text:
    DOLORES E. NOVERN, PLAINTIFF, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF, v. CHRISTEL NOYERN, THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey-Law Division
    Decided December 3, 1969.

      Messrs. Hespe & Hespe, attorneys for plaintiff.

      Messrs. Stein and Stein, attorneys for third-party defendant.
   Beeslin, J. D. C.

(temporarily assigned). This action was originally commenced by plaintiff filing a complaint against defendant John Hancock Mutual Life Insurance Co. seeking recovery of the sum of $7,500 as the named beneficiary by virtue of policy No. 11649-G-TC issued by defendant on the life of one Thomas M. Novern who died on August 23, 1968. An answer and counterclaim for interpleader was filed by John Hancock. The counterclaim contended that one Christel Novern was asserting a claim to the proceeds of the policy. A third-party complaint was thereafter filed by John Hancock against Christel Novern. By order of March 19, 1969 John Hancock was directed to pay the fund into court and jurisdiction was retained for the purpose of determining the rights of plaintiff and third-party defendant to the proceeds.

Plaintiff contends that she was the wife of Thomas M. Novern until she divorced him on May 22, 1968, and that there never was any change of beneficiary made in compliance with the provisions of the policy.

Third-party defendant contends that the interest of plaintiff as named beneficiary terminated when Thomas M. Novern ceased his employment with Yale Transportation Company on November 30, 1964. She further contends that in March 1967 Thomas M. Novern was reinstated as a member of Local 641, International Brotherhood of Teamsters, and again became eligible to the benefits of the policy in question; that at that time the third-party defendant was named as beneficiary under the group insurance policy, and as a consequence of said change she is entitled to the proceeds of the policy.

The following provisions of the policy are pertinent to the issue as to which party is entitled to the proceeds:

A. Beneficiary. Any employee insured under the Policy for Life Insurance shall have the right to designate a beneficiary, and from time to time may revoke or change such designation by filing written notice thereof with the Trustee (s), but such designation, revocation or change shall not be valid unless it is in writing, on forms supplied for that purpose by the Company, or satisfactory to the Company, and is on file with the Trustee (s). After such written notice has been received by the Trustee (s), it shall relate back to take effect as of the date the employee signed said written notice whether or not the employee be living at the time of the recent of such written notice.
B. If an employee does not designate a beneficiary for Life Insurance under this Policy on a form supplied by the Company or satisfactory to it the Company may at its option pay the Life Insurance to the person last designated as beneficiary by the Employee in writing on forms supplied for that purpose or satisfactory to the Company and on file with the Trustee(s) with respect to former insurance of the employee under any of the other group policies previously issued to the Trucking Employees of North Jersey Welfare Eund, Inc., the Trucking Employees of Passaic and Bergen Counties Welfare Fund, the Affiliated Truckers Trustee Fund, Inc., or the Local 560, Salesmen & Mechanics Division Welfare Fund and which group policies terminated before the date the employee became insured hereunder.
C. If any employee, whose Life Insurance under this Policy ceased, again becomes insured hereunder for Life Insurance and there is a designated beneficiary of such employee with respect to Life Insurance under this Policy on file with the Trustees, such designation shall continue to be the designation of his beneficiary unless and until revoked or changed by the employee, in the manner described above.

The proofs establish that the insured became a member of Local 641 on or about April 1, 1964 by virtue of his employment with Yale Transportation Company. By reason of that membership he was entitled to the benefits of group insurance policy No. 11649-GTC issued by John Hancock to the trustees of the Trucking Employees General Welfare Eund. The insured named plaintiff as the beneficiary in his application for group insurance under that policy. In November 1965 the insured ceased his employment with Yale and was employed by Schulman Air Ereight Co., which was not a member of Local 641. In May 1968 he became employed with R. C. Motor Lines, Inc. and was reinstated in Local 641. His application for membership in Local 641 dated March 26, 1967, set forth Ohristel Novern as his next of kin and beneficiary and stated that she was his wife. No change in beneficiary was ever made on forms supplied by John Hancock. Plaintiff obtained a final decree of divorce against the insured on May 22, 1968. Under the terms of the decree the insured was ordered to pay weekly sums for her support and two children of the marriage.

I

Did the interest of plaintiff as named beneficiary cease upon termination of the insured’s employment with Tale Transportation Company in 1965?

It is well settled in New Jersey that when the policy so provides, the termination of employment of an employee insured under a group insurance plan terminates the insurance coverage. Mau v. Union Labor Life Ins. Co., 31 N. J. Super. 362 (App. Div. 1954); Keane v. Aetna Life Ins. Co., 22 N. J. Super. 296 (1952); Shaffer v. Metropolitan Life Ins. Co., 133 N. J. L. 53 (1945). In order to effect a discontinuance of the insurance, the termination of employment must be a clear and complete severance of the relationship of employer and employee. Ambrose v. Metropolitan Life Ins. Co., 18 N. J. Misc. 42, 10 A. 2d 479 (Cir. Ct. 1939). And it has been held that when an insured is discharged from employment and subsequently rehired, he retains no rights under his original policy certificate where the group policy expressly provides that a reemployment is to be classed as a new employment, accompanied by the issuance of a new policy certificate. Shaffer v. Metropolitan Life Ins. Co., supra.

The instant group policy, under the caption “Discontinuance of individual insurance for Employees,” provided for cessation of an employee’s coverage upon the dato of termination of his employment. The date of termination is defined in the policy as “the last day of any calendar month during which such employee failed to work at least eight days.”

Accordingly, when decedent quit his job with Tale Transportation Company in November 1964 and simultaneously gave up his membership in the contributing local union, and gained employment with another firm through a noncontributing union, he also relinquished his rights under his former union’s policy. It necessarily follows that his beneficiary, at that time, likewise retained no interest.

However, when decedent was thereafter reinstated to membership in his original local union and obtained employment with a trucker who had a collective bargaining agreement with that local, the policy was revived and decedent’s coverage was resumed. It is the court’s duty to enforce an insurance contract as written when its terms are clear and unambiguous. Kook v. American Surety Co. of New York, 88 N. J. Super. 43, 210 A. 2d 633 (App. Div. 1965); Rotwein v. General Accident Group, 103 N. J. Super. 406, 247 A. 2d 370 (1968); and the language of the policy in question is, indeed, clear that a rehired employee is covered under the policy and subject to its provisions. Page T-10 of the policy, marked in evidence, provides:

Each employee in the eligible class in Groups 1A, IB, or 2 who does not become eligible under this policy on December 1, 1954, and each such employee who "became insured under this policy but whose insurance hereunder ceased in accordance with the provisions entitled ‘Discontinuance of Individual Insurance’ contained herein, shall thereafter become eligible under this policy on the first day of the calendar month immediately following a calendar month during which such employee works at least eight days. [Emphasis added].

Obviously, the policy provisions were meant to apply to those persons, such as decedent, who were in a reemployment situation, and they, by virtue of the renewed coverage, were bound by its provisions.

One such provision, anticipating reemployment possibilities and their effect upon a former designation of beneficiary under the policy is found on page A-4 of the policy. It states:

If any employee, whose life insurance under this policy ceased, again becomes insured hereunder for life insurance, and there is a designated beneficiary of such employee with respect to Ufe insurance under this poUcy on file with the Trustees, such designation shall continue to be the designation of his beneficiary unless and until revoked or changed by the employee in the manner described above. [.Emphasis added].

Again the policy is clear. When the insured decedent left the union local, the individual policy terminated and his designated beneficiary held no further interest in it. Upon his subsequent reinstatement in the local, he was again insured under the policy and bound by its mandate that the original beneficiary was to remain as beneficiary until an effective revocation had been made. Therefore, although the plaintiff’s interest as beneficiary ceased upon her husband’s termination of employment, that interest was regenerated when he was restored to his former status. The only way plaintiff’s interest could then have been defeated was by changing the beneficiary in conformity with policy prerequisites.

II

Did plaintiff relinquish her rights to the proceeds of the policy upon the entry of the final decree of divorce ?

Where a divorced wife, who while she was the wife, was designated as the beneficiary in a certificate issued under a master policy, is awarded custody of minor children and her former husband is ordered to make regular payments to her, she has an insurable interest in the life of her former husband. Simmons v. Simmons, 272 S. W. 2d 913 (Tex. Ct. App. 1954).

If a beneficiary is named, or can otherwise be definitely identified, only her designation as insured’s wife is disrupted; and where the wife is designated as beneficiary, the person sustaining that relation to insured at the time the policy is issued, and not the one who becomes his wife at a later date, is the beneficiary under the policy. 46 O. J. S. Insurance § 1160, at 43.

The majority rule is that a judgment of divorce alone does not effect the former wife’s status as beneficiary under a preexisting life insurance policy. O’Brien v. Elder, 250 F.2d 275 (5 Cir. 1957); 44 Am Jur. 2d § 1740; Appleman, Insurance Law and Practice, § 804. And our own jurisdiction in John Hancock Mutual Life Ins. Co. v. Heidrick, 135 N. J. Eq. 326 (Ch. 1944), has held that absent a specific property settlement agreement to the contrary, or a later change of beneficiary, the right of the first wife, designated as beneficiary, to collect the life insurance proceeds after her divorce from the insured is unquestioned.

There is in evidence no agreement in the nature of a property settlement, nor any agreement incorporated into the final divorce decree, whereby the wife relinquished her rights to the insurance proceeds; the policy does itself not declare that the interest of the beneficiary-wife would be cancelled upon divorce. The only waj? the divorced wife’s interest as beneficiary could be revoked was by the insured’s properly affecting a change of beneficiary.

Ill

Did the naming of a third-party defendant as next of kin (beneficiary) in the application for membership by the insured on March 26, 1967 vest her with rights to the proceeds ?

As previously noted, under section A of the policy, the insured had the right to change the beneficiary on condition that the change be in writing on forms supplied by the insurance company or satisfactory to the company, and that the change be on file with the trustees.

A person named as beneficiary in an insurance policy has a vested interest in the policy, subject to divestiture upon a change of beneficiary by the insured during the latter’s lifetime. In re Posey, 89 N. J. Super. 293 (Cty. Ct. 1965) aff’d 92 N. J. Super. 259 (App. Div. 1966); Metropolitan Life Ins. Co. v. Dinzik, 141 N. J. Eq. 336 (Ch. 1948); John Hancock Mutual Life Ins. Co. v. Heidrick, supra. Since the beneficiary’s interest is vested, a divestiture is generally accomplished only by strict compliance with an insurer’s policy provisions setting forth acceptable methods of changing beneficiaries. John Hancock Mutual Life Ins. Co. v. Heidrick, supra; Prudential Ins. Co. v. Mantz, 128 N. J. Eq. 480 (Ch. 1941), aff’d o. b. 130 N. J. Eq. 385, (E. & A. 1941); Koczot v. Travelers Ins. Co., 130 N. J. Eq. 106 (Ch. 1941). In the latter case the insured, while on his deathbed, gave his daughter a written and signed paper directing the insurance company to change the beneficiary of his policy. The group policy provision stated that such changes were to be made on forms supplied by the company and received by it at its home office. When his daughter presented the paper to his employer, the employer’s manager went to the insured for the purpose of having him complete a form furnished by the insurance company. However, the insured was not physically able to comply with the instructions, and at his death the “informal” written request was the only statement of the change of beneficiary. The court held that this attempted change was ineffective since the formal request form supplied by the company was not received at its home office, and further held that the beneficiary had the right and privilege of insisting upon a compliance with the terms of the policies to effect a change. In Metropolitan Life Ins. Co. v. Dinzik, supra, the insured sought to change the beneficiary in a paper prepared by a notary public and it was held that such did not constitute a compliance with the provisions of the policy respecting a change of beneficiary.

However, the rule that strict compliance with the policy terms respecting a change of beneficiary is essential to effectuate such a change has been relaxed. If the insured has done everything he reasonably could to comply with such policy requirements and has substantially complied therewith, a change of beneficiary will be effected. Goldberg v. Hudson County National Bank, 123 N. J. Eq. 269 (E. & A. 1938); Continental Assur. Co. v. Conroy, 111 F. Supp. 370 (D. N. J. 1953); Kaplan v. Metropolitan Life Ins. Co., 20 N. J. Misc. 430, 29 A. 2d 143 (Cir. Ct. 1942). In Prudential Ins. Co. v. Swanson, 111 N. J. Eq. 477 (E. & A. 1932), the insured attempted to change the beneficiary by (1) executing an assignment while confined to a hospital, and (2) a letter directed to the insurance company indicating a desire to change the beneficiary and enclosing the assignment and requesting that the records of the company be changed to name her brother as beneficiary. It was held that an insured is excused from complying with the strict requirements of the policy only when he is able to convince the court that he has done everything within his power to effect a change and has made every reasonable effort to comply with the conditions of a change of beneficiary. Only then would the rule that substantial compliance is sufficient become applicable. It was further held that the insured had not done everything he could or should have done under the circumstances to comply with the requirements of the policy regarding change of beneficiary, and thus a change was not accomplished. The more recent case of Strohsahl v. Equitable Life Assur. Soc. of United States, 71 N. J. Super. 300 (Ch. Div. 1962), supported the doctrine of the earlier decisions by holding that substantial compliance with policy terms prescribing methods of changing beneficiaries is necessary because of the beneficiary’s vested interest.

There is no evidence in the instant case that the insured complied with the requirements of the policy relating to the change of beneficiary. The designation of Christel Novern as the next of kin (beneficiary), accompanied by a notation in his application for membership in Local 641 on March 26, 1967 that she was his wife, did not constitute a compliance, either strict or substantial, with the provisions of the policy. The insurance certificate provided that in order to accomplish a change of beneficiary, written notice of the change was to be filed by the insured with the policyholder, the trustees of the Trucking Employees of North Jersey Welfare Fund, Inc. The standard printed union application form, upon which numerous and diverse pieces of information were recorded, could not be considered an express written notice of change of beneficiary directed to the trustees. Considering the fact that more than a year elapsed between the time of his application and his death, a period which in some part could have been used by decedent to inquire into the proper method for changing his beneficiary, the completing of the application form was not all that decedent could reasonably have done to effectuate a change of beneficiary.

For the foregoing reasons the court concludes that plaintiff Dolores E. Novern, as existing beneficiary is entitled to the proceeds of the policy.


source: Caselaw Access Project

author: Lewis, J. A. D.

license: Public Domain

text:
    MARION EDWARDS SAMUEL, PLAINTIFF-RESPONDENT, v. CARRIE McDANIEL (ALSO KNOWN AS CARRIE SAMUEL), DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division.
    Argued October 14, 1969
    Decided December 4, 1969.

      Before Judges Goldmahn, Lewis and Matthews.

      Mr. Hymen B. Mintz argued the cause for appellant.

      Mr. John 0. Howell argued the cause for respondent (Messrs. Moore & Howell, attorneys).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendant Carrie McDaniel, also known as Carrie Samuel, appeals from judgments of the Superior Court, Chancery Division, Matrimonial Part, which respectively declared that (1) the 1955 State of South Carolina divorce decree granted to Henry Samuel, now deceased (herein Henry), from plaintiff Marion Edwards Samuel is null and void in New Jersey, and (2) plaintiff is entitled to an accounting for $4,339.49, United States Civil Service lump-sum retirement benefits, and $17,819, federal workmen’s compensation benefits, which were paid to defendant as the widow of decedent.

Plaintiff challenges the foreign divorce and maintains that she is entitled to all government payments made to defendant as the widow of decedent.

These are the relevant facts. Henry and plaintiff were married in 1940 at Newark and established a marital residence in that city. No children were born of that union. Subsequently, Henry and defendant, a next-door neighbor, engaged in extramarital relations, and defendant bore him two children. In 1944 plaintiff moved with the assistance of her husband to Connecticut, where she has resided since that time. Henry, however, immediately returned to Newark and took up residence with defendant; in all they parented five children, one of whom died. It is plain from the record that plaintiff was aware that Henry and defendant cohabited as husband and wife and that they were raising a family.

In 1954, after the birth of the fourth child, Henry sued plaintiff for divorce in Colleton County, South Carolina, alleging the requisite one-year residency requirement. Plaintiff was not served with process in those proceedings nor was she given any notice thereof except by publication in a South Carolina newspaper. The final decree of divorce was entered in 1955, and then Henry and defendant were ceremoniously married in Newark.

On May 17, 1960 Henry sustained a mortal injury in the course of his employment, as a civilian, by the United States Air Force.

The instant proceedings were commenced May 22, 1963. The trial court found that plaintiff: had no knowledge of the South Carolina divorce, nor of the subsequent marriage at Newark, until after the death of Henry. Hence, neither laches nor estoppel could be asserted to preclude her from challenging the jurisdiction of South Carolina to grant the divorce decree. Cf. Lawler v. Lawler, 2 N. J. 527, 535 (1949).

Since the facts reveal that Newark was the domicile of Henry at all times after 1940, this State is not required to give full faith and credit to the South Carolina divorce. Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Lea v. Lea, 18 N. J. 1, 7 (1955); Tonti v. Chadwick, 1 N. J. 531, 535 (1949); cf. Meeker v. Meeker, 52 N. J. 59, 70 (1968). Therefore, the divorce issue raised by the pleadings was properly disposed of by the trial judge.

We turn now to the money judgment. In February 1961 defendant, as the alleged surviving widow of Henry, received $4,339.49 from the Bureau of Eetirement and Insurance, United States Civil Service Commission, in “full payment of the lump-sum benefit due under the Civil Service Eetirement Law.”

In 1962 plaintiff applied for such death benefits and, on February 13, 1963, she was informed by the Bureau that her application had been disallowed. On the same day her attorney was advised that his client’s ease had been reviewed and, after noting the South Carolina divorce, the agency letter stated: “In the absence of a decision by a court of competent judisdiction setting aside such divorce before settlement of the claim, the Commission has no alternative but to accept the divorce decree as valid. Accordingly, payment was properly made to Carrie Samuel as the legal widow of Henry Samuel.”

No administrative appeal was taken from the determination of the Burean, and no proceedings were instituted by plaintiff in South Carolina to set aside the divorce that had been granted in that state. Furthermore, 5 U. S. G. A. § 8347, “Administration; regulations,” provides in part:

(e) The Commission shall determine questions of disability and dependency arising under this subchapter. The decisions of the Commission concerning these matters are final and conclusive and are not subject to review. * * *

In Gold v. Macy, 234 F. Supp. 764 (E. D. N. Y. 1964), there was a proceeding wherein plaintiffs sought reversal of a determination by the Federal Civil Service Commission. Defendants (commissioners) prevailed on a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The court observed that an appeal may be taken to the Commission’s Board of Appeals and Review from the original order or action affecting the rights or interest of any person under the Civil Service Retirement Law, citing 41 Stat. 616, § 4; 46 Stat. 478, § 17; 5 U. S. G. A. § 709; Executive Order 6670 of April 7, 1934 and 5 G. F. B. (1939 ed.), § 53. Compare 5 O. F. B. §§ 831.107, 831.1111 (1969). Plaintiffs made no allegation in their complaint that an appeal had been taken, but contended that it was unnecessary, also that an appeal is permissive, not mandatory. The court held, “In general, appeals are not mandatory. They do, however, constitute remedies, available to unsuccessful applicants.” 234 F. Supp., at 765. Cf. Cerrano v. Fleishman, 339 F. 2d 929, 930 (2 Cir. 1964), cert. den. 382 U. S. 855, 86 S. Ct. 106, 15 L. Ed. 2d 93 (1965); Lech v. United States, 409 F. 2d 252, 255, 187 Ct. Cl. 471 (1969).

A similar problem is posited with respect to the $17,819 workmen’s compensation benefits paid to defendant pursuant to an award by the Bureau of Employees’ Compensation, United States Department of Labor, entered January 26, 1961. Apparently plaintiff never filed with that agency an application for compensation benefits notwithstanding the congressional requirement that any such claim “for death shall be made within 1 year after the death.” 5 U. S. C. A. § 8122(a)(1).

Moreover, 5 U. S. C. A. § 8128 (formerly 5 U. S. C. A. §§ 787, 793) provides for a review of an award stating that:

(a) The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. The Secretary, in accordance with the facts found on review, may —
(1) end, decrease, or increase the compensation, previously awarded; or
(2) award compensation previously refused or discontinued.
(b) The action of the Secretary or his designee in allowing or denying a payment under this subchapter is —
(1) final and conclusive for all purposes and wiili respect to all questions of law and fact; and
(2) not subject to review by another official of the United States or by a court by mandamus or otherwise. [Emphasis added]

Pertinent decisional law has established that federal compensation awards ordinarily cannot be disturbed by the judiciary. See Calderon v. Tobin, 88 U. S. App. D. C. 134, 187 F. 2d 514, cert. den. 341 U. S. 935, 71 S. Ct. 854, 95 L. Ed. 1363, rehearing denied 342 U. S. 843, 72 S. Ct. 22, 96 L. Ed. 637 (1951); Teplitsky v. Bureau of Compensation U. S. Dept. of Labor, 288 F. Supp. 310 (S. D. N. Y.), aff’d o. b. 398 F. 2d 820 (2 Cir.), cert. den. 393 U. S. 943, 89 S. Ct. 311, 21 L. Ed. 2d 280 (1968). In Calderon there were three putative wives competing for benefits. The Appeals Board determined which claim was meritorious. Its decision was affirmed by the court in an opinion which noted:

The federal employees’ compensation allowances are grants by the Congress, and the agents of the Congress have power to determine the recipients of such grants. If Congress chose to preclude judicial review of the selection of the objects of its bounty, it could do so. [187 F. 2d, at 516]

Thus viewed it is plain that plaintiff did not exhaust her administrative remedies. See FCC v. Schreiber, 381 U. S. 279, 296-297, 85 S. Ct. 1459, 14 L. Ed. 2d 383 (1965); cf. Matawan Borough v. Monmouth Cty. Tax Bd., 51 N. J. 291, 296 (1968). See also Davis, Administrative Law, § 20.01, p. 56 (1958).

This is not a case for the application of the doctrine of constructive trusts, equitable restitution or the principle of unjust enrichment. Parenthetically we note that counsel should have called to the attention of the trial judge the above federal statutes and decisions and they should have been discussed in the respective briefs filed on appeal.

The judgment of the trial court declaring the South Carolina divorce to be of no force and effect in New Jersey is affirmed. The judgment requiring defendant to pay to plaintiff the moneys received from the United States Government by reason of Henry’s death is reversed. No costs.


author: Pee Curiam.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLAUDE HAMMOND, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 8, 1969
    Decided December 18, 1969.

      Before Judges Confoed, Collestee and Kolovsky.

      Mr. Samuel B. De Luca for defendant (Messrs. Krivit & Krivit, attorneys).

      Mr. Edward G. Megill, Assistant Prosecutor, for plaintiff (Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney).
   Pee Curiam.

The trial court erred in limiting the six defendants, including appellant, to ten peremptory challenges collectively, rather than allowing them ten each. N. J. 8. 2A :78-7; B. B. 3:7-2(c) (now B. l:8-3(d)). See State v. Bogers, 19 N. J. 218, 227 (1955). Common legal representation at trial does not affect the right.

Defendants exhausted the ten peremptory challenges allowed by the court. Denial of the right to the specified number of peremptory challenges is prejudicial per se. See Wright v. Bernstein, 23 N. J. 284, 295 (1957).

There was no error in the other grounds of appeal argued, but for the reason stated the conviction must be and is Reversed.


author: Coneord, P. J. A. D.

text:
    JOAN M. PHILLIPS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DONALD M. PHILLIPS, DECEASED, AND JOAN M. PHILLIPS, INDIVIDUALLY, PLAINTIFF-RESPONDENT, v. ERIE LACKAWANNA RAILROAD COMPANY, ET AL., DEFENDANTS, AND NEW JERSEY AND NEW YORK RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 14, 1969
    Decided December 11, 1969.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. Charles P. DeToe argued the cause for plaintiff (Messrs. DeToe, DeToe and Guiney, attorneys).

      Mr. Charles W. Hutchinson argued the cause for defendant New Jersey and New York Railroad Company (Messrs. Lamb, Blake, Hutchinson <£ Dunne, attorneys)
   The opinion of the court was delivered by

Coneord, P. J. A. D.

Defendant New Jersey and New York Railroad Company appeals from a judgment entered on a jury verdict in the amount of $300,000 in plaintiff’s favor. This is a wrongful death action, and it arises out of a grade-crossing accident on July 13, 1966 wherein a train operated by employees of defendant collided with an automobile being driven by plaintiff’s decedent at the Park Yiew Drive crossing of the Erie Lackawanna tracks in Hillsdale.

There must be a reversal because of the erroneous admission in evidence, over defendant’s objection, of the report of a hearing examiner of the Board of Public Utility Commissioners dated March 31, 1967, together with a confirmatory decision and order of the Board, based on evidence received at hearings duly conducted by the officer, wherein it was found that "visibility [was] obstructed” at the crossing, that two accidents had occurred at the location, and that there should be installed at the crossing automatic flashing lights and bells with appropriate warning signs.

Before stating the basis fox' that determination, we dispose of certain other grounds of appeal raised by defendant.

It is argued that contrary to plaintiff’s representation during trial that there would be no contention of negligent operation of the train (but only of maintenance of an extra-hazardous crossing), there were allusions in plaintiff’s summation to undue speed of the train and untruthfulness of the engineer’s testimony. We think any potentially prejudicial result in this regard was obviated by the court’s instructions to the jury.

Defendant contends there was insufficient evidence that the crossing was extra-hazardous to warrant submission of that issue to the jury. We have read the proofs in full and are constrained to disagree.

It is also asserted that there should have been an involuntary dismissal for failure on the part of plaintiff to establish causal relationship between any extra-hazardous condition of the crossing and the occurrence of the collision. The position is that the accident was exclusively the result of decedent’s contributory negligence. Again, we disagree. The issue of causal relationship was one for jury resolution.

Finally, it is maintained that judgment should have been entered for defendant because the decedent was guilty of contributory negligence as a matter of law, and that, in any event, there was error in denial of the motion for a new trial. We think it was open to the jury not to find contributory negligence under all the concomitant circumstances, including the hot weather and decedent’s use of the air conditioning in the car, requiring closing of the car windows. There was no error in the denial of the new trial insofar as based on matters other than introduction of the Public Utility proceedings in evidence.

We proceed to consideration of the latter issue.

The PUC report, decision and order proffered and received in evidence were obviously hearsay bxxt were received in evidence, over objection, under the purported authority of Evidence Buie 63(15) (“Beports and findings of public officials”), one of the exceptions to the hearsay rule, adopted June 6, 1967, effective September 11, 1967, a date prior to the trial of this action. This reads:

Subject to Rule 64', a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by such a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Evidence Rule 64 provides that a written statement admissible under Rule 63(15) may be excluded if fair notice of the intention to offer it was not afforded the adverse party. Fair notice was given here.

The broad subject of admissibility of official statements containing factual conclusions derived from investigatory proceedings has constituted a controversial area in the law of evidence and has evoked differing points of view. McGormiclc, Evidence § 294, at 616 (1954); 5 Wigmore, Evidence, (3d ed. 1940), §§ 1670-1672, pp. 672—703. Report of Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey, at 146-149 (1955) (hereinafter, “1955 Supreme Court Committee Report”); Report of the New Jersey Supreme Court Committee on Evidence, at 189-192 (March 1963), (hereinafter, “1963 Supreme Court Committee Report”). Direct case authority in New Jersey on the specific question stated is sparse, see McComish v. DeSoi, 83 N. J. Super. 505, 515-516 (App. Div. 1963), rev’d in part on other grounds, 42 N. J. 274 (1964), but in the comparable area of reports by officials offered under the business records exception to the hearsay rule our courts have taken a rather cautious approach in respect of admissibility of conclusionary data contained in such reports. See Brown v. Mortimer, 100 N. J. Super. 395, 405 (App. Div. 1968); Rogalsky v. Plymouth Homes, Inc., 100 N. J. Super. 501, 506 (App. Div. 1968), certif. den. 52 N. J. 167 (1968). Cf. Fagan v. City of Newark, 78 N. J. Super. 294, 316-318 (App. Div. 1963).

However, we need not enter into the policy debate reflected in the source data cited above, for we are satisfied that the historical background of the adoption in this State of Evidence Rule 63(15) demonstrates clearly the intent of the drafters not to allow in evidence conclusionary material resulting from official investigations embodied in statements or reports of the official or agency involved. We expressly distinguish statements properly admissible under Evidence Rule 63(13) “(Business entries),” a rule not argued or deemed by us to be applicable here.

The project for a comprehensive revision in New Jersey of the rules of evidence was initiated by the 1955 Supreme Court Committee. The report of that committee, as well as later such efforts, was based upon the Uniform Rules of Evidence proposed in 1953 by the National Conference of Commissioners on Uniform Laws. Hearsay evidence was excluded under Rule 63 of the Uniform Rules, but exceptions thereto were carved out in 31 subparagraphs. One of these, (15), headed “Reports and Pin dings of Public Officials”, reads:

Subject to Rule 64 written reports or findings of fact made by a public official of the United States or of a state or territory of the United States, if the judge finds that the making thereof was within the scope of the duty of such official and that it was his duty (a) to perform the act reported, or (b) to observe the act, condition or event reported, or (c) to investigate the facts concerning the act, condition or event and to make findings or draw conclusions based on such investigation; * * *

Perusal of the foregoing and of New Jersey Evidence Rule 63(15) makes it evident that (1) the reference in the uniform rule to findings or conclusions based upon an official investigation is conspicuously absent from Evidence Rule 63(15) now in effect in this State (except as to statistical findings); and (2) the uniform rule would prima facie render admissible the PUC documents under contention in this ease. The 1955 Supreme Court Committee report annotation states, in reference to Uniform Buie 63(15) :

The common law [official finding] exception (1) rested upon the premise that public officials are impartial recorders of their acts and observations, and (2) excused the appearance of the officials largely to avoid drains upon their lime. The proposed expansion of the rule (a) to eliminate the requirement of personal knowledge and (b) to include findings or conclusions based upon investigation is consonant with the premise of official impartiality, but expands the evidentiary area to limits which it is difficult to estimate. The provision for notice in Rule 64, with the right, apparently implicit, to examine the official at or before trial, would seem to run counter to the common law objective of preserving the working time of the reporting officials, [at 148]

In reference to the last observation quoted, regard should also be had for N. J. S. A. 48:2-38 which provides:

No member or employee of the board [Public Utility Commissioners] shall be required to give testimony or to furnish documents in a civil suit to which the board is not a party, with regard to information obtained by him in the discharge of his official duty.

• The 1955 Supreme Court Committee Report recommended adoption of Uniform Buie 63(15), but intimated the possible desirability of exclusion of reports by officials acting in judicial or giiossi-judicial proceedings, and, further, of a number of discretionary restrictions imposable by the trial court where the investigational findings or conclusions bore directly “upon a substantial issue in dispute.”

In 1956 a legislative commission (J. B. 15, 1955) headed by Judge Bigelow recommended the following version of Buie 63(15) :

Subject to Rule 64 written reports or findings of fact made by a public official of the United States or of a state or territory of the United States, other than officials acting in a judicial or quasi-judicial capacity, are admissible if the judge finds that the making thereof was within the scope of the duty of such official and that it was his duty (a) to perform the act reported, or (b) to observe the act, condition or event reported, or (c) to investigate the facts concerning the act, condition of event and to make statistical findings.

It is to bo noted that this commission not only excluded judicial and quasi-judicial reports but also “conclusions” and “findings” oí officials, generally, based upon investigations, except as to statistical findings.

In 1958 and 1959 there was extended discussion in legal circles oí a potential joint Legislative-Supreme Court approach to the formulation of revised evidence rules in order to meet the constitutional problem of rule-making jurisdiction posed by Winberry v. Salisbury, 5 N. J. 240 (1950). See 81 N. J. L. J. 16 (1958); 82 N. J. L. J. 500 (1959); 82 N. J. L. J. 560 (1959). This led to the adoption of the Evidence Act of 1960 (L. 1960, c. 52). That act revised the rules on privilege and the “Dead Man’s Act” (N. J. S. A. 2A:81-2), made miscellaneous other changes in evidence statutes, and enacted a mechanism by which rules of evidence could be proposed by the Supreme Court and become law if not rejected or modified by joint resolution passed by both legislative houses and signed by the Governor.

In 1962 the Supreme Court established a new committee to go forward with the work of evidence rules revision, and there eventuated the 1963 Supreme Court Committee Eeport. The version of Rule 63(15) proposed in this report basically followed the uniform rule as originally promulgated (see the text, supra) except only that it excluded reports or findings by officials acting in a judicial or gmm-judicial capacity and confined clause (c) (investigative findings or conclusions) to use in civil proceedings. The Committee comment (at 189-190) states:

It is as to paragraph (c), dealing with evaluative reports in civil cases only, where the opinions or conclusions of the investigator are often expressed and where the findings are based sometimes on hearsay, that serious questions have been raised. It has been argued that to let in findings based on someone else’s investigation after the fact is to destroy the judicial process and that the suggestion is an extreme one. On the other hand, the argument for the Rule is to the effect that reports by investigating officers are highly reliable, and that the courts should take full advantage of the facilities provided them by the resources of various investigating agencies. The investigator is usually on the scene at a time when the investigation is facilitated; the investigations made by litigants are often stale by comparison. As a general rule, the official investigator is competent and is a specialist with expertise in the subject of the investigation thus guaranteeing accurate reports. He is usually objective, thus insuring against bias in reporting. These factors tend to insure reliability.

The comment further suggests that a protection against unreliable investigative reports resides in the power of the judge under Rule 45 to exclude relevant evidence where th judge finds that its probative value is outweighed by dangers of prejudice or of misleading the jury (at 190-191).

The 1963 report was subjected to intense review at the Judicial Conference and by individual justices of the Supreme Court. On September 14, 1964 the Supreme Court announced the promulgation of the rules, effective July 1, 1965, subject to the provisions of the Evidence Act, 1960. Rule 63(15) as then promulgated read as follows:

Subject to Rule 64, a statement is admissible if in the form of (a) a written report or statement of fact made by a public official of the United States or of a state or territory of the United States, if the making thereof was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported, or (b) statistical findings made by such a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

Here we observe the outright desertion of the principle of admissibility of all investigatory findings or conclusions and a reversion to the limitation to statistical findings last theretofore articulated in the 1956 report of the Bigelow Legislative Commission, supra, and also supported by the March 1963 Report of the Project Committee on Proposed Rules of Evidence of the Essex County Bar Foundation (at 44-45).

A Rules of Evidence Study Commission was set up by the Legislature (SCR 28, 1966; SCR 1, 1967) to evaluate the 1964 proposals of the Supreme Court. At a conference on March 23, 1967 the commission and the Court agreed upon certain modifications and changes in the rules, including some purely formal changes in the wording of Rule 63(15) which effected no substantial alteration in the sense of the version promulgated by the court in September 1964. Additional formalistic requirements were thereafter agreed upon in regard to Rule 63 (15), and that rule, along with the other evidence rules also concurred in by the study commission and the Supreme Court, was formally adopted by Joint Resolution No. 5 of 1967, approved May 9, 1967. The Supreme Court’s formal concurrence came in June 1967. The version of Rule 63(15) thus effectuated, and now in effect, has been quoted hereinabove.

The significant change in the rule draft from the version in the 1963 Supreme Court Committee Report to that promulgated by the court itself in September 1964 signals an unmistakable intent to exclude from evidence factual findings or conclusions, aside from statistical findings, by official investigatory bodies, insofar as admissibility is posited upon the exception to the hearsay rule constituted by Rule 63(15). Without the benefit of that rule, the PTJC documents here involved are inadmissible hearsay and represent precisely the type of conclusionary statement or report which it was the intention of the rule-makers to exclude. This is made evident by the Committee comment accompanying the 1963 Supreme Court Committee Report, quoted partly above, which strongly advocates admissibility of this kind of report, as against the exclusion in the final draft of the rule of the 1963 verbiage embodying the purport of the uniform rule draft (to investigate the facts concerning the act, condition or event and to make findings or draw conclusions based on such investigation). The exclusionary intention is emphasized by the narrowness of the class of investigatory findings allowed — i. e., “statistical findings.”

In our view, the implied bar of the rule, as we interpret it, extends both to the factual conclusions of the hearing examiner’s report relevant to the alleged hazardous condition of the crossing and to the decision and order of the Board directing the installation of the protective lights and bells. Neither represents a statistical finding. The latter plainly implies a conclusion that the devices mentioned are necessary to prevent unsafety of the crossing, and this is very obvious when the hearing examiner’s report and the confirmatory Board decision and order are considered together, as they must be, since the decision and order approves the findings and conclusions of the hearing examiner.

As to the prejudicial effect of the admission of the documents there can be no doubt. The conclusions of the PU C concerned the very issue here being tried — i. e., the extra-hazardous nature of the crossing. Plaintiff’s expert witness took the contents of the report into consideration. Defendant at trial vigorously contested the contention of extra-hazardousness of the crossing, particularly from the direction of decedent’s approach. The jury were told in the court’s charge that they could consider the PUC documents in relation to that issue, although they were left free to disregard them or to give them such weight as they deemed fit.

Plaintiff urges that at trial defendant’s objection to these exhibits was limited to their irrelevance and that it should not be permitted on appeal to expand the basis of objection to inadmissibility under Rule 63(15). It must be conceded that defendant is not immune to just criticism with regard to its failure at trial to make the point that the rule does not authorize admission of conclusions of investigatory bodies (apart from statistical findings). However, plaintiff was not prejudiced thereby. She defended the admissibility of the exhibits solely on the basis of Rule 63(15); that was the basis accepted by the trial court in overruling defendant’s objections and, as indicated above, the rule does not justify the admission of the documents, which are otherwise hearsay, and their introduction worked serious prejudice to defendant’s ease. The interests of justice require reversal and a new trial free of the taint of the introduction of this material.

We may add that we do not regard the stated objection of defendant to the PUC documents as irrelevant to the issues as meritorious. They were quite relevant, and in this lies their prejudicial effect, since they were incompetent. Eeversed and remanded for a new trial. No costs.

       The effective date was postponed by statute, the rules ultimately taking effect September 11, 1967.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL A. MONDROSCH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided December 8, 1969.

      Before Judges Goi.irMAisnsr, Lewts and Matthews.

      Mr. Franh E. Vittori argued the cause for appellant {Messrs. Fiarulli & Vittori, attorneys).

      Mr. Budolph J. Bossetti, Assistant Prosecutor, argued the cause for respondent {Mr. A. Donald Eigley, Camden County Prosecutor, attorney).
   Goldmann, P. J. A. D.

Defendant appeals from convictions, following a jury verdict of guilty, for attempted breaking and entering with intent to steal (N. J. S. A. 2A :94-1, 2A:85-5), and for possession of burglary tools (N. J. S. A. 2A:94-3).

Defendant, a police officer, was indicted jointly with one Robert Nece on three separate indictments charging conspiraey to break and enter, attempted breaking and entering with intent to steal, and possession of burglary tools. The indictments were consolidated for trial and, on defendants’ application, separate trials were granted. Nece was tried first and acquitted on all charges. Prior to the commencement of defendant’s trial, the trial, judge dismissed the indictment for conspiracy on the ground that “there [had] been an adjudication that there was no criminal partnership.” However, he denied motions to dismiss the other indictments.

On appeal defendant contends that (1) the acquittal of Neee, on essentially the same evidence, collaterally estopped the State from prosecuting him, and (2) the trial judge committed prejudicial error in excluding evidence of acts of misconduct by the State’s primary witness, Officer Clements, as challenging his credibility, and in excluding evidence of Clements’ reputation for being “accusatory in nature.”

Defendant relies on State v. Cormier, 46 N. J. 494 (1966), in support of his argument that the State was collaterally estopped from prosecuting him. He claims that the conspiracy indictment having been dismissed, a logical extension of Cormier required a dismissal of the other two indictments of which he was found guilty, especially in view of Nece’s acquittal on the latter indictments. The facts in Cormier are readily distinguishable from those in the present case. In Cormier the same defendant was tried twice on substantially the same factual evidence, although on different charges (conspiracy to defraud and the substantive crime of fraud). Here, however, the subsequent prosecution was against a different defendant. It is well established that a judgment of acquittal or conviction against one defendant does not operate as res judicata or collateral estoppel with regard to the prosecution of another defendant, even though the same transaction is involved. See Annotation, “Modem status of doctrine of res judicata in criminal cases,” 9 A. L. R.3d 203, 218 (1966). The supporting rationale for this rule is plain. An acquittal of defendant X merely adjudges his nonparticipation in some alleged criminal conduct; it does not adjudge that no criminal act was committed or that codefendant Y was not the erring perpetrator. It simply determines that X alone was not the wrongdoer, and so the final determination as to X has no bearing on Y’s alleged-guilt.

Defendant further argues that the dismissal of the conspiracy charge was equivalent to the prior acquittal in Cormier. Hot so; a pretrial dismissal, unlike an acquittal, adjudicates no issues as such. In this ease the acquittal of ETece rendered the conspiracy charge against Mondrosch nugatory, but it had no hearing on the other charges.

We turn to defendant’s second main point. As noted, Officer Clements was the primary prosecution witness at defendant’s trial. Defendant attempted to elicit from another officer, Terinzi, several of Clements’ past actions that would indicate that he had previously falsely accused certain persons of committing criminal acts. After a lengthy colloquy the trial judge disallowed this line of questioning. Defendant asserts, essentially, that the proffered evidence was both an attack on Clements’ credibility and an attempt to establish a pattern of habit or custom, and so was admissible.

Evidence Rule 20, dealing with evidence generally affecting credibility, permits the introduction of evidence to impeach a witness. However, this general rule is explicitly limited by Evidence Rules 22 and 47. Rule 22 provides that

As affecting the credibility of a witness * * *' (c) evidence of traits of his character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his conduct, relevant only as tending to prove a trait of his character, shall be inadmissible.

And Evidence Rule 47 permits proof of a trait of character •—• here Clements’ propensity falsely to accuse others of committing criminal acts — only by “(a) testimony in the form of opinion, (b) evidence of reputation, or (c) evidence of conviction of a crime which tends to prove the trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible.”

Defense counsel’s attempted line of questioning clearly •ran counter to the rules just cited. The trial judge quite properly ruled as inadmissible the proffered evidence of specific instances of past misconduct by Clements as affecting his credibility.

After the original line of impeaching questioning had been disallowed, defendant attempted to elicit, through Terinzi, Clements’ “reputation with regard to a propensity or an inclination to be accusatory in nature against others.” The trial judge sustained the prosecuting attorney’s objection, finding that the testimony was not within the meaning of Evidence Rule 47. We agree.

The judgments of conviction are affirmed.


author: Lora, J. S. C.

text:
    THE BOROUGH OF SADDLE RIVER, A MUNICIPAL CORPORATION OF NEW JERSEY; EX REL: LOUIS H. PERRIN, BUILDING INSPECTOR AND ZONING OFFICER, PLAINTIFFS, v. JOHN A. BOBINSKI, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 5, 1969.

      Messrs. Evans, Hand, AlMbough and Amoresano, attorneys for plaintiffs (Mr. Peter Vandervoort appearing).

      Mr. Lester H. Fox, attorney for defendant.
   Lora, J. S. C.

This is an action for permanent injunction against the use of a structure located on defendant’s premises for the stabling of horses. Plaintiff contends that such use is in contravention of the terms and provisions of the zoning ordinance of the Borough of Saddle River. Defendant, on the other hand, contends that such use is permissible as a nonconforming use.

The building in question, which is on defendant’s 9-10-acre plot, is a barn situated approximately 5 feet from the easterly boundary line of said property, 240 feet from the house of the nearest neighbor and 400 feet back from the public road. It is 35 feet high, 66 feet wide and has a shed attached to the rear, the combined buildings being 65 feet deep.

The premises were purchased by defendant John Bobinski from Karl and Jane Manz in October 1967, in response to a newspaper advertisement that featured “a fine barn for stable horses.”

Manz had acquired the property in 1916 and resided there with his wife and children for 41 years until the sale in 1967. In the earlier years Manz put the premises to farming use, raising certain crops and berries and as many as 1,700 chickens whose eggs he sold to a Paterson market. He kept a cow and seven or eight farm horses, stabling five in the barn’s stalls and two or three in the attached shed along with related farm equipment.

Gradually, Manz cut down on his farming and, due to the consequential lack of need, disposed of the horses, the last one in 1940. Erom that time on the premises were not used for commercial farming although Manz, who took a position in the post office, continued to spray and care for many apple trees and maintained a small half-acre garden for family use. The barn structure was not put to use for any purpose during the period 1940 to 1967, and no horses or other animals were stalled therein. Nevertheless, he continued to spend money on the structure by painting it and keeping it in otherwise good shape and repair so that the harn was “exactly the same when sold” to defendant.

The court finds that despite the lack of use of the barn-stable for 27 years, the Manzes had no affirmative subjective intent to abandon the use of the structure for stabling horses. On the contrary, they often discussed the purchase of a horse for their daughter, albeit such purchase was repeatedly postponed because of her unwillingness to commit herself to take proper care of the animal. A real estate broker’s inquiry as to whether they were interested in stabling four horses for a time was rejected only because it would be too much trouble for them.

Then, too, the Manzes always thought they could keep horses in the barn at any time they decided to resume doing so; that they had the right to keep horses there any time they wanted to, and they never intended to give up that right. As a matter of fact, long before 1940 when Manz began some mechanizing of his farm operations, he built a separate garage for his motor vehicles and motorized farm equipment rather than use or convert the barn for such storage. Pursuant to such understanding and intent, they represented to defendant that he would be able to keep nine horses in the stable and shed structure in accordance with the borough ordinance which permitted keeping one horse per acre.

It is clear that defendant purchased the property solely because of the barn and the anticipated use thereof for stabling his show horses and trotters and pacers.

Effective January 1, 1963 plaintiff borough adopted a codification of ordinances and effective August 7, 1965 adopted ordinance No. 134, so that in October 1967, when defendant acquired this property, classified as R-l, residential, horses were permitted to be maintained on such property provided the number did not exceed one horse per acre and they were housed in a structure not exceeding 20 feet in height and located at least 85 feet from any property line.

Section 8:11-1 (v) of the ordinance reads that “it shall be prima facie evidence that a nonconforming use has been abandoned when there has been a cessation of the exercise of such noneomforming use for a period of one (1) year,” and thus creates a presumption of abandonment of a nonconforming use after a one-year lapse without such use.

Shortly after acquisition defendant made some repairs and commenced using the barn to stable horses. Plaintiff contends this is in contravention of the borough’s zoning laws since the barn is less than 85 feet from any property line. Upon notification, defendant did not seek a building permit or a variance but merely ceased the repair of the structure and continued to use it as a stable.

A municipal court complaint was filed and on August 1, 1968 the judge of that court found defendant not guilty on the ground that the nonconforming use as a stable was a preexisting nonconforming use, which use had not been abandoned. However, a fine was imposed for failure to apply for a building permit prior to commencing repair work.

Defendant contends the disposition in the municipal court constitutes res judicata and, in any event, that the use of the stable is protected by N. J. S. A. 40:55-48 as a preexisting nonconforming use which has never been abandoned. It is plaintiff’s position that a municipal court acquittal of a charge of violating a zoning ordinance is not a bar to a civil action seeking an injunction against the violation of the same ordinance; that noneomforming uses not in actual use at the time of the effective date of a zoning ordinance are violations of that law and may not be continued, and that the failure to employ the structure as a barn-stable for a period of 25 years constitutes an abandonment of such use — that some affirmative action is required to preserve a nonconforming use, not just an intent to preserve the right to so use the property.

It has been held in New Jersey that a municipal court action charging an ordinance violation is, procedurally at least, and within the intendment of the rules providing for appeals from judgments of conviction in the inferior courts of limited jurisdiction to County Court, essentially criminal in nature, irrespective of whether the penal section of the ordinance provides for a fine only or for both fine and imprisonment, and even though such violation does not constitute an indictable offense. State v. Yaccarino, 3 N. J. 291, 295 (1949); Newark v. Pulverman, 12 N. J. 105, 114 (1953). The doctrine of res judicata bars a subsequent suit between the same parties and involving the same cause of action. Nevertheless, the application of this doctrine is analyzed as follows in Moore, Federal Practice, § 0.418(1), at 2703:

The generally accepted rule is that, because a defendant is surrounded by greater safeguards in criminal than in civil litigation, and the standard of proof to which the complainant is held is higher, a judgment of conviction is conclusive in civil litigation between the same parties as to issues that were litigated and adjudicated in the criminal prosecution. But as to a judgment of acquittal this same difference in standards of proof has led to the rule that an acquittal concludes no issues as to civil liability in favor of the acquitted defendant. The theory underlying this rule is that the proof offered by ihe prosecution in a criminal case, although insufficient to prove guilt beyond a reasonable doubt, and thus support a conviction, might well be sufficient to support a judgment of civil liability.

See also 18 A. L. R. 2d 1315 (1951).

This rule has been applied by the United States Supreme Court in Helvering v. Mitchell, 303 U. S. 391, 397, 58 S. Ct. 630, 82 L. Ed. 917 (1938), in which an acquittal of a charge of income tax evasion was held not to bar a subsequent action to recover an added assessment for income tax deficiency. Likewise, in United States v. United States Gypsum Co., 51 F. Supp. 613 (D. D. C. 1943), an acquittal of a charge of conspiracy to monopolize was held not to be res judicata in a subsequent action by the Government to enjoin the alleged monopolistic practices.

An interesting New Jersey case discussing these problems is State v. La Bella, 88 N. J. Super. 330 (Cty. Ct. 1965) which involved an action to return money seized by law enforcement authorities in connection with a gambling arrest subsequent to an acquittal on the gambling charge. There it was held that the previous acquittal barred relitigation of the question of the existence of the gambling operation in the subsequent action wherein the State sought to rely on the statutory provisions for forfeiture of the seized monies. Judge Conklin distinguished Helvering, supra, relying on Coffey v. United States, 116 U. S. 436, 6 S. Ct. 437, 29 L. Ed. 684 (1886), and Mitchell v. Commissioner of Internal Revenue, 89 F. 2d 873 (2 Cir. 1937), citing the following language in Mitchell:

'The only rule necessarily derivable from Coffey v. United States would seem to be that an acquittal in a criminal prosecution is a bar to a civil action to enforce fines or forfeitures of property which are in their nature criminal penalties. Though this rule seems hard to justify in view of the different degrees of proof required in order to establish criminal guilt and civil responsibility, it is implicit in the decision of Coffey v. United States which is binding on us in the absence of a modification by the Supreme Court.

The Court in La Bella (at 340 of 88 N. J. Super.) found such reasoning to be conclusive in view of the gMasi-eriminal nature of a forfeiture-proceeding, “since it is intimately related to certain criminal activity” which had already been resolved in the prior criminal action. This rationale does not extend to the case at bar, however, where the first action was criminal or at least gwasi-criminal in nature, and the second action is a purely civil suit to enjoin the use of the structure as a horse stable. Under such circumstances this court concludes that United States Gypsum, supra, is directly applicable, and the municipal court acquittal of the zoning violation charge does not act as res judicata barring this action for an injunction.

N. J. S. A. 40:55-48 provides that: “Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.” And section 8:11—1 of the zoning ordinance reads: “Any lawful, nonconforming nse which existed at the effective date of this Chapter may be continued * *

Actual use of the structure as a stable did not resume until almost five years after passage of the 1963 ordinance and two years after ordinance No. 134, when defendant purchaser in October 1967 began to stable his horses therein. Hence, plaintiff argues there was not a conforming use in existence at the time the ordinance became effective, and the question of abandonment is irrelevant; that mere intention to make nonconforming use of property is insufficient and that it is the use in fact existing and occupying the land at the time of the adoption of a new zoning ordinance that may be continued contrary to any new regulations. State v. Accera, 36 N. J. Super. 420 (App. Div. 1955); Martin v. Cestone, 33 N. J. Super. 267, 269 (App. Div. 1954), Ardolino v. Florham, Path Board of Adjustment, 24 N. J. 94, 104 (1957). Plaintiff further states that no use may be deemed a nonconforming use under the Statute unless such use or purpose was actively being pursued at the time the zoning ordinance was passed.

In Weber v. Pieretti, 72 N. J. Super. 184, 198 (Ch. Div. 1962), afff'd 77 N. J. Super. 423 (App. Div. 1962), the trial court, in considering Martin, referred to Chayt v. Board of Zoning Appeals, 177 Md. 426, 9 A. 2d 747 (Ct. App. 1939). As in Weber and in Chayt, the ordinance here provides in section 8:3-1 (d), “The word ‘used’ shall be deemed also to include ‘designed, intended, or arranged to be used.’”

The court in Weber found it unnecessary to restrict itself to an interpretation of N. J. S. A. 40:55-48, and based its decision on the municipal ordinance instead, noting that

[W]hile the municipality cannot limit by zoning ordinance the statutory right afforded the owner to continue a nonconforming use * * * it may by zoning ordinance be more liberally disposed toward nonconforming uses than R. S. 40 :55-48. [72 N. J. Super, at 198].

The court further said:

In construing the meaning of this definition, the court in Ohayt ruled out any contemplated use as within the ordinance and limited it to existent structures that may be so designed or arranged for the particular use. It further said that by including the words ‘arranged, intended or designed to be used’ provision is made for allowing the suspension of an actual use and that ‘[lit would be unlikely that a zoning ordinance would make provision for so unsubstantial a thing as a plan in mind. * * * The law would not be concerned to regulate a charge of intention.’ [Ibid.]

The Maryland Court of Appeals concluded:

Where a property is built for or adapted to a particular use, the question of existing use is determined by ascertaining as near as possible the intention of the owner, in connection with the fact of a discontinuance or apparent abandonment of use; it is not to be determined on the date of the adoption of the ordinance. Appeal of Haller Baking Co., 295 Pa. 257, 262, 145 A. 77, 79. [9A. 2d, at 750]

Applicatiou of this doctrine to the facts herein, where there had been a suspension of an actual use rather than a mere intention of future use, leads this court to conclude that there was an existing use within the comprehension of the ordinance when it became effective.

Reliance on the terms of the municipal ordinance suffices to distinguish the present case from State v. Casper, 5 N. J. Super. 150 (App. Div. 1949), where the court based its decision on an interpretation of the state statute itself. However, it is not clear from Casper that reliance on the statute would require a contrary result herein. Casper was convicted of violating a zoning ordinance by permitting a house to be used as an apartment house where it had formerly been used as a rooming house and had been closed for four years after the operator died and after all roomers had been asked to leave. The Appellate Division, with one judge dissenting stated:

The non-conforming use must he a continuance of the same use made of the property at the time of the passage of the ordinance; it must have been lawful when instituted and actively and constantly maintained, [at 153].

While the court pointed out that there was no evidence of any effort made to continue the business or to find a tenant, it also stated, “Nor does it appear that it was sold as a rooming house as in Eilenberg v. Taggart, 119 N. J. L. 61. The present use is different from the use made of the property by Gaffney. He entertained roomers and paying guests. Mrs. Casper has three apartments there which she has rented out. Such a change or enlargement of the use is fatal to its continuance.” There, too, the use as a rooming house had not been legally instituted since it had been conducted without a license.

In the context of Casper it would appear that the statement requiring a nonconforming use to be in existence at the time of the passage of the ordinance and “actively and constantly maintained”' could be construed to permit continuance of a preexisting valid use which had not been abandoned in law, even though its active pursuit was suspended prior to the time the ordinance was passed, so long as the structure continued to be “actively and constantly maintained” without change to some other use.

Under the facts of the present case, for example, the active use of the barn structure as a stable was suspended prior to and at the time of passage of the ordinance, but there continued to be some active maintenance of the structure. Repair of a structure has been held to show an intention to continue rather than to abandon a nonconforming use. 2 Yokley, Zoning Law and Practice (3d ed. 1965), § 3 6-13, at 275; Brown v. Gerhardt, 5 Ill. 2d 106, 125 N. E. 2d 53 (Sup. Ct. 1955); Board of Zoning Adjustment v. Boykin, 92 So. 2d 906 (Ala. Sup. Ct. 1957).

While it is the policy of New Jersey law to restrict rather than encourage nonconforming uses, Weber, supra, at 195 of 72 N. J. Super., that case clearly holds that a more liberal treatment of nonconforming uses under a municipal ordinance is to be given effect.

At trial it was emphasized by plaintiff that no attempt was being made to have defendant discontinue the keeping of horses on his property, section 8:5—7 of the ordinance permitting one horse per acre, but only to prevent the use of the existing barn structure for the stabling of horses due to the fact the stable was less than the 85 feet from the property line, as required by section 8:5-11 (a).

However, section 8:11-1, entitled “Continuation of Nonconforming Use and Structure,” provides in subsection (b), “Nonconforming Buildings”:

Any building or structure which (1) existed at the effective date of this Chapter, (2) was nonconforming on such date by reason of its design, its placement on a conforming lot or its location on a nonconforming lot and (3) constituted an otherwise conforming use, may be continued.

It may be said that this section of the ordinance further affirms defendant’s right to stable horses in the barn and attached shed. See In re Yocum, 393 Pa. 148, 141 A. 2d 601, 605 (Sup. Ct. 1958), which distinguishes between a nonconforming general use and the use of a building whose juxtaposition on the land renders it nonconforming.

The remaining issue to be determined is whether the circumstances in this ease establish that the earlier nonconforming use was abandoned. It is well settled in New Jersey and elsewhere that the actual abandonment of a nonconforming use is fatal to its continuance. See e. g., Montclair v. Bryan, 16 N. J. Super. 535 (Cty. Ct. 1951), where it was held that a structure once used as a multifamily dwelling and subsequently used as a single-family residence for 27 years, could not then be restored to its original nonconforming use..

It has frequently been stated that abandonment of a nonconforming use depends upon the concurrence of two factors: one, an intention to abandon; and two, some overt act, or some failure to act, which carries a sufficient implication “that the owner neither claims nor retains any interest in the subject matter of the abandonment”. Yokley, op. cit., § 16-13, at 273-274.

Mere discontinuance, or the passing of time, is not sufficient to constitute an abandonment, Haulenbeek v. Allenhurst, 136 N. J. L. 557 (E. & A. 1948); Marino v. Mayor, etc. of Norwood, 77 N. J. Super. 587, 590 (Law Div. 1963); State v. Accera, 36 N. J. Super. 420, 424 (App. Div. 1955), although it has been noted in other jurisdictions that the period of time of nonuse may be of some evidentiary value, “especially in connection with facts showing an intent to discontinue use”. Pioneer Insulation and Modernizing Corp. v. Lynn, 331 Mass. 560, 120 N. E. 2d 913 (Sup. Jud. Ct. 1954).

In Wood v. District of Columbia, 39 A. 2d 67 (Mun. Ct. App. D. C. 1944), a structure, built and equipped as a stable, had been used as such for more than 40 years. The property had then been vacant for about six years and had been advertised for rent as a stable. The court pointed out that lapse of time may only be considered as one element in determining whether a nonconforming use is abandoned; the fact that the building was retained so that its use was limited to the stabling of horses during the extended period of vacancy, and that it was being advertised for lease as a stable, showed plainly that it was not intended to abandon its nonconforming use.

The issue in Haulenbeek, supra, was whether a structure could be used as a hotel on the theory of nonconforming use, despite the fact that it had not been so used for several years. The court upheld the hotel’s standing as a nonconforming use notwithstanding the period of nonuse. Nonetheless, it might be argued that Haulenbeek is distinguishable in that there the nonuse was caused by factors outside the control of the property owner: “lacle of demand, inability to get a tenant and financial difficulty,” 136 N. J. L., at 559. However, it must again be emphasized that the primary question is the intent of the owner as determined from his actions. Such intent must be determined on a case-by-case basis.

Manz never intended to abandon; on the contrary, he kept and maintained the barn in a good state of repair for the day he would resume the stabling of horses therein, and, most significantly, he never made any different use whatsoever of the barn. Cf. Beyer v. Mayor, etc., of Baltimore City, 182 Md. 444, 34 A. 2d 765, 768, 769 (Md. Cl. App. 1943), where it was held that an owner of property which had been used as a slaughter house, who disposed of all its machinery, altered the structure by taking down the smokestack and used the property for storage purposes, and who had only the vaguest sort of an intention of resuming the slaughter house business at some future day if conditions should improve, had abandoned the nonconforming use.

The prior use of the structure as a stable, together with its continued maintenance and repair by Manz over the years, without any alteration in its adaptability to continue use as a stable or any contrary use during that interim period, established that there was no abandonment under the circumstances.

Saddle River’s ordinance contains a provision which makes the showing of mere nonuse for a period of one year prima facie evidence of abandonment. In State v. Accera, 36 N. J. Super. 420 (App. Div. 1955), an ordinance which provided nonuse for a one-year period barred resumption of a prior nonconforming use was held to be invalid as contrary to the intent of the New Jersey statute authorizing indefinite continuance of a nonconforming use. However, the holding in Accera does not necessarily invalidate the subject ordinance provision which merely relieves plaintiff of the burden of producing evidence of abandonment and requires defendant to come forward with evidence of the lack of abandonment. As already noted, defendant has met this burden and has established that there was no abandonment of the nonconforming use.

In view of all of the foregoing, the court concludes that defendant is entitled to continue the nonconforming use of the barn structure in question for the stabling of horses. Accordingly, judgment will be entered in favor of defendant and against plaintiff, dismissing the complaint.