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

text:
    ELWOOD M. BARRON, PLAINTIFF, v. FLORENCE S. GREEN, MUNICIPAL CLERK OF THE BOROUGH OF AVALON, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 19, 1951.

      Miss Florence F. Josephson, attorney for plaintiff.

      Mr. Bobert E. Bsll (Mr.' Albert M. Ash appearing), attorney for the defendant.
   Woods, A. J. S. C.

Plaintiff, Elwood M. Barron, a resident of Avalon, Hew Jersey, asserts that he filed his petitions nominating him for the office of borough commissioner of the borough of Avalon to be voted upon May 8, 1951, with Florence S. Green, municipal clerk of the borough of Avalon on March 29, 1951; that his petitions, acceptance, oath of allegiance as filed were in all respects in good and proper order; that the same were received and later rejected as having been filed out of time contrary to the statute in such case made and provided. He further alleges that after filing same with ' the municipal clerk, he was notified by letter to appear at the borough hall at 12 :30 p. m., Thursday, April 5, 1951, for the purpose of drawing for places on the ballot; that later he was advised by the defendant that his name would not appear on the ballot as a candidate for the office of borough commissioner and that he should not appear for the drawing as noticed for the reason that his petitions had been filed on a date later than in the statute made and provided; that he, notwithstanding, appeared at the borough hall at 12 :30 p. m., April 5, 1951, and demanded that his name be placed in the box for drawing for a place on the ballot, but his demand was refused by the defendant.

The statute brought to determine the qnestion under consideration is B. S. 40 Db—3, the pertinent part of which reads as follows: “The names of the candidates for commissioners shall be filed with the municipal clerk * * * at least twenty days prior to an election for the first members of the commission and at least forty days prior to any other municipal election.”

In this instance we focus the requirement on that part reading “at least forty days prior to” the municipal election to be held May 8, 1951.

Was the filing of the petitions by the plaintiff, Barron, on March 29, 1951, in time?

The question was argued on a rule to show cause before the court at Woodbury, New Jersey, on the return day, April 13, 1951.. The court read the complaint and supporting affidavits on the motion requesting that the court give judgment that (a) the petitions were filed in time; (b) that the defendant be directed duly to receive and file the petitions of the plaintiff; (c) that the defendant be directed to hold a drawing for places on the ballot accordingly.

The phrases “at least” and “prior to” must be defined in their accepted meanings. “At least” is an adverbial phrase meaning at the lowest estimate; at the smallest concession or claim; in the smallest or lowest degree; at the smallest number ; and sometimes used in the sense of clearly. It is a phrase of emphasis, expressive of a minimum, and implies the possibility of more. Sometimes it imports uncertainty, taking its meaning from the context, and hence, under particular circumstances, has been held equivalent to “at most,” “at the least,” “fully,” “not less than,” and “not to exceed.” 7 C. J. S. 165.

In the case of State (Stroud, Prosecutor) v. Consumers’ Water Co., 56 N. J. L. 422 (Sup. Ct. 1894), the legality of an ordinance was challenged. One of the challenges brought up the provision of the statute dealing with a special election held in Atlantic City on June 30, 1892, in respect to the acceptance of the provisions of “An act to enable cities to supply the inhabitants thereof with pure and wholesome water,” and the supplements thereto. “The point made under this head is that the statutory notice of the special election held to obtain the sentiment of a majority of the legal electors of Atlantic City was not given,—that the notice which was given was only a five days’ instead of a six days’ notice.” The court went on to say:

“The statute (Rev., p. 725, § 52) requires notices of the special election to be set up and published at least six days previous to the day of election. The notices were given June 24th, and the election was held June 30th.
By excluding one and including the other of these days in the computation, it appears that six days’ notice was given.
This method of computation is the mode adopted in this state unless the requirement is that the days shall be entire days. Den v. Fen, 3 Halst. 303; State, Ackerson v. North Bergen, 10 Vroom 694, 695; McCulloch v. Hopper, 18 Id. 189.
Nor do the words ‘at least six days’ imply more than that six days’ notice shall be given.”

The former Justice’s Court Act required that all summons should be served at least five days before the time of appearance. Under this act the true mode was to exclude either the day of service or of the appearance, and to include the other. Day v. Hall, 12 N. J. L. 203 (Sup. Ct. 1831).

The court finally said on this point, Reed, J., speaking for the same:

“Whatever differences of view, in respect to the force which should be given to the words ‘at least,’ may exist elsewhere, it is settled here that they do not change the requirement of a certain number of days’ notice into a requirement that the days shall be entire. The notice was sufficient.”

In the ease of Den ex dem Bray v. Fen, Nancy Drake, 8 N. J. L. 303 (Sup. Ct. 1826), the court remarked: “Where a statute requires service for a fixed n umber of days, the mode of computation is to include the day of service or the appearance, and to exclude the other; but where a number of entire days are required, both the day of service and the day of appearance are to be excluded.”

In the case of State, Ackerson v. North Bergen, due notice of a meeting of the township committee was called into question. The charter required ten days’ notice. Said the court, Dalrimple, J., speaking:

“The construction is, that notice given on the 25th day of August, of a meeting on the 4th clay of September (hen next, was not a notice of ten days. I think it was according to the recognized method of computation in such cases. State, v. Jackson, 1 South. 323; Den v. Fen. 3 Halst. 303; Gillespie v. White, 16 Johns. 117; Vandenburgh v. Van Rensselaer, 6 Paige 147.”

In the ease of Introcaso v. Burke, 3 N. J. Super. 276, 65 A. 2d 786 (Law Div. 1949), Judge William J. Brennan delivered the opinion and inferential] y made the point when he stated:

“Plaintiff, prior to March 31, 3949, filed with the City Clerk of the City of Jersey City the requisite number of signed petitions nominating him as a candidate for the office of commissioner of said city in the municipal election to be held Tuesday, May 30, 1949. The date after which petitions for this purpose could not be accepted was March 31, 1949.”

In the case of Berry v. Gates, 129 N. J. L. 1, 28 A. 2d 59 (Sup. Ct. 1942), on application of John J. Berry and others against Bussell C. Gates, county clerk of the county of Essex, for writ of mandamus or, in the alternative, for writ of certiorari, the relief prayed for was denied. In this case the facts disclosed that the petition was addressed to the county clerk signed by the requisite number of qualified voters and was filed in his office on August 6, 1942. This petition set forth the names and address of 12 persons desiring to run for nomination as members of the General Assembly, etc. Two days thereafter, on August 8, the 16 persons named in the petition signed a paper declining the nomination and requesting that their names be not printed on the Eepublican ballot for the primary election to be held on September 15, 1942. This declination was filed in the office of the county clerk on August 10. On August 12, three persons named in the petition as “committee on vacancies” filed a completely new slate. This instrument was filed on August 12 and was defective in several respects. On or before August 17 a certificate of acceptance, amended and supplemental certificate of nomination and affidavit of the three members of the committee on vacancies were filed, which, if effective, would appear to have corrected all prior irregularities and defects in the proceedings. A determination as to the efficacy of the attempted amendments was called for. The court then went on to quote the broad powers of amendment in the General Election Law, as well as the provisions in so far as they affected the Primary Election Law. Significantly, in the next to the last paragraph of the opinion, the court stated, Golie speaking: “Under the situation here presented, August 12th was the thirty-fourth day prior to the primary election and the proceedings judged as of that day, disclosed defects which justified the exclusion of the names of the aspirants from the ballot.”

In the case before us, the plaintiff filed his petitions on the 29th day of March, 1951, which was the fortieth day prior to the special election fixed as May 8,1951.

The last brief filed by counsel in this cause was received on Thursday morning, April 19, 1951. Both memoranda of law set forth arguments with respect to the meaning of the phrase “at least 40 days prior to.” Counsel for the defendant, in meeting the plaintiff’s argument, counters by saying that if the intent and meaning was to refer to the fortieth day as a filing day, the Legislature would have provided as it did in N. J. S. A. 19:31-7 which provides, inter alia, that municipal clerks shall “be empowered to register * * * up to and including the fortieth day preceding any election * * As argued, however, by plaintiff’s counsel, the language of the New Jersey statutes varies in several instances. The Election. Act, Title 19, has several references which may be noted. N. J. S. A. 19 :33—17 refers to the last day a voter may register to vote and the language of the statute is “up to and including the fortieth day preceding any election.” Eelative to the change of residence, note R. S. 19:31-11. The statute declares “on or before the fortieth day preceding any election.” The significant meaning of both these phrases would nominate the date as March 8 on a primary day fixed as April 17. Another section of the Election Act, to wit: N. J. S. A. 19 :23-14, providing the time for filing petitions nominating candidates for the primary election, runs in this language: “at least forty days prior to.” And to our way of thinking, this language has the same force in construction.

It is to be observed further that “statutes are varied in their phraseology, and the decisions as to computation of time vary accordingly. It may be said, however, that the number of days is ordinarily computed by counting the consecutive days backward from the date of the election, and that of a specified number usually the first day is to be included and the last day excluded.” 18 Am. Jur. 262, sec. 130.

Strikingly, there is a difference between the phrase “at least 40 days prior to” and the phrase “prior to 40 days before election.” The one definitely means the fortieth day before and the other means 40 entire days shall intervene between the election and the filing day.

Eor the purpose of determination of the issue in this, cause, counsel for the defendant concedes that the only question is: Whether the plaintiff by filing his petitions on March 29, 1951, was in time ? In view of the authorities cited, we must conclude that the plaintiff, having filed his petitions in due form on the fortieth day before May 8, 1951, is entitled to have his name placed on the ballot and is further entitled to draw for position on the same in accordance with the statute. An order directing the same will be entered accordingly.


source: Caselaw Access Project

author: Davidson, J. S. C.

license: Public Domain

text:
    LIONSHEAD LAKE, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF, v. TOWNSHIP OF WAYNE, A MUNICIPAL CORPORATION OF THE COUNTY OF PASSAIC AND STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 27, 1951.

      Mr. Reuben P. Goldstein, attorney for plaintiff (Mr. Archibald Kreiger, of counsel).

      Messrs. Marlcley & Broadhurst, attorneys for defendant.

      Messrs. Sticlcel <& Stickel, by Mr. Fred G. Sticlcel, III, as amicus curiae on behalf of the defendant.
   Davidson, J. S. C.

This proceeding in lieu of prerogative writ seeks to set aside the provisions of the zoning ordinance of the Township of Wayne with respect to the minimum size requirements of dwellings, plaintiff charging that the ordinance is unreasonable and constitutes an invalid exercise of the police power of the municipality.

The matter came before this court some time ago on motion for summary judgment and its then determination is reported in 8 N. J. Super. 468, the Appellate Division, however, holding in 9 N. J. Super. 83 that summary judgment was precluded, as a factual issue had been properly presented.

After a painstaking inquiry into the facts, it is difficult to perceive any genuine or material dispute. On July 12, 1949, defendant adopted a revised zoning ordinance covering the entire township, which was to be divided into four districts, namely, Residence District “A”, Residence District “B”, Business District and Industrial District. The ordinance, under section 3, sub-division (d), “Minimum Size of Dwellings,” provided that:

“Every dwelling hereafter erected or placed in a Residence ‘A’ District shall have a living-floor space, as herein defined, of not less than 768 square feet for a one story dwelling; of not less than 1.000 square feet for a two story dwelling having an attached garage; of not less than 1.200 square feet for a two story dwelling not having -an attached garage. For the purpose of this section the second floor shall have a ceiling height of not less than 7 feet, measured at the eaves from the floor to the underside of the rafters.”

As the same requirement for minimum size of dwellings is set forth for Residence “B” Districts under section 4, paragraph (d), and by specific reference is incorporated in Business Districts under section 5, paragraph (e), and Industrial Districts under section c, paragraph (b)-l, the result is that a uniform minimum size of dwellings, in accordance with the standards particularly described for Residence “A” Districts, as above sot forth, prevails throughout the entire municipality.

N. J. S. A. 40:55-30 provides that:

“Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the exercise of such authority, subject to the provisions of this article, shall be deemed to be within the police power of the state. * * *
The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lot that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of buildings and structures for trade, industry,, residence, or other purposes.”

N. J. S. A. 40:55-32 clearly provides the basis for a proper determination of the present controversy, and it reads as follows:

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

Through the years there has been a gradual broadening in the legal concept of valid zoning restrictions, and, as was held in Duffcon Concrete Products v. Borough of Cresskill, 1 N. J. 509, at page 513 (1949) :

“What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the- entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously.”

This goes beyond a finding based strictly on the police power, other than general welfare, and establishes a test grounded in the community use of the land in the municipality, with due consideration to all general conditions and needs, present and reasonably to be anticipated in the region. It is, accordingly, necessary to obtain a broad perspective of the municipality and the region in which it is located.

The Township of Wayne is in the County of Passaic, lies generally about three miles northwest of the City of Paterson, and embraces an area of 25.34 square miles, with a population of 11,000. The municipality includes several sizeable lakes within its borders, the one on plaintiff’s property comprising 145 acres, and there are a large number of summer or vacation homes and a number of dwellings occupied only during the summer months. Originally a farming section, there are now real estate developments and subdivisions, some business and light industry, little heavy industry, and generally it may be considered a rather widely scattered and sparsely settled residential community, the evidence establishing that the built-up portions constitute about 12% of the area of the township.

Plaintiff, attacking the zoning ordinance as unreasonable, is met by a presumption that the ordinance is reasonable and for the public good, and he must bear the burden of establishing the contrary. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940); affirmed 125 N. J. L. 367 (E. & A. 1940); Lumund v. Bd. of Adjustment of the Borough of Rutherford, 4 N. J. 577 (1950).

The minimum size requirement throughout the defendant municipality for a one-story dwelling under the ordinance now questioned is 768 sq. ft., indicating a normal 24 x 32 foot building, and the cost of erection is from $11,000 to $12,000 mass produced, and 20% more for individual construction, and the testimony, confirming general acceptance, is that but 30% of the population can afford homes costing over $10,000, the remaining 70% being necessarily restricted to the purchase of homes costing less than that figure.

The ordinance, in its present form, therefore, practically provides that no house costing less than a certain sum may be erected in the entire community, let alone a specified area, and this it cannot legally do. Brookdale Homes, Inc. v. Johnson, 123 N. J. L. 602 (Sup. Ct. 1940); affirmed 126 N. J. L. 516 (E. & A. 1940). No person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor’s house. Ilid. '

Dwellings are erected on about a dozen widely separated areas, ranging all the way from a sparsely settled community along the river, known as Riverview, to highly developed, costly and exclusive communities, such as Ridgewood Acres, Preakness Park Manor and Pines Lake, where the homes cost from $30,000 to $75,000.

In the several residential communities the dwellings which meet or exceed the specified square footage minimum requirement range from 50% to 100%. As a practical matter, it is pertinent to note that the building inspector, produced as a witness for defendant, testified that from the time he assumed office on January 1, 1946, to the adoption of the ordinance on July 12, 1949, he issued 1305 building permits, and but 67 were for dwellings of less than 768 sq. ft.

In the entire defendant township about 70% of the dwellings meet or exceed the minimum square footage requirement of the ordinance under attack, and the remaining 30% are below. While plaintiff produced no recognized public health expert, the testimony indicated no direct connection between health and square footage, except as to provision for adequate sanitary and sewerage services, which, of course, are regulated and controlled by other municipal ordinances.

The Hew Jersey Code of Minimum Construction Requirements for One-and Two-Family Dwellings provides that:

“Living rooms shall have an area not less than 150 square feet, or not less than 160 square feet when dining space is included and not less than 220 square feet when dining and cooking space is included, provided that this area shall be not less than 210 square feet when located in a dwelling unit having less than two bedrooms.
The area of kitchens shall be not less than 60 square feet, or not less than 90 square feet when dining space is included, provided that the area of the kitchen shall be not less than 50 square feet when located in a dwelling unit having less than two bedrooms.
The area of at least one bedroom in each dwelling unit shall be not less than 100 square feet.
The area of any other bedroom in the same unit shall be not less than 70 square feet.”

These figures are indicative of accepted mínimums for adequate housing with less square footage than the ordinance requires.

It is settled that an ordinance under the Zoning Act must bear a reasonable relation to the powers conferred by that act. Phillips v. Township Council, &c., Teaneck, 120 N. J. L. 45, 48, 198 A. 368 (Sup. Ct. 1938); affirmed 122 N. J. L. 485, 5 A. 2d 698 (E. & A. 1939). Eestrictions imposed pursuant to the Zoning Act must tend at least in some degree to promote the public good; they must bear a “substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Nectow v. Cambridge, 277 U. S. 183; 72 L. Ed. 842 (1928); Gabrielson v. Glen Ridge, 13 N. J. Mis. R. 142, 176 A. 676 (Sup. Ct. 1935); Phillips v. Township Council, &c., Teaneck, supra; Phillips Oil Co. v. Municipal Council, &c., Clifton, 120 N. J. L. 13, 197 A. 730 (Sup. Ct. 1938); 179 Duncan Avenue Corp. v. Jersey City, 122 N. J. L. 292, 5 A. 2d 68 (Sup. Ct. 1939); Spur Distributing Co., Inc. v. Bridgeton, 122 N. J. L. 460, 6 A. 2d 192 (Sup. Ct. 1939). (Cf. Resciniti v. Board of Commissioners, Belleville, 117 N. J. L. 1, 186 A. 439 (Sup. Ct. 1936) ; Watchung Lake, Inc. v. Mobus, 119 N. J. L. 272, 196 A. 233 (Sup. Ct. 1938)).

Thus while our Legislature has unquestionably given municipalities the right to pass ordinances “to regulate and restrict the height, number of stories, and sizes of buildings,” such ordinances to be valid must be designed to promote public health, safety, and general welfare. R. S. 40 :55—30. The mere power to enact an ordinance such as the one here involved does not carry with it the right arbitrarily or capriciously to deprive a person of the legitimate use of his property. Brookdale Homes, Inc. v. Johnson, supra.

Defendant municipality charges that plaintiff's action is premature in that it has not appealed to the board of adjustment and exhausted its remedy, but this is a proper attack upon the validity of the zoning ordinance and the defense is without merit. Lionshead Lake, Inc. v. Wayne, 9 N. J. Super. 83 (App. Div. 1950).

We are not here concerned with plaintiff’s individual plight as it relates to the effect of the zoning requirements upon the operation of its real estate development, for it is beyond dispute that regardless of personal interest or potential financial loss, every landowner is subject to the control of his property for the public good. “The touchstone of the reasonableness of the control is to be found in the relation of the regulation to the health, safety, morals, or the general welfare of the community.” Collins v. Board of Adjustment of Margate City, 3 N. J. 200, at p. 206 (1949). Reasonableness is a fact question. American Grocery Co. v. New Brunswick, 124 N. J. L. 293 (Sup. Ct. 1940); affirmed 126 N. J. L. 367 (E. & A. 1941).

Defendant, recognizing the legal situation, contends that the reasonableness of the control now questioned, specifically the minimum square foot dwelling requirement throughout the entire municipality, is based on the relation of the regulation to the health or the general welfare of the community, and with this contention, after resolving the factual question, I cannot agree.

While defendant produced an outstanding and nationally known public health expert, his testimony, in my judgment, materially substantiated plaintiff’s position, for he based his observations, not upon physical health in the ordinary and generally accepted sense of the words, but upon what he termed “emotional health,” a sense of inferiority due to living in a sub-standard home. He fixed a minimum requirement essential to healthful living of 400 sq. ft. for one person, 750 sq. ft. for two persons, 1,000 sq. ft. for three persons, 1,150 sq. ft. for four persons, 1,400 sq. ft. for five persons, and 1,550 sq. ft. for six persons, stating that these were not suggested as legal standards, but goals at which to aim. He freely acknowledged that physiological and emotional needs were the essentials considered, that 750 sq. ft. (slightly below the ordinance requirement) was adequate for two persons, and that the federal space requirements were about 20% less than his figures. As the average family is comprised of 3.6 persons, defendant rather uniquely theorizes that all dwellings should be constructed for such occupancy. This would seem to require no comment.

Plaintiff’s operations are concerned with three-room cottages in which the living room contains 160 sq. ft., the bedroom 100 sq. ft.'and the kitchen 85 sq. ft., the body of the house totalling 484 sq. ft., exclusive of the porch; four-room cottages comprising a living room 14 x 17 feet, one bedroom 12 x 17 feet, a second bedroom 12 x 12 feet and kitchen 12 x 12 feet., making a living space area of 676 sq. ft., exclusive of the porch; and smaller four-room cottages just under 600 sq. ft., each home containing modern hath and adequate sanitary facilities, all individually styled, extremely attractive in general appearance, and wholly in keeping with their rustic surroundings; they present no health problem and are in no sense detrimental to the community.

While the evidence establishes that homes for five, or six persons, presumably requiring dwellings in excess of 1,400 sq. ft., would necessitate a plot size increase, the ordinance makes no such provision and permits the larger structure on the same 500 foot plot; another section of the ordinance provides that a building with attached garage must have 1,000 sq.- ft. of living space, while with no such garage, the minimum requirement is 1,200 sq. ft., defendant’s witness, the building inspector, staling that the reason was that the attached garage made for a better looking building; the evidencie further established that the reason for the ordinance standard of a 24 x 32 foot structure with a content of 768 sq. ft. was the average for building applications and that standard dimensions of lumber were readily adapted to that size. Obviously, these considerations are wholly unrelated to either public health or the general welfare of the community.

The holding in Duffcon Concrete Products, Inc. v. Borough of Cresskill, supra, wherein onr Supreme Court sustained an ordinance excluding heavy industry from the municipality, was clearly justified under the facts; so, too, did the facts in Guaclides v. Borough of Englewood Cliffs, 11 N. J. Super, 405 (App. Div. 1951), amply support the validity of an ordinance prohibiting multi-family dwelling districts within the borough.

Here the factual situation, in my opinion, amply demonstrates that the minimum size requirement for one story dwellings is not reasonably related to the public health or general welfare of the community, but is arbitrary and unreasonable and not within the domain of the police powers of the defendant municipality.

While the court is loath to interfere in the internal affairs of any municipality and cannot, of course, properly substitute its judgment for that of duly elected and authorized representatives, I am forced to the conclusion that the provisions in the zoning ordinance respecting “Minimum Size of Dwellings” are wholly invalid with respect to Residence “A” and “B” Districts, in which plaintiff’s property is situated, and must be set aside.


author: Daniel J. Bkennan, J. S. C.

text:
    GEORGE A. DOLAN, ALICE DOLAN, ARCHIE H. ORMOND AND HELEN R. ORMOND, PLAINTIFFS, v. MICHAEL DeCAPUA, AND HELEN DeCAPUA, HIS WIFE, ROBERT T. WHITE, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 14, 1951.

      Mr. Archie II. Ormond, attorney for-the plaintiffs.

      Messrs. Giuliano ■£ Giuliano {Mr. Anthony Gi-uliano appearing), attorneys for Michael DeCapua and Helen De-Capua, his wife.

      Mr. Walter G. Ellis, attorney for Robert T. White, Building Inspector of the City of East Orange, and the Board of Adjustment of the City of East Orange.
   Daniel J. Bkennan, J. S. C.

This is a proceeding in lieu of prerogative writ to review the action of the defendant Robert T. White, Building Inspector of the City of East Orange, in issuing a-permit for the erection of a new six-car garage at 81 Warrington Place, and the approval of the action by the defendant board of adjustment, the plaintiffs herein asking judgment that the action be reversed and that the defendants DeCapua be required to remove their garage.

Counsel for the plaintiffs now concedes that this court has no authority to order the defendants or some of them to remove the garage which was built under the permit.

The plaintiffs George A. Dolan and his wife reside at 73 Warrington Place, and the plaintiffs Archie IT. Ormond and his wife reside at 64 Warrington Place.

The zoning ordinance of the City of East Orange was originally adopted in 1921, and subsequently amended and supplemented. As adopted, amended and supplemented this ordinance was received in evidence and marked as Exhibit I)-l in these proceedings. The ordinance established, inter alia, an area designated as “Small Volume Eesidence Districts” and enumerated in said designation the nse of buildings or promises within that district. The section applicable to ilie consideration of the matter sub judice reads as follows:

“Section 3. Small Volume Residence Districts.
(a) Use. No building or premises within any district shown as a small volume residence district on the Use and Volume District Map shall he used for other than one or more of the following specified uses:
(1) Dwellings for one family only.”

In addition to providing for dwellings for one family only there is then a catalogue of other uses which need no reproduction here since the categories are in no way pertinent.

Subsection (9) of section 3 of the ordinance provides for accessory uses customary or incident to the above uses and this section is indicative of what is considered an accessory use within the purview of the ordinance in the following language:

“(9) Accessory uses, customary or incident to the above uses. An accessory use shall not include a building or use not located on the same lot with the building or use to which it is accessory. A private garage to be deemed an accessory use shall not provide storage for more than one motor vehicle for each 2,000 square feet of ground area of the lot, and of which not more than one vehicle may be a commercial motor vehicle of not more than two tons capacity. Space for not more than two non-commercial vehicles may be leased. The same regulations as for garages shall apply to private stables except that one horse and one wagon shall be considered the equivalent of one motor vehicle. The term ‘accessory use’ shall not include a business outside of the building to which it is accessory nor which occupies the floor area in excess of 25 per cent of the floor area of one story of such building or which by the character of the building or premises or the emission of odor, smoke, dust or noise, or in any' other way is objectionable or detrimental to the amenity of the neighborhood, except that a private garbage incinerator for family use shall not be prohibited.”

The properties of the plaintiffs and defendants DeCapua are located in the aforesaid Small Yolnme Residence District as established by the zoning ordinance of the City of East Orange and shown-and delineated on the Use and Yolnme District Map made a part of said ordinance. On each of these properties in this district is located a one-family dwelling.

Historically it appears-that on December 14, 1949, in behalf of the defendants DeCapua, written application was made to the acting inspector of buildings of the City of East Orange for a permit for the erection and construction at 81 Warrington Place, East Orange, of a new building for a six-car garage. The application as filed indicated that there was then on the lot at said address a building consisting of a frame garage and a residence. Counsel for DeCapua urges that the six-car garage is being put to a use similar to that of the former two-ear garage, the latter being the “frame garage” referred to in said building permit application:

In the application, Exhibit P-5, DeCapua indicated that this new garage building would “be built as per code of E. Orange Bldg. Dept, and as plans filed.” The application as thus presented was received, filed and endorsed as approved by the defendant White, who was then the acting building inspector of the City of East Orange. On the same day the acting building inspector issued Building Department Permit Fo. 39197 for a “new 6-car garage” to be located at 81 Warrington Place. The permit contained the recital that “No building to be occupied before certificate of occupancy is obtained.” One of the grounds urged by the plaintiffs for the relief here sought in these proceedings is that “No certificate of occupancy, such as is required by Section 13 of the Zoning Ordinance, has been issued for said six-car garage since its completion.” The permit was issued without notice to any property owner.

My examination of the application for the permit as well as the permit itself fails to disclose the proposed use to which the new garage "was to be put. All that the application and the building permit disclose is that the new building was to be constructed as a garage for six cars. It appears, however, from the evidence presented to me and from the pretrial order, that this new six-car garage is being used to house motor vehicles and limousines customarily furnished for funerals, weddings, and similar functions. The problem for resolution is whether or not this use is a customary use as intended by the zoning ordinance.

The defendants DeCapua and the defendant building inspector, as well as the board of adjustment, deny that the garage erected by the DeCapuas on the subject premises is in violation of the zoning ordinance and aver that the garage premises are not being used for the parking and storage of automobiles in violation of the zoning ordinance.

It is conceded by all the parties to this litigation that the new garage was completed on January 11, 1950; that no certificate of occupancy was issued for said garage; that since the completion of the garage it has been used to house six limousines licensed as auto-cabs or omnibuses, and in addition a two-car garage on the premises at 81 Warrington Place has been used to house two flower cars, also licensed as auto-cabs or omnibuses, and that the said eight limousines or flower cars are now housed on said premises.

It should be observed in passing that copies of the applications to the State Department of Motor Vehicles for licenses for the several vehicles indicate clearly that they are applications for omnibus vehicle registration (Exhibit P-4).

Plaintiffs appealed to the board of adjustment with reference to the issuance of the building permit and a hearing was held by that board on May 18, 1950, at which testimony was taken and exhibits offered and marked in evidence. On May 31, 1950, the board dismissed this appeal. The summons in the cause together with a copy of the complaint were served upon the defendants on June 13 and June 14, 1950, respectively.

The matter is now before this court for determination on the basis of the pleadings filed herein, the testimony, and the exhibits offered, as well as the arguments of respective counsel appearing in behalf of the parties hereto.

It is elementary that although municipalities have power to adopt zoning regulations by ordinance, the regulations must be in accordance with a comprehensive plan designed to promote specified statutory purposes relating generally to the health, safety and welfare of the community. R. S. 40:55-32; Crow v. Westfield, 136 N. J. L. 363, 365 (Sup. Ct. 1948). In exercising this power the municipality may be divided into districts of such number, shape and area as may be best suited to carry out the zoning purposes. R. S. 40:55-31. Zoning ordinances may be enlarged or otherwise altered by amendment thereof, provided always that the action is in reasonable fulfillment of the statutory policies. Taylor v. Hackensack, 137 N. J. L. 139,141 (Sup. Ct. 1948); Appleby v. Bernards Township, 128 N. J. L. 195 (Sup. Ct. 1942), affirmed 129 N. J. L. 73 (E. & A. 1942).

There is suggested in the arguments of counsel appearing for the defendants herein that the present new garage is being put to the same use and purpose that this subject property was being used for while the two-car garage only was on these premises, for that for a long period of time prior to the erection of the new garage, the two-car garage had been put to this similar use. This argument is untenable as reflective of the rights of the defendants here.

It has been held in Meixner v. Board of Adjustment of the City of Newark, 131 N. J. L. 599 (Sup. Ct. 1944), that an owner oí premises which, at the time of the adoption of a zoning ordinance, were used for non-conforming uses, is within his rights in continuing such use, and lie may repair or restore buildings in which such use existed, but he may not enlarge Ike use. (The emphasis is the court’s.) This case is cited with approval in Lynch v. Hillsdale, 136 N. J. L. 129. at page 133. (Sup. Ct. 1947) In the latter case it was held that “A pre-existing non-conforming use may not be enlarged or radically modified simply because the new use would be hio more harmful’ than the old to the adjacent land owners.”

Counsel for the defendants building inspector and board of adjustment of the City of East Orange urges that this court does not have jurisdiction over the subject matter and cites in support thereof Rule 3:81-14 which, in the opinion of this' court, is not applicable. Fischer v. Twp. of Bedminster, 5 N. J. 534 (1950). Counsel further indicates that there is no prohibition against a complaint being filed in the municipal court by any citizen charging a violation of said zoning ordinance. This is quite beside the issue. Plaintiffs seek by this proceeding not to prosecute a violation of the zoning ordinance in order to have a penalty imposed, but to review the action of the building inspector in granting the permit and the resolution of the board of adjustment in approving the issuance thereof, pursuant to Rules 3:81—2 and 3:81-3. They complain that the permit should not have been issued in the first instance.

One of the defenses urged in behalf of the defendants heroin is that the plaintiffs are guilty of laches in the institution of this suit. As of the date of the instant proceedings there was no period of limitation prescribed which was legally valid so as to give rise to the suggestion of laches here. Winberry v. Salisbury, 5 N. J. 240 (1950); Fischer v. Twp. of Bedminster, supra. For the reasons reflected in the testimonial record the court does not conceive that in any event there was any laches on the part of the parties plaintiff. Our Supreme Court did, on March 15, 1951, promulgate a rule imposing a limitation on the bringing of certain proceedings, included in which is a provision directing that no proceeding in lieu of certiorari shall be allowed “to review any decision of * * * board of adjustment after thirty days from the date of the filing of the decision in the office of the Board * * *.” Buie 3:81—15, adopted March 15, 1951. That rule as adopted has no application to the instant proceeding.

Erom the entire record before me it appears that since the completion of the new garage it has been used to house limousines licensed as auto-cabs or omnibuses. The pretrial order so reflects. When the application was presented to the building inspector he then knew that the new garage was to be used to house these limousines. When he inspected these premises in March, 1950, he knew that the subject property was actually being used to house these autos, customarily used for hire as aforesaid. It is also conceded that no certificate of occupancy was ever issued for the new garage. It is admitted that the premises of the plaintiffs and that of the defendants are within the Small Volume Residence District which, as indicated, provides for dwellings for one family only and such “accessory uses” customary or incident thereto. “Accessory and customarily incidental use comprehends not only the kind but the degree of use.” Appeal of Lord (Appeal of Borough of Munhall), 168 Pa. Super. 299, 77 A. 2d 728, at page 731 (Pa. Super. Ct., decided January 12, 1951). The maintenance of a garage housing limousines, used for hire and licensed as auto-cabs or omnibuses, is neither an “accessory use” nor a use “customary or incident” to a one-family housing accommodation. It cannot be classed as a use accessory to the permitted uses. It is my opinion that the zoning ordinance never contemplated such a use in this Small Volume Residence District. To hold otherwise would nullify the intendment of the ordinance. The use of the new garage involves the conduct of a business whose operation is prohibited. The express mention of permitted uses impliedly excludes all others. The present use bears no relationship whatever to the occupancy of the dwelling on the subject premises. The zoning ordinance was designed generally to safeguard the health and welfare of the community-. Since the use of the new garage is not one customarily incident to the occupation of a single-family residence it falls within the prohibition of the ordinance. Vide by analogy Sullivan v. Anglo-American Inv. Trust Inc., 193 A. 225 (N. H. Sup. Ct. 1937); City of Louisville v. Koenig, 290 Ky. 562, 162 S. W. 2d 39 (Ky. Ct. of Apps. 1942).

The action of the board of adjustment and that of the building inspector under review is reversed, set aside, and for nothing holden. There will be judgment accordingly in favor of the plaintiffs and against the defendants, but without costs.

Submit order.


author: Dkewen, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOHN F. MALONE, JOHN J. TOOHEY, DANIEL CASEY, JAMES CAVANAUGH, FRANK A. DEISLER AND PHILIP F. McGOVERN, DEFENDANTS; STATE OF NEW JERSEY, PLAINTIFF, v. JOHN F. MALONE AND DANIEL CASEY, DEFENDANTS.
    Hudson County Court Law Division
    Decided April 26, 1951.

      Mr. Horace K. Roberson, Prosecutor of the Pleas, attorney for tlie State of Xew Jersey (Mr. William A. O’Brien, Assistant Prosecutor of the Pleas, of counsel).

      Mr. John Milion, attorney for defendant Malone (Mr. Fra.nh (7. Schlosser, of counsel).

      Mr. Benne.lt A. Robbins, attorney for defendants Toohey, Casey. Cavanaugh, Deisler and McGovern. '
   Dkewen, J. C. C.

These motions to dismiss are directed to the four indictments above. Those numbered 146 and 148 charge a conspiracy to violate B. S. 19 :34-42, by inviting, receiving, directing and accepting contributions for “political campaign purposes” by and from persons designated as the male employees of the City of Jersey City, in general, and of the board of education and of the housing authority of said city, in particular, all of which persons together are alleged to be within that class of public employees by whom such contributions are by the statute forbidden; and with respect to whom the alleged inviting, receiving, directing and accepting thereof is likewise alleged to be forbidden. A violation of the section is a misdemeanor. B. 8. 19 :34—1. The conspiracy, as such, charged in each of these indictments (Nos. 146 and 148), is predicated specifically upon B. 8. 2:119—1, which provides: “Any two or more persons who shall combine, unite, confederate, conspire or bind themselves by oath, covenant, agreement or other alliance: a. To commit a crime; * * * Shall be guilty of a conspiracy and be liable to the same penalty as persons convicted of a misdemeanor.” The one indictment differs from the other in the dates and periods alleged. In all other respects, they are identical.

The conspiracy charged in each of the indictments Nos. 141 and 149 is to obtain money by false pretense, likewise based upon B. 8. 2:119-1. The pretense alleged is that the defendants were duly authorized, according to law, to solicit and receive moneys for and on behalf of the respective party committees and candidates in the indictments named. The persons intended to be defrauded by the said pretense wore, it is alleged, the employees of the City of Jersey City and the several departments thereof, already mentioned in connection with indictments Nos. 146 and 148. The offense charged in indictment No. 141 is alleged to have been with reference to the general election held November 2, 1948; that charged in indictment No. 149 is alleged to have been with reference to the municipal election held in Jersey City on May 10, 1949.

First, as to indictments Nos. 146 and 148. One of the objections is that neither of these charges a crime. The statute (JR. 8.19 :34-42) whose violation is alleged as the object of the conspiracy reads: “No holder of a public office or position not filled by election by voters shall contribute to the nomination or tiie election of any person to public office or party position; but this prohibition shall not apply to a person holding an appointive office or position the term of which is fixed by law. No person shall invite, demand or accept payment or contribution from such persons for campaign purposes.” The full scope of the conspiracy charged is within the allegation that the design and intent of the conspiracy was to violate the quoted statute, i. to commit the crime the indictments contemplate “by means of inviting, receiving, directing and accepting payments and contributions of money from the male employees of the City of Jersey City * * * for political campaign purposes * * The trouble lies in the difference between the generic, “contributions * * * for political campaign purposes,” in the indictments, and the specific, contributions “to the nomination or the election of any person to public office or party position,” in the statute. What the indictments charge is exclusively within the terms of the second of the two sentences that comprise the quoted section. It will readily be seen that this sentence, as the indictments make use of it, is completely out of harmony with the remainder of the section, unless it is subordinated to the intent and meaning of the sentence that precedes it. In that relation it can have no effect other than to render it unlawful to invite, receive, direct or accept from persons of the class described any payment or contribution which it is unlawful for such persons to make. No other import would make sense, for certainly a person may be lawfully invited or induced to do that which he may lawfully do. There is a possible theory, perhaps, though not argued or advanced, that it is within the legislative power to declare it unlawful to solicit persons in public employment to do that which such persons might lawfully do of their own accord, without the forbidden inducement. As to that, it can only be said that the assertion of such a principle in the statute, if it is there at all, is inexplicit, to say the very least, and that we are not required to search out criminal provisions in the written law by dialectic. There is no reason or excuse for the appearance of the words, “for campaign purposes” in the second sentence of the section, save only on the basis indicated, that is, by way of reference to the first sentence. Were it not for what I judge to be the accident of their deceptive position in the context, it would, I am sure, never have occurred to the pleader to incorporate them in the charge.

The two indictments in question are so strictly within the scope of the last sentence and so utterly without reference to or bearing upon the rest of the section as necessarily to imply—on the hypothesis of their being declared valid —the clear independence and separability of the two parts. But, as I read them, they are neither independent nor separable. Apart from the first sentence of the section, the second has no lawful meaning. Its dependence is manifest. It is ancillary to the main purpose, a kind of aiding and abetting provision, and the words “contribution * * * for campaign purposes,” which the indictments take from it—adding the word “political”— are not a statement of that purpose but a mere reference. The incongruence presented by the section as a whole may, perhaps, be explained by the inadvertent omission of the word “such” as a modifier of the phrase “campaign purposes” in the second sentence. But this is futile speculation and is mentioned only to emphasize the difficulty. All that can be said is that the character and scope of the conspiracy here charged is fixed and limited by the means set forth and. that the “contributions for political campaign purposes,” which are vital to the significance of the stated means, might or might not be such campaign contributions as the employees are forbidden to make, via., contributions “to the nomination or the election of any person to public office or party position.” There is simply no way of telling whether they are or not; nothing within the frame of the indictments gives a hint. Unlike indictments Nos. 147 and 149, these contain no reference whatever to a campaign, political or otherwise, apart from the contributions themselves. The generalization is left free and all-inclusive. Obviously, a campaign for acceptance or rejection in a statutory referendum would not be within the penal prohibition of the statute but would be within the generalized description in the charge. The same is true of a constitutional plebiscite. Is it to be suggested that there he an inference of the unlawful character of the contributions mentioned, that is to say, that it be presumed ? In my opinion, we need say no more than this: whether or not a crime was committed depends upon the existence of facts essential to the crime, particular in their nature, and about which these indictments are silent. That is enough, in my view, to demonstrate that the indictments do not charge a crime. Inferences to establish the truth of a criminal charge may be drawn from proofs adduced upon the trial thereof, there being evidential basis for it; but, certainly, the legal sufficiency of the charge may not be established by inferences drawn from within the charge itself. The proposition carries its own answer. The contrary presumption of innocence is alone sufficient impediment.

In the State’s brief it is urged that “'No language could be more explicit or definitive of the acts denounced than that which appears in the last sentence of R. S. 19:34-4$ * * To this the first sentence of the cited statute is a complete answer.

The construction necessary to support the State’s: position raises other serious objections. If the second sentence is independent and separable it must be taken as, in itself, defining a substantive crime, as, indeed, it is contended. Then the question arises, what is a campaign purpose for which it is a misdemeanor to invite or solicit contributions ? What sort of campaign is intended? The degree of vagueness and uncertainty here is better appreciated by reading the charge as. pleaded without the word “political” in the phrase “for political campaign purposes.” Since that word is not in the text upon which the charge is based, whatever plausibility it affords. is false. If it be contended that the nse of the word is justified b}r the political tenor of the whole section, that is, by the maxim noscitur a sociis, how under the same maxim are we to exclude as a corrective of this vagueness and uncertainty that which in the first sentence of the section is so definite and certain? Moreover, if the sentences are independent and separable, it follows on the face of it that the legislative policy which is clear and explicit in the first sentence appears to be abandoned in the second. In construing a penal statute, we are not to suppose that the legislation'was enacted with the intent that it come so short of the quality prescribed, and, as between a rational and an irrational or strained construction, the former is to be preferred.

Doubtless the supplying of particulars will be thought of as a sufficient remedy for the indictments as they are. It is my opinion that in this case the reasons for rejecting the idea of particulars are even clearer than were the reasons for a similar rejection by the court in State v. Jenkins, 136 N. J. L. 112 (Sup. Ct. 1947), appeal dismissed, 137 N. J. L. 209 (E. & A. 1948), and in State v. Daly, 3 N. J. Super. 247 (App. Div. 1949), certification denied, 3 N. J. 367 (1949). The response which in the present instance would have to be given to a demand for particulars, considered as adequate to the need, simply would not constitute particulars. It would have to be such as to supply the essential elements now missing in the charge. It would go not to particularize the indictments but to complete them, they being presently consistent with innocence.

A somewhat analogous situation was dealt with by the former Supreme Court in State v. Beatty, (unreported, No. 1 Jan. Term, 1946, Sup. Ct., April 1, 1946). The indictment there was based on B. S. 19 :34-25b, which denounces the giving of money to any member of a district board of election “because of his membership on such board.” From the opinion it appears that what the indictment alleged was that the accused gave money to a named member of a designated local election board not as compensation fox services as such member, but “corruptly paid in connection with said election.” The indictment was adjudged insufficient and the conviction reversed. The court observed that “The importance of honest elections cannot be stressed too much; but equally important are clarity and accuracy in charges of crime in a judicial proceeding.”

Looking away from the immediate case, a moment’s reflection will show unmistakably, I think, how drastic a precedent would be involved in the approval of these indictments, a precedent for the use of general and inclusive terms in respects vital to the charge, when the terms in the basic statute are specific and exclusive. All extremities that could thus be sanctioned are, of course, unforeseeable, but one result is certain : The constitutional right of a defendant to be informed adequately, at the outset, in the presentment against him would be reduced to a mere Stance of being informed, belatedly, depending upon the trial court’s disposition of a motion for particulars.

1 have considered all other objections to indictments Nos. 146 and 148 and find no merit in them. For the reasons stated, the motions directed to these indictments are granted.

Coming now to indictments Nos. 147 and 149, one objection is that they are vague and indefinite to the extent of involving the hazard of double jeopardy and that they come short of adequately informing the accused of the charges they are being called upon to meet. It is my opinion that this point of objection will be fully answered by a review of the indictments themselves. The conspiracy is charged in the established formula and in conformity with the statute; its stated object is the commission of a crime, that is, to cheat and defraud the designated persons, all male employees in the various departments of the Jersey City government, by means of pretending to them that the accused were duly authorized and lawful representatives and agents of the candidates, in the indictments named, for election as city commissioners in the then impending municipal election, and also that they were the representatives and agents of the then lawfully designated campaign manager of such candidates; and that such pretenses were entirely false and untrue to the knowledge of the accused. There are further pretenses alleged, as within the design of the conspiracy, which need not be recited here. The indictments go on to charge that by color and means of the alleged pretenses the accused did cheat and defraud the said male employees of their moneys and did thus obtain from them the aggregate sum of approximately $300,000 (in indictment No. 147) and of approximately $315,000 (in indictment No. 149). In each indictment numerous overt acts are set forth.

Conspiracy “To commit a crime” is within the terms of our statute; likewise, conspiracy “To cheat and defraud a person of any property by any means which are in themselves criminal” and conspiracy “To obtain money by false pretenses.” R. S. 2:119-1. A clmspiracy to cheat and defraud by means of false pretense was also indictable at common law. 3 Chitty, Criminal Law (3rd Am. ed. 1836), 1179; 2 Russell, Crime (9th ed. 1936), 1451. In State v. Young and Stainsby, 37 N. J. L. 184, 187 (Sup. Ct. 1874), Chief Justice Beasley said: “Mr. Bishop, in his second volume on Criminal Law, § 171, says that the English courts now hold, although doubts were entertained in the earlier stage of the inquiry, that the words ‘unlawfully, fraudulently and deceitfully, did conspire, combine, confederate and agree together to cheat and defraud’ one ‘of his goods and chattels/ contain a sufficient allegation of conspiracy, without the mention of any means intended.” Apt words such as will describe the conspiracy and its object as a conclusion of law are sufficient. 2 Wharton, Criminal Law (2th ed. 1932), 1866, § 1610; State v. Garrison, 130 N. J. L. 350, 351 (Sup. Ct. 1943). It is sufficient that the indictment allege enough facts with particularity to constitute the crime charged. 2 Wharton, Criminal Law (11th ed. 1913), 1750, § 1608.

Under the head of the objection for indefiniteness, defendants stress the failure of the indictments to name the persons to be defrauded. As already seen, these persons are not identified by name but as members of a group comprising the class described, that is, male employees of the designated departments of the city government. Defendants cite no authority in support of this contention. The State relies upon the principle enunciated in Archer v. State, 125 A. 744. (Md. Ct. of Apps., 1924); Glasser v. United States, 315 U. S. 60, 66; 86 L. Ed. 680 (1942), rehearing denied, sub nom. Kretske v. United States, 315 U. S. 827 (1942); and the following text in 2 Wharton, Criminal Law (11th ed. 1912), 1820, § 1663: “* * * Where, however, the conspiracy was to defraud a class not capable of being at the time resolved into individuals, or to defraud the public generally, then the specification of names is impracticable, and hence unnecessary.”

It is my view that an accommodating principle legitimately emerges from the necessity indicated in the situation presented. While there is no question of the court’s exercising judicial notice of the precise number of persons comprising that group, it is not incumbent on the court, under these circumstances and upon these motions, to decline to recognize, for present purposes and on the grounds to be stated, the fact that the group is numerous to the extent that it is “not capable of being at the time resolved into individuals” and that their general designation as a group does not violate the right of these defendants to be reasonably apprised of the charge they are called upon to meet. The latter consideration dominates all others. If the indictments comply with that canon the omission is not important, certainly not fatal. I think they do comply. The identification here of all the persons in question is, in effect, by way of reference to a roster of all the male employees in the named public departments of the city. The charge is a conspiracy to defraud such persons by the means described. The question posed by the objection is who were the male employees of these departments during the period covered by the accusation? I see no substantial difference in law between identification by reference to such a roster and hi making the indictment itself a roster of the names. It is my judgment that the apprisement of defendants is sufficient, mainly for the reason about to be stated.

There is another important consideration in this regard as I see it. The intended victims of the combination, as alleged, are described throughout in their total group aspect, that is, as “the male employees” of the departments stated. It is thus reasonably apparent from the charge, as framed, that its intent is that the male employees in question were identified in the minds of defendants themselves, not individually, but as members of the employed group and that their amenability to the concerted design arose from such membership; in a word, that the purpose of the conspiracy comprehended primarily the group as such, so that the importance ordinarily attaching to individual personal identities does not here obtain.

Further objection is made that each of these indictments is double, the argument being that they charge not only conspiracy to obtain money by false pretense but the consummated crime of false pretense as well. This has reference to the paragraph immediately following the allegation of means and immediately preceding the alleged overt acts, wherein it is charged that “by color and means of such false pretenses as aforesaid, they, the said defendants, did cheat and defraud the said male employees * * * of their moneys, and they, the said defendants, did by such color and means obtain from the said employees” the sums of money hereinabove set forth. The fallacy here appears to me to be obvious. Defendants earnestly wish the court to understand that the grand jury did not indict for the completed crime but for conspiracy to commit such crime. That is precisely the case, and so the matter stands. The defendants are indicted for conspiracy, and the issue of traverse will present the single question of guilt or innocence under that charge and no other. Defendants mistake the paragraph last quoted for a charge that carries the indictment beyond the scope of the conspiracy alleged, which it manifestly does not. In effect, the paragraph charges simply that the conspiracy was completed in the attainment of its object. The charge in an indictment for conspiracy that the conspiracy has been fully executed presents no problem in duplicity. If defendants’ point were to be taken as valid, it would follow that an indictment for conspiracy to commit a crime must presuppose the failure to accomplish the confederated design; either that, ox, if such design bo an accomplished one, the accomplishment must remain unalleged, lest otherwise the indictment be vitiated by its duplicity. I am aware of no such restriction. It is more than probable, I take it, that if the object of the conspiracy here alleged were not in itself a crime, it would not have occurred to counsel to make the point. Where the allegation of accomplishment is tantamount to the allegation of a criminal offense, it is the appearance that deceives, though in reality the situation does not differ from the analogous one where it is a non-criminal object which is alleged to have been achieved.

In criminal conspiracy the accomplishment of a criminal objective that is, in itself, a crime may be pleaded and shown. Wood v. State, 47 N. J. L. 180 (Sup. Ct. 1885); Patterson v. United States, 222 Fed. 599 (C. C. A. 6th, 1915); certiorari denied, 238 U. S. 635 (1915); Joyce, Indictments (2nd ed. 1924) 633, § 546, citing Knoell v. United States, 239 Fed. 16 (C. C. A. 3rd, 1917) and other decisions. See also Johnson v. State, 26 N. J. L. 313, 322 (Sup. Ct. 1857), affirmed 29 N. J. L. 453 (E. & A. 1861); State v. Simon, 113 N. J. L. 521 (Sup. Ct. 1934), affirmed 115 N. J. L. 207 (E. & A. 1935); State v. Profita, 113 N. J. L. 330 (Sup. Ct. 1934), affirmed 114 N. J. L. 334 (E. & A. 1935); Noyes v. State, 41 N. J. L. 418 (Sup. Ct. 1879), affirmed 43 N. J. L. 672 (E. & A. 1881).

It is next urged that the description of the pretense as “fraudulent” only, that is, the failure to describe it aiso as “false,” negatives the criminal character of the conspiracy and nullifies the charge. The answer to this objection is that, if the inescapable sense of the whole text carries the same meaning without the word “false” as with it. the omission can be of no consequence. Excluding all words not relevant to the point, the indictment is that the defendants conspired to cheat and defraud the persons mentioned “by means of * * * designedly and fraudulently pretending * * * that they, the said defendants, were the duly authorized and lawful representatives * * * of the * * * candidates * * * whereas in truth and in fact, as they, the said defendants, well knew, they were not the * * * representatives and agents for the * * * candidates” and “by color and means of such false pretenses as aforesaid, they, the said defendants, did cheat and defraud (the persons, mentioned)” of moneys in the sum stated. If one “designedly and fraudulently” pretends the existence of a fact which, to his knowledge, is non-existent, it follows not only that the pretense is false but false to the pretender’s knowledge. The missing adjective would add nothing to what is already expressed without it.

In answer to the objection that the indictments do-not charge an- intent in the defendants to achieve their own personal gain, it need only be said, I think, that one is presumed to intend the natural and necessary consequences of his acts, and further, that the particular use to which the moneys were put by defendants after accomplishing the pur-, pose of obtaining them is immaterial.

It is finally contended that the indictments are-specifically false in their averment that the “other persons,” with whom the two defendants are alleged to have conspired, are persons “whose names are as yet unknown to the Grand Jurors.” This, they say, is “a device (which) compounds uncertainty and is grossly prejudicial to the defendants.” Eor proof that the averment is untrue, counsel rely on the circumstance that the other indictments brought up on this motion, Nos. 146 and 148, contain no reference to-unknown persons, and that, together with the two defendants in the indictments now considered, there are in indictments Nos. 146 and 148 four other defendants, as well as 12 additional co-conspirators who are named though expressly not-indicated. What is urged is that the grand jury must have known the names of the persons it here represents to be unknown, since it names these persons in the other indictments. This, to me, is strange argument. There is no connection between any two of the four indictments presented on this motion, and it should be unnecessary to say that the court neither can nor should presume that there is. They are separate, individual presentments and any apparent relation is incidental. The authorities cited by defendants have no present application. Wherever the question is dealt with in the cases it is, perforce, upon the development in the trial of proofs bearing upon it. See State v. Smith, 89 N. J. L. 52 (Sup. Ct. 1916); State v. Faure, 98 N. J. L. 18 (Sup. Ct. 1922); State v. Rappise, 3 N. J. Super. 30 (App. Div. 1949). Representation made by a grand inquest in an indictment that the identity of all or some of the persons accused therein is unknown to the grand inquest is presumed to be true until the contrary has been established by proof. State v. Tachin, 92 N. J. L. 269, 277 (Sup. Ct. 1919), affirmed 93 N. J. L. 485 (E. & A. 1919); State v. Shipley, 10 N. J. Super. 245 (App. Div. 1950); Coffin v. United States, 156 U. S. 432, 39 L. Ed. 481 (1895). In Coffin v. United States, supra, at 451, Mr. Justice White declared “* * * the true rule is that, where nothing appears to the contrary, the verity of the averment of want of knowledge in the grand jury is presumed. Thus, it was said in Commonwealth v. Thornton, 14 Gray [41, 42], 43: ‘The fact that the name of the person was in fact known, must appear from the evidence in the case. It is immaterial whether it so appears from the evidence offered by the government, or that offered by the defendant. But, there being no evidence to the contrar}', the objection that the party was not unknown does not arise.’ ”

The motions to dismiss indictments Nos. 146 and 148 are granted. The motions to dismiss indictments Nos. 147 and 149 are denied.


author: Haetshokne, J. C. C.

text:
    ALFONSE ALFONE, AND THERESA ALFONE, PLAINTIFFS, v. THE NEWARK UMBRELLA FRAME CO., DEFENDANT.
    Esses County Court Law Division
    Decided May 3, 1951.

      Mr. Jack L. Galien, attorney for plaintiffs.

      Messrs. Schneider & Schneider (Mr. Henry Morgan appearing), attorneys for defendant.
   Haetshokne, J. C. C.

Defendant moves to strike counts 1, 2, 4, 5, and 7 of the complaint filed by plaintiffs, husband and wife, against defendant for libel and slander.

In substance, count 1 charges the libel of plaintiff husband for “dishonesty,” i. e., a charge libelous per se. Count 2 charges the slander of plaintiff husband, for being “a thief,” i. e., actionable per se. Count 3 for malicious prosecution of the husband is not attacked. Count 4 is a suit by the wife because of the libe] in count 1 against the husband, alleging special damage to her therefrom, in that thereby she was “brought into public scandal”; that her “former associates * * * have refused * * * to have any transactions” with her; that she has thereby been deprived “of the society and comfort of her husband,” and has been “deprived of financial support from her said husband.” Count 5 seeks for the wife the same damages as in count 4, because of the slander of her husband in count 2. Count 6 is to be amended by counsel. In count 7, the wife sues for a separate slander of herself as “a thief,” i. e., a charge actionable per se.

The bases for the attack on counts 1, 2, and 7 are insubstantial and will not be discussed.

The prime question is as to the validity of counts 4 and 5, where the wife sues for damages caused her by the libel and slander of her husband. Defendant, relying on Tobiassen v. Polley, 96 N. J. L. 66 (Sup. Ct. 1921), claims the wife has no such right of action. Plaintiff relies to the contrary on Sims v. Sims, 79 N. J. L. 577 (E. & A. 1910); Commercial Carriers v. Small, 277 Ky. 189, 126 S. W. 2d 143 (Court of Appeals, 1939); and McDade v. West, 80 Ga. App. 481, 56 S. E. 2d 299 (Court of Appeals, 1949).

The Tobiassen case is not one of libel or slander, but a negligence case. The court there is at great care to distinguish the Sims case. The Sims case deals with alienation of affections, i. e., an intentional act, as is libel and slander, as distinguished from a negligent act. The Sims decision, parenthetically, reversed a contrary decision of the old Supreme Court, which held the wife had no such cause of action, in line with the decision in the Tobiassen case. Indeed, the strong attack made by the court in Hitaffer v. Argonne Co., 183 F. 2d 811 (Court of Appeals, 1950) on the rationale of the Tobiassen case, makes interesting reading. See to the same effect Prosser, Torts, p. 948; Harper, Torts, p. 566; 36 Cornell Law Quarterly, pp. 148, 155.

In the Tobiassen case, the court says “a wife cannot maintain an action in her own name for the loss of her husband’s services, including the right of consortium, resulting from personal injury to him caused by the negligence of a stranger, and not the result of a malicious interference with the society, companionship and right of consortium of her husband.” (Italics ours.) The court there concludes that the. Married Women’s Property Act does not give the wife a cause of action for “a tort against her husband, devoid of any malice towards the wife.”

This careful limitation of the holding in the Tobiassen case to a cause of action for negligence, and its inapplicability to a situation where there was “a malicious interference” with her consortium with her husband, was clearly made requisite by the holding the Sims case. Eor, in the Sims case our Court of Errors and Appeals considered the entire background, both at common law and under the Married Women’s Property Act, of the situation of husband and wife in regard to torts. The court called attention to the fact that “In its early stages the common law notoriously enveloped the identity of the wife and all her possessions in the personality of the husband.” P. 579. The court found “that the right of consortium was recognized by the common law as an existing rigid in the married woman, however, but incapable of enforcement owing to the common law doctrine of identity of personality,” quoting Blackstone to that effect. Thus, it was held that the “loss of consortium was an injury to the wife, and that its enforcement was her right * * * from which it follows that if at any time the legislature should remove the common law impediment as to remedy, (as by the Married Women’s Property Act, L. 1906, c. 248, sec. 1, p. 525, as am. by L. 1909, c. 138, sec. 1, p. 210, R. S. 37:2-9), the right existing is thus made capable of enforcement under the remedial code.” Further, referring to the Married Women’s Property Act, our highest court says, “That this act was intended to confer the power upon a married woman to protect and enforce her rights, is the specific announcement contained in its title. * * * the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor which would enable her to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the common law.” P. 582.

On general principles, it is thus clear that, except perchance as to negligence actions, of which the Tobiassen case is an instance, intentional torts to the wife are presently suable by her in her own name.

Defendant raises the further point that while this may perchance be true as to intentional torts generally, it is not true as to libel and slander, which are claimed to be peculiarly personal. It is true that, generally speaking, no action lies by a third person for damages suffered by reason of defamation of another person, 53 C. J. S. Libel and Slander, sec. 145, and that this applies even to other members of a family. Ibid. sec. 11, p. 53. On the other hand, it has been the common law, literally for centuries, that a husband could sue for words defamatory of his wife, which injure him. See the report in Norman Erench of the early English case, quoted, with further citations, in Odgers, Libel and Slander (5th ed.), ch. XXI, p. 568. See also to the same effect Newell, Slander and Libel (4ih ed.), sec. 314, p. 349; Garrison v. Sun Printing Association, 45 L. R. A. (N. S.) 766 (N. Y. Court of Appeals, 1912), and note. If then, because of the intimate relations between husband and wife, this right has been recognized throughout the centuries on the part of the husband for a libel to the wife, it follows from the rule announced by our highest court in the Sims case, that at least as to intentional torts, the Married Women’s Property Act has given her an “equality of remedy as an independent suitor,” so that she may now “vindicate her right in personam for a tort committed against her” for this loss of her consortium.

Of course, there can be no double recovery for the “loss of support” due to the libel or slander. Since the source of this support is the husband, and he seeks such recovery in counts 1 and 2, the paragraphs in the 4th and 5th counts seeking recovery therefor will be stricken. Otherwise, defendant’s motion is denied.


author: Ooktlon, J. C. C.

text:
    MOTOR TRUCKING CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. De GENNARO TRANSPORTATION, INC., CARMEN TRIONE, AND MONARCH FIRE INSURANCE COMPANY, A CORPORATION, DEFENDANTS.
    Essex County Court Law Division
    Decided May 3, 1951.

      Mr. Henry J. Bendheim, for the plaintiff.

      Messrs. GoxA W albur g (Mr. John A. Gleeson), for defendant Monarch Eire Insurance Company.
   Ooktlon, J. C. C.

The coinplaint is in two counts. In the first count plaintiff alleges the loss of its goods by the default of the defendant, De Gennaro Transportation, Inc., a common carrier, and Carmen Trione, its employee. In the second count plaintiff alleges that defendant, Monarch Eire Insurance Company, issued an indemnity policy in favor of the De Gennaro Transportation, Inc.; that the policy was issued for the benefit of the plaintiff; that an action has accrued thereunder and seeks judgment against the insurance company for the amount of its loss.

The defendant, De Gennaro Transportation, Inc., has filed a cross-complaint against the Monarch Eire Insurance Company under the indemnity policy. The issue between the parties seems to be whether or not the merchandise in question, at the time it was stolen from the De Gennaro truck, was in the possession of the plaintiff or the defendant, the defendant contending that it was not a common carrier since the plaintiff had hired the truck.

The defendant insurance company moves for a severance of the trial as to the first count of the complaint and a separate trial together of the second count and the cross-complaint. It contends that if there be a joint trial its rights will be prejudiced by the revelation to the jury that the De Gennaro Transportation, Inc., is insured.

On the other hand, the plaintiff contends that since the insurance company’s defense is that its policy does not cover the loss for the same reason the De Gennaro Transportation, Inc., denies liability, a separate trial might result in requiring the litigation of the factual question twice with the possibility of different results.

The motion is governed by Buie 3 :42-2 which in effect provides that its disposition is in the discretion of the court, the purpose being to avoid prejudice to any of the parties.

The defendant insurance company contends that it is improperly joined as a party to the action and that the issue, if determinable at all in this action, should be disposed of by the cross-complaint. It is unnecessary to decide that point since I am satisfied that a joint trial of the contingent liability of the insurance company with the main issue would be prejudicial to the rights of both defendants.

An order will be entered directing a separate trial on the first count leaving the issue on the second count and the cross-complaint to be tried later if the plaintiff prevails at the first trial.


author: BrGELOW, J. A. D.

text:
    CARMINE RICHARD, PLAINTIFF-APPELLANT, v. DOMINICK FALLETI AND HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 16, 1951
    Decided May 9, 1951.

      Before Judges Eastwood, Bigelow and Fkeund.

      Mr. George A. Smith argued the cause for the appellant (Messrs. Colliding, Smith .& Towe, attorneys).

      Mr. Albert L. Zorn argued the cause for the respondents (Messrs. Ilirschberg, Nashel, Zorn & Cronson, attorneys).
   The opinion of the court was delivered by

BrGELOW, J. A. D.

The appellant, a real estate broker, sues for the unpaid half of a commission earned on the sale of land. The trial court held that plaintiff’s right was contingent on delivery of the deed and rendered judgment for defendants inasmuch as the deed had not been delivered.

By the contract between the parties to the action, the defendant agreed to pay a commission of $750 “in consideration of services rendered in connection with the sale” of defendants’ premises; “said commission to be paid one-half on signing agreement for sale of property and the balance on delivery of deed.” The agreement of sale was signed the same day and $3,000 on account of the purchase price was paid. At the same time, the defendants paid plaintiff $375, being one-half the stipulated commission. Two and one-half months later-—time having been made of the essence—defendants tendered the deed, but the buyer failed to pay the purchase price, “stating that he did not have in hand funds necessary to perform on his part.” And so there was no delivery of deed.

It is familiar law that in the absence of a special agreement, a broker earns his commission when he produces a customer able and willing to buy the property upon the seller’s terms. The broker is entitled to a commission if the seller accepts the broker’s customer and enters into a binding contract with him, even though the buyer eventually proves to be financially unable to carry out the purchase. Freeman v. Van Wagenen, 90 N. J. L. 358 (Sup. Ct. 1917); Matz v. Bessman, 1 N. J. Misc. 5. (Sup. Ct. 1923); Brindley v. Brook, 10 N. J. Misc. 612 (Sup. Ct. 1932). The rule is the same in other jurisdictions. 12 C. J. S., Brokers, § 85, p. 188. The broker and his employer may, however, by the use of appropriate language, make the broker’s right to a .commission depend upon a future happening, such as the actual passage of title from vendor to purchaser.

Our leading case on the subject is Hinds v. Henry, 36 N. J. L. 328 (Sup. Ct. 1873). There the vendor formally acknowledged himself indebted to the broker in a certain sum payable “the first half thereof at the time the purchasers shall pay over the first half of the purchase money, and the balance at the expiration of one year from the date of the deed.” The purchasers refused to accept title and the broker sued for his commission but the court, in an opinion by Justice Depue, held he was not entitled because the debt was payable only on a contingency which had not arisen. To the same effect are Morse v. Conley, 83 N. J. L. 416 (Sup. Ct. 1912), where the commission was payable “lor services in the matter oí the consummation of the sale, at the time of the consummation of the same,” and Leschziner v. Bauman, 83 N. J. L. 743 (E. & A. 1912), where the contract called for payment “on the day of passing title, on July 15th.” In Simon v. Garber, 3 N. J. Misc. 150 (Sup. Ct. 1925), the agreement to pay a commission was contained in the contract of sale: “said commission to be paid in consideration of services rendered in consummating this sale; said commission to be paid upon delivery of deed.” And the court held that the right to commissions was contingent upon the delivery of the deed. In Lippincott v. Content, 123 N. J. L. 277 (E. & A. 1939), the language was much the same: “said commission to be paid in consideration of services rendered in consummating this sale; said commission to become due and payable upon closing title.” Again, the court held that actual passing of title was a necessary condition precedent to the broker’s right to recover. Likewise in Real Estate Exchange v. Lieberman, 8 N. J. Super. 99 (App. Div. 1950), where the owner agreed that the commission “shall be paid to the Real Estate Exchange of-Atlantic City upon title passing,” the court decided that “passing of title constituted a part of requisite performance.” These cases seem to be in harmony with the majority of American decisions. See annotations in 51 A. L. R. 1399 and 73 A. L. R. 929. Amies v. Wesnofske, 174 N. E. 436; 73 A. L. R. 918 (N. Y. 1931) is in its facts very close indeed to the case before us.

Now contrast the following cases with those above cited. Lehrhoff v. Schwartsky, 2 N. J. Misc. 353 (Sup. Ct. 1924), on an agreement to pay a commission “for services rendered in the sale of premises * * * said amount to be paid * * * on the date of closing title.” Although title never passed, the broker recovered a judgment which was affirmed on the appeal, for “the payment o£ commissions was not made dependent upon the actual passing of title.” In Mahlenbrock v. Stonehell Really Co., 104 N. J. L. 176 (E. & A. 1927), a clause in the agreement of sale read: “Harry Mahlenbrock was the agent who consummated this sale and that there is due to him a commission of $1,750 payable at the conveyance of the premises.” After the purchaser refused to accept the title, the broker sued and recovered. The court held that “The broker’s commission was not made contingent upon the actual transfer of title.” And in Kram v. Losito, 105 N. J. L. 588 (E. & A. 1929), the defendant, the vendor, agreed to pay the commission “upon the execution and payment by the above-mentioned purchasers of the balance of the initial payment of the purchase price of five thousand dollars.” The court said “that where there is an agreement to pay commission and the date of payment is set for a future event, the happening of the event is not a condition unless directly or impliedly made so in the agreement.” The court affirmed judgment for the broker, saying, “The time having arrived when the commission should have been paid, the respondent’s right of action accrued.” J. R. Tucker, Inc. v. Mahaffey, 6 N. J. Misc. 17 (Sup. Ct. 1928), dealt with an agreement for a commission “to be due and payable at time of final settlement.” The court held that “this in nowise made the payment of the commission contingent upon the settlement. It merely fixed a date when the commission earned shall be paid. In the agreement between the vendors and vendee, the time of settlement was fixed for March 23, 1926, and that date was the time when it was intended that payment of- the commission, earned by the broker, became due and payable. The fact that the settlement did not take place on that date, or that the date of final settlement was postponed to a later date, or never took place at all, cannot operate to defeat the broker’s claim to the commission earned by it. The writing given by the appellants to the respondents in express terms recognizes that the latter earned its commission, and simply fixed a date when payment shall become due.” .

Even in Lippincott v. Content, supra, while the broker lost the action, the court said that “a clause to the effect that the commission is payable upon closing title merely fixes the time for payment of the commission.”

The cases last cited are in accord with the rule governing contracts generally: Where a debt has arisen, liability will not be excused because, without fault of the creditor and due to happenings beyond his control, the time for payment, as fixed by the contraed, can never arrive. Restatement, Contracts, § 301; Williston, Contracts, § 799; Goldfarb v. Cohen, 102 A. 649 (Conn. 1917).

The second group of eases cited, those decided in favor of the broker, govern us. We think that Hinds v. Henry, supra, did not construe the contract that was before the court, as it would be construed today. The other cases cited where judgment went against the broker, may be distinguished. Morse v. Conley, Simon v. Garber and Lippincott v. Content seem to depend upon the expression, consummation of the sale, which was taken to mean delivery of the deed and payment of the purchase price, and thus the result was reached that the full agreed consideration for the commission had not been rendered. In Leschziner v. Bauman and Real Estate Exchange v. Lieberman, the promise to pay the commission was directly tied to the event of title passing; there was no separate, unqualified agreement to pay. While these distinctions may seem over-nice, it must bo remembered that they grow from the ambiguous language used by the parties in contracting.

In the instant appeal, the broker completed performance on his part when he induced the purchaser to sign the agreement of sale. He was under no duty to assist at the closing of title. The promise to pay him a commission -was not in form conditional: “We hereby agree to pay to Carmine Richard a commission in the amount of $725.” The clause fixing the time for payment is independent, separated by a semicolon from the agreement to pay,—“said commission to be paid one-half on signing of Agreement of Sale and the balance on delivery of deed.” We are satisfied that the obligation to pay was not made contingent on delivery of the deed. The commission fell due when it became evident that the buyer could not or would not pay for the land.

The judgment is reversed.