author: Foley, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MOSES PIPKIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division.
    Argued June 24, 1968 —
    Decided July 10, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Miss Cynthia M. Jacob, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. John G. Thevos, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Foley, J. A. D.

After a non-jury trial defendant was found guilty on the fifth and sixth counts of a six-count indictment. The counts in question charged, respectively, that (1) on or about June 16, 1967, defendant unlawfully possessed, and (2) sold a narcotic drug, to wit, heroin, contrary to the provisions of N. J. S. A. 24:18-4. Judgments of dismissal were entered by the court, sua sponte, on the first, second, third and fourth counts.

On this appeal the principal issues, as stated by defendant, are :

“I. Can a narcotics offense be proved without expert testimony that there was in fact a narcotic drug involved, and with circumstantial evidence alone, when the existence of a specific drug was part, of tlie snbslantive crime charged?
II. If a narcotics offense can be proved by circumstantial evidence alone, must there be expert testimony concerning narcotics and their effect?”

Defendant was an inmate or patient in St. Dismas Treatment Center, Paterson, New Jersey, an institution devoted to the rehabilitation of narcotics addicts. He entered the Center, voluntarily, in January of 1967 and left June 11, 1967.

Monsignor William N. Wall, Director of the Center, testified that from about June 10 until June 16 he observed the abnormal behavior of several of the inmates and suspected they that were using narcotics. He had them tested medically for the presence of narcotics in their blood streams. As the result of these tests he reported his suspicions of narcotics use to the police department of the City of Paterson. The Director also identified defendant at the trial and stated that he had seen him in the Center on June 11 and June 16.

Among the inmates who aroused the Director’s suspicions were John Pranciscone, Eobert Turkowski, Alfred Portella, Jr. and John Brown, all narcotics addicts. These men gave statements to the police implicating defendant in the sale of narcotics to them during the month of June 1967 and were subsequently presented by the State as witnesses at trial.

Pranciscone testified that he purchased a white substance in glassine envelopes from defendant at the solicitation of the latter on June 9, 11 and 16, at a cost of $5 per packet. He bought the packets believing that they contained heroin.

Turkowski testified that he had purchased from defendant a similar glassine envelope containing a white substance on June 16, 1967.

Portella said that on June 16 he had purchased from defendant such an envelope containing a white substance for which he paid $5.

Brown testified generally in the same vein.

The police authorities, of course, did not at any time have possession of any of the packets and so the State was unable to prove by chemical analysis that the white powder in the packets contained heroin. Instead, the State adduced testimony from the addict purchasers which was in the nature of expert testimony.

Franciscone had been an addict for five years and had injected himself with heroin on more than 1,000 prior occasions. Turlcowski had been an addict for three and one-half years and had taken over 2,000 injections of heroin during that time. Portella, an addict for one and one-half years, had had over 800 prior injections of the drug. Brown, an addict for four years, had been the recipient of more than 2,000 prior injections. All of these witnesses (with the exception of Portella), with greater or lesser particularity, stated, in effect, that their physiological and psychological reactions were the same after injecting themselves with the substance provided by defendant as they had been after previous injections of heroin.

Defendant denied any complicity in the sale of narcotics on any date in June 1967.

After dismissing counts one to four inclusive, charging violations of the narcotics law on June 9 and June 11, and discounting certain gaschromatograph tests (blood tests) the trial court held that the State had adduced sufficient credible evidence to circumstantially support beyond a reasonable doubt a finding that defendant had possessed (count five) and sold (count six) narcotics on June 16, 1967 in violation of N. J. S. A. 24:18-4.

While we have in this State no case which expressly holds that a charge of violation of the narcotics law may not be proved circumstantially but requires direct evidence, as defendant urges, we find no basis in reason or logic why this crime should require a different type of proof than any other, and it is beyond debate that our courts have long held that in proper circumstances circumstantial evidence alone affords sufficient basis to sustain a criminal conviction.

Defendant argues also that the State’s ease was bereft of expert opinion evidence that the purchased packets did in fact contain a narcotic drug, and for that reason even a case based upon circumstantial proofs was not made out. This contention overlooks the direct testimony of the four purchasers, all of whom had lengthy histories in heroin use and who, because of their unfortunate addiction, had come to know well the abnormal reactions which follow injection of heroin.

The factfinder chose to accept their testimony as credible and reliable and so he was at liberty to conclude on the aggregate of the facts that beyond a reasonable doubt the substance the addicts obtained from defendant in fact contained a narcotic drug.

Other jurisdictions in essence support these views. With regard to the circumstantial evidence problem see People v. Schumacher, 64 Cal. Rptr. 494, 498 (Ct. of App. 1967); People v. Von Latta, 65 Cal. Rptr. 651, 654 (Ct. of App. 1968); People v. Showers, 65 Cal. Rptr. 55, 57 (Ct. of App. 1967); and the case of People v. Sykes, 44 Cal. 2d 166, 280 P. 2d 769, 770-773 (Sup. Ct. 1955). As to the sufficiency of the testimony of an addict to support a conviction see the Pennsylvania cases of Commonwealth v. Aikens, 179 Pa. Super. 501, 118 A. 2d 205 (Super. Ct. 1955); Commonwealth v. Harris, 186 Pa. Super. 59, 140 A. 2d 344, 345 (Super. Ct. 1958).

Defendant relies upon State v. Campisi, 23 N. J. 513 (1957). We find that case factually and legally inapposite. Gampisi did not hold that a narcotics violation may not be proved circumstantially. Nor did it hold that narcotics addicts properly qualified by reason of past experience may not offer an opinion that a given substance with which they had injected themselves or were injected, contained a narcotic drug. We find it significant that Gampisi ruled that the trial court properly admitted the testimony of law enforcement agents qualified for the most part by observational experience alone, as expert testimony.

Undergirding our rejection of defendant’s arguments is the strong legislative and judicial policy of this State with respect to violations of narcotics laws. This court unequivocally exposed the legislative intention underlying the New Jersey enactment in 1933 of the Uniform Narcotics Drug Law in State v. Weissman, 73 N. J. Super. 274, 282 (App. Div. 1962), where it said:

“It is clear that the legislative design in New Jersey is to eradicate the illegal traffic in narcotic drugs. State v. Reed, 34 N. J. 554, 564 (1961). That was the primary purpose for the adoption of our Narcotic Drug Law in 1933. Ibid. When our Supreme Court, in discussing R. S. 24:18-4 in Reed, said :
‘The statute was passed as an all-out offensive to combat the drug evil by eliminating sources of supply. Every step in the scheme of illegal distribution was made a violation of section 4,' it emphatically evinced a judicial policy of interpretation and enforcement consistent with the Illinois decisions, supra. Cf. 279 Club, Inc. v. Municipal Board of A. B. C. of Newark, 73 N. J. Super. 15 (App. Div. 1962).”

Finally, the public defender at the request of defendant raises three additional grounds of alleged error. We have examined these carefully and find them to be so lacking in merit as to require no discussion.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    M. DEAN KAUFMAN, INC., ETC., PLAINTIFF-RESPONDENT, v. AMERICAN MACHINE AND FOUNDRY COMPANY, DEFENDANT-APPELLANT, AND TUBOSCOPE COMPANY, ETC., DEFENDANT.
    Superior Court of New Jersey Appellate Division.
    Argued March 18, 1968
    Decided July 10, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. William L. Dill, Jr. argued the cause for appellant (Messrs. Stryker, Tams & Dill, attorneys; Mr. William S¿ Tucker, Jr. on the brief).

      Mr. Albert G. Besser argued the cause for respondent (Messrs. Hannoch, Weisman, Stern <& Besser, attorneys).
   The opinion of the court was delivered by

Foley, J. A. D.

American Machine and Foundry Company (AMF) appeals from a $114,363.84 judgment entered in favor of plaintiff, M. Dean Kaufman, Inc. This judgment was based upon a jury verdict finding defendant liable for $94,348.94 in brokerage arising from the breach of a contract which obligated defendant to pay plaintiff a commission as a result of plaintiff’s efforts in defendant’s acquisition- of Tuboscope Company, a named party defendant dismissed from the suit before trial with the consent of both parties. Plaintiff’s suit, sounding in both contract and tort was submitted to the jury on the contract issue alone. After receiving the jury verdict in favor of plaintiff, the court, having calculated interest in the amount of $20,014.90, entered judgment for the sum stated above.

We reverse, ruling that this judgment was improvidently entered, and that the trial court erroneously denied defendant’s motion for judgment made in accordance with B. B. 4:51-2 (a) at the close of the evidence presented at trial.

The factual circumstance which prompts this ruling revolves around an agreement by which defendant contracted to pay a commission to plaintiff which might best be described as a “finder’s fee.” The agreement arose in the following manner. Plaintiff, a corporation operated exclusively by M. Dean Kaufman, publicly offered services both as an industrial real estate agent and a business broker who would initiate and facilitate the merger and acquisition of businesses seeking such unions. It was in its secondary or “matchmaker” capacity that plaintiff, through Kaufman, first contacted AMF suggesting a potential interest which defendant might have in an undisclosed manufacturing company. This initial contact was made by an unsolicited letter dated April 3, 1959.

Defendant acknowledged its interest by return correspondence of April 15 requesting information relating to the name, profits, balance sheet and stockholder structure of the unnamed company, as well as the fee arrangement desired by Kaufman. Plaintiff supplied this information by letters of April 23 and June 9 stating that the fee was to be based upon percentages of acquisition cost on a scale sliding between 10% and one-half of 1% relating to candidates first presented by plaintiff which were ultimately acquired by defendant.

The statistical data and name of the initial prospect (American Seating Company) when forwarded to defendant were subjected to defendant’s customary analysis preliminary to an “early” expression of interest in acquiring the merger candidate. This analysis served a twofold purpose by which the management of AMF maintained necessary internal controls which (1) fostered a cohesive program of corporate expansion; and (2) protected against multiple brokerage liability for finders’ fees between matchmakers rivaling for commissions. Controlling the avenues of expansion involved statistical evaluations of the candidates’ business and performance, while protection against the finders was effected through the use of a “source” file which AMF consulted each time a merger candidate’s name was proposed. This alphabetical candidate index, listing all brokers who had made prior proposals, permitted AME to quickly determine whether the candidate had been offered before and, if it had previously been submitted, the “source” through whom the prior proposal was made. In this way AME could establish the position of a prior broker before proceeding with a proposal initiated through a new broker. Therefore, AMF would display an interest in acquiring a candidate through the proposing matchmaker only after the preliminary analysis affirmatively demonstrated that: (1) the candidate was objectively interesting to AMF, and (2) the finders’ fee arrangement was clear.

It was against this background of AMF’s business custom that Kaufman, informed by his own personal research (home study and analysis of financial reports and business periodicals), proposed the names of five companies which he felt were merger candidates for union in the AMF corporate family. In order of their presentation the candidates were (1) American Seating Co., (2) Riley Stoker Co., (3) Baker Oil Co., (4) Tuboscope Company, (5) Hammond Organ Co.

After determining that a prior broker of American Seating Co. had made its proposal without the necessary foundation of authority to offer, AMF expressed to Kaufman its interest in acquiring this company based upon its “screening survey.” Through Kaufman’s dual agency a meeting between representatives of AMF and American Seating was held. As a result of the meeting the acquisition department reported to the executive management of AMF that because of potential trade regulation problems the American Seating proposal should not be pursued. The ultimate rejection is witnessed by a letter of December 11, 1959 from plaintiff to defendant in which Kaufman confirmed in substance prior conversations in which the offer to submit other proposals was extended to Kaufman by the director of planning at AMF.

Kaufman orally presented Riley Stoker Co. at a personal meeting with defendant’s assistant director of planning. Since defendant’s source file indicated prior presentation, priority as broker of record was given to plaintiff only after the prior broker’s absence of interest was first established. Preliminary meetings were not held between the candidate and defendant in this instance because the screening survey indicated that Riley did not fall within the projected areas of AMF’s growth interest.

Baker Oil Co., submitted as a third candidate, was also deemed ineligible as not being within a preferred area of planned expansion. Although it, too, was previously submitted by another broker Kaufman was given priority when plaintiff’s exclusivity was determined.

Tuboscope was offered fourth. Records of the correspondence between plaintiff and Tuboscope provide a valuable insight into plaintiff’s operations. Soliciting the management of Tuboscope, plaintiff sought authority to offer the company (i. e., to act as broker, agent or matchmaker) to a “well-known company enjoying a volume about three times” that of Tuboscope. This uninvited solicitation was made by Kaufman to Tuboscope in letters respectively dated March 11 and 29; April 19, 20 and 29; and May 2, 1960. These letters share two common themes. Kaufman promised Tuboscope strict confidence, protected by a guaranteed anonymity; and divisional autonomy for Tuboscope within AMF’s conglomerate family. Responding to Kaufman’s letters the president of Tuboscope explicitly refused (in letters of March 18, April 14 and 27, and May 6, 1960) to invest Kaufman with authority to offer Tuboscope as a merger or acquisition candidate. Notwithstanding these specific written denials of authority Kaufman not only submitted Tuboscope as a candidate to AMF but also temporized his written promise of secrecy by naming Tuboscope as the company proposed. This disclosure was made by Kaufman during a telephone conversation with AMF’s assistant director of planning on the morning of March 18, 1960.

AME, now fearing that Kaufman was “shopping around for deals” held up conferring on plaintiff authority as broker of record until Kaufman could present an expression of his authority to submit Tuboscope as a merger candidate. When no evidence of this basic agency was forthcoming AME proceeded no further on this proposal, listing Kaufman’s name under Tuboscope in the “source” file index. This information remained in defendant’s active records until November 1960 at which time it was forwarded to AME’s record storage in Brooklyn.

On December 15, 1960 plaintiff offered the final candidate, Hammond Organ Co. In addition to noting the fact that Hammond was rejected for financial reasons, it serves well to preserve the language used by Kaufman to assure AME that he had the basic authority to submit Hammond as a potential mate. The words were originally used by Kaufman in a letter dated December 15, 1960:

“A short time ago, the president of the Hammond Organ Co. invited us to discuss this matter with him. Consequently, we believe that the requirement set forth in the first sentence of the third paragraph of your letter of the 9th, namely, that generally there be a clear indication of the availability and our authority to present the company, can be readily met in this instance.”

Returning to Tuboscope, Kaufman’s last contact in this matter was by letter of May 6, 1960 from Tuboscope’s president to plaintiff. From that date no further efforts to obtain authority from Tuboscope and to bring AMF and Tuboscope to the bargaining table were made. On July 30, 1963 Kaufman was informed by news media of AMF’s impending acquisition of Tuboscope.

Notwithstanding Kaufman’s knowledge that the Tuboscope acquisition arose from, and was negotiated through a source totally unrelated to him, he claims his right to be recognized as the broker of record on the grounds that he first brought Tuboscope to the attention of AMF and that when defendant failed to notify Kaufman of that merger at tbe time it was proposed, defendant tortiously interfered with plaintiff’s prospective economic advantage (counts 1 and 2) and breached the commissions contract existing between the parties at that time (counts 3 and 4).

Plaintiff’s theory demands that the acquisition of Tuboscope be drawn into sharper focus. The disaster of Hurricane Carla in Galveston in 1962 created a serious financial problem for Navion Aircraft Company; this in turn affected the financial stability of Tusco Corporation, a broad based holding company which operated Navion as a wholly owned subsidiary, forcing Tusco into bankruptcy. The principal owner of Tusco, William Hopkins, discussed this corporate insolvency with Robert Stoekmar, a 50% partner with Hopkins in the eight-state distributorship called “Western Navion” of Long Beach, California. As a result of this Hopkins requested Leslie Osborne, an employee of the distributorship, to call his brother Stanley Osborne, then an executive of Olin Mathieson Chemical Corp. to see if he could help Tusco out of its problems and thus be of assistance to Navion. Olin-Mathieson was not interested and Stanley Osborne called Carter L. Burgess, chairman of AME’s board, on which Osborne also sat. Burgess, in turn, called John Tullis in Shreveport, La., executive of the “AME Industrial Products Group,” who investigated the feasibility of acquiring Navion. Tullis rejected Navion but indicated that Tusco held other assets which might prove desirable.

A meeting was held in Houston before Referee in Bankruptcy Burns, and was attended by defendant corporation represented by Tullis and one Yount; Tusco’s representatives; Leslie Osborne; Stoekmar; and the trustee in bankruptcy. As a result of this meeting defendant tendered an offer for Tuboscope, of which Tusco held 43%, which the trustee in bankruptcy had to liquidate. This first offer was rejected.

Thereafter, the interest of the corporations was activated and defendants, using the bankruptcy to their favor, convinced the management of Tuboscope that the union was sound. The “stock for stock” tax-free exchange comprehended the acquisition by AME of a $9,369,787.50 asset. The actual commissions collected totaled $25,000 being split evenly by Leslie Osborne and Robert Stockmar. This commission was authorized and paid by the trustee in bankruptcy.

Noticed of this transaction plaintiff initiated a suit claiming a right to $94,348.98 commission. Following an adverse jury verdict defendant’s post-trial motions were denied, and this appeal followed.

Tracing the “finders” commercial history from banking to corporate mergers the “middleman’s” distinctive features are easily recognizable. However, here, essentially the finder was required to be an agent of both parties and, so, in ruling that the judgment should have been entered on defendant’s trial motion, we hold that in contracts of this type, absent specific contractual language to the contrary, there is an implied prerequisite of “authority to offer” which must exist between the candidate and the agent-broker. The agent’s authority, express or implied, is the essence of the relationship presently before the court which distinguishes the agent-finder from an employee-analyst.

Although “finders’ fees” arise from the banking industry, Towers v. Doroshaw, 5 Misc. 2d 241, 15 N. Y. S. 2d 367, 375 (Sup. Ct. 1957), this custom is viewed now in its most rewarding and effective use as a primer of corporate expansion, e. g., Lindeman v. Textron, Incorporated, 143 F. Supp. 955, 957 (S. D. N. Y. 1956); Keohane v. Swarco, Inc., 211 F. Supp. 256, 257 (N. D. Ohio 1962), aff’d 328 F. 2d 615, 616 (6 Cir. 1964). Without attempting to chart the historical development of “finders’ fees” we refer to the New York Supreme Court’s clear distinction between “finders” and conventional brokers as stated in the cases of Ames v. Ideal Cement Co., 37 Misc. 2d 883, 235 N. Y. S. 2d 622 (Sup Ct. 1962). There, the trial court, holding the finder not restricted by the New York Statute of Frauds when claiming a “finders’ fee” on a multi-state corporate merger, drew the following distinctions:

“The same distinction between a finder (who finds, interests, introduces and brings the parties together for the deal which they themselves negotiate and consummate) and a broker (whose duty is to bring the parties to an agreement on his employer’s terms) has been noted in all the decisions dealing with the subject (see, for example, P. W. Chapman & Co., Inc. v. Cornelius [2 Cir., 39 F. 2d 555] * * *; Lindeman v. Textron, Inc. * * *; Kuffler v. List [D. C. 144 F. Supp. 776] * * *; Bittner v. American-Marietta Company, D. C. 162 F. Supp. 486. A more precise designation for a finder would appear to be an ‘intermediary’ or a ‘middleman.’
The services performed by finders may vary from case to case. But their distinction from the status of a broker, if the circumstances of the particular case require such a distinction to be drawn, lies in their bringing the parties together with no involvement on their part in negotiating the price or any of the other terms of the transaction. Of course, with respect to real estate, commissions are payable only to a licensee and only when he produces a buyer who agrees to seller’s terms, unless otherwise expressly agreed.” (235 N. Y. S. 2d, at p. 625).

Examining our jurisprudence, we discover that it is only in the context of a “finder” seeking to circumvent licensing or regulatory legislation that the New Jersey courts have employed the anomalous term of “finder’s fee.” See Corson v. Keane, 4 N. J. 221, 225-226 (1950) holding that an unlicensed broker was precluded from collecting a finder’s fee by operation of New Jersey Real Estate Broker’s Licensing Act.

However, the kindred concept of a “middleman” has long been recognized in New Jersey cases dealing with the sale of land. Lanze v. Shechtman, 137 N. J. L. 63, 64 (Sup. Ct. 1948); Feist v. Jerolamon, 81 N. J. L. 437, 440 (E. & A. 1910); Sternberger v. Young, 73 N. J. Eq. 586, 589 (Ch. 1907). These cases indicate that the relationship of the parties herein must be tested by the fundamental principles common to the law of agency and contracts.

While New Jersey courts have not determined the legal effect of the particular circumstance before the court, we feel that this finders agreement existed as a contract which, by the actions of the parties, impliedly required the agency authority of the matchmaker to propose the name of a candidate. It is here noted that American Seating, Eiley Stoker and Baker Oil were proposed on expressed authority, and Hammond Organ was received on an implied authority.

Before analyzing the contract we would say that while the counts of plaintiff’s complaint sounding in tort were here properly dismissed, we do not intend, in requiring on these facts, that the agent’s authority be express or implied, to indicate any views on the finder’s rights in the proper instance to press his remedies in tort for the wrongful interference with his prospective economic advantage, see Mayflower Industries v. Thor Corp., 15 N. J. Super. 337, 339 (Ch. Div. 1951), affirmed o. b., 9 N. J. 605 (1952), or the wrongful interference with contractual relations, Harris v. Perl, 41 N. J. 455, 461 (1964).

Here, returning to the agency-contract issue, AMP acknowledges the agreement with Kaufman and the plaintiff admits his absence of authority to act as Tuboscope’s agent. This narrows the issues in debate to whether the contract between defendant and plaintiff was in existence at the time Tuboscope was acquired; and, if it was, did defendant owe plaintiff the obligation to inform him of the situation when it arose from an admittedly unrelated source?

Answering the latter problem first, since it serves as the basis for the properly dismissed tort counts, Tuboscope’s express refusal to confer the authority of agency upon Kaufman rendered any further considerations by AMF of Kaufman’s authority to offer Tuboscope purely gratuitous. Legally AMF’s obligations ceased. We make this ruling fully aware of the fact that at the time of the Tuboscope acquisition an employee-analyst of defendant, named Fulbright, became aware of Kaufman’s prior unauthorized presentation. Defendant’s past custom of checking the “source” file had no legal relationship to Kaufman in the Tuboscope matter. We state the fundamental rule again:

“An agency relation exists only if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act.” Restatement (second), Agency, § 15, p. 82 (1958).

Tuboscope, the principal, unequivocally refused Kaufman’s proffered agency both before and after Kaufman had identified Tuboscope to AMF in direct contradiction to his repeated guarantees of secrecy. Because of the lack of agency defendant had no obligation to inform plaintiff of its proposed acquisition of Tuboscope.

Finally, the contractual relationship* of AMF and Kaufman must be construed to impliedly limit plaintiff’s authority to present only situations in which Kaufman was authorized by the candidate to make the proposal of its name to defendant. Plaintiff’s relationship with defendant in the Tuboscope proposal was initiated on April 23, 1959. At this time plaintiff could evidence no expression of its authority to offer Tuboscope. Therefore, barring tortious collusion between the suitor and the candidate, and here there was none, the plaintiff’s opportunity to supply proof of the requisite authority lapsed after a reasonable time and after the expiration of that time the contract between AMF and Kaufman, insofar as Tuboscope was concerned, terminated. Geo. H. Beckmann Inc. v. Charles H. Reid & Sons, Inc., 44 N. J. Super. 159, 168-169 (App. Div. 1957). While in a certain complex of facts it may be necessary to pinpoint the exact date of termination, in the present circumstance, after a consideration of all the facts, it is sufficient for us to say that the passage of three years in which plaintiff admittedly made no effort to secure authority from Tuboscope to act as its agent precludes a finding that plaintiff and defendant were contractually related on the date in 1963 when AMF was noticed of Tuboscope through an acknowledgedly independent source.

From these proofs adduced at trial “fair minded men cannot honestly differ as to the conclusions to be drawn * * *” Franklin Discount Co. v. Ford, 27 N. J. 473, 487 (1958). There was no factual dispute for the trier and disposition should have been made on the legal principles that controlled.

Accordingly, the case is remanded to the trial court for entry of judgment in favor of the defendant.


author: Fulop, J. S. C.

text:
    EDWIN FREDERICK WENNER, PLAINTIFF-APPELLANT, v. MC ELDOWNEY & COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1968
    Decided July 11, 1968.

      Before Judges Coneord, Labrecque and Eulop.

      Mr. William G. Freeman argued the cause for plaintiff-appellant, Edwin Frederick Wenner (Messrs. Freeman & Freeman, attorneys).

      Mr. Michael P. King argued the cause for defendant-respondent, McEldowney & Company (Messrs. Kisselman, Devine, Deighan <& Montano, attorneys).
   Fulop, J. S. C.

(temporarily assigned). This is an appeal from a judgment in favor of defendant entered by the trial court notwithstanding a jury verdict in favor of the plaintiff for damages in the sum of $30,000.

The plaintiff, Edwin Wenner, was hired by Belford Sea-brook at an hourly wage to repair the roof of a carriage house situated on a farm owned by the defendant Mc-Eldowney & Company, a New Jersey Corporation. Plaintiff alleges that when he reported to do the work Mr. Seabrook directed that the work be done under the supervision of his stepson, Craig McKinley. When plaintiff got up on the roof, McKinley allegedly negligently pushed a piece of wire on the end of a broomstick through an opening in the roof or under a shingle in such manner as to dislodge the plaintiff and cause him to fall to the ground. Plaintiff was injured.

Although plaintiff in his pleadings alleged other acts of negligence on the part of the defendant corporation, his proof was confined to the act of McKinley above referred to. Plaintiff contended that he was employed by Seabrook individually but that McKinley was acting for the defendant corporation. It was essential to plaintiff’s recovery to establish that McKinley was the servant of the corporation and that plaintiff was not, for if they were both employed by the same employer plaintiff’s remedy against the employer was confined to recovery under the Workmen’s Compensation Act. B. S. 34:15-7, 8 and 9. See Freppon v. Hittner, 91 N. J. Super. 9 (App. Div. 1966) and Mazzuchelli v. Silberberg, 29 N. J. 15 (1959).

At the end of the plaintiff’s proof, defendant moved for involuntary dismissal. The motion was denied. At the end of the entire ease the defendant moved for judgment in its favor. The trial judge reserved decision on this motion and submitted the case to the jury. The jury was asked to answer five interrogatories and render a general verdict as provided in B. B. 4:50-2. In answers to the interrogatories the jury found that McKinley was acting in the matter as the employee of the defendant Corporation and not as the employee of Seabrook and that Wenner and McKinley were not working for the same employer. The jury also found McKinley negligent and plaintiff not guilty of contributory negligence, and rendered a general verdict for the plaintiff in the sum of $30,000.

After the verdict, defendant orally renewed its motion for the disposition of the case in its favor by the court as a matter of law. The court again reserved decision. The trial was concluded on October 9, 1967. By letter dated October 17, 1967, the trial judge granted judgment in favor of the defendant notwithstanding the verdict. The court found that taking the evidence in the light most favorable to the plaintiff, it established that Wenner and McKinley were employed by the same employer whether the employer was Belford Seabrook individually or McEldowney & Company or both of them jointly and that there was no basis in the evidence warranting the jury finding that Seabrook employed Wenner individually and simultaneously employed McKinley on behalf of the corporation.

Plaintiff contends that it was error to enter judgment against him notwithstanding the verdict for the following reasons:

1. The trial judge had no power to enter judgment notwithstanding the verdict in the absence of a written motion as provided by B. B. 4:51-2(c).

2. B. B. 4:50-2 makes it mandatory that the judge enter judgment in accordance with the jury verdict where, as here, the answers to interrogatories given by the jury and the general verdict rendered by the jury are all consistent.

3. The verdict was supported by the evidence, there was a factual issue for the jury, and the court erroneously substituted its own appraisal of the facts for that of the jury.

As to the first point, plaintiff has misread the rule. B. B. 4:51-2(a) reads:

“(a) If a motion for judgment, is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the verdict, or within 10 days thereafter or if no verdict is returned, within 10 days after the jury’s discharge. If the motion is denied hnd the case has been submitted to the jury, the motion may be renewed within 10 days after the verdict or the discharge of the jury. The court may enter judgment in accordance with the motion or, if the ends of justice so require, may order a new trial.”

When the court denies the motion for judgment made during the trial, it may be renewed after verdict. Such renewal of the motion must be in writing, on notice. B. B. 4:51-2(c). But when the court does not deny the motion at the trial but reserves decision thereon, it may decide it either before the verdict or within 10 days thereafter without any action by the parties. The first sentence of B. B. 4:51- 2 (a) clearly so intends. See Shaw v. Edward Hines Lumber Co., 249 F. 2d 434 (7 Cir. 1957). If the motion is granted, the losing party may move as provided in B. B. 4:51-2 (e).

The second point is based on the language of B. B. 4:50-2 which reads in part as follows:

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers * * *”

The purposes of this rule are to require the jury to specifically consider the essential issues of the case, to clarify the court’s charge to the jury, and to clarify the meaning of the verdict and permit error to be localized. See Nylander v. Rogers, 41 N. J. 236 (1963); Terminal Construction Corp., v. Bergen County, 18 N. J. 294, at headnote 15 (1955); Marchese v. Monaco, 52 N. J. Super. 474 (App. Div. 1958) certification denied 28 N. J. 565 (1959); Bleeker v. Trickolo, 89 N. J. Super. 502 (App. Div. 1965); Bree v. Jalbert, 87 N. J. Super. 452 (Law Div. 1965).

Nothing in this rule deals with the power of the court to grant a new trial or enter judgment notwithstanding the verdict. These powers are covered by other rules and the rules must be read together. It is neither practicable nor necessary for each rule to specify that it is subject to the provisions of other rules. B. B. 4:50-2 means that the court must “direct the entry of the appropriate judgment upon the verdict and the answers to interrogatories” unless the verdict is erroneous as a matter of law or should otherwise be vacated under the court’s powers and as provided by other rules.

A verdict supported by interrogatories is no more conclusive than a general verdict. See Myers v. Reading Co., 63 F. Supp. 817 (E. D. Pa. 1945), affirmed 155 2d 523 (3 Cir. 1946) reversed 331 U. S. 477, 67 S. Ct. 1334, 91 L. Ed. 1615 (1947); Gross v. Gross, 169 P. 2d 199 (7 Cir. 1948). In 35B C. J. 8. Federal Civil Procedure, § 1219 it is said:

“A motion for judgment notwithstanding the verdict may be granted where the jury’s answers to certain interrogatories are false as a matter of law. The rules governing the construction of evidence for the purpose of determining a motion for judgment notwithstanding the verdict generally, discussed infra see. 1224, apply to such a motion with respect to the jury’s answers to interrogatories.”

B. B. 4:51-2 granting the power to enter judgment contrary to a jury verdict was first adopted in 1958. It is modeled after Federal Buie 50(6). Poland v. Parsekian, 81 N. J. Super. 395, at p. 401 (App. Div. 1963) certification denied 41 N. J. 520 (1964). Both differ slightly from the common law motions non obstanto veredicto and in arrest of judgment. See Barron and Holtzoff {Wright), Federal Practice and Procedure, vol 2B, sec. 1079 and note 62; 1 Bradner, New Jersey Law Practice, secs. 401-405 (1940).

In a much criticized 1913 opinion it was held that a Federal Court had no power to enter judgment non obstanto veredicto in favor of a party who had not moved for a directed verdict at the trial. Slocum v. New York Life Insurance Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879 (1913). However in Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 55 S. Ct. 890, 79 L. Ed. 1636 (1935) the Supreme Court distinguished the,Slocum case and held that in accordance with the practice at common law before the adoption of the Constitution, the court may reserve decision on a motion for directed verdict at the trial, take a verdict and enter a judgment notwithstanding the verdict if the court determines as a matter of law that the evidence was not sufficient to sustain the verdict. Federal Civil Practice Rule 50(6), as amended, provides that whenever a motion for a directed verdict is denied or for any reason is not granted, “the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” The practice of granting judgment notwithstanding the verdict has been sustained repeatedly. Montgomery Ward & Co. v. Duncan, 311 U. S. 243, 61 S. Ct. 189, 85 L. Ed. 147 (1940); Berry v. United States, 312 U. S. 450, 61 S. Ct. 637, 85 L. Ed. 945 (1941); Neely v. Martin K. Eby Construction Co., 386 U. S. 317, 87 S. Ct. 1072, 18 L. Ed. 2d 75 (1967). See Barron & Holtzof (Wright) op. cited, sec. 1077. Cf. Hager v. Weber, 7 N. J. 201 (1951).

In Shaw v. Edward Hines Lumber Co., 249 F. 2d 434 (7 Cir. 1957) the court said:

“* * * there is no doubt but that one of the cogent reasons for the rule was the desire to permit the trial court to resolve any doubt as to the sufficiency of the evidence subsequent to the rendition of the verdict, thereby placing the case in such a posture that, in the event it should be concluded upon review that the court erred in directing a verdict, the original verdict may be reinstated without a new trial * * * It is clear that a court may expressly reserve decision on a motion for directed verdict * * * Indeed, various courts have recommended that trial courts reserve their decisions on such motions * * * This recommendation is made, not only for the purpose of avoiding unnecessary delay, but, in addition, to provide a procedure which gives the trial judge adequate opportunity properly to scrutinize the record and to make informed, considered rulings.” (At pp. 436-437)

See Poland v. Parsekian (supra). In Pence v. United States, 316 U. S. 332, 62 S. Ct. 1080, 86 L. Ed. 1510 (1942) the Supreme Court affirmed a Court of Appeals decision reversing the trial court’s failure to grant judgment non obstanto veredicto where the court found that the evidence established fraud without contradiction, qualification, or explanation.

In Stanolind Oil & Gas Co. v. Trosclair, 166 F. 2d 229 (5 Cir. 1948) it was held proper to enter a judgment for the defendant non obstanto veredicto in an action based on the tort of an alleged agent where the evidence showed that the alleged agent was an independent contractor.

In Ferrie v. D’Arc, 31 N. J. 92 (1959) the Supreme Court reversed the trial court and the Appellate Division and directed judgment to be entered for the defendant notwithstanding a plaintiff’s verdict on the ground that the evidence established contributory negligence as a matter of law.

The granting of a judgment notwithstanding the verdict is governed by the same principles as the granting of a motion for judgment at the trial under R. R. 4:51—1, formerly designated a motion for a directed verdict. Tomaiuoli v. United States Fidelity & Guaranty Co., 75 N. J. Super. 192 (App. Div. 1962). Barron and Holtzoff (Wright) op. cited, sec. 1079; National Equipment Rental, Ltd. v. Stanley, 177 F. Supp. 583 (E. D. N. Y. 1959) affirmed 283 F. 2d 600 (2 Cir. 1960). A judgment may be granted at the end of the trial or notwithstanding the verdict “Where the judge, by the application of the reasoning processes of the mind to the evidence adduced in the case may properly conclude that fair-minded men cannot honestly differ as to the conclusions to be drawn from the proofs” Franklin Discount Co. v. Ford, 27 N. J. 473, at p. 487 (1958); Kopec v. Kakowski, 34 N. J. 243 (1961).

The court has discretionary power to grant a new trial rather than to enter judgment and should do so if it appears that the party who obtained the verdict may be able to supply the deficienc3r in evidence, or may win on another issue not fully tried, or for some other reason justice so requires. R. R. 4:51—2(a); Neely v. Martin K. Eby Construction Co., supra; Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 67 S. Ct. 752, 91 L. Ed. 849 (1947); Weade v. Dichmann, Wright & Pugh, Inc., 337 U. S. 801, 69 S. Ct. 1326, 93 L. Ed. 1704 (1949).

A judgment may not be granted merely because the verdict is contrary to the weight of the evidence, although a new trial may be granted on that ground. Franklin Discount Co. v. Ford, 27 N. J. 473, at p. 490 (1958); Pawlowski v. Marino, 71 N. J. Super. 120, at p. 124 (App. Div. 1961). On a motion for a new trial the judge must weigh conflicting evidence and may grant a new trial if it is so overwhelmingly in favor of one side against whom the verdict was rendered “as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality.” Hager v. Weber, 7 N. J. 201, 210 (1951). “ * * * on a motion for judgment the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor.” Melone v. Jersey Central Power & Light Co., 18 N. J. 163, at p. 170 (1955).

In the light of these principles, we examine the evidence with respect to plaintiff’s contention that he was employed by Belford Seabrook individually while Craig McKinley was employed by the defendant McEldowney & Company.

Belford Seabrook owned 56 out of 68 shares of the stock issued by the defendant corporation McEldowney & Co. The corporation had been formed by Seabrook and his wife to hold real property and it owned the property in Alloway Township where the accident happened. Seabrook was the president of McEldowney. Under an oral lease the corporation leased to Seabrook the house in which he lived together with the garage and carriage house. Adjoining farm lands were similarly leased. The rental arrangement was a bookkeeping matter. McEldowney & Co. was not known, had no credit and very little cash. Seabrook personally paid for all repairs and paid social security on any employees. He purchased materials on his own credit. The rent fixed was sufficient to cover the taxes and mortgage payments on the property. Seabrook charged the cost of repairs against the rent due to the corporation and when the rent was insufficient the excess was entered as an indebtedness of the corporation to Seabrook.

Seabrook collected rent from subtenants and tenants in two other houses owned by McEldowney and paid them over to the corporation. Kents from subtenants were credited against rent due from Seabrook to McEldowney.

On August 5, 1962, plaintiff was employed by Seabrook to repair the roof on the carriage house. Plaintiff was to be helped by his stepfather. Seabrook agreed to pay Wenner $2.00 an hour for his work and $1.50 per hour for his helper. Seabrook purchased the material for the job on his personal credit.

When plaintiff and his stepfather came to do the work Seabrook directed that it be done under the direction of his stepson, Craig McKinley. McKinley did not live on the property but visited there. On August 5th he was there on a visit. He had occasionally on his visits done work around the place for Mr. Seabrook. He had never been employed by MeEldowney or, for that matter, by Seabrook. Seabrook occasionally gave him small sums of money. McEldowney never paid McKinley any money.

As above stated the accident happened when plaintiff rhounted the roof while Craig McKinley was inside the carriage house. Plaintiff’s claim for damages is based solely on the negligence of McKinley which allegedly caused Wenner to fall from the roof. Plaintiff asserts that he was employed by Seabrook individually and the point is not disputed.

Plaintiff’s contention that Craig McKinley was the servant of the defendant corporation is based upon evidence that McKinley knew that defendant owned the property, that he did odd jobs around the place, and that he undertook his part of the work or supervision of plaintiff’s work upon the direction or request of Seabrook.

Plaintiff also contends that, although the lower part of the carriage house was rented to and used by Seabrook, the upper portion which was rented or sublet to Sullivan was not within the oral lease from McEldowney to Seabrook because the rent paid by the tenants was paid over to McEldowney and, beginning in September, 1962, when Seabrook left the country, it was not collected by Seabrook. We are satisfied that on August 5, 1962 the carriage house was a portion of the property rented to Seabrook and a part of it was sublet by him to Sullivan. However, it is immaterial whether or not Seabrook was the tenant. He undertook to have the roof repaired and to pay for the work and materials.

Plaintiff was employed by Seabrook with no specification that he was to work for him individually or for the corporation. In the same conversation, Seabrook directed McKinley to work on the same job with no specification as to individual or corporate employment. McKinley was Seabrook’s stepson, a member of his family. He had never been employed or paid by McEldowney on any prior occasion. Any money he had ever received was from Seabrook individually.

The burden of proof is upon the plaintiff to establish that he was injured by the tortious act of defendant’s servant. The evidence utterly fails to support the plaintiff’s position that his employment by Seabrook and McKinley’s were made by Seabrook acting in different capacities. Any inference drawn from ownership of the property would apply equally to both.

We agree with Judge Heine that there was no evidence in the case from which fair-minded men could conclude that McKinley was acting as a servant of the defendant when he allegedly committed the tort. The case was fully presented and the interest of justice would not be served by a new trial.

The judgment of the Law Division is affirmed.


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

text:
    KENNETH E. STONE; LOTTA C. BURKE; DAVID L. STOKES; AND M. GLORIA JANWICH, PLAINTIFFS-RESPONDENTS, v. FLOYD WYCKOFF, TOWNSHIP CLERK OF THE TOWNSHIP OF MARLBORO; GEORGE E. CREEVY AND ALFRED L. STORER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 17, 1968—Remanded June 20, 1968
    Decided July 16, 1968.

      Before Judges Coneoed, Labeecque and Halpeen.

      Mr. Milton Kosene, argued the cause for appellant Floyd Wyckoff.

      Mr. Herbert B. Bier man, argued the cause for appellants George E. Creevy and Alfred L. Storer.

      Mr. James B. Minogue, argued the cause for respondents.
   The opinion of the court was delivered by

Conrord, S. J. A. D.

This is an action in lieu of prerogative writs by four citizens of Marlboro to compel the township clerk to call for a recall election in respect of the two defendant-councilmen, pursuant to N. J. S. A. 40:69A-169 et seq. Defendants resisted the complaint in the Law Division on grounds of fraud in the preparation, and insufficiency of the recall petitions in various respects. Certain constitutional objections to the statute were also raised in the answers filed by defendants, but were not advanced at the hearings in the Law Division. These and some added constitutional points are nevertheless argued on the appeal.

The trial court after a hearing ruled against defendants on all points raised before it. We remanded for the taking of additional proofs and the making of further findings as to the genuineness of signatures on the two recall petitions. This has been done, and the final judgment entered in the first instance in favor of plaintiffs and against defendants on cross-motions for summary judgment and the first hearing of factual issues has been reaffirmed.

I

After the original hearing, the trial court found no evidence of fraud in the circulation and signing of the recall petitions, and we concur.

II

At the original hearing, a handwriting expert testified on behalf of defendants that in a considerable number of groupings of signatures on both petitions a single person had signed all names in each of the particular groupings. As to most of these groupings of names plaintiffs offered the opposing testimony of individual purported signatories that all of the signatures in the particular grouping impugned were genuine. As to substantially all other groupings, the parties stipulated that persons were present in court, either signers or petition carriers, who would testify to the same effect. Since both sides agreed at the oral argument that the trial judge did not examine the signatures on the original petitions in appraising credibility, and because we did not deem such a stipulation a satisfactory method of weighing comparative weight and credibility, we remanded with directions that the “stipulated” witnesses appear and testify at a new hearing and that the judge examine the questioned signatures on the original petitions.

As noted above, these directions have been complied with (except as to 3 or 4 signatures where the witnesses could not be produced at the remand hearing), and the trial judge has made individual findings of genuineness of all questioned signatures. In each instance the judge indicated the specific factual basis for his findings, and we are satisfied that there is no ground for appellate interference with any of the determinations of fact thus made.

The supplemental brief of defendants makes only two points concerning the remand hearing. First, it is pointed out that one witness-signatory was concededly mistaken as to the identity of the petition carrier who obtained her signature, and that she was recalled to the stand to correct her testimony. This, however, was merely a circumstance going to credibility, and the judge was entitled to find that the witness was nevertheless truthful concerning the genuineness of the signatures of herself and her husband. Second, a point of comparable import is made with respect to the statutory affidavit of one of the petition carriers. The affidavit was to the effect that all signatures on the petition he carried were genuine whereas he admitted in his testimony that one signature was produced out of his sight when a signing husband took the petition to a bedroom for his wife to sign also. Defendants ask that on the basis of the foregoing we invalidate all the signatures on the petition circulated by this particular carrier. The request is frivolous. The technical untruthfulness of the affidavit in the respect noted does not necessarily condemn the carrier’s testimony as to the genuineness of all other signatures on his petition. The matter was one for disposition within the fact-finding function of the judge. As for the signatures of the husband and wife in this instance, the judge decided, on an inspection of the signatures on the petition and those of the same persons on the original voting records, that the signatures on the petition were genuine. There is no tenable basis for rejecting that finding.

Ill

It is contended that the trial judge “created an unfair climate in the courtroom and deprived defendants of a fair trial.” We need not discuss the detailed allegations in this regard. We find the complaint without merit.

IY

Defendants argue that since the statute requires that where there are petitions for the recall of more than one officer their positions on the ballot should be in the order of the filing of the petitions, N. J. 8. A. 40:69A-173, and since the township clerk could not determine the order in which the recall petitions had actually been filed, the petitions should be dismissed. The incongruity of any such construction of the statute, which would cripple the whole recall effort merely because the two petitions had been filed together, is manifest on the face of its statement. If the clerk is actually unable to determine the order of filing, he may position the names on the ballot in such reasonable manner as he chooses. As a rule of general procedure, however, the statutory intention should be subserved by the clerk requesting a filer of more than one petition to specify the order in which it is desired that they be filed.

Y

Defendants contend that a considerable number of signatures on the petitions are invalid because they do not satisfy the requirement of N. J. S. A. 40 ¡69A-170 that the signer specify “his place of residence giving the street and number or other sufficient designation if there shall be no street and number.” It is clear from the evidence that while every street or road in Marlboro has a name few if any dwellings have street numbers. For postal purposes there are B.D., and P.O. box, numbers. Defendants contend that the statute is not satisfied unless the petition signer gives the street name and P.O. box number (where there is no street number). They argue that a street name and an E.D. number are insufficient because in the absence of a box number “it would be practically impossible to locate the residence” of the person. This is not explained. Yet they also say that no one has both an E.D. and P.O. box number. By this contention, therefore, a voter without a box number would be unable to sign a recall petition. The unreasonableness of the position is manifest.

Election laws are to be liberally construed so as to effectuate their purpose. Wene v. Meyner, 13 N. J. 185 (1953). It appears to us that in a situation such as this, where a municipality has named streets but no house numbers, it is reasonable to construe the statute as satisfied if the street name alone is given, whether or not an R.D. or P.O. box number is also supplied. On the other hand, we disagree with the plaintiffs’ argument that even the street name is dispensable on the petition. The statutory language should to this extent be respected, since at least that miuimum information is needed by the clerk to conveniently perform his statutory function of checking petitions for imposters within the limited time available to him.

Our own inspection of the petitions reveal that 111 of the signatures on the Creevy petition and 110 of those on the Storer petition lack street names, and these will therefore be held disqualified.

YI

Defendants contend that any signature not appearing on the petitions in the identical form as on the original voter registration ledger is for that reason alone disqualified; e. g., “Mrs. John Jones” on the petition will not do for one who has registered as “Adele Jones.” The statute merely requires that the signers be “qualified voters,” N. J. 8. A. 40:69A-169, not that their signature be in the form identical with that appearing on the registration records. Many people have more than one “signature.” Admittedly the clerk may have some difficulty in identifying some voters where the form of signature on the petition varies from that in the registration book, and he may for administrative purposes therefore require some proof of identity or reject the name. But once the matter reaches a judicial tribunal, as here, a signature consistent with that of the registered voter, of one residing at the recorded address of the registrant, must be deemed prima facie that of the registered voter, and the burden is on any challenger to show the contrary. Defendants have not met this burden as to any of the names here challenged.

YII

Defendant township clerk rejected eleven signatures on the Creevy petition and nine on the Storer petition as illegible. We regard this action as arbitrary, since many people have signatures which to others are illegible. There is no testimony that a comparison of these signatures with those of persons residing at the same addresses, as the signatures appear on the registration records, shows any significant variance. As in the situation discussed in YI, supra, the presumption of genuineness of the signatures as those of qualified voters has not been overcome.

VIII

Defendants argue that certain of the signatories on both petitions are disqualified as being persons who, though “registered” to vote as of the petition date, were not then “qualified” to vote. This argument is erected on the hypothesis that if the recall election were to have been held on the date the petitions were signed these persons would not have been qualified to vote because not registered at least forty days prior thereto. N. J. S. A. 19 :31-6. However, under the recall statute, the election could not be held less than 60 days after the filing of the petition. N. J. 8. A. 40 :69A-171. By then all the registered signatories would be qualified to vote. By “qualified” the statute as a matter of good sense must be deemed to mean registered, and qualified by the time the election will have been held. Defendants’ position is consequently without merit.

IX

It is urged by defendants that the petitions were defective because only the face page and not all succeeding pages of each stapled petition carried by a particular carrier contained the carrier’s statutory affidavit and the “statement of causes for removal.” N. J. 8. A. 40 ¡69A-169, 170. We disagree with this construction of the act. While Section 170 says, in effect, that the affidavit must appear on each “paper,” we construe this to refer to situations where a petition carrier proffers to a prospective signer a single isolated sheet, not one where he proffers a stapled petition with multiple pages. In the latter case it is the statutory contemplation that the signer can see and read the statement of causes for removal on the face page of the petition and the carrier may make a single affidavit on the last page. To require an affidavit, and statement on each page might leave ■ little if any room for signatures—an unthinkable legislative intent. The uncontradicted proof here was that in all cases the petition pages were stapled together when signed by the voters.

X

A number of constitutional points are urged on appeal. We would be justified in rejecting them out of hand because they were not presented to the trial court. However, none of them has merit.

A

It is argued that N. J. S. A. 40:69A-168 is defective for failing to fix standards in providing that an elected officer may be removed “for cause connected with his office * * *.” This is a sufficient standard. Cf. Westpy v. Burnett, 82 N. J. Super. 239 (App. Div. 1964), affirmed 41 N. J. 554 (1964). The specific causes for removal given in the instant petitions are clearly adequate. Ibid.

B

It is also argued that recall under the circumstances here presented would be cruel and inhuman punishment of the recalled officers. This is sheer frivolity.

C

Lack of opportunity of the impugned counci lmen to meet the merits of the “Statement of Causes for Removal” in a court of law is said to constitute a denial of due process. This is frivolous. The same applies to the contention that the right of the defendant councilmen to hold office for the elected term of four years is a vested property right.

D

The recall statute is argued to be unfair in that defendants must persuade at least 50% of the voters at the election to vote against recall whereas in the same election successor councilmen can be elected (if the recall carries) by a mere plurality. This contrast, it is contended, constitutes a denial of due process, equal protection and the privileges or immunities of citizens of the United States. We regard the argument as totally without merit.

CONCLUSION

Under the statutory requirement of signatures of qualified voters equal to 25% of the voter registration each recall petition needed 684 signatures. The Creevy petition had 827; the Storer petition 823. We have hereinabove disqualified 111 of the Creevy signatures and 110 of the Storer (for lack of street addresses). As we have held all the other signatures unexceptionable it follows that each of plaintiffs’ petitions retains an adequate margin of valid signatures.

The judgment is therefore affirmed.


author: Consodine, J. C. C.

text:
    T., PLAINTIFF, v. H., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 17, 1968.

      Mr. William F. Tomphins for plaintiff. (Messrs. Bum, Biunno and Tomphins, attorneys).

      Mr. Burrell Ives Humphreys for defendant. (Messrs. Hofmann, Humphreys and Lafer, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Plaintiff seeks custody in New Jersey of minor children as opposed to custody with the mother, now remarried to a Gentile, and living in Western Idaho. Both parties are of the Jewish faith and want the children to be brought up in that faith. They included a provision to that effect in their separation agreement.

Northern New Jersey offers every facility toward the cultivation of their faith in the children. Temples,. Hebrew schools, and extra-religious facilities abound. Idaho offers the town of Kellogg (population 5,300) in which the two children and their mother would be the only Jews. There are but two temples in that state, the nearer one being almost 3()0 miles away with a congregation of less than 200. To the west, in Washington, and 70 to 80 miles away by automobile, is the nearest temple of less than 200 families. Of Idaho’s population, 692,000, only 500 or .07% are Jews. 67 M. Fine, American Jewish Yearbooh 81 (1966); Goldstein, American Jewish Organizations Directory (1957).

The question here is—are the religious education and religious environment of the children, eight and ten, an important though not controlling factor in this ease in the determination of custody?

Generally, our courts do not intervene in the religion of children in custody cases. Religion usually follows custody. Donahue v. Donahue, 142 N. J. Eq. 701 (E. & A. 1948); Esposito v. Esposito, 41 N. J. 143, 146 (1963).

Nevertheless, in awarding the custody of an infant, the religious training of the child is appropriately an element which may be considered among all the circumstances of gradational significance promoting the general welfare of the infant. Wojnarowicz v. Wojnarowicz, 48 N. J. Super. 349, 354 (Ch. Div. 1958); Scanlon v. Scanlon, 29 N. J. Super. 317, 326 (App. Div. 1954).

Although we have no cases directly in point to guide the court, it is clear that it may weigh religion in accordance with what is best for the happiness and welfare of the children as an important though not controlling factor in the awarding of custody. Boerqer v. Boerqer, 26 N. J. Super. 90 (Ch. Div. 1953).

Cases in other jurisdictions are more explicit than our holdings. They are summarized in 66 A. L. R. 2d 1610 as follows:

“Even in the absence of any particular issue as to whether the child should be raised in one religion or another, the courts in awarding custody have referred to the good religious standing or qualification of the custodian chosen ... or that in the home chosen the child would have superior facilities for church or religious training”. (Emphasis added)

Religious training is “most important and a factor which must be given the most serious consideration in child custody cases.” Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A. 2d 69, 73 (Sup. Ct. 1961).

A court should consider the religious beliefs of the parents and their desires concerning the children. State ex rel. Hamilton v. Boiler, 159 Neb. 458, 67 N. W. 2d 426, 431 (Sup. Ct. 1954). In Commonwealth ex rel. Ackerman v. Ackerman, 204 Pa. Super. 403, 205 A. 2d 49 (Super. Ct. 1964), the court inferred that religion will dominate the custody issue when there is a contractual agreement of the parents that the child be brought up as a Jew.

See also Dansker v. Dansker, 279 S. W. 2d 205 (Mo. Ct. App. 1955) (custody denied on the ground, among others, that if the children were moved from St. Louis to Pratt, Kansas, “the surroundings would be strange for [them] with no synagogue closer than seventy-five miles”); Sigesmund v. Sigesmund, 115 Cal. App. 2d 628, 252 P. 2d 713 (D. Ct. App. 1953) (referring to the fact that one parent regularly took the children to Sunday school); State ex rel. Bize v. Young, 121 Neb. 619, 237 N. W. 677 (1931) (where the court considered that the foster parents “sympathetically cherished, encouraged and developed the religious teaching” imparted to the child in her natural home); State ex rel. Bonsach v. Campbell, 134 Fla. 809, 184 So. 332 (Fla. Sup. Ct. 1938) (referring to religious instruction); Commonwealth v. Sheftic, 178 Pa. Super. 649, 115 A. 2d 861 (Super. Ct. 1955) (which discussed the nearness of the child’s present home to the church attended), and Fannett v. Tompkins, 49 S. W. 2d 896 (Tex. Civ. App. 1932) (“the opportunity for Christian culture and training” was a major factor in determining custody). See also Gluckstern v. Gluckstern, 220 N. Y. S. 2d 623 (Sup. Ct. 1961).

While mixed marriages between faiths are of no more concern to courts than inter-racial marriages, the court cannot ignore the view that

“if * * * a Jew who marries a Gentile continues to live in a Jewish environment, tlie chances are that the family will remain Jewish. But, if the environment is non-Jewish, the prospects are exactly the reverse. The results of studies showed that the number of mixed marriages in the agrarian part of the country was larger than in the cities.”
“* * * The number of Jews leaving the Jewish Community after marriage to a non-Jew is higher than that of the non-Jews entering the Jewish Community after marriage to a Jew.”

Sherman, The Jew Within American Society, pp. 37, 39, 189 (1961).

The answer to the posed question is in the affirmative and clearly carries our law beyond the proposition that religious education is never more than an element of consideration. Religious education, considered in the best interest of children, may become an important factor in deciding custody.

On this, and other grounds, judgment of custody to plaintiff.


author: Yancey, J. C. C.

text:
    FACTORS & NOTE BUYERS, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF, v. GREEN LANE, INC., A CORPORATION, AND GEORGE S. GOTTESMAN, DEFENDANTS.
    Superior Court of New Jersey Law Division.
    Decided June 20, 1968.

      Mr. Marvin Schondorf for plaintiff.

      Mr. Arthur B. Kobin for defendants (Messrs. Scerbo, Gliclcman and Kobin, attorneys).
   Yancey, J. C. C.

(temporarily assigned). This is a motion for summary judgment on three notes executed by defendant Green Lane, Inc. and signed by defendant George Gottesman, its secretary.

The notes were signed May 15, 1964 to the order of Comfort Cooling Co. Defendants claim in their affidavit by Gottesman that the notes were made with the express agreement that they would not be discounted “but would merely be exhibited for the purpose of obtaining supplies in order to complete the contract.” Unfortunately, this was nowhere indicated on the instruments.

Defendants claim that on May 18, 1964, when the corporation learned of Comfort Cooling’s intent to discount the notes to plaintiff, and again on May 19, Gottesman telephoned plaintiff, spoke to Alexander Matathias, its vice-president, and “advised him of Green Lane’s position, and emphatically requested that the notes not be discounted.” Nevertheless, plaintiff acquired the notes.

In an affidavit dated May 29, 1967 and filed in support of an earlier motion for summary judgment, which was later withdrawn, Matathias said that the notes were purchased on May 21, 1964. In the affidavit in support of this motion, dated February 29, 1968, Matathias says the notes were purchased on May 15, 1964, thus, if true, sidestepping the issue of notice by Gottesman.

Defendants say Comfort Cooling did not complete performance and subsequently went bankrupt. They do not say how soon this was after the discounting and do not specifically allege plaintiff had knowledge of Comfort’s financial troubles and of its incomplete performance. However, Gottesman does allege his “firm belief” that “plaintiff corporation had complete knowledge of the surrounding circumstances.”

B. R. 4:58-6 states in pertinent part: “Supporting and opposing affidavits shall be made on personal knowledge and shall set forth Only facts which are admissible in evidence and to which the affiant is competent to testify.” Defenddant’s “belief” is unsupported by factual allegations and thus I hold as a matter of law that it is insufficient to show a defense exists within the meaning of N. J. 8. 12A :3-307(3) or to create a genuine issue of a material fact. See N. J. Mtge. and Inv. Corp. v. Calvetti, 68 N. J. Super. 18, 19, 32-33 (App. Div. 1961).

As the Court of Errors and Appeals said in affirming a directed judgment in Hudson County National Bank v. Alexander Furs, Inc., 133 N. J. L. 256 (F. & A. 1945):

“The defendants had the burden of establishing proof -which would have justified the court' in submitting the facts to the jury to decide the factual issues raised by the defendants’ pleadings. This the defendants failed to do and the court below properly directed a verdict in favor of the plaintiff. Polhemus r. Prudential Realty Carp., 74 N. J. L. 570; Trustees System Company of Newark v. Lisena, 106 N. J. L. 549.” (at p. 260)

In N. J. Mtge. and Inv. Corp. v. Calvetti, supra, at p. 36, the court, in a case very similar to the case at bar, noted:

“All we are shown is an ordinary commercial financing transaction by a company in the legal business of discounting commercial paper. While the possibility of guilty knowledge on plaintiff’s part cannot be categorically excluded, defendants, even on a motion for summary judgment, must provide at least some small ray of light indicating eventual illumination of that possibility as a probability. This they have not done. They are not ‘entitled to go to trial on the vague supposition that something may turn up. 6 Moore, supra, § 56.15, p. 2148.’ ”

In the case at bar defendants apparently consider Mr. G-ottesman’s telephone calls to plaintiff not only a “ray of light” but a beacon. However, even if it be assumed that plaintiff purchased the notes on May 21, 1964 and that Gottesman’s telephone calls to Mr. Matathias thus should be considered, I hold as a matter of law that the information that was communicated by Gottesman in those calls is ineffective to preclude plaintiff from becoming a holder in due course.

The only provision of N. J. 8. 124.:3-304, “Notice to Purchaser,” that might be applicable in the case at bar is section 4(6). It reads as follows:

“(4) Knowledge of the following facts does not of itself give the purchaser notice of a defense or claim
Sc Í * Sc Sc * * *
(b) that it was issued or negotiated in return for an executory promise or accompanied by a separate agreement, unless the purchaser has notice that a defense or claim has arisen from the terms thereof;

The import of this provision is explained by paragraph 9 of the Comment following 3-304, as follows:

“Mere notice of the existence of an executory promise or a separate agreement does not prevent the holder from taking in due course, and such notice may even appear in the instrument itself. If the purchaser has notice of any default in the promise or agreement which gives rise to a defense or claim against the instrument, he is on notice to the same extent as in the case of any other information as to the existence of a defense or claim.” (Emphasis added)

The breach by Comfort Cooling of its agreement not to negotiate the notes would not give rise to a defense or claim against the notes but only against Comfort Cooling. Thus, plaintiff took the notes “without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” N. J. 8. 12A :3-302(1).

Since Gottesman phoned plaintiff only three and four days after the notes were executed to enable Comfort Cooling to complete its work, it is very unlikely that he could have considered Comfort Cooling in breach and so notified plaintiff. Defendants do not allege that they told plaintiff that there had been failure of consideration on the part of Comfort Cooling.

Similarly there is no allegation in defendants’ affidavit that plaintiff knew or suspected at the time it acquired the note that Comfort Cooling was on the verge of bankruptcy and would not be able to perform its agreement with defendants.

N. J. 8. 12A :3—302 (2) requires, in order for a holder of an instrument to be a holder in due course, that the holder also take the instrument “in good faith.” “Good faith” is defined in N. J. 8. 12A :1-201(19) as meaning “honesty in fact in the conduct or transaction concerned.” In assessing whether a party to a transaction acted without good faith'—■ and thus in bad faith—the New Jersey courts have long adhered to the rule expressed in Rice v. Barrington, 75 N. J. L. 806 (E. & A. 1908):

“* * * proof of circumstances calculated merely to arouse suspicion will not defeat recovery on a negotiable note taken for value before maturity. Bad faith, i. e., fraud, not merely suspicious circumstances must be brought home to a holder for value whose rights accrued before maturity in order to defeat his recovery on a negotiable note on the ground of fraud in its inception or between the parties to it.” (at p. 807)

See also Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 480 (1952), certiorari denied 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952), rehearing denied 344 U. S. 888, 73 S. Ct. 181, 97 L. Ed. 687 (1952); Joseph v. Lesnevich, 56 N. J. Super. 340, 348 (App. Div. 1959), and N. J. Mtge. and Inv. Corp. v. Calvetti, supra, at pp. 26-27. There is no indication that passage of Title 12A, the Uniform Commercial Code, changed the New Jersey approach to good faith. Gf. New Jersey Study Gomment (1) (B) following N. J. 8. A. 12A :3-302.

Any duty of inquiry devolves upon a purchaser “only to the extent that the failure to make inquiry indicates ’a deliberate desire on his part to evade knowledge because of a belief or fear that investigation would disclose a vice in the transaction.’ First National Bank of Blairstown v. Goldberg, 340 Pa. 397, 17 A. 2d 377, 379 (Sup. Ct. 1941).” Joseph v. Lesnevich, supra, at p. 349.

With the assumption that plaintiff did not purchase the notes until after Gottesman’s telephone calls still in effect, this court 'is of the opinion that the actual knowledge plaintiff had as to defendants misconstruing their legal position does not amount to bad faith in the acquisition of the notes.

Plaintiff also states in its affidavit that it purchased the notes “for a valuable consideration.” Thus, I conclude that plaintiff took the notes for value, in good faith and without notice, and is a holder in due course within the meaning of N. J. S. 12A :3-302. As such it takes the notes free from all claims to them and free from all defenses to them, except for certain “real defenses.” N. J. 8. 12A :3-305.

It could be inferred from defendants’ affidavit that the agents of Comfort Cooling never intended to honor the collateral agreement not to negotiate the notes and thus defrauded defendants into signing the notes. Even so, this would not be “such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.” N. J. 8. 12A :3-305(2) (c). Defendants knew of the character and essential terms of the notes. That is why they did not want plaintiff to acquire the notes.

In fact, it appears that defendants themselves were participating in questionable activity. They created three notes that were perfectly negotiable on their face, with the intent and purpose that Comfort Cooling would hold them out as such. Defendants knew that a supplier would furnish materials to Comfort Cooling on credit while relying on the negotiability of the notes as security for payment. At the same time, however, defendants were party to an oral agreement, apparently secret, which, if honored, would have emasculated the negotiable character of the notes. As it turned out, Comfort Cooling did not live up to its part and defendants were, as they say, hoist by their own petard. Thus, it may well be that even if defendants were not aware of the character and essential terms of the notes, they would be estopped from raising that defense. Cf. Universal C. I. T. Credit Corp. v. Cyr, 160 Me. 152, 200 A. 2d 213 (Sup. Jud. Ci. 1964), in which the court held that homeowners who were defrauded by the payees in the execution of a note in connection with the purchase of home improvements but wbo were not illiterate or inexperienced in business matters and would not have been confused if they had read what was so plainfy stated on the note, were negligent as a matter of law in signing the note and were estopped from asserting fraud against a holder in due course.

[IS] Gottesman claims he signed the notes as secretary of the corporation and not in an individual capacity. However, N. J. 8. 12.4:3-403(3) states:

“An authorized representative who signs his own name to an instrument * * * (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, * *

While there might be questions as to what, if anything, was established between the parties and as to whether the squiggle appearing under Gottesman’s name could reasonably be understood to mean "secretary,” there is another approach available. Gottesman also signed the notes on the back above any endorsement by Comfort Cooling. N. J. 8. 12A :3-402 states:

“Unless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.”

IV. J. 8. 12A :3-415 (4) states:

“An indorsement which shows that it is not in the chain of title :is notice of its accommodation character.”

.And N. J. 8. 12A :3—415 states:

“(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which .he has signed even though the taker knows of the accommodation.”

Thus, Gottesman is liable to plaintiff as an accommodation party. In addition, it appears that he is also jointly liable with Green Lane, Inc. as an individual maker.

Accordingly, plaintiff’s motion for summary judgment against defendants is hereby granted.

        N. J. S. 12A:3-307(3) states: “After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.”

       A distinction has been drawn between mere notice of an executory contract forming the consideration for the instrument and actual knowledge that negotiability of the note has been expressly conditioned between maker and payee on completed performance of the contract. See N. J. Mtge. and Inv. Corp. v. Calvetti, 68 N. J. Super. 18, 29 (App. Div. 1961), and cases cited therein. In the case at bar negotiability was not conditioned by the collateral agreement. It was supposed to be negated.

       It is well settled that mere knowledge on the part of the holder that the note received represents payment to the payee on an executory contract, which—at the time of the payee’s negotiation—has yet to be executed and on which the payee might subsequently default, does not amount to a taking in bad faith. See N. J. Mtge. and Inv. Corp. v. Calvetti, 68 N. J. Super. 18, 27 (App. Div. 1961), and cases cited therein.

       The fact that a negotiable instrument is rooted in an illegal transaction or stems from a transaction prohibited by statute or contrary to public policy is no reason for refusing to enforce the instrument in the hands of a holder in due course. Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 485 (1952).


author: Seidman, J. C. C.

text:
    MITCHELL GLUCKSMAN, AS ADMINISTRATOR AD LITEM OF THE ESTATE OF JERALD LAWSON, PLAINTIFF, v. JUNE STRELECKI, DIRECTOR OF MOTOR VEHICLES AND FLORENCE LAWSON, DEFENDANT.
    Superior Court of New Jersey Law Division.
    Decided July 31, 1968.

      Mr. Doane Began for plaintiff (Messrs. Zarin, Yormarh & Maran, attorneys)-.

      Mr. Thomas J. Kapsalc for defendant June Strelecki, Director of Motor Vehicles {Messrs. Seifert <& Frisch, attorneys) .

      Mr. John F. Keefe for defendant Florence Lawson {Messrs. Cohen, Hoagland <& Cohen, attorneys).
   Seidman, J. C. C.

(temporarily assigned). This motion for summary judgment presents for determination the unusual question of whether the personal representative of a deceased husband can maintain an action for wrongful death against the surviving widow who is not only an alleged tortfeasor but also the sole heir and next of kin of the decedent.

The pertinent facts are as follows: On May 15, 1966 decedent Jerald Lawson was a passenger in an automobile which was being operated by his wife Florence Lawson along South ISth Street, Newark. The motor vehicle was involved in a collision with an automobile driven by an unidentified person. Lawson sustained fatal injuries.

The original complaint was filed by Florence Lawson, as general administratrix and as administratrix ad prosequendum of the estate of Jerald Lawson, against June Strelecki, Director of the Division of Motor Vehicles; City Chrysler-Plymouth, Inc., a corporation of New Jersey, and Newark Buiek, Inc., a corporation of New Jersey. Another suit, instituted by Martha Zarumba, a passenger in the Lawson car, against Mrs. Lawson, the decedent’s estate and the Director, is not involved in these proceedings.

Motions for summary judgment made by City Chrysler-Plymouth, Inc., and Newark Buick, Inc., were granted. Shortly thereafter the attorneys assigned to defend the Director wrote to counsel representing Mrs. Lawson, advising that “plaintiff in her representative capacity has failed to bring suit against Florence Lawson, individually,” and suggesting that the complaint should be amended to add her as a party defendant. The letter also contained these’ remarkable comments:

“As you know, the Fund law requires that suits be brought against every one who is or may be liable. It further appears that under the law of New Jersey, she can sue herself in the position that she finds herself as plaintiff.
If she is not made a party defendant and judgment is recovered against the Director of Motor Vehicles, the Fund will oppose payment on the ground that suit has not been brought against all parties who may be liable.’’

Presumably in response to the letter, Mitchell Glucksman was appointed administrator ad litem of the estate of Jerald Lawson, and an amended complaint was filed in which he was substituted as plaintiff and Florence Lawson was added as a party defendant. Mrs. Lawson, obviously through her insurance carrier, now moves for summary judgment against the substituted plaintiff.

Although the complaint sought damages not only for the alleged wrongful death of Jerald Lawson but also, under N. J. 8. 2A :15-3, for personal injuries, counsel for plaintiff administrator conceded at the argument of the motion that death was instantaneous and stipulated that the claim was limited to such cause of action, if any, as existed under the Death by Wrongful Act statute, N. J. 8. 2A :31—1.

A wrongful death action can be brought only in the name of an administrator ad prosequendum, or, where decedent died testate and his will was probated, by the executor or administrator with the will annexed. N. J. 8. 2A :31-2. There is no provision for such suit to be instituted by an administrator ad lilem, as was done here. Nevertheless, since the defect can be cured, if necessary, by appropriate substitution and amendment, the court will proceed to consider the merits of the motion for summary judgment.

The arguments advanced in opposition to the motion are that the decisional law in this State presents no bar to the action and that the policy considerations supporting the doctrine of interspousal immunity are not applicable to the facts involved in this litigation.

In the case of Long v. Landy, 35 N. J. 44 (1961), it was held that an action could be maintained by a passenger wife for personal injuries sustained when an automobile operated by her deceased husband collided with another vehicle. The focal point of the court’s reasoning was that the concept of the unity of husband and wife is terminated upon the death of either spouse, and the common law reason for the interdiction against interspousal suits based upon such unity no longer exists when the marriage has been so dissolved by the death of either party. 35 N. J., at page 51. The bar to such litigation is also removed by a judgment of divorce entered after an accident involving husband and wife and before the filing of suit. Sanchez v. Olivarez, 94 N. J. Super. 61 (Law Div. 1967).

The unresolved problem is whether an action for the wrongful death of a spouse can be maintained against the surviving tortfeasor spouse, in view of the statutory requirement that the death of a person must be caused “by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury” (emphasis added). Our Supreme Court did not decide the issue in the case of Heyman v. Gordon, 40 N. J. 52 (1963):

“We need not pass upon the first ground relied upon by the trial court, i. e., by reason of the requirement of N. J. S. 2A :31-1, no action for wrongful death will lie because the decedent could not have maintained a suit against her husband if death had not ensued. In states like New Jersey where the statute creates a new cause of action rather than having the effect of survival, the authorities are divided as to whether this requisite pertains only to elements inhering in the tort itself or extends to personal disabilities and immunities as well. See cases collected in Annot. 28 A. L. R. 2d 662 (1953) ; Prosser, Torts, § 105, pp. 716-717 (2d ed. 1955) ; 2 Harper and James, The Laxo of Torts, § 24.5 (1956). As the New Hampshire court said in Levlock v. Spanos, 101 N. H. 22, 131 A. 2d 319, 321 (Sup. Ct. 1957), most courts have held that immunities during life do bar a death action. The point apparently has never been decided by an appellate court in this State. A trial court decision some years ago squarely held as did the law division here. Damiano v. Damiano, 6 N. J. Misc. 849, 143 A. 3 (Cir. Ct. 1928). Long v. Landy, supra (35 N. J. 44) did not present the issue since there the action was not under the death act but by the surviving spouse against the estate of her deceased husband.” (at p. 55)

The recent case of Tharp v. Shannon, 95 N. J. Super. 298 (Law Div. 1967), decided at the trial level, held that both the Survivor’s Act (N. J. S. 2A:15-3) and the Wrongful Death Act (N. J. S. 2.4:31—1) precluded the representative of a decedent from suing under circumstances where the decedent could not have sued the tortfeasor had she lived. In so holding, the court assumed that Heyman approved the reasoning of the court below as well as the conclusion reached in the cited New Hampshire case that lifetime immunities bar the death action. It does not necessarily follow that the Supreme Court would have done so if it had chosen to decide the issue. See Franco v. Davis, 51 N. J. 237, 240-241 (1968), in which the court declined to comment on the soundness of several reported trial court decisions, including Tharp v. Shannon. The argument can be made that if an injured husband or wife is not barred from suing the estate of the deceased tortfeasor spouse, even though such suit could not have been maintained during the lifetime of the decedent, notwithstanding the language of N. J. S. 2A :15-4 that the plaintiff “shall have and maintain the same action against the executors or administrators of such testator or intestate as he or they might have had or maintained against the testator or intestate,” there ought not to be immunity in the reverse situation where the suit is brought by or in behalf of an injured or deceased husband or wife against the tortfeasor spouse, merely because the latter is deceased. The negligent infliction of injury by one spouse upon the other is a wrongful act and it does not lose this quality because the injured spouse is prohibited by the common law doctrine from enforcing liability for the damages. Long v. Landy, supra, at page 50. If the basis for interspousal immunity terminates upon the death of either spouse, it should not matter whether the decedent is the tortfeasor or the victim.

There is no need to attempt to solve the problem at this level, if there is another basis on which the case at bar can be decided. It is better to await a definitive decision by an appellate court.

The inescapable fact is that Mrs. Lawson is, in effect, suing herself. An action for wrongful death is brought for the exclusive benefit of the persons entitled to take intestate property of the decedent. N. J. S. 2A :31-4. The administrator ad prosequendum is merely a nominal representative of the class mentioned, since he acts as fiduciary for the general administrator who is charged with distribution of the funds recovered. Kasharian v. Wilentz, 93 N. J. Super. 479, 481 (App. Div. 1967). In the case at bar the decedent left surviving as his sole heir and next of kin his wife, the defendant. Thus, the suit has been brought for her exclusive benefit. She is the real party in interest.

It is a well settled rule of law that a party cannot maintain an action against himself. 1 G. J. S. Actions § 31. A person should not direct and conduct both the prosecution and defense of the same suit, no matter in what capacity he may appear. Globe & Rutgers Fire Ins. Co. v. Hines, 213 F. 114, 777 (2 Cir. 1921). It would be incongruous to permit the personal representative of the decedent to obtain a judgment for damages against Mrs. Lawson, when she alone would be entitled to the award. No person should profit by his or her own wrongdoing. See In re Kalfus, 81 N. J. Super. 435, 431 (Ch. Div. 1963). It is clear that the suit brought by the decedent’s personal representative against Mrs. Lawson cannot be maintained in the circumstances here present. Whether the negligence, if any, of Mrs. Lawson will affect the remaining action against the Director of the Division of Motor Vehicles is an issue beyond the scope of this motion. But see Annotation, “Death action - beneficiary’s negligence,” 2 A. L. R. 2d 185.

The motion for summary judgment is granted.