the stores designated in paragraph 51 within a radius of five miles from the demised premises. Although Essex Green, Inc. has conveyed the land upon which the shopping center is constructed to Associates and therefore is no longer Arnold Constable’s landlord, it nevertheless is bound by the restrictive covenants in the lease which it executed. Paragraph 48 provides that the terms and provisions of the lease shall be binding upon and inure to the benefit of the successors and assigns of the landlord and tenant, and that no landlord shall, by reason of parting with title, be relieved of any obligations accrued or conditions created up to the time of parting with title.

In Renee Cleaners, Inc. v. Good Deal, etc., N. J., 89 N. J. Super. 186 (App. Div. 1965), plaintiff, a shopping center tenant, instituted an action against its landlord for breach of covenant against leasing premises controlled by the landlord within 500 feet of the demised premises. The court held that the covenant against leasing was violated by a sale of an adjoining property to an unrelated party who subsequently leased it to a competing dry cleaning business. The court there stated that the landlord could not circumvent its obligation by selling an adjacent property lying within the restricted area without making provision for continued compliance with its obligation not to lease to a competing business within a distance of 500 feet of the plaintiff’s leased premises. It said:

“* “ * Renee bargained for and became entitled to not only tlie landlord’s agreement not to lease to a competing business, but freedom from competition within the prescribed area. The clear purport of the covenant was Renee’s freedom for the duration of the lease from the financial hazard of competition to the extent that such protection could be provided by defendants.” (at p. 195)

Cf. Cragmere Holding Corporation v. Socony-Mobil Oil Co., 65 N. J. Super. 322 (App. Div. 1961).

Tt is argued that under the agreement New York law governs the construction of the lease. If this be so, the same result is reached. A covenant against leasing is violated by any form of the use of the premises for the prohibited purpose. In Goldberg v. Siegel, 182 Misc. 1068, 47 N. Y. S. 2d 678 (Sup. Ct. 1944), tenants sought an injunction contending that a covenant in their written lease protected them against competing tenants in the same building selling merchandise which the plaintiffs sell. The court there said:

“Tbe fact that defendants are not renting the store but are themselves using it is no escape from the inhibitions of the covenant. To tolerate such an avoidance of the effects of plain language would be to invite nullification of honest agreements made among men. * * *” (at p. 681)

I conclude that under paragraph 51 of the lease, or alternatively under paragraph 27(b), Alexander’s is precluded from occupying any part of the 7)4-acre tract. This is what the parties bargained for, and any other construction would do violence to the terms of their carefully drawn agreement. As observed in Barr and Sons, Inc. v. Cherry Hill Center, Inc., 90 N. J. Super. 358 (App. Div. 1966):

“The covenant in question must be construed in the light of both the circumstances under which it was written and the purpose, express or implied, of the parties in effecting their arrangements, in order that we may attribute to their language a rational meaning consonant with that purpose.” (at p. 370)

It is further noted that the easement affording Alexander’s the use of the present shopping center parking facilities is also in contravention of the leasehold agreement. Paragraph 51(b) of the lease expressly precludes the occupancy of any portion of the shopping center by Alexander’s or by any competing department or specialty store.

There remains the question whether Alexander’s may be prevented from erecting a store on the properties formerly held by Prospect Acres, Inc. and Pleasant Acres Company. In paragraph 27(b) landlord agreed not to lease any site to Alexander’s within a five-mile radius of the Essex Green Shopping Plaza. Alexander’s argues that it is precluded only if it is located in a shopping center within the proscribed area but that the restriction does not encompass an Alexander’s which is not a part of a shopping center. This construction is not accurate. It appears from a reading of paragraph 27 in its entirety that the parties intended that Alexander’s be excluded from any property controlled by landlord, Atlas or Doelger within the five-mile radius, whether or not said property be part of a shopping center.

It necessarily follows that when Associates (the present landlord) released the restrictions against retail use from the Prospect Acres, Inc. and Pleasant Acres Company tracts, it violated paragraph 27(b) of its lease with Arnold Constable. I think that the parties to the lease intended that the landlord should not release the restrictions on the adjoining tracts and thereby render them available to Alexander’s. Clearly, if Associates owned these two tracts, it could not lease or sell them for use by Alexander’s. It should not be permitted to accomplish indirectly through a release that which it could not do directly. The lease will be given the effect which the parties as fair and reasonable men presumably would have agreed on if, having in mind the possibility of the situation which has arisen, they contracted expressly in reference thereto. Renee Cleaners, Inc. v. Good Deal, etc. N. J., supra. As observed in Daitch Crystal Dairies, Inc. v. Neisloss, supra, there is necessarily a mutual covenant, whether expressed or not, of extreme good faith by each party, both as to the interpretation and as to the performance of the lease agreement. To the same effect, see Parker v. Lewis Grocer Company, 246 Miss. 873, 153 So. 2d 261 (Sup. Ct. 1963). Accordingly, paragraph 27(b) will be construed so as to prohibit such releases.

Alexander’s further urges that paragraph 51 is against public policy and in restraint of trade. The effect of this provision is to exclude from the shopping center 11 specified retailers, including Alexander’s. Some of the named retailers are noucompetitors of Arnold Constable. Additionally, “any other discount-house type of retail business” or competing department or specialty store is prevented from locating in the shopping center. It is argued that the total exclusion of retail discount stores should not be countenanced.

Apparently Arnold Constable was interested in locating in a “quality type” shopping center where it would also be free from competition. Presumably it was of the view that noncompetitive discount operations would not attract to the shopping center the type of clientele that patronizes Arnold Constable. The landlord concurred. There is no public policy that militates against the parties incorporating such a provision in the lease. Nor is there any restraint of trade effected through the exclusion of the discount type of store. They are free to locate anywhere on any property not controlled, directly or indirectly, by landlord, Atlas or Doelger.

It is also contended that paragraph 27(b), by incorporating the restrictions against leasing to noncompetitors as set forth in paragraph 51, constitutes an invalid restraint of trade. For example, it is urged that the effect is to prevent landlord, Atlas and Doelger from leasing to Vim or Davega, noncompetitors of Arnold Constable within a radius of five miles. As previously stated, all noncompetitors are free to locate within the five-mile radius, provided they do not lease from landlord, Atlas or Doelger.

Assuming, arguendo, that the restrictive covenants are questionable as applied to other discounters at other locations, the restrictions are enforceable against Alexander’s in view of paragraph 47 of the lease which states:

“If any term covenant, condition or provision of this lease or tbe application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this lease shall be valid and be enforced to the fullest extent permitted by law.”

The restrictions in the Arnold Constable lease prohibiting competition by Alexander’s are reasonable in area and duration. In commercial settings such as seller and purchaser, as distinguished from employer-employee contracts containing territorial restrictions against post-employment competition, restrictions in excess of five miles have been consistently upheld. See Ellerman v. Chicago Junction Railways & Co., 49 N. J. Eq. 217 (Ch. 1891) (covenant by seller not to carry on a competing business within 200 miles upheld) ; Nachamkis v. Goldsmith, 101 N. J. L. 356 (E. & A. 1925) (upholding covenant by seller of a cracker and biscuit business not to carry on a competing business within ten miles); Schwartz v. Van Der Plate & Co., Inc., 132 N. J. Eq. 132 (Ch. 1942) (covenant by seller of coal business not to compete within a radius of five miles upheld) ; DeBello v. Stacklif, 149 N. Y. S. 2d 61 (Sup. Ct. 1956) (covenant by seller of a photography business not to compete within 50 miles upheld); Broadbrooks v. Tolles, 114 App. Div. 646, 99 N. Y. S. 996 (App. Div. 1906) (covenant by vendor of a lumber business not to compete within 25 miles found valid) ; Zellner v. Dell’Orso, 95 N. Y. S. 2d 858 (Sup. Ct. 1950), affirmed w. o. 278 App. Div. 577, 102 N. Y. S. 2d 457 (App. Div. 1951) (covenant by seller of a drycleaning business not to compete within five miles enforced).

The covenant prohibiting competition by Alexander’s during the term of the lease is reasonable in time. Such covenants in leases, co-extensive with the lease term, have been upheld without a suggestion that the duration was unreasonable. Daitch Crystal Dairies, Inc. v. Neisloss, Cragmere Holding Corporation v. Socony-Mobil Oil Co., and Renee Cleaners, Inc. v. Good Deal, Etc., N. J., supra.

The reasonableness of paragraph 27(b) is especially evident by two considerations. In paragraph 27(a) Arnold Constable agrees not to operate a competing store within a five-mile radius during the term of the lease. Thus, the landlord who has a percentage lease is assured that the tenant will not divert its business within a radius likely to affect his rental income. Reciprocally, in paragraph 27(b) the landlord, Atlas and Doelger covenant not to lease to a competing store within such radius. Secondly, the restriction does not in any manner preclude Alexander’s from establishing such a store within five miles of Arnold Constable, but simply prevents the landlord, Atlas or Doelger from participating in any such establishment.

Independently of the restrictions set forth in the lease, Arnold Constable urges that the restrictive covenant in the respective deeds from Ridge Holding Company to Prospect Acres, Inc. and Pleasant Acres Company dated March 29, 1956, inures to its benefit and prohibits the use of those two tracts for an Alexander’s store. As earlier noted, each of the restrictive covenants runs with the land, forbids the use of the respective lands for a shopping center or store, and is expressly made for the benefit of the 48.08-acre tract acquired by Essex Green, Inc.

A restrictive covenant inserted in a deed for the benefit of the dominant estate is “appurtenant” to the lands to be benefited, Hemsley v. Marlborough House Co., 68 N. J. Eq. 596 (E. & A. 1905); Coudert v. Sayre, 46 N. J. Eq. 386 (Ch. Div. 1890); see Packanack Lake, etc. v. Alexander D. Doig Dev. Co., 72 N. J. Super. 360, 366 (Ch. Div. 1962), and the benefit thereby created passes with the lands to all subsequent grantees of the covenantee. Sayre v. Goudert, supra. Arnold Constable is a lessee from a covenantee of a part of the lands benefited by the restrictive covenant. In the lease the landlord, Essex Green, Inc., agreed that Arnold Constable might “peaceably and quietly have, hold, occupy and enjoy the demised premises and all the appurtenances thereof * * *” for a term of 55 years, including renewals (emphasis added). The issue thus presented is whether Arnold Constable as a tenant has standing to enforce the restrictive covenant in each of the aforementioned deeds.

There is considerable secondary authority to support Arnold Constable’s position. The rule is stated as follows in 2 American Law of Property (1952 ed.) § 9.20, at p. 391.

“5= * « wjlere the covenantee creates a new and lesser estate in the benefited land, such as a life estate or leasehold estate, and retains a reversion in himself, a question arises as to whether there is a sufficient succession of estate to pass the benefit to the life tenant or lessee. As previously pointed out, the burden of a covenant will not pass where the covenantor creates a new and lesser estate out of his burdened land so as to retain a reversion for himself. But in the case of the benefit as distinguished from the burden, the courts permit the life tenant or lessee of the covenantee to enforce the benefit. In these cases the courts proceed on the theory that the benefit of a covenant is primarily attached to the possession of the covenantee’s estate, and that when he has transferred this possession by creating a lesser possessory estate, the benefit should be treated as temporarily passing with the possessory interest to the life tenant or lessee.” (Emphasis added)

The American Law Institute’s Restatement of the Law of Property is to the same effect. Comment (c) under section 547 states:

“The concept of identification, upon which the running of both the burden and the benefit of promises respecting the use of land is based, presupposes a succession to an interest in the land with which the promises run. Historically, such a succession meant a succession to the interest of the predecessor in that land. This historical rule is still applicable in the ease of the running of the burden (see § 535). It is no longer true with respect to the running of the benefit. The benefit will run with any part of the interest of the beneficiary of the promise if the part succeeded to is of such a character that performance of the promise will be of benefit to the owner of it.”

See also to same effect 3 Tiffany, Law of Real Property, § 865 (1939).

If Arnold Constable is entitled to the benefit of the restrictive covenants in the Ridge Holding Company deeds, then the release from Essex Green, Inc. and Associates could not effectively release Arnold Constable’s interest in and right to enforce the covenant. As observed in Coudert v. Sayre, supra, "One person is without the least power or capacity, in the absence of a delegation of power, to release or change the rights of another in land.” (at p. 396).

The rule is stated in 2 American Law of Property (1952 ed.) § 9.23, at p. 399:

“Any owner of the benefited land has the power during the period of his ownership to extinguish the benefit in respect to his land by executing a release to the burdened landowner. Such a release will extinguish the covenant only in respect to the estate of the releasor; and where a covenant ‘touches and concerns’ several tracts of land so that the benefit attaches to other lots, the release by one lot owner can extinguish the benefit only as to his lot and in no way affects the rights of other owners of benefited lots. * * *”

The American Law Institute’s Restatement of the Law of Property, § 556, states, “The obligation arising out of a promise respecting the use of land can be extinguished as between any person subject to the obligation and any person entitled to enforce it by a release given by the latter person to the former.” Comment (f) to § 556 states, “There may be many beneficiaries of a promise respecting the use of land (see § 528, Comment b). Each beneficiary, however, owns his interest in the promise independently of the others. Consequently a release by one does not affect the rights of the others.”

Research has failed to uncover any decisional authority precisely in point. However, a somewhat analogous situation was presented in Johnson v. Rolertson, 156 Iowa 64, 135 N. W. 585 (Sup. Ct. 1912). There the court held that a tenant for years occupying a building in a city block may enforce a building restriction which precluded the erection of any building nearer than a stated distance from the lot line. The court found that the restrictions inserted in the deeds were for the reciprocal benefit of all the lot owners on the same street. It further determined that the building restrictions created equitable easements or servitudes which may be enforced by anyone interested in the property, and that a tenant who is entitled to the benefit of the easement may bring a suit in equity to enjoin threatened interference with that easement. The court also stated in the course of its opinion that a landlord, having leased the property, cannot after the execution of the lease deprive his lessee of the benefits of the covenants. See also Brockmeyer v. Sanitary Drainage District of Chicago, 118 Ill. App. 49 (App. Ct. 1904); Lake Erie & W. R. Co. v. Power, 15 Ind. App. 179, 43 N. E. 959 (App. Div. 1896); Mine Hill & Schuylkill Haven Railroad Co. v. Lippincott, 86 Pa. 468 (Sup. Ct. 1878).

Arnold Constable is a major long-term tenant in the shopping center. The deed restrictions imposed on the adjoining parcels of land formerly owned by Prospect Acres, Inc. and Pleasant Acres Company are appurtenant to the land occupied by Arnold Constable and inure to its benefit. Arnold Constable alleges that it will be injured if Alexander’s operates a department store on the adjoining tracts. It should not be burdened with speculating upon the long-term effect that a competitive Alexander’s Department Store will have on its business. Accordingly, the release of such deed restrictions by Essex Green, Inc. and Associates will not extinguish Arnold Constable’s right to enforce the covenants.

On the facts presented Arnold Constable is entitled to injunctive relief against the use of all three tracts in question by Alexander’s because such use would be violative of the restrictions set forth in its lease. Additionally, it is entitled to an injunction against use of the Prospect Acres, Inc. and Pleasant Acres Company tracts for use by Alexander’s since such proposed use would be violative of the restrictive covenants contained in the respective deeds to said parcels of land.

Essex Green, Inc. proposes to dedicate a 50-foot right of way that will afford access to Rooney Circle for its remaining landlocked acreage west of the shopping center as well as for the 7p2-acre tract and the former Pleasant Acres Company and Prospect Acres, Inc. tracts. It clearly has the right to make such dedication. In view of the ruling that none of the three tracts may be occupied by Alexander’s, the issue as to whether or not the use of this 50-foot right of wajr by Alexander’s would constitute a violation of paragraph 51 of the lease is rendered moot.

Arnold Constable is not entitled to summary judgment in its action for damages, including legal fees. Apparently the claim for damages was offered as an alternative in the event injunctive relief was denied. Since injunctive relief is granted, the only remaining claim, for damages is counsel fees. The rule is stated in Cohen v. Fair Lawn Dairies, Inc., 86 N. J. Super. 206 (App. Div. 1965), affirmed 44 N. J. 450 (1965), where the Appellate Division held:

“It is the general rule that in the absence of statute, rule of court or contract one may not recover his legal expenses, whether for compensation of attorneys or otherwise, as damages for breach of contract, in an action for such breach.” (at p. 212)

See also Textileather Corp. v. American Mutual Liab. Ins. Co., 110 N. J. L. 483, 485-486 (E. & A. 1933). There is no provision in the Arnold Constable lease which makes counsel fees a compensable item in an action on the lease.

Our court rules embrace the view that sound judicial administration will best be advanced by having each litigant bear his own counsel fee except in those few situations specially designated in R. R. 4:55-7. Gerhardt v. Continental Ins. Cos., 48 N. J. 291 (1966). Aynold Constable correctly concedes that it is not entitled to recover counsel fees against Alexander’s or Exander in the action instituted by them. It argues, however, that in the related proceeding it is entitled to litigation expenses as an item of damages flowing from defendants’ breach of contract. As already noted, the only damages suffered bjr Arnold Constable are expenses of litigation. It is settled law that attorneys’ fees are not cognizable as an item of damage in the same case in which they are incurred. Liebeskind v. Metal Frame Aquarium Co., 58 N. J. Super. 504 (App. Div. 1959). Cf. Verhagen v. Platt, 1 N. J. 85 (1948).


author: Fulop, J. S. C.

text:
    THE STATE OF NEW JERSEY, v. MICHAEL KUZNITZ, DEFENDANT.
    Union County Court Law Division — Criminal
    Decided March 3, 1969.

      Mr. John H. Stamler, Assistant Prosecutor, for the State (Mr. Leo Kaplowitz, Prosecutor of Union County, attorney).

      Mr. Barry M. Epstein, for defendant (Messrs. Beibel, Isaac & Tannenbaum, attorneys).
   Fulop, J. S. C.

(temporarily assigned).. Defendant moves to suppress evidence seized under a warrant issued out of the Union County Court.

The evidence sought to be suppressed was seized in Apartment 2-D, 30 East Elm Street, and in defendant’s home at 353 Miltonia Street, both in Linden, New Jersey. The warrant also permitted the search of three cars registered in the name Edna Kuznitz, 353 Miltonia Street, Linden, New Jersey, two of which were seen in use by defendant in travelling a few blocks from his home to the apartment. It appeared at the oral argument that nothing of evidential value was found or seized in any of the automobiles. Part of the items seized were taken at the apartment and part in the house on Miltonia Street.

Defendant Michael Kuznitz has been indicted for bookmaking and maintaining a gambling resort at Apartment 2-D, 30 East Elm Street, Linden, New Jersey.

The affidavit of Union County Prosecutor’s Detective E. H. Haines, upon the basis of which the search warrant was issued, recites his qualifications as an expert in the detection of gambling law violations. It states that defendant was convicted for bookmaking in Linden in 1953 and again in 1963. General information that Kuznitz had resumed operations came to the attention of Haines followed by specific information from a known reliable informant to the chief of county detectives on October 31, 1967 that Kuznitz was taking sports bets and some details of his practice. On November 10, 1967 the same informant stated that Kuznitz was using a white ear with plates numbered 427 when making his rounds for collections and pay-offs.

Haines ascertained from the Division of Motor Vehicles that a white Buick bearing registration IAU-427, and a black Rambler bearing registration EVK-356, were registered in the name of Edna Kuznitz, 353 Miltonia Street, Linden, New Jersey, defendant’s home. The detective observed these two cars parked at that address.

On Sunday, May 5, 1968, beginning at 10:30 a. at., Haines watched defendant’s home. At 11:15 A. at. defendant came out and left in the Rambler. He went one block, parked, got out, looked around the area, walked hurriedly into a three-ear garage at 308 Miltonia Street, and got into a gray Chrysler later discovered to be registered in the name of Edna Kuznitz at defendant’s home address. He drove to a store, bought a newspaper, drove to 30 East Elm Street and entered the apartment house at that address at 11:35 A. m. This conduct fitted with information received from the informant as to defendant’s practice.

On May 7, 1968 Haines watched 30 Elm Street and at 5:30 p. m. saw defendant arrive in the gray Chrysler, park and enter the apartment house. He watched defendant go up the stairway to the second floor and enter the center apartment on the left. At 6:15 p. m. on the same dayr Haines returned to the apartment building and found that the apartment Kuznitz had entered bore number 3-D and the name “Mrs. Emma Grey.” While in the hall he overheard a loud male voice in the apartment apparently taking telephone calls, receiving bets on sporting events, and giving out the odds on baseball games to be played that evening. At 8:10 p.m. defendant left the apartment house and returned to his home in the gray Chrysler.

On May 9 the search warrant was applied for and issued by Judge DeVita. It was executed at 7:30 p.m. on the same day.

The motion to suppress is based on three grounds, namely:

1. A material part of the evidence presented on the application for the search warrant was the result of Detective Haines’s listening outside of the door of Apartment 3-D. Defendant contends that this was impermissible eavesdropping in violation of defendant’s Fourth Amendment constitutional right to be free from unreasonable searches and seizures, and that all fruits thereof should therefore be suppressed.

3. The evidence presented to obtain the search warrant was insufficient to connect defendant’s home or the automobiles with the bookmaking operation and did not justify the issuance of a warrant to search these places.

3. The officers executing the search warrant at the apartment did not announce their authority or purpose before “hitting” the door or attempting to break in. It is contended that the warrant was therefore illegally executed and the results of the search of the apartment should be suppressed.

No evidence was presented on this motion. Aside from the matters appearing in the application for the search warrant, the only facts presented are an offer by the prosecutor in his brief to stipulate that “no notification as to the identity and purpose were given before the officers began 'hitting’ the door; however, during the five minutes the officers worked on the door — to no avail ■— they were shouting 'Police’ and 'Open up’ ”; some photographs showing damage to the door of the apartment at 30 East Elm Street in Linden, and some showing a barricade of two by fours and two-by-twos on the inside of that door preventing entry. It is orally stated that the officers never succeeded in forcing their way into the apartment but were eventually admitted by defendant.

Defendant’s first contention raises the question whether eavesdropping by the unaided use of the human ear outside of premises occupied by a suspect constitutes an illegal search and seizure under Berger v. State of New York, 388 U. S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed 2d 576 (1967), and requires suppression of the evidence thus obtained. No case has been cited and I know of none in which merely listening by a law enforcement officer without the aid of a device extending his hearing into private quarters has been held to violate constitutional rights. The Congress of the United States in passing the 1968 statute governing wire interception and interception of oral communications, Public Law 90-351, § 801 and § 802, dealt only with interception by “electronic, mechanical or other device.” The New Jersey Legislature has recently adopted Chapter 409 of the Laws of 1968 (N. J. S. 2A:156A) similarly limited to regulating the use of electronic, mechanical or other devices for eavesdropping. The Legislature was aided by a model statute prepared by Professor G. Bobert Blakey of the Notre Dame Universit3r Law School which was similarly limited. It is safe to say that if either of these legislative bodies and their learned advisors had read the above-cited decisions of the United States Supreme Court as referring to overhearing of oral communications by the unaided human ear, the statutes would have dealt with this subject also. I am satisfied that, in general, eavesdropping by law enforcement officers without the use of any electrical, mechanical or other device, and without wiretapping, is not a search or seizure requiring the issuance of a warrant, at least in this case in which the officer was in a public hallway where anyone who listened could hear the communication. Cf. Silverman v. United States, 365 U. S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961); State v. Smith, 37 N. J. 481 (1962).

However, as to both the first and second reasons advanced for suppressing all or part of the material seized, I am bound by State v. Kasabucki, 52 N. J. 110 (1968), in which the Supreme Court said

“* * * Once the judge has made a finding of probable cause on the proof submitted and issued the search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination. In fact, another trial judge of equal jurisdiction should regard as binding the decision of his brother that probable cause had been sufficiently shown to support a warrant, unless there was clearly no justification for that conclusion * * *” (at p. 117)

In this case the warrant was issued by a judge of the county district court sitting in the Union County Court. I am sitting in the same court and exercising the same jurisdiction. Therefore, in compliance with the rule laid down by the Supreme Court, I treat the decision of the issuing judge binding to the effect that probable cause was shown for the issuance of the warrant in all its parts.

Defendant’s third contention deals with the execution of the warrant and has not been passed upon by any other judge. Defendant contends that the attempt of the officers to enter the place in which he was allegedly conducting his bookmaking business without first announcing their authority and purpose in seeking entry renders invalid the search which they made pursuant to the warrant. In support of this contention he relies on Sabbath v. United States, 391 U. S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968), which in turn rests on Miller v. United States, 357 U. S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). No New Jersey authority is cited for defendant’s proposition. No federal constitutional provision prescribes the manner of execution of search warrants.

In State v. Smith, 37 N. J. 481 (1962), detectives peering through a crack at the molding of a door saw defendant with a tourniquet around his arm and a hypodermic needle in his hand. Without a warrant and without demanding admittance or revealing their mission, they broke in, arrested defendant, and seized the narcotics paraphernalia. In considering whether the unannounced forced entry into defendant’s apartment invalidated the subsequent arrest and seizure, the court said:

* * * Miller v. United States * * * it was held that an arrest was unlawful when the officers broke in without a demand or a statement of their mission, and hence evidence seized in connection with the arrest must be excluded. Although there is a federal statute (18 U. S. C. § 3109) which provides that an officer may break in to execute a search warrant ‘if, after notice of his authority and purpose, he is refused admittance,’ it is clear the Supreme Court deemed the statute to reflect the common law with respect to the arrests with or without a warrant. * * *
We assume for present purposes that Mapp [v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)] makes Miller applicable to the states even though the authority to arrest is clear and the claimed illegality inheres in the manner in which the arrest was made. The question then falls within the area as to which Miller expressly reserved judgment. * * *
In People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6 (Sup. Ct. 1956). cert. denied 352 U. S. 858, 77 S. Ct. 81, 1 L. Ed. 2d 65 (1956), referred to in * * * Miller * * *, the court was confronted with a state statute essentially the same as the federal act in Miller. The court held that the likelihood that the evidence would be destroyed if the officers announced their mission was sufficient to excuse compliance with the act. * * *

The Restatement, Torts § 206, sustains that view.

***>;:** =5” *
The question then is whether the Fourth Amendment intended to nullify the State’s clear right to search by imposing a condition which would defeat it. If the State’s right to the contraband is to be denied, it must be because of the evident danger and rudeness of a sudden entry. But the danger and the rudeness are not the gratuitous product of official insolence or indifference; they are the consequences of the criminal enterprise, made inescapable by its nature. * * * It seems to us that the Fourth Amendmentt does not transmute a ‘reasonable’ search into an ‘unreasonable’ one merely because the officer discharged his duty to arrest and search in a manner which fairly appeared necessary for the successful enforcement of the State’s right * * (at pp. 497-499)

The Supreme Court sustained the search and seizure. Although this case was decided before Sabbath,, it was decided after Miller. Sabbath adds nothing to Miller which would affect the ruling in Smith. Although it has been assumed that the federal rule may be applied to the states, the cases were in fact decided only under 18 U. S. C., § 3109, a federal statute not applicable to state officers. Both Miller and Sabbath recognize that the manner of execution of search warrants is a matter of local law, as held in Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), sustaining a search and seizure by state officers without a warrant and without warning to the occupants. The cases recognize that a request for admission and announcement of purpose are not required when the officers have reason to believe that they would defeat the purposes of the warrant as by the destruction of the evidence sought. Under circumstances similar to those in this case, the highest courts of Connecticut and Pennsylvania have sustained entry and search. Commonwealth v. Ametrane, 422 Pa. 83, 221 A. 2d 296 (Sup. Ct. 1966); State v. Mariano, 152 Conn. 85, 203 A. 2d 305 (Sup. Ct. 1964).

The destruction of incriminating evidence in bookmaking and narcotics cases between the time when an officer announces his presence and the time required to reach the evidence is so common that it has been referred to in innumerable cases and is a matter of common knowledge. Bookmakers commonly keep records of bets received on small and easily disposable pieces of paper, frequently water soluble paper such as was found in the premises here involved.

Defendant had been convicted on bookmaking charges twice before the present incident. Such a man would know what the law enforcement officers wanted. Ho was in an apartment separate from his home, apparently for the purpose of operating the business. He had the door barred with a structure of beams. To require the officers executing a warrant to announce through a barred door their purpose to search for evidence of bookmaking and thus give the suspect a chance to dispose of the evidence sought, would render the search warrant wholly nugatory. The officers in this case clearly had reason to believe that this would be done unless they got in fast.

However that may be, there is no evidence in this case as to the manner of execution of the warrant. Defendant’s counsel stated at oral argument that he would submit no evidence in view of the “stipulation” in the prosecutor’s brief quoted earlier in this opinion. It was stated without dispute at the oral argument that the officers did not succeed in breaking into the apartment but were eventually admitted by defendant. If so, the search was not effected as a result of unannounced entry. To grant defendant's motion the court would have to assume without proof that the admittance resulted from duress of property. There is no evidence that the officers did not knock on the door or ring a bell, or what response they got thereto or to the first blow on the door. There is no evidence as to defendant’s knowledge or lack of knowledge that the men at the door were officers or their purpose. All of these matters and all of the circumstances should be considered in determining whether or not the search was illegally conducted.

Defendant avoided taking the witness stand on the motion by relying on an incomplete admission in the prosecutor’s brief. A motion of this character should not be decided on so slight a basis. Defendant’s contentions and the State’s should be presented in live testimony. Cf. State v. Sherry, 46 N. J. 172 (1965). The trial courts have been admonished to refrain from deciding significant matters without an adequate record. Jackson v. Muhlenberg Hospital, 53 N. J. 138 (1969). The court cannot ordinarily compel the production of evidence. See Band’s Refuse Removal, Inc. v. Fairlawn, 63 N. J. Super. 522 (App. Div. 1960), certification denied 33 N. J. 387 (1960). It can only determine the matter on the evidence presented. The failure of proof must be charged against the party charged with the burden of persuasion.

The warrant is presumed valid and the burden of proof is upon the defendant to show the invalidity of the search. State v. Gaudiosi, 97 N. J. Super. 565 (App. Div. 1967); State v. Mark, 46 N. J. 262, 273 (1966). There is a presumption that law enforcement officers acted legally in executing the court’s warrant. See 1 Wharton’s Criminal Evidence (12th ed. 1955) § 127, p. 238, and 1969 pocket-part; Earl v. Winne, 14 N. J. 119 (1953); In re Sheriff of Monmouth County (not officially reported) 69 A. 305 (Sup. Ct. 1906), DeMarco v. Board of Chosen Freeholders, Bergen County, 36 N. J. Super. 382 (Law Div. 1955), affirmed 21 N. J. 136 (1956). In People v. Jager, 145 Cal. App. 2d 793, 303 P. 2d 115 {App. Ct. 1956), the court said: “In the absence of evidence to the contrary it will be presumed that an entry of private premises by police officers was made in a legal manner. People v. Kelsey, 140 Cal. App. 2d 722, 295 P. 2d 462.”

The burden of proof is therefore on defendant to establish that the officers executed the warrant illegally. I cannot find that to be the fact from the single sentence in the prosecutor’s brief. I shall not presume illegality.

The motion to suppress is denied. The prosecutor is directed to submit an order in conformity herewith within ten days of date.


author: Per Curiam.

text:
    JOHN S. POCH AND ELIZABETH M. POCH, HIS WIFE, PLAINTIFFS, v. RAY W. HAAG AND JOAN M. HAAG, DEFENDANTS, AND ABRAHAM NATOVITZ, AS RECEIVER OF NEW CHESTER DINER, INC., DEFENDANT-RESPONDENT. ANN WILKIN TROMBADORE, JACK TROMBADORE AND RAYMOND R. TROMBADORE, CO-PARTNERS, RESPONDENTS, PRO SE, AND DAVID M. BECKERMAN AND S. M. CHRIS FRANZBLAU, CO-PARTNERS, APPELLANTS, PRO SE.
    Superior Court of New Jersey Appellate Division
    Argued February 11, 1969
    Decided March 7, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. David M. BecTcerman argued the cause for appellants pro se (Messrs. BecTcerman and Franzblau, attorneys and appellants, pro se).

      Mr. Raymond R. Trombadore argued the cause for respondents (Messrs. Trombadore & Trombadore, attorneys).
   Per Curiam.

The law firm of Beckerman and Franzblau (“Beckerman”) appeals pro se from an order of the Chancery Division in statutory receivership proceedings awarding the attorneys for the plaintiffs a counsel fee of $2,500 for services in connection with the filing of the complaint and up to the appointment of the receiver, and denying Beekerman any counsel fee for services to the corporation and the defendants in resisting the proceedings. Beckerman is also a creditor of the corporation on a claim for previous services to it, allowed by the receiver to the extent of $1,250.

Considering first the appeal from denial of the counsel fee to appellant, it is doubtful whether this can be maintained by the attorneys pro se, the right being ordinarily considered to reside in the client, not the attorney. In re Katz’ Estate, 40 N. J. Super. 103, 106 (Ch. Div. 1956); Eufemio v. McKeown, 10 N. J. Misc. 549, 550; 159 A. 796 (Ch. 1932). But passing that matter, we are not persuaded by anything in this record that the services in question had such value to the corporate creditors as to warrant our holding that the trial judge exercised his discretion mistakenly in denying any fee.

A more substantial point is raised in connection with the objection to the allowance granted the attorneys for plaintiffs. The latter expressly disclaim any right to fee for services rendered after the appointment of the receiver. It has been held that counsel fees may be allowed for the bringing of the proceedings resulting in the appointment of the receiver, notwithstanding B. B. 4:68-6, which precludes an allowance to a plaintiff’s attorney except where he is appointed by the court as counsel for the receiver. The cases go on the theory that the prohibition in the rule has in mind only services rendered after the receiver is appointed, Laudan v. ABC Travel System, Inc., 64 N. J. Super. 204, 209, 210 (Ch. Div. 1960); Newark Steel, etc. v. Pearl Metal Products, Inc., 78 N. J. Super. 335, 348 (Ch. Div. 1962). The rationale is that if the bringing of the action has benefited creditors of the corporate estate they equitably should compensate such attorneys out of the fund. Ibid., 64 N. J. Super., at p. 210; 78 N. J. Super., at p. 348. We agree.

At the same time, however, the courts have distinguished between the effect of the attorney’s services in redounding to the benefit of their clients, as individual stockholders or officers of the corporation, and as benefiting the creditors of the corporation at large. Eufemio v. McKeown, supra (10 N. J. Misc., at p. 551). The counsel fee must relate only to the latter aspect of the services and is generally set at a nominal or moderate sum. Ibid.; Laudan v. ABC Travel System, Inc., supra, at p. 210; Newark Steel, etc. v. Pearl Metal Products, Inc., supra, at p. 348.

Our examination of the affidavit detailing the services rendered by plaintiffs’ attorneys and for which a fee was claimed and apparently allowed below, discloses that a very substantial proportion of the services claimed for were rendered for the plaintiffs, individually, as stockholders, officers and employees of the corporation, as distinguished from such services as pertained to preparation for and filing of the complaint. In the former aspect the attorneys should look to their clients, not the fund in court, for compensation.

On the basis of the foregoing considerations, the counsel fee awarded the attorneys for plaintiffs is reduced to $1,250 plus one-half of their taxed costs below.

In view of the benefit to the creditors’ fund rendered by the Beekerman firm in securing a reduction of plaintiffs’ counsel fee, it is allowed a counsel fee of $150 plus its actual disbursements attendant upon the litigation below and on appeal. Uo other costs to either side.


text:
    ATLANTIC MUTUAL INSURANCE COMPANY, A CORPORATION AND SAPOLIN PAINTS, INC., A CORPORATION, PLAINTIFFS-APPELLANTS, v. MARY A. RICHARDS, INDIVIDUALLY AND AS EXECUTRIX, ETC., DEFENDANT-RESPONDENT, AND NATIONAL LEAD COMPANY, ETC., DEFENDANT, AND THE EMPLOYERS’ LIABILITY ASSURANCE CORP., LTD., A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 13,1969
    Decided February 26, 1969.

      Before Judges Sullivan, Foley and Lewis.

      Mr. Richard J. Badolaio argued the cause for plaintiffs-appellants (Messrs. Schneider & Morgan, attorneys).

      Sonia Napolitano argued the cause for defendant-respondent (Messrs. Pindar, McElroy, Connell & Foley, attorneys).
   Per Curiam.

The judgment herein is affirmed substan-

tially for the reasons given by Judge Purman in his opinion. In addition, we conclude that Sapolin Paints was not using the vehicle at the time of the accident in question and, therefore, was not an additional insured under Employers’ policy.

Affirmed.


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

text:
    MASTER AUTO PARTS, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. M. & M. SHOES, INC., A CORP. OF NEW JERSEY, MORRIS RUBINSTEIN, AND M & M DISCOUNT CENTER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 3, 1969
    Decided March 14, 1969.

      Before Judges Sluglivax, Foley and Lewis.

      Mr. Mark A. Baumgarten argued the cause for defendants-appellants (Messrs. Sheviclc <& Ravioli, attorneys).

      Mr. Hyman Isaac argued the cause for plaintiff-respondent (Messrs. Reibel, Isaac & Tannenbaum, attorneys).
   The opinion of the court was delivered by

Sulliyau, S. J. A. D.

Defendant, pursuant to leave granted, appeals from am order of the trial court denying its application under N. J. 8. 2A :18-60 to transfer a summary proceeding, for the removal of a tenant, from the county district court into the Superior Court. For reasons hereinafter detailed, we conclude that the application should have been granted.

Plaintiff is the owner-landlord of certain commercial premises in the Borough of Boselle. Defendant is the tenant (the three named defendants will be referred to in the singular). The main portion of the premises is occupied under a long-term lease which provides for a monthly rental of $400. The attic is also occupied under an oral lease with a monthly rental of $100.

In September 1968 plaintiff filed a summary proceeding to remove the tenant, alleging (except for the oral lease of the attic) that the tenant had failed and refused to pay for utilities consumed and used by it at the premises since October 1963, in violation of a covenant of the lease. It was not charged that the tenant was in default in the payment of rent.

Defendant filed a motion to transfer the proceeding to the Superior Court, and in its supporting affidavit averred that it conducts a substantial retail business at the location, has expended large sums of money in the improvement of the leased premises in order to make them suitable for business purposes, and has made a large investment in establishing its reputation and building good will at the location. Defendant asserted that it had a good defense to the tenancy suit.

At the hearing before the trial court it was revealed that the landlord has entered into a contract to sell the premises to Acme Supermarkets, which contract calls for delivery of the premises free and clear of tenancies. In denying the motion, the trial court observed that the county district court was “perfectly capable” of determining the issues involved.

By statute, proceedings in the county district court for the removal of a tenant are heard in a summary manner and are not appealable except on the ground of lack of jurisdiction. N. J. 8. 2A: 18-5 9. The action is designed to afford the landlord a speedy and inexpensive method of recovering possession of his property. However, the statute recognizes that certain types of proceedings to remove a tenant involve rights or issues too important to be heard in a summary manner without a right of appeal. Accordingly, the statute provides that either party may apply to the Superior Court which may, “if it deems it of sufficient importance,” order the cause transferred to the Superior Court, where it shall be tried before a jury, unless a jury is waived, and shall be appealable.

We have no decisions in this State directly interpreting the statutory language “of sufficient importance.” However, recent tenancy cases dealing with commercial leases of business properties have pointed out that the removal procedure was available. See Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459 (1961); Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116 (1967). In McCrory Stores Corp. v. S. M. Braunstein, Inc., 99 N. J. L. 166 (E. & A. 1933), the court, in referring to a tenancy proceeding in the then district court, with its restricted right of review, stated:

“It may not be out of place to add that the legislature has not left the tenant of a great store, factory, hotel, &c., wholly to the mercy of a small cause court; for by statute the tenant may *' * * apply to a justice of the [former] Supreme Court, who, if he deem the case of sufficient importance, may order a removal into the [former] Circuit Court, where it shall be tried * * * and writ of error lies therefrom to the Supreme Court. * * *” (at p. 169)

It has been stated that the application to transfer a tenancy proceeding is addressed to the discretion of the trial court. Carteret Properties v. Variety Donuts, Inc., supra, 49 N. J., at p. 130. However, discretion means legal discretion in the exercise of which the trial judge must take account of the applicable law and the particular circumstances of the case, to the end that a just result is reached. If he goes wide of the mark, the appellate court has a duty to act. Kavanaugh v. Quigley, 63 N. J. Super. 153 (App. Div. 1960); Fanwood v. Rocco, 59 N. J. Super. 306 (App. Div. 1960), affirmed 33 N. J. 404 (1960); State v. Johnson, 67 N. J. Super. 414 (App. Div. 1961).

In the instant case the property involved is a commercial building, the major part of which the tenant occupies under a long-term lease. It conducts its retail business at that location. It can hardly be denied that ouster from these premises would seriously affect the tenant, which represents that it has expended large sums of money in improving these premises and has made a large investment in establishing its reputation and good will at the location.

It is also worthy of note that the alleged breach of the written lease relates to the alleged nonpayment of bills for utilities since October 1963, and that the landlord did not see fit to bring removal proceedings against the tenant, and charge a breach of the lease, until September 1968, and after it had entered into a contract to sell the premises free and clear of tenancies.

All of the foregoing circumstances add up to a situation in which the summary proceeding procedure in the county district court, with its restricted right of review, was not appropriate. The matter was “of sufficient importance” within the meaning of the statute and should have been transferred to the Superior Court.

The order denying defendant’s motion is vacated and the matter remanded with direction that the proceedings be transferred to the Superior Court under N. J. 8. 2A :18-60.


author: Pee Curiam.

text:
    HERBERT DOWNS, GUARDIAN OF HIS MINOR CHILD JOY DOWNS, PLAINTIFFS-RESPONDENTS, v. OSCAR WIN-SLOW, DEFENDANT, AND UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 6, 1969
    Decided March 12, 1969.

      Before Judges Gaulkdst, Collester and Labrooque.

      Mr. William 0. Barnes, Jr. argued the cause for defendant-appellant.
    No appearance for plaintiffs-respondents.
   Pee Curiam.

In view of what happened in the trial of

the consolidated cases, we question the trial court’s holding (Downs v. Winslow, 97 N. J. Super. 238, 244) (Law Div. 1968) that there was an adjudication that Joy Downs could not have recovered in an action against Rosemary Di Ionno. However, we find it unnecessary to express any opinion on this question because it is immaterial whether or not there could have been such a recovery. The fact of the matter is that Di lonno’s carrier did settle Downs’ claim aganist Di Ionno for $1,400. The Eund was entitled to the benefit of that settlement even if it be a fact that Downs could not have prevailed in an action against Di Ionno. Cf. Shebell v. Strelecki, 104 N. J. Super. 139 (App. Div. 1969). Since the Downs judgment against Winslow was less than the $1,400 paid to Downs by Di lonno’s carrier, the Eund owes Downs nothing.

Reversed. No costs.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BOOKER T. BLANFORD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 20, 1969
    Decided March 10, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Thomas Menchin> Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the eause for respondent {Mr. Joseph P. Lor.di, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Confokd, S. J. A. D.

Defendant appeals from a denial of post-conviction relief by the Essex County Court. He complains of his commitment pursuant to the Sex Offender Act {N. J. S. 2A:164r-3 et seq.) consequent upon his conviction in 1965 on a plea of guilty to an indictment charging carnal abuse (the victim being a 13-year-old girl).

In a report to the court by the Menlo Park Diagnostic Center defendant was found to come within the purview of the Sex Offender Act, and the court consequently committed him to the Special Treatment Unit for Sexual Offenders at Rahway State Prison for an indeterminate term not to exceed the statutory maximum for his crime.

The major point made by defendant is that he was denied due process when found to be a sex offender and committed under the act without having had an opportunity to confront witnesses and present evidence. Reliance is had upon the decisions in Specht v. Patterson, 386 U. S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967), and United States ex rel. Gerchman v. Maroney, 355 F. 2d 302 (3 Cir. 1966).

The cited cases involved sex-offender-type statutes of Colorado and Pennsylvania, basically similar to each other, which provided that after defendant’s conviction of certain sex crimes, and the submission of a psychiatric report, the sentencing judge was authorized to impose a term of indeterminate imprisonment, from one day to life in a state institution, if he believed defendant, if at large, would constitute a threat of bodily harm to the public, or to be an habitual offender and mentally ill. The state parole board could parole the defendant at any time it deemed the interests of justice might so require, after a periodic review of defendant’s condition. The courts in the cited cases found that these statutes, in effect, legislated different criminal punishment from the statutory penalty for the sex offense on which defendant was convicted, and of a much more serious degree — potentially life imprisonment. It was held that in such circumstances basic concepts of fairness and due process required that defendant be afforded a hearing at which he could confront the witnesses against him, cross-examine, and adduce counter proofs, before being subjected to a judicial finding of the facts which could implicate the heavier punishment. To the same effect is People v. Bailey, 21 N. Y. 2d 588, 289 N. Y. S. 2d 943, 237 N. E. 2d 205 (Ct. App. 1968).

Analysis of our own statute shows it to differ in at least one material respect from those dealt with in the cited decisions. The indeterminate commitment on the psychiatric report of the existence of the statutory elements cannot be for a period of time greater than the legal maximum for the crime of which the offender was convicted. N. J. 8. 2A :164-6. The person so committed may be released under parole supervision (which also cannot be for longer than the statutory maximum term, id.,) by the State Parole Board after recommendation by a special classification review board. N. J. 8. 2A :164-8. It is true that, in contrast with ordinary imprisonment, eligibility for parole is indefinite during the entire period and that there is no credit for “good behavior” or for “work time.” On the other hand, the prisoner may be paroled at an earlier time than under a straight sentence for the crime, and monetary compensation is allowable in lieu of remission of time for work performed. N. J. 8. 2A :164AL0.

We conclude, therefore, that the findings of the statutory facts for special commitment under the act do not entail a heavier penalty on the offender, but only a different, specially adapted method of dealing with the offender, for both his benefit and that of society, during a period which cannot exceed that for which he was alternatively subject to penal incarceration for the crime of which he was convicted. The basic “due process” rationale of Specht and the other cases relied on by defendant is thus not here apposite. See Shone v. Maine, 286 F. Supp. 511, 514 (D. C. S. D. Me. 1968). That the act does not deprive the offender committed thereunder of equal protection of the laws was firmly established in State v. Wingler, 25 N. J. 161, 174-175 (1957).

In the Wingler case the court also held that the Sex Offender Act should be construed as requiring, in the interests of justice, that before sentencing pursuant to the act, the Diagnostic Center’s report be submitted to defendant and he be offorded an opportunity to be heard thereon. 25 N. J., at p. 179. Whether this contemplated the plenary adversary-type hearing required under Specht need not here be decided, in view of our holding, above, that the potential consequences of the court’s action on the report are not such as to invoke the Specht doctrine.

Defendant next argues that the diagnostic report submitted to the court in his case was deficient in two respects: (1) it lacked any finding that his conduct was characterized by a “pattern of repetitive, compulsive behavior,” and (2) it contained no “clinical findings” to support a finding of such behavior, as apparently called for by N. J. S. 2A :164-5. It suffices to say that we have read the report and conclude that it does indeed contain clinical findings and that' by the plainest implication, although not in haec verla, it finds that defendant’s conduct was characterized by repetitive, compuisive behavior. The substance of the statutory requirement is met.

Defendant contends that the doctor who examined him at the Center was not a competent expert. The record does not support the allegation.

Defendant maintains that the Special Treatment Unit at Eahway is a farce and that Bahway is nothing but a prison. Nothing is presented to support the allegation. It is to be presumed that the Commissioner of Institutions and Agencies has, as required by the act, designated this facility as one where the offender will be submitted “to a program of specialized treatment for his mental and physical abberrations.” N. J. 8. 2A: 164-5, 6(5).

It is next asserted that defendant’s transfer to Bah-way is arbitrary and a denial of equal protection. This argument lacks merit. State v. Newton, 17 N. J. 271, 275-276 (1955) ; State v. Bray, 67 N. J. Super. 340, 347 (App. Div. 1961); N. J. S. 2A:164-7. No affirmative demonstration of arbitrariness in the transfer has been made. See State v. Wingler, supra, 25 N. J., at pp. 180-81.

It is also argued that defendant was not given a physical examination while undergoing study at the Center, as contemplated by N. J. S. 2A :164-3. This is without merit. The requirement is directory and not mandatory. State v. Berrios, 91 N. J. Super. 444, 446 (App. Div. 1966). In any case, the allegation is not substantiated, nor is it an appropriate complaint in post-conviction proceedings.

Finally, it is contended that defendant’s presentence investigation was incomplete, within the requirements of B. B. 3:7—10 (b). This is sheer conclusion without any substantiation or particularization whatever.

Judgment affirmed.

       “The offender’s conduct was characterized by a pattern of repetitive, compulsive behavior; and * * * either violence * * * in the commission of the offense; or the victim was nnder the age of 15 years * * N. J. S. 2A :164-5 (as of the date of commitment in this case).


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MAILYOR ANDREWS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 20, 1969
    —Decided March 10, 1969.

      Before Judges Confokd, NiLKEisrifY and Leonard.

      Mr. Thomas Menchin, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. Joseph Barry and Airs. Marcia B. Bichman, Assistant Deputy Public Defenders, of counsel and on the brief).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent (Mr, Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Alan Silber, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Conegbd, S. J. A. D.

This appeal was argued together with State v. Blanford, 105 N. J. Super. 56, decided this day. For the reasons stated in our opinion in that case we reject the contention by defendant that liis commitment pursuant to the Sex Offender Act was fatally defective as lacking in due process because of the absence of a hearing of the type called for in Specht v. Patterson, 386 U. S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).

Nor do we find any merit in any of the other points argued on this appeal from denial of post-conviction relief.

We will not detail the involved ramifications of the prior sentencing proceedings in this matter following defendant’s conviction of (a) entering with intent to rape, (b) rape and (c) carnal abuse. All these convictions arose out of a single criminal episode. There were three sentencing proceedings: the second, for corrective purposes, but in the absence of counsel; and the third because of such absence of counsel on the preceding occasion. The ultimate sentencing provided for: (1) a three-year maximum term of imprisonment for entering; (2) commitment in respect of the rape conviction for an indefinite term in the Special Treatment Unit at Rahway State Prison, pursuant to the Sex Offender Act, same to be served concurrently with the term for entry. The original sentence for carnal abuse was vacated because comprehended by the conviction of rape and sentence thereon.

Defendant contends that the sentencing court erred to his prejudice in ultimately finding as a matter of law that it was without power to commit him under the Sex Offender Act to a potential maximum term less than the statutory maximum for the crime of rape. In an earlier phase of the sentencing the court had fixed the term of commitment for the rape charge at seven years. In fact, the maximum for rape is 30 years. N. J. 8. 2A.T38-1.

Defendant’s argument lacks merit. It is true that the Sex Offender Act does not expressly declare that the court may not commit for a term less than the maximum. It does state, N. J. S. 2A :l'64U-6, that in the event of commitment for treatment in a specially designated institution (as occurred here) a minimum term of detention shall not be specified and confinement and parole supervision shall not be for a period of time greater than that provided by law for the crime of which such person was convicted. We have heretofore held that the intent of the statute is for a commitment for an “indeterminate term,” in which maximum and minimum terms are not fixed, although the potential maximum detention is limited by the statute to the maximum for the crime. State v. Thompson, 81 N. J. Super. 173, 177 (App. Div. 1964) ; State v. Schreffler, 63 N. J. Super. 148, 152 (App. Div. 1960). This view of the statutory concept precludes the selection by the court of a maximum term differing from the statutory maximum.

The result contended for by defendant would tend to defeat the purposes of the Sex Offender Act. The philosophy of the act is treatment, not punishment, of the offender, and the goal his cure. State v. Mickschutz, 101 N. J. Super. 315, 320 (App. Div. 1968). To this end “a defendant is subject to confinement until he is 'capable of making an acceptable social adjustment in the community’ even though that may be for the period equal to that provided by law as the maximum punishment for the crime of which he was convicted.” Mickschutz, supra, at p. 320. And see State v. Newton, 30 N. J. Super. 382, 386-387 (App. Div. 1954), affirmed 17 N. J. 271 (1955). Cf. In re Nicholson, 69 N. J. Super. 230, 238 (App. Div. 1961). To permit a discretionary initial shortening of the indeterminate commitment by the court’s fixing a maximum less than the statutory maximum would be to prejudge what only time and experience with the offender could determine—the amount of time needed for his treatment and rehabilitation.

Defendant also seeks to overturn the commitment for the potential statutory maximum term on rape on the argument that once a sentence has been pronounced and execution thereof begun the sentence cannot be changed to increase its severity even though illegal or erroneous as originally pronounced. State v. Laird, 25 N. J. 298 (1957), is cited to support the contention in relation to originally illegal sentences. See also State v. Matlack, 49 N. J. 491, 500-501 (1967). However, the majority rule on the subject was stated in Laird in terms of the proposition that “where a valid sentence has been put into execution the trial court cannot modify, amend or revise it in any way.” (at pp. 306-307) In the present case the original commitment for a potential maximum term less than the statutory maximum was, as seen above, totally beyond the authority of the judge, and a nullity. It was mandatory that the term of commitment be indeterminate and potentially for the statutory maximum. It would subvert public policy to an intolerable degree and serve no fair interest of the defendant in freedom from double jeopardy to preclude the correction of the unauthorized maximum term in the sentence of commitment so as to substitute therefor the only commitment term the court was authorized, and, indeed, required to enter.

Judgment affirmed.