author: Lynch, J. S. C.

text:
    RONALD RUDIKOFF, PLAINTIFF, v. EDWARD J. BYRNE, MICHAEL FOGLIO AND MARY R. FOGLIO, INDIVIDUALLY, SEVERALLY AND JOINTLY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 6, 1968.

      Mr. Allan J. Naishuler for plaintiff (Messrs. Greenstone and Greenstone, attorneys).

      Mr. Joseph T. Ryan for defendant Edward J. Byrne, (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
   Lynch, J. S. C.

The novel issue raised here is whether, under the circumstances of this ease, an insured nonresident automobile operator, involved in an accident in New Jersey, may be served with process by service upon his insurance carrier, by registered mail sent to the carrier at its New York office. Service upon defendant Byrne had been attempted by the typical method under the nonresident motorists statute N. J. S. A. 39:7-1 et seq. However, when the Director of Motor Vehicles, pursuant to N. J. S. A. 39 :7-3, forwarded the summons and complaint to the address of defendant listed on his New York driver’s license and registration at the time of the accident, it was returned “Unclaimed.” Defendant had moved from said address without advising the Department of Motor Vehicles of the State of New York of his change of address as required by New York Vehicle and Traffic Law, McKinney’s Consol. Laws, c 71, § 501 (g). Despite diligent inquiry, defendant’s whereabouts are unknown and plaintiff, conceiving he knew of no other way to effect service of process, served defendant’s insurance carrier in the manner described above.

The accident out of which the suit arises occurred in Hoboken, New Jersey, on May 4, 1963, when an automobile driven by defendant Edward Byrne (Bryne), in which plaintiff and one John Evard were passengers, collided with a vehicle owned by defendant Mary R. Eoglio and driven by defandant Michael Eoglio. At the time of the accident Byrne resided at 5505 ~ 5th Avenue, Brooklyn, New York. This was the address which he gave to police at the scene and which appeared on his New York operator’s license and registration certificate. It was at that address that Byrne was served by certified mail on March 7, 1964, under N. J. S. A. 39 :7~3, in a suit started against him in this State by Mr. and Mrs. Eoglio. It was also the address stated in the answer filed on Byrne’s behalf in the Eoglio suit by the same attorneys who now make the instant motion on his behalf.

Eor almost two years after the accident plaintiff’s New York attorney, Edward Vogel, carried on settlement negotiations with Byrne’s liability insurance carrier, Merchants Mutual Insurance Company. That same carrier has settled, on Byrne’s behalf, the claims brought against him by the Eoglios and the other passenger in his car, John Evard. In an affidavit filed in opposition to defendant’s motion here, Vogel details the nature of the negotiations in his unsuccessful effort to settle the claim of the instant plaintiff, Rudikoff. They were typical of the ordinary dealings between a plaintiff’s attorney and defendant’s carrier. He dealt with one Mazzella, an adjuster, who advised him that the company file number on the case was 2-265318 and that he would receive a request from the carrier’s doctors for a physical examination of plaintiff. Such examinations on the carrier’s behalf were held on October 24 and November 26, 1963. Vogel had many discussions with Mazzella from June 1963 to December of that year when Mazzella requested a further physical examination of plaintiff by a specialist, Dr. J. A. Kapland, of New York City. That examination took place on January 25, 1964. Vogel also authorized Dr. Kapland to examine X-rays of plaintiff which were at the hospital where he had been treated and also others in the possession of plaintiff’s physician. Attached, to Vogel’s affidavit herein are copies of letters dated April 20 and 28, May 1 and 5, July 17 and 27, 1964 relating to special damages, including medical expenses incurred, name of plaintiff’s employer and wages lost as a result of the accident. Vogel continued to negotiate with Mazzella through the year 1964 and was then asked to deal with his supervisor, one Videlli. Finally, on January 12, 1965 Mazzella offered $2500 plus medical expenses in settlement. Vogel considered the offer insufficient and in February 1965 was advised that it would not be increased. Negotiations then discontinued.

During the period of the negotiations from June 1963 to February 1965, Vogel refrained from instituting suit on behalf of his client because, he avers, he was confident the case would be settled. He likewise felt that Byrne would remain available for service, under the Motor Vehicle Act of this State, at the same address at which he had acknowledged receipt of the summons and complaint in the case of Foglio v. Byrne. Under the impression that Byrne still resided at the said address, plaintiff’s New Jersey attorney issued summons herein on May 10, 1965 and advised the Director of Motor Vehicles of this State that Byrne could be served there, with the abortive result described above. Thereafter, for almost two years, efforts to locate the whereabouts of Byrne proved unsuccessful.

In October 1967, knowing of no other method of serving Byrne, so it is said, process was sent by registered mail, return receipt requested, to Byrne in care of his insurance carrier. The carrier signed for same. Default having been entered against Byrne, the attorneys selected by the carrier and who represented Byrne in the Foglio suit, move to vacate the default and to set aside the purported service.

Defendant’s sole argument is that R. R. 4:4 — 4 et seq. does not provide for service on an individual by sending a copy of the summons and complaint to his insurance company, as was done here. It is true that no provision of our rules expressly permits service upon an insured by serving his insurance carrier, and there is no judicial precedent for it in our State. Plaintiff, on the other hand, argues that because defendant had moved from the address given to the Motor Vehicle Department of New York without advising change of address, he should be estopped from objecting to the service here made.

Even if the court were to hold that defendant is es-topped from denying the given address as his own, it does not follow that the kind of service here attempted is necessarily valid. There must be some provision of our rules which authorizes the service attempted. Carlin v. Schuler, 89 N. J. Super. 366 (Law Div. 1965) ; Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433 (1952); Levitt v. Colonial Boat Works, Inc., 70 N. J. Super. 555 (Law Div. 1961). Further, the service must be “consistent with due process of law.” It is to these two questions that we direct our attention.

R. R. 4:4-4(j) was adopted in 1963. It reads as follows:

“(j) Whenever it shall appear by affidavit o£ the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding i>aragraphs of this rule, then, consistent with due process of law, service may be made by mailing, registered mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode. Where service is attempted to be made by registered mail but the same is not effected, either by reason of the addressee refusing to accept delivery or if for any reason delivery cannot be made, then service may be made outside the State as provided in ltule 4:4-5 (a) upon any person upon whom service is authorized by the law of this State or of the state wherein service is effected.”

It is clear, as appears by plaintiff’s affidavits, that “after diligent inquiry and effort” defendant Byrne could not be •served in this State under any of the methods provided in the paragraphs of the rule preceding paragraph (j). But the method provided by the first sentence of the rule was not here complied with, for a copy of the summons and complaint was not sent to Byrne “addressed to his dwelling house or usual place of abode.” R. R. 4:4-4 (/) provides that when the attempt to serve by registered mail is unsuccessful and for any reason delivery cannot be made, “then service may be made outside the State as provided in Rule 4:4-5 (a) upon any person upon whom service is authorized by the law of this State or of the state wherein service is effected.” (Emphasis added). Service here was made in New York upon defendant’s insurer. Was this a “person upon whom service is authorized by the law” of the State of New York?

The question as to the validity of service upon an insured’s carrier has received judicial attention in a series of cases in the State of New York, culminating in the recent decision of the Court of Appeals in the cases of Dobkin v. Chapman, Sellars v. Raye and Keller v. Rappoport, 21 N. Y. 2d 490, 289 N. Y. S. 2d 161, 236 N. E. 2d 451. Prior to that decision such service had been held valid under CPLR 308(4) in West v. Mannino (Sup. Ct. 1967) Vol. 157, No. 64 N. Y. L. J., p. 21, col. 7; Keller v. Rappoport (Sup. Ct. 1966) Vol. 155, No. 38 N. Y. L. J., p. 19, col. 5; Zuretti v. Cotto (Sup. Ct. 1967) Vol. 157, No. 9 N. Y. L. J., p. 15, col. 7; Robles v. Yacano (Sup. Ct. 1967) Vol. 157, No. 22 N. Y. L. J., p. 19, col. 7; and Lerman v. Church, 54 Misc. 2d 402, 282 N. Y. S. 2d 622 (Sup. Ct. 1967).

In Zuretti and Robles, the courts, in sustaining the service, found significant the fact that the insurance carriers involved had undertaken investigations of the cases, had medical examinations of the plaintiff and carried on negotiations, and other facts from which it was obvious that the insurance company was “aware of the accident all along.” However, in Winterstein v. Pollard, 50 Misc. 2d 354, 270 N. Y. S. 2d 525 (Sup. Ct. 1966), the court refused to approve said service, holding that there was no showing of identity of interests between the assured and insurer nor an actual relationship between them, and therefore it could not be said, according to the court, that “notice to the insurer is reasonably calculated to give notice to the defendant.” In Lerman v. Church, supra, Justice Geller, while citing Winterstein in recognition of the rule that there must be a showing of actual relationship between defendant insured and his insurer, nevertheless held, in the case before him, that such a showing was made. The process server had attempted to serve defendant at the address given in the motor vehicle report and where defendant had been served on an earlier occasion in a suit arising out of the same accident, but instituted by a different claimant. Defendant had moved and could not be found. Further, plaintiff’s attorney had negotiated with an adjuster for the carrier, forwarded papers by letter showing the carrier’s file number and discussed settlement. In Ijerman the court therefore held that the service upon the insurer was valid.

The issue was finally put to rest in the State of New York when the Court of Appeals, in Keller v. Rappoport, supra, upheld service upon the insurance carrier. In each of the three cases involved in that opinion, Dobbin, Sellars and Keller, appellants contended that the mode of service employed was unauthorized by the statute (CPLR 308 (4)) and that the service violated the requirements of due process. The Court of Appeals found no merit in either contention.

In Keller the Court of Appeals affirmed issuance of an order of the Supreme Court of that state which authorized service (1) by mailing a copy of the summons and complaint to the defendant’s last-known address, and (2) by delivering copies thereof to the defendant’s insurance carrier. Thus, such service as provided in the order described “is authorized by the law * * * of the state wherein service is effected,” within the meaning of our rule, R. R. 4:4-4 (j). Again, however, the same rule provides that service as therein authorized outside this State shall be made “as provided in Rule 4:4-5 (a).” The latter rule provides that, when service is made in another state, it may be done:

“* * s= in thg same manner as if service were made within the State, except that service shall be made by a sheriff, constable, bailiff or other officer having like authority in the jurisdiction wherein the service is made or by a person duly qualified to practice law in this State or the jurisdiction wherein service is made or by a person specially appointed by the court for that purpose, ® *

Since the method of service here in question consisted in sending the papers to the insurance carrier by registered mail and was not made by any of the persons described in R. R. 4:4-5 (a), the service here was not within our rules, and is invalid. It follows that it must be set aside and the default judgment heretofore ordered is vacated. It may appear that the court, having found service invalid for noncompliance with our rules, need not reach the question as to whether service on an insured’s carrier is “consistent with due process of law” if R. R. 4:4-4(j) and R. R. 4:4-5 (a) had been complied with. However, the court feels that justice dictates that plaintiff should not be deprived of his right to prosecute this action, nor should defendant be advantaged by his dereliction and evasion of process in his failure to advise the New York authorities of his change of address, as ho was required to do by law. Therefore, as will be seen below, plaintiff will be given further opportunity to serve defendant by service upon his insurance carrier provided he complies with R. R. 4:4-4 (j) and R. R. 4:4-5(a). Consequently, the constitutional issue must be considered.

Principles of equitable estoppel should preclude defendant from taking advantage of his own acts in violation of of a legal duty. In State by Parsons v. United States Steel Corp., 22 N. J. 341 (1956), the general rule was stated as follows:

“ ‘Equitable estoppel in the modern sense arises from the conduct of a party, using that word in its broadest meaning as including his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice and good conscience. Its object is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of the law, unless prevented by the estoppel; and its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel.’ 3 Pomeroy on Equity Jurisprudence (5th ed. 1941), sec. 802.” (at p. 358)

At page 356 Mr. Justice Burling, speaking for the Supreme Court, referred to Noel v. Teffeau, 116 N. J. Eq. 446 (Ch. 1934). In Noel, Vice-Chancellor Bigelow held that a defendant was estopped from pleading the statute of limitations where he had concealed his involvement in the automobile accident in which plaintiff was injured. The court found that defendant was knowingly involved in the accident and failed to stop and give his name, address, operator’s license and registered number to the person injured, in violation of the Motor Vehicle Act, section 14(4), as amended, L. 1926, G. 254, that it was this conduct of defendant which deprived plaintiff of the ability to bring the action within two years after the accident because he was ignorant of the identity of the person driving the automobile which struck him. The court quoted from Howard v. West Jersey and Seashore Railway Co., 102 N. J. Eq. 517 (Ch. 1928) as follows:

“ * * Also it should be noted that, while the doctrine of estoppel iñ pais rests upon the ground of fraud, it is not essential that the representations or conduct giving rise to its application, should be fraudulent in the strictly legal significance of that term, or with intent to mislead or deceive; the test appears to he whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct; * * * fraud, in the sense of a court of equity, properly including all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconseientious advantage is taken of another.’ ” (Emphasis added)

Applying the suggested test to this cáse, the court is of the opinion that “conscience and duty of honest dealing should deny” this defendant the right to repudiate the consequences of his conduct in leaving his original address without advising the New York authorities of a change of address • — • a “breach of * * * legal duty.” And so it was held in Greenwood v. White, 25 A. D. 2d 73, 266 N. Y. S. 2d 1012 (App. Div. 1966), that a defendant nonresident motorist, who at the time of accident gave the sheriff an improper Florida address, was estopped from claiming that plaintiff’s service of summons on him ,was insufficient to confer jurisdiction because no return postal receipt was filed, and the mailing was returned to plaintiff with a notation “No such address” “Unknown.” “In such, a setting,” said the court, “a claim of deprivation of due process would seem misplaced.”

To the end, therefore, of affording plaintiff the opportunity to prosecute this action, the court here grants defendant’s motions on terms, i. e., that plaintiff have an opportunity to serve defendant’s insurance carrier in the manner set forth in R. R. 4:4-4(j) and R. R. 4:4-5(a). Necessarily implied in that direction is a consideration of the question as to whether such service is “consistent with due process of law.”

In Keller v. Rappoport, supra, it was the contention of the insurance carrier’s attorneys that the procedure used there fell short of due process because the methods provided did not give defendant actual notice of the action against him, his address being unknown. In deciding that due process was satisfied the Court of Appeals held that the constitutional standard does not require certainty that defendant would in fact receive notice of the suit. Chief Judge Fuld quoted from Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), to the effect that “it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits” and does not render the services unconstitutional. See also Walker v. City of Hutchinson, 352 U. S. 112, 115, 116, 77 S. Ct. 200, 202, 1 L. Ed. 2d 178 (1956), where the Supreme Court, referring to its prior decision in Mullane, said: “We recognize that in some cases it might not be reasonably possible to give personal notice, for example where people are missing or unknown.”

In weighing the constitutional question, feller held that due process is a matter of “balance,” considering several factors: (1) the plaintiff’s need, (2) the public interest, (3) the reasonableness of the plaintiff’s efforts to inform the defendant, and (4) the availability of other safeguards for the defendant’s interests. Finding all factors clearly present, the court held that the notice given in all the three cases involved was within constitutional standards, saying:

“It may not, in any event, be said that the kind of notice given under the ex parte orders ■ in these eases was entirely meaningless or that it was not — to cull from Mullane (339 U. S. 306, 314, 70 S. Ct. 652 supra) — ‘reasonably calculated, under all the circumstances, to apprise’ the defendants of the actions brought against them. * * * In Keller, where the defendant was insured, notice went not only to such last adress but to his insurance carrier as well. These are all places at which a defendant, who was properly curious about the legal consequences of the accident in which he had been involved, and not intent on avoiding service, might well begin his inquiries for mail or other notice. The probabilities of actual notice reaching the defendants in the case before us are not less, and are probably greater, than in the many types of cases in which reliance has, traditionally, been placed on publication (see, supra, pp. 502-503, [289 N. Y. S. 2d pp. 170-172, 236 N. E. 2d 457-459]). Indeed, in affirming Sellars, we give weight to the mailed notice; the single publication in a newspaper added little of value.”

Applying the four factors suggested in Keller, we, too, find them satisfied in this case. Plaintiff’s need here is obvious. He should have an opportunity to seek recompense for his injuries and to call upon defendant’s insurer to fulfill its obligation under the policy as it did on the claims of Eoglio and Evard. If it be said that the company may disclaim for lack of cooperation, that is a matter for another suit at another time. If the company prevails, plaintiff would have recourse under our Unsatisfied Claim and Judgment Eund Act (N. J. S. A. 39 :6-65). The public interest is likewise apparent. The policy of our State to compel nonresidents to remain subject to suit here is evident in the provision for service upon them under N. J. S. A. 39:7-1 et seq., and our State’s reliance on the registered address of the driver in his own state. The policy of our State to provide a source of recovery for injured plaintiffs is clearly established under the provisions of our Unsatisfied Claim and Judgment Eund. As to the third element, clearly it is not plaintiff’s fault that defendant has escaped service. That is due to the latter’s failure to fulfill his legal obligation, to advise authorities of New York of his change of address. Like defendant in Keller, he could have protected himself against failure to get actual notice by giving notice of change of address, and he could keep in touch with his insurance carrier or he could have kept in touch with the injured plaintiff. Again, as said in Keller:

“Due process does not require that defendants derive any advantage from the sedulous avoidance of any of these measures. Indeed in an automobile case, no defendant need be without notice unless he chooses and wants to be; many an injured plaintiff, however, will go without recompense if, in a proper case, the standards of informative notice may not be relaxed.”

Thus, the fourth factor iu Keller — the availability of other safeguards for the defendant’s interests ■— was present here. Defendant could have assured himself of getting actual notice of the suit if he had followed the steps suggested in Keller. The court holds that, under the circumstances of this case, service upon defendant’s insurance carrier is “consistent with due process of law,” leaving only plaintiff’s obligation to make such service in accordance with R. R. 4:4-4(j) and R. R. 4:4^5(a).

The court is not unmindful of the decision in Zander v. Martine, 66 N. J. Super. 310 (Cty. Ct. 1961), where it was held that the court lacked jurisdiction over a nonresident motorist where letters of notification containing summons and complaint sent to defendant by the Director of Motor Vehicles were returned marked “moved, left no address.” The court there held that since N. J. S. A. 39:7-3(6) required that defendant receipt for the said notification, it was the intent of the statute that the notice “actually be received” by defendant.

We also note that the court in Zander, cited Wuchter v. Pizzutti, 276 U. S. 13, 48 S. Ct. 259, 72 L. Ed. 446 (1928), which held that an earlier statute of this State providing for service on nonresident drivers was unconstitutional because the statute contained no direction for the process to be forwarded to the non-resident. Wuchter merely held that the statutory scheme there set up was itself unconstitutional. It did not hold that actual notice must be assured by the statutory scheme but merely that it should contain a provision making it “reasonably probable” that notice be communicated to the nonresident defendant. That is all that is required. Where it is not reasonably possible to give actual notice — where persons are missing or unknown — actual notice is not required and indirect notice is sufficient. See Mullane v. Central Hanover Bank & Trust Co., supra, 339 U. S., at p. 317, 70 S. Ct. 652; Walker v. City of Hutchinson, supra, 352 U. S. at pp. 112, 113, 115, 77 S. Ct. 200. As Keller holds, under the circumstances that test is satisfied here.

Eurther, though Zander held that the nonresident motorists statute requires actual notice, service upon a nonresident motorist is not limited to the method prescribed in that act. The statute itself provides: “This chapter shall be construed as extending the right 'and manner of service' of process upon nonresidents, an'd not as limiting any other’ lawful manner for such service.” N. J. S. A. 39 :7-1. Such other “lawful manner” — consistent with due process — is, in this court’s view, available to plaintiff by service upon defendant’s insurance carrier, provided R. R. 4:4-4(j) and R. R. 4:4-5 (a) are complied with.

The order quashing the service and vacating the default judgment herein will also provide that plaintiff shall have a period of 30 days from the date thereof to effect service upon defendant'by (1) mailing a copy of the summons and complaint, by ■ registéred mail, to defendant at his last-known address, and (2)' by delivering copies thereof to defendant’s insurance carrier in New York, hut in the manner provided hy R. R. 4:4-5 (a). '

       These three cases were treated in one opinion by Chief Judge Fuld. Since Keller v. Rappoport involved service on defendant’s insurance carrier, and Dodlcin and Sellars were cases of uninsured drivers where service on the Motor Vehicle Accident Indemnification Corporation and the Secretary of State were sustained, we shall •hereafter refer to the decision as. Keller v. Rappoport.

       CPLR 308(4) reads in full as follows:
      “Personal service upon a natural person shall be made:
      1. by delivering the summons within the state to the person to be served; or
      2. except in matrimonial actions by delivering the summons within the state to the agent for service designated under rule 318 of the person to be served; or
      3. where service under paragraph one cannot be made with due diligence, by mailing the summons to the person to be served at his last known residence and either affixing the summons to the door of his place of business, dwelling house or usual place of abode within the state or delivering the summons within the state to a person of suitable age and discretion at the place of business, dwelling house or usual place of abode of the person to be served and proof of such service shall be filed with the clerk of the court designated in the summons and service is complete ten days thereafter; or
      4. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraph one, two or three of this section.”


source: Caselaw Access Project

author: Yancey, J. C. C.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOYCE HAND, DEFENDANT.
    Essex County Court Law Division — Criminal
    Decided April 26, 1968.

      Mr. John J. Gillies, Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Seymour Budensiein for defendant (Messrs. Mellinger & Budenstein, attorneys; Miss Bette Waimk, on the brief).
   Yancey, J. C. C.

This is a timely motion to suppress evidence, pursuant to B. B. 3 :2A — 6. The facts as elicited in testimony are as follows :

On March 14, 1967 two detectives of the Orange Police Department were informed by telephone by a sergeant that a Mr. Williams had phoned and reported that a man had offered to sell him a “hot” Royal electric typewriter. Williams gave the license number of a car involved, and the detectives were told by the sergeant that the license number was in the name of Wayne Lenhart of Orange. The detectives went to Lenhart’s address and were told by Lenhart that a Thomas Hand — whom they knew to be a registered narcotic addict — had the typewriter. Lenhart went with the detectives to show them where Hand lived. Detective Paglncci testified that he did not apply for a search warrant because he feared Mrs. Lenhart would have phoned Hand and the typewriter would have been removed.

Detective Paglucci testified that he, his partner Detective Butler and Lenhart arrived at 310 Lincoln Avenue, Orange, at about noon. They rang the downstairs bell and were admitted by the caretaker, who took them to Hand’s apartment on the third floor. Detective Paglucci said he knocked on the door and a male voice asked, “Who’s there ?” A man opened the door about three-fourths of the way or about two feet. “Police,” Paglucci said he answered. He testified that he had his foot nearly in the doorway as he showed the man — whom he knew to be Thomas Hand — his badge. At this point, while still in the hallway, Detective Paglucci said he saw a typewriter on the floor in a closet in the apartment. The closet was about six feet away from him and had no doors. “I walked in,” Detective Paglucci said, and asked Hand where he got the typewriter. Thomas Hand was arrested and charged with receiving stolen property. He and the typewriter were taken to Orange Police Headquarters, where identification of the typewriter as stolen was completed with the aid of a representative of the manufacturer.

Also in Thomas Hand’s apartment, when the detectives entered, was defendant Joyce Hand, his wife, whom the police also knew was a narcotics addict. Mrs. Hand was told by the detectives that she would have to come with them, that she would be a material witness. However, about 25 minutes after getting to the station house, she was examined by a doctor. Detective Paglucci said he had radioed ahead and asked that doctor be summoned. The doctor told her she did not have to consent to the examination. Even though she said she would rather have her own doctor examine her (she thought she was pregnant), the police doctor proceeded anyway. As a result of his findings Joyce Hand was charged that day with being under the influence of narcotics, in violation of N. J. S. 2A :170-8. She was taken before a magistrate the next day.

Defendant Joyce Hand brings this motion to suppress evidence, contending that the examination by the doctor was a search, her arrest as a material witness was invalid and improper, and the search was invalid since it followed an illegal arrest.

Under the circumstances, it is conceivable that defendant might be a material witness within the ambit of N. J. S. 2A :162-2. Thomas Hand was arrested for a “crime punishable by death or imprisonment in the state prison” and Joyce Hand was a “person who can give testimony against any person so accused of any such crime.”

The statute places with a judge or magistrate the decision as to whether the testimony a witness may give is sufficiently material to warrant binding the witness “by recognizance with sufficient surety.” The fact that Mrs. Hand was not taken before the nearest available magistrate until some 26 hours after her arrest, contrary to the direction of R. R. 3 :2-3(a), dees not necessarily make the arrest illegal or evidence obtained after the arrest inadmissible. State v. Hodgson, 44 N. J. 151, 157 (1965); State v. Jackson, 43 N. J. 148, 167-168 (1964); State v. LaPierre, 39 N. J. 156, 171 (1963).

Defendant in her brief points to the second paragraph of N. J. S. 24. :162-3, which deals with the detention of witnesses. It provides in part:

“Any person committed or detained as a witness shall not be kept in the same apartment with or be provided with the same fare as persons charged with or convicted of crime * * *”

Without doubt, defendant was detained in the same facilities employed for persons accused of crimes. However, 25 minutes after she arrived at the Orange police station — or shortly thereafter when the doctor reported his findings — defendant was a person accused of a crime.

Defendant also points to N. J. S. 2A :84A-17 (2) (Buie 23 of New Jersey Buies of Evidence) : “The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, * *

Neither at the time Joyce Hand was taken into custody nor at any time thereafter did Mr. or Mrs. Hand consent to Joyce testifying against Mr. Hand. It should be noted that the consent of both is required before the spouse of the accused can testify. Defendant notes that N. J. S. 2A :162-2 only provides for the detention of a “person who can give testimony.”

However, Buie 23 appears to deal with the admissibility of testimony at trial rather than the capacity of the spouse to testify. Mrs. Hand could testify against her husband if both she and her husband consented. Unlikely as it may be that both would consent to waive the Buie 23 privilege, it does not appear to be the arresting officer’s duty to attempt to obtain such waivers. Thus the failure of the arresting officer to determine whether Mrs. Hand would or could be a witness does not in itself invalidate her arrest as a material witness.

Defendant suggests that although the arresting officer told Mrs. .Hand that- she was to be a material witness, the officer never really intended to arrest her for that purpose, but instead perpetrated a ruse to enable a doctor to examine Mrs. Hand. This brings us to the area that greatly. concerned this court. Extensive research has revealed no case law on the authority of a police officer to arrest a suspected material witness without a warrant.

The right of parties to a legal proceeding to obtain pertinent testimony from witnesses has long been established. Any personal sacrifice by the witness is a part of his necessary contribution to the welfare of the public. Although the duty to appear and testify is at times onerous, it is necessary to the administration of justice according to the forms and modes established in our system of government. Wilson v. United States, 221 U. S. 361, 372, 31 S. Ct. 538, 55 L. Ed. 771 (1911), quoting Lord Ellenborough. Blair v. United States, 250 U. S. 273, 281, 39 S. Ct. 468, 63 L. Ed. 979 (1918).

“The common law did not recognize any authority to confine a material witness, and such authority existing today is purely statutory. A court at common law could require a witness to enter into a recognizance, but he could not be required to provide a surety. ‘Confining Material Witnesses in Criminal Cases,’ 20 Washington, and Lee L. R. 164 (1963).
“By tlie Statutes of Philip and Mary, referred to in Chitty’s Criminal Law, Page 61 (marginal page 90) * * * authority is conferred on the magistrate to recognize witnesses to attend at a future time in court, but nothing is said about requiring security of them.” Bickley v. Commonwealth, 25 Ky. (2 J. J. Mar.) 572, 574 (Ct. App. 1829).
See also Comfort v. Kittle, 81 Iowa 179, 46 N. W. 988 (Sup. Ct. 1890).

When witnesses were instructed to report to testify at a trial under the old common law, this apparently was accomplished by means of a summons, enforced by the court’s contempt power rather than by arrest. See “Material Witnesses in Criminal Proceedings: Securing and Assuring Their Attendance,” 18 Mo. L. R. 38 (1953). This common law method of securing testimony from witnesses has been compounded by several statutes.

For actions arising in federal courts, a statute, 18 U. S. C § 659, provides that any federal judge, on application of the dictrict attorney and being satisfied by proof that any person is a competent and necessary witness in a criminal proceeding in which the United States is a party or interested, may have such person brought before him by a warrant of arrest to give recognizance, and that such person may be confined until removed for the purpose of giving his testimony or until he gives the recognizance required by said judge. “The constitutionality of this statute apparently has never been doubted. Similar statutes exist in many of the states and have been enforced without question.” Barry v. United States ex rel. Cunningham, 279 U. S. 597, 616, 617, 49 S. Ct. 452, 73 L. Ed. 867 (1928). See State ex rel. Howard v. Grace, 18 Minn. 398 Sup. Ct. (1898).

Although it might he pointed out that federal crimes are of a different nature than those that confront municipal police officers, section 618-6 of the New York Code of Criminal Procedure is substantially the same as the federal statute:

“Whenever a judge of a court of record in this state is satisfied, by proof on oath, that a person residing or being in this state is a necessary and material witness for the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear before such judge and be heard in opposition thereto, order such person to enter into a written undertaking, with such sureties and in such sum as he may deem proper, to the effect that he will appear and testify at the court in which such action or proceeding may be heard or tried, and upon his neglect or refusal to comply with the order for that purpose, the judge must commit him to such place, other than a state prison, as he may deem proper, until he comply or be legally discharged. * * *”

In New Jersey the only statutes dealing with material witnesses are the aforementioned N. J. S. 2A :162-2 and 2A :162-3.

N. J. S. 2A :162-2 states:

“Every judge and magistrate shall, when in his judgment the ends of justice so require, find by recognizance, with sufficient surety, any person who shall declare against another person for any crime punishable by death or imprisonment in the state prison, or any person who can give testimony against any person so accused of any such crime, whether the offender be arrested, imprisoned, bailed or not.”

R. R. 3 :9-4 is almost precisely the same in content. N. J. S. 2A :162-3 states:

“]STo person shall be committed to or detained in jail to secure his appearance as a witness against any person charged with a crime, except such crimes as are punishable by death or imprisonment in the state prison, whether the offender be arrested, imprisoned, bailed or not.”

A second paragraph provides that such witnesses shall not be housed or treated the same as persons accused of crime.

As can easily be seen, these two statutes do not deal with apprehension of materia] witnesses. Thus, it cannot be said that they require that material witnesses only be arrested after a warrant has been issued.

When the validity of a search rests upon an arrest, or when the arrest itself is in question, the lawfulness of the arrest is to be determined by reference to state law insofar as it is not violative of the Eederal Constitution. Ker v. State of California, 374 U. S. 23, 31, 83 S. Ct. 1623, 1632, 10 L. Ed. 2d 726, 739-741 (1963). In State v. Smith, 37 N. J. 481, 494 (1962), Chief Justice Weintraub noted that although Yew Jersey has sundry statutes dealing with arrest, it does not have a comprehensive one. He suggested that with the advent of Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), legislative consideration would indeed be appropriate. Since that consideration has not yet occurred, the common law of arrest still exists in New Jersey. State v. Fair, 45 N. J. 77, 86 (1965). State v. Mpetas, 79 N. J. Super. 202, 201 (App. Div. 1963), citing State v. Smith, supra, 37 N. J., at pp. 493-494.

“The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the time have not so changed as to make further application of it the instrument of injustice.” Long v. Landy, 35 N. J. 44, 51 (1961), quoting State v. Culver, 23 N. J. 495, 505 (1957).

It has been held that where no New Jersey court of higher jurisdiction had expressly applied or approved a common law rule and the rule had not been declared by legislative enactment, the court was free to examine the question of the continued justification of the rule as a part of New Jersey’s nonstatutory law. State v. Koonce, 89 N. J. Super. 169, 180 (App. Div. 1965). In recent decisions our courts.have repeatedly acknowledged that public policy is the dominant factor in the molding and remolding of common law principles to the end that they may soundly serve the public welfare and the true interests of justice. Falcone v. Middlesex County Medical Society, 34 N. J. 582, 589 (1961), and cases cited therein.

Even in this day of increasing availability of scientific evidence, witnesses are still important in proving violations of criminal laws. In proving some types of criminal activity, they are vital. At the same time, it must be noted that individuals have not significantly changed in regard to their reluctance to become involved as adjuncts to the judicial process. What has changed, if anything, in the last 40 years, is that our population has become intensely .mobile. People commute great distances to work, move their residences frequently and travel often and far for entertainment and vacation. In the face of this swift movement from one area to another, if a police officer cannot immediately hold the man who has seen a crime hut is reluctant to cooperate, he is faced with the possible loss of the witness or a possible delay in obtaining information that might lead to apprehension of the suspect closer-in time to the.crime and before incriminating evidence can be disposed. Causing a police officer to take the name and address of a reluctant witness and then to go to court to get a warrant in every instance would just be one more advantage for the criminal. On the other hand, if a reluctant witness can be taken into custody on the spot, he would be, in the opinion of this court, less likely to withhold cooperation. Thus, there appears to be good reason to allow arrest of a material witness without a warrant in some cases.

This, of course, is nothing new, since police apparently have been making such arrests for years. As in any other arrest without a warrant, such action might be accepted because a magistrate will review the arrest and determine under what conditions, if any, jurisdiction will be retained. N. J. S. 2A :162-2. However, police should not be permitted to arrest persons as material witnesses on no basis whatsoever, particularly since there will be instances, such as the case at bar, when police will want to justify an in-custody search as being incident to a valid arrest. Since a search of the person without a search warrant incident to an arrest is permitted for the protection of the police, State v. Mark, 46 N. J. 262, 271-2 (1966), it would not seem reasonable to prohibit a search of a person arrested as a material witness. Rather, if the arrest is well founded and rests on a valid basis, there should be no reason to exclude the findings of an incidental search of a person in custody. At the same time, any danger of the use of the material witness arrest in place of dragnet arrests or to justify searches will be minimized.

Under the common law of New Jersey, a peace officer has authority to arrest without a warrant when he has a reasonable basis or probable cause to believe a crime punishable by imprisonment for more than one year has been committed, or has witnessed the commission of a disorderly conduct or traffic violation. State v. Burnett, 42 N. J. 377 (1964); State v. Doyle, 42 N. J. 334 (1964). In adapting these requirements to the arrest of a possible material witness, it would be overly restrictive to require the officer in every instance to have first-hand knowledge that a person could be a material witness. It is very likely that an officer will arrive on the scene and be told by a bystander that a certain person, since departed, said he had seen the entire crime. The officer would be expected to locate the alleged witness and to do so without delay if no suspect had been apprehended. If the officer finds the alleged witness with his luggage packed, he would want to be able to arrest the alleged witness immediately for appearance before a magistrate. To require the officer to leave to get a warrant would unreasonably frustrate his efforts. The possible witness who would shirk his duties as a citizen would benefit at the expense of effective law enforcement. Cf. State v. Davis, 50 N. J. 16 (1967).

Thus, this court construes the common law to be that a peace officer may arrest without a warrant when he has a reasonable basis or probable cause to believe a person is a necessary and material witness to a crime punishable by imprisonment for more than one year and that person might be unavailable for service of subpoena.

A word is in order about the additional requirement that the officer reasonably believe that the alleged witness not only is a material one but also a necessary one. It is, in the opinion of this court, not sufficient for an arrest without a warrant that a person might be a witness to material aspects of a crime. The officer should reasonably believe that the alleged witness can give testimony which is essential to the State.

If additional unessential testimony is desired by the prosecutor, and if he believes the possible witness will not respond to a subpoena, a warrant should be obtained and a hearing held in accordance with N. J. S. 2A :162-2. Tt should be noted that the scope of N. J. S. 2A :162-2 is slightly broader than that of the common law rule here enunciated. N. J. 8. 2/1:162-2 applies to “'any person who can give testimony”, while the common rule only encompasses “necessary and material” witnesses who might be unavailable. Underlying this distinction is this court’s belief that a citizen who may be of help in enforcing the law and manifests cooperation should not, without more, be subjected to forcible arrest, a probable night in jail and an arrest record.

Thus, if two persons both allegedly witness a crime and one comes forward and cooperates while the other does not, an officer would not be justified in placing the second immediately under arrest instead of merely taking the person’s name and address. This is even more compelling if there might be 10 or 20 possible witnesses.

However, if the officer has reason to believe that the second person also is necessary — perhaps the cooperating witness is not coherent, is self-contradictory, is a known prevaricator or is just not helpful •— and might not be available (perhaps he has no roots in the jurisdiction) — there is nothing in the common law rule which precludes the officer from taking the second uncooperative possible witness into custody without a warrant.

Requiring the arresting officer to form an opinion on the potential availability of a possible witness, as well as his necessity to the criminal proceeding, is not asking too much of the officer. As the court stated in State v. Taylor, 81 N. J. Super. 296 (App. Div. 1963) :

“The controlling cases demonstrate that the making by the arresting and searching officers of a subjective judgment of the existence of probable cause in relation to the crime hypothesized [here being a material witness] is essential to a legal search [here an arrest] without a warrant.” (at p. 309)

- And the factors of availability and necessity to the proceeding are the same ones that the magistrate will consider in determining whether to place a person in recognizance as a material witness. The court state in Taylor:

“It is plain that the legality of the search without a warrant is predicated upon the officers themselves malting the considered ‘judgment’ of the existence of probable cause as to the crime hypothesized, in the place of the judicial officer who makes that judgment from the proofs submitted to him where a search warrant is applied for, see State v. Macri, supra, (39 N. J. 250, at p. 257) the particular circumstances excusing the officers from obtaining the warrant in advance of the search. See also State v. Klein, 79 N. J. Super. 559, 566 (App. Div. 1963).” (81 N. J. Super., at pp. 309-310)

In the case at bar there is no evidence that the arresting officer believed that defendant would be unavailable for service of a subpoena -if she was needed in the prosecution. Also, it is ' extremely doubtful that the arresting officer could have believed that defendant was a necessary witness in a prosecution of Thomas Hand for possession of stolen goods. Both officers themselves witnessed the presence of the typewriter in the apartment.

There is also an additional basis on which this court can reach its decision. As the United States Supreme Court declared in United States v. Lefkowitz, 285 U. S. 452, 467, 52 S. Ct. 420, 424, 76 L. Ed. 877 (1932), “an arrest may not be used as a pretext to search for evidence.” MacKnight v. United States, 87 U. S. App. D. C. 151, 183 F. 2d 977 (D.C. Cir. 1950); Barnes v. State, 25 Wis. 2d 116, 130 N. W. 2d 264, (Sup. Ct. 1964); Prather v. State, Fla. App., 182 So. 2d 273 (App. Ct. 1966). In State v. Taylor, supra, 81 N. J. Super., at p. 310, the court recognized eases to the effect-that “where the, purpose of the officers is to search for evidence of crime and not to-arrest the defendant-on the basis of what is known before the search, a search without a warrant is unlawful, and the unlawfulness is not cured by the incriminating results of the search. ■ [Citations omitted]”

“But whether the search was the primary objective or a mere incident necessarily turns upon the facts and particularly upon the inferences to be drawn from the facts established. Necessarily such subjective elements as intent and purpose are matters of inference and thus issues of fact.” People v. Magidson, 232 Cal. App. 2d 1, 42 Cal. Rptr. 408, 409 (Sup. Ct. 1965).

In this case the officers knew defendant was a narcotics addict, gave no indication in their testimony of anything else that caused them to believe defendant was under the influence of narcotics, testified to no change of opinion regarding defendant’s condition while en route to the police station, radioed for a police doctor before arriving at the station, and never brought defendant before a magistrate for determination of whether she should be held in recognizance as a material witness.

The fact that nothing ever came of defendant’s arrest as a material witness is not by itself conclusive one way of the other. However, it is of “substantial probative significance” and at least supports the view that probable cause in respect to defendant’s position as a material witness never existed. State v. Taylor, supra, 81 N. J. Super., at pp. 308-309. Cf. DePater v. United States, 34 F. 2d 275, 276, 74 A. L. R. 1413 (4 Cir. 1929) : “In passing upon the question of whether the search was legal or reasonable the court cannot escape drawing certain conclusions from the course pursued by the officers themselves.”

After due consideration of the circumstances, observation of the witnesses and evaluation of their testimony, this court is satisfied, and finds as a fact, that the officers did not actually intend to arrest defendant as a material witness. Their purpose throughout was to get defendant in a position which might justify a physical examination. (It is not necessary to explore the question of whether an examination by a doctor is a reasonable search necessary for the protection of the police.)

It cannot be doubted that such an examination is a search within the meaning of the Fourth Amendment. Schmerber v. State of California, 384 U. S. 757, 766-770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). State v. Swiderski, 94 N. J. Super. 14 (App. Div. 1967).

Hence the search at the police station was invalid because the arrest was invalid. Mapp v. Ohio, supra. The arrest was invalid because the officers did not have probable cause to believe defendant was a necessary and material witness. who might become unavailable to service by subpoena, and also because they did not in fact intend to arrest defendant as a material witness.

Accordingly, defendant’s motion to suppress all evidence procured of seized is hereby granted.

       Where there is probable cause to make an arrest without a warrant, there is justification for at least a peaceable entry of accused’s home by police to make the arrest. Washington v. United States, 105 U. S. App. D. C. 58, 263 F. 2d 742, certiorari denied 359 U. S. 1002, 79 S. Ct. 1142, 3 L. Ed. 2d 1032 (C. A. D. C. 1959).

      . In addition to the District of Columbia, Puerto Rico, Virgin Islands and Panama Canal Zone, by 1965 45 states had passed therUniform Act to-Seeure the■ Attendance of Witnesses from Without a State in Criminal Proceedings. 9 U. L. A., 1965 pocket part, p. 47. As of 1965, Alabama, Georgia, Hawaii, Iowa and Michigan had not adopted the act.

       A proceeding to hold a person as a material witness would seem to he a criminal proceeding rather than a civil. N. J. S. 2A :162-2 as amended and N. J. S. 2A :162-3 are contained in chapter 11 of Title 2A, “Criminal Procedure”. Cf. People on Complaint of -v. Doe, 261 App. Div. 504, 26 N. Y. S. 2d 458 (App. Div. 1941).'

       Both apply whether the offender is arrested or not.

       “There is no statute which prohibits, and as far as I am aware, no judicial fiat which indicates that a person may not at the same time be held as a defendant in a criminal prosecution and as a necessary and material witness in another criminal action or proceeding.” People ex rel. Gross v. Sheriff of City of New York, 277 App. Div. 546, 101 N. Y. S. 2d 271, 274 (App. Div. 1951), affirmed 302 N. Y. 173, 96 N. E. 2d 763 (Ct. App. 1951).


author: Foley, J. A. D.

text:
    GRAULICH CATERER INC., PLAINTIFF-APPELLANT, v. HANS HOLTERBOSCH, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1968 —
    Decided May 15, 1968.

      Before Judges Sullivan, Foley and Leonakd.

      Mr. John J. Flynn argued the cause for appellant {Mr. Thomas F. Durkin, Jr. attorney).

      Mr. Samuel Weitzman argued the cause for respondent {Messrs. Weitzman, Brady & Weitzman, attorneys).
   The opinion of the court was delivered by

Foley, J. A. D.

Plaintiff, caterers, take this appeal from a judgment for defendant rejecting plaintiff’s suit sounding in contract. Entering this order, the trial court determined, the relationship of the parties to be noncontractual, finding that a “letter of intent” signed by defendant and containing “open terms essential to a contract of this nature, did not constitute a contract but was merely an expression of agreement to enter a contract embodying more specific terms * * Testing the propriety of this ruling requires a careful historical examination of the relationship of the parties.

Contact between the litigants sprung from the turmoil surrounding the preparations for the opening of the 1964 New York World’s Fair. Holterboseh, an American importer and distributor of Lowenbrau beer, was granted the franchise to operate the Lowenbrau Pavilion at the Fair. Final approval of this award was given on or about January 15, 1964 and contemplated an April 15, 1964 opening. This was the last major pavilion awarded, making time essential in all of defendant’s considerations.

In aid of this enterprise defendant engaged a metropolitan-based industrial design consultant, Becker & Becker Associates, to formulate a feasible production plan for serving the required beer and, as a desired adjunct, platters of German food. As stated by defendant, the goal of both Lowenbrau and Holterboseh was the “quality concept of merchandising.”

The Raytheon Corporation, knowing the Becker firm’s privy role and eager to market their microwave concept of cooking, suggested plaintiff’s name to Becker as one able to discharge the culinary requirements of the Lowenbrau Pavilion. Thus approached by Becker, plaintiff on March 10, 1964 entered into preliminary negotiations with the consultant regarding the feasibility of the Raytheon microwave cooking concept as related to the superior quality of food desired by defendant. Briefly, microwave preparation depends upon platters of food prepared and frozen at a central commissary and stored at the place of distribution and/or consumption. Receiving an order for food, the vendor places the frozen, nearly “done” food platter into a Raytheon microwave oven, which “reconstitutes” the frozen food to the desired degree of “doneness.” The unit then may be served to the customer. The direct microwave primarily heats, but also serves as a minimal cooking agent bringing the platter to the desired temperature aud “doneness” simultaneously. The entire process of reconstitution is completed in a matter of seconds or minutes, depending on the nature and state of the stored units.

At the March 10, 1964 meeting Becker and another employee of the planning firm reviewed with approval ten general food samples submitted by Graulich. Defendant Holterbosch did not personally attend this initial meeting. Informed of defendant’s needs, plaintiff redesigned the samples and presented eight platters at a second meeting held on March 17, 1964. This was attended by two Becker employees, Holterbosch, a chef from a German-based steamship company, Graulich and an employee of plaintiff corporation.

Defendant was impressed by six of the samples, recalling at trial that “the food was good, the quality was obvious. It was well prepared.” Prom this date defendant was committed to the microwave concept of satisfying his desire to complement the Lowenbrau beer with an appropriate German cuisine of high quality.

The samples presented and approved on March 17, 1964 were prepared in the Graulich commissary at Port Elizabeth, New Jersey, by plaintiff’s employees and were presented to defendant at the Raytheon office in New York City. The operation was agreed upon, with the initial delivery set for April 15, 1964. Daily preparation was to be based on the orders transmitted by defendant to plaintiff’s commissary, with daily delivery of the orders made between midnight and 8 a.m. Consumption, theoretically, was to be on the day of delivery. Although the number of units was to fluctuate in relation to the many variables of the operation, the figure of 1,000,000 units was used in estimating the tentative demand for the initial year. Service of the food was to be made on specially designed and colored plastic platters which were required by defendant.

Before confirming basic purchases of raw food products, plastic platters, storage trays and transportation dollies, plaintiff requested of defendant a deposit of $50,000 as a contract security. Noting its already large investment, and finding the request unacceptable, defendant cited plaintiff’s obligation to bear some of the business risk attendant to ventures of this type.

Plaintiff then submitted a letter of general intention, dated April 1, 1964, requesting defendant’s signature as approval. This letter purported to be an interim agreement demonstrating the bona fide-s of the parties to be bound until a formal contract documenting the specifications could be executed at a later date. Defendant signed the letter in plaintiff’s presence, but before the signing a “rider” was incorporated stating that the letter indicated “intent only.” It also reiterated the desire for an early drafting of the menu specifications, and provided for a cancellation clause in the event the product fell below the established standards.

In reliance on this agreement plaintiff contracted with suppliers for platters, trays and dollies, which, coupled with labor expenses, totaled $29,937 after adjustments. This sum, plus a projected profit figure of $35,950, was claimed by plaintiff as the amount of damages in its suit.

Eeturning to the chronology of events, plaintiff, after purchasing its component materials, established a production line commissary at the Jamaica City, Long Island, plant of Met Provisions, where the operation was to be supervised by plaintiff’s personnel. This change of commissary site was made in an effort to comply with the Fair requirements of union labor and federal food inspection. A Long Island commissary had the additional delivery advantage of neighboring the Fair. Met also directly supplied plaintiff’s raw food product for this venture, as it had, indirectly, through a New Jersey distributor for enterprises in the past. Plaintiff’s production of deliverable product awaited only defendant’s order.

The delayed and muddled opening of the Fair brought the parties into daily, and at times even hourly, contact. Postponements followed premature orders until a firm order for April 23, 1964 was placed by Mr. Leigh, an employee of Becker & Becker. Upon delivery the members of defendant’s organization were stunned by the product and complained immediately that the tendered units did not, in any way, match the contract samples. Eejecting this 955-unit installment as unacceptable, defendant described the food as “bland,” unpresentable, tasteless and “just wasn’t the type of food that we could sell.” Notwithstanding this low grade delivery, defendant, obligated to the Pair to serve food and committed in theory to the Eaytheon ovens, conferred with the equally dissatisfied plaintiff in seeking to improve the quality standard of the product to the point where it would be acceptable. Plaintiff’s effort to improve the quality of the units was aided by Becker and defendant’s pavilion personnel manager, Mueller, as well as the special foods chef from the “YIP” section of defendant’s exhibit.

The second delivery, made on April 25, 1964, was likewise unacceptable. Of the 2520 units delivered, between 500 to 700 were distributed among the employees and patrons of the exhibit for a fast reaction. The complaints in response to the food were many and varied. Defendant, describing the sources of unfavorable comment, stated that the sauerbraten was dry and the gravy, pasty and unpalatably “gooey,” surrounded rather than enveloped the meat. The knockwurst platter suffered similarly, being dry and comparing unfavorably with the standards established by the samples. Generally, defendant complained that the food was simply not “German food” and as such was unacceptable for the Lowenbrau Pavilion.

Following the failure of the second delivery Holterbosch claimed that plaintiff took no further curative measures, while plaintiff protested that defendant was “not available” following the second and last delivery of April 25, 1964. Graulieh stated that he was told through Becker that plaintiff’s food would be unsuitable for the Lowenbrau Pavilion. Becker, affirming the nonconformity of the deliveries, denied terminating the relationship and insisted that such an act was beyond his authority as an agent.

Hellmuch Laufer, defendant’s pavilion factotum, affirmed hearing Graulieh verbally acknowledge Holterbosch’s complaints. Laufer agreed that the second delivery was qualitatively no different than the first, stressing that plaintiff’s efforts to cure the unpalatable food failed. This witness, joined by Mueller and the “VIP” chef, converted the microwave cooking area into a conventional kitchen using pot burners to successfully prepare the food served for the duration of the Fair.

The trial court on these facts determined the relationship of the parties to be noncontractual. Our review of the relevant legal principles indicates that this characterization was improper. The analysis of the pertinent issues is divided into four parts, the first of which relates to the choice of law.

Noting the presence of diverse jurisdictions (New York and New Jersey) the trial court properly made New Jersey’s jurisprudence its choice of law since no pleading or notice of foreign law was made at trial by either party. Leary v. Gledhill, 8 N. J. 260 (1951); Donnelly v. United Fruit Co., 75 N. J. Super. 383, 397 (App. Div. 1962), affirmed 40 N. J. 61 (1963). Since the trial dates antecede the adoption of the New Jersey Rules of Evidence (September 11, 1967), these rules are negatively considered in determining them inapplicable. According to New Jersey law the status of the parties and the effectiveness of the April 1, 1964 instrument must bo construed under the relevant sections of the Uniform Commercial Code adopted prospectively in this State from January 1, 1963, N. J. S. 12A :10 — 106.

Plaintiff asserts that the April 1 letter of intention contractually bound defendant and defendant became liable to plaintiff for the damages resulting from a breach of that agreement. In response defendant, denying the allegations of the complaint, alleged that the “letter of intention” was not an enforceable agreement since it contemplated the subsequent execution of a formal contract. Alleging that plaintiff breached the express warranties of sample, and the implied warranties of merchantability and fitness for purpose, defendant counterclaimed for damages caused by the breach. This counterclaim, withdrawn at trial, forms no part of thé issues on appeal.

The letter signed on April 1, 1964 and the accompanying rider are critical to an analysis of the legal status of the parties.

They follow in order:

“Dear Mr. Holterbosch:
We will be prepared to deliver to the Lowenbrau Exhibit of the New York World’s Fair and for the duration of your exhibit, our food products according to the following menu:
1. Knoekwurst w/Saurkraut, 3 slices Small Bread
2. Saurbraten w/Red Cabbage, 3 slices Small Bread
3. Fair Sandwich w/German Potato Salad, Ham, Pastrami, Cheddar Cheese on Whole Grain Rye
4. Westphalian Ham on Pumpernickel w/German Potato Salad
5. Westphalian Ham, Cheddar Cheese w/German Potato Salad, 3 slices Small Bread
6. German Bologna and Sausage w/German Potato Salad, 3 slices Small Bread
Our contract will contain guarantees as to the quality and specific portions to be used on each plate. We further agree to variations within existing platters and will substitute new menu items as required by the operation.
All of these products will be delivered daily between the hours of 12 midnight and 8 A. M. in a quantity determined by your management which will become a binding daily commitment to us. Our company will set up the quantity control system and supervise the placing of the daily orders to retain the par stock as established within the storage facilities of the pavilion. All food will be delivered in portable containers; the cost of transportation and containers will be borne by us.
• The per item cost to you will be at the rate of sixty cents (60) per item with a minimum four (4) week order of 120,000 units required to sustain this price. If this minimum is not delivered during this period, the per item price will be sixty-five (65) per unit delivered. If during this same period 200,000 units are delivered, the price will reduce to fifty-five (55) per unit.
Billing will be daily with statements issued weekly payable upon presentation.
. We additionally guarantee that neither the food nor platter will be used by anyone else during the term of our agreement. Conversely, it is agreed that you will purchase these above named items from no other source than our company during the length of our agreement. We propose that this agreement be for the year 1964. If this agreement meets with your approval, will you please sign the enclosed copy which will serve for an interim agreement until a formal contract can be prepared. It is understood that the Rider No. 1 dated 4.1.64, is part of this letter of intent.
[s/William Graulich, HI on original]” Rider I.
“It is understood that this letter indicates intent only and that a detailed contract will be drawn as soon as possible which will contain complete and detailed specifications on quality and quantity of food and details of service. Such a contract will also contain the necessary protective provisions relating to cancellation in the event that quality of product or service falls below the established standards.
[s/by defendant on copy]”

Construing the letter as expanded by the rider, the trial court found the questions of termination and quality to be “essential and that until these terms were reduced to finalize contract form there was no contract.”

This finding was rooted in the court’s belief that because the rider materially changed the terms of the letter, no contractual relation could arise until the new terms of this modifying rider had been met by plaintiff’s performance.

In our judgment the ruling reflects pre-Code contract law requiring acceptances that “mirror” offers, and is discordant with the Code reasoning which is based upon a determination of the intention of the parties as evidenced by their conduct or writings N. J. 8. 12A :2-201, 202, 204 (2), (3).

Before any writing the parties agreed upon quality as typified by the six samples approved on March 17, 1964. Satisfied with the quality of the food, their minds met and they became firmly committed to the microwave method of preparing the food. Over defendant’s signature the letter, composed by plaintiff, contains concrete references to: (1) the place and time of installment delivery; (2) the menu, specifically describing the six platters to be served; (3) quality controls to be enunciated in the supplemental formal contract; (4) optional provisions for menu changes; (5) a sliding quantity commitment clause with corresponding price provisions; (6) the method of delivery; (7) installment billing provisions; (8) an exclusive dealing clause binding buyer, and (9) the time-term of the contract. The “rider” composed by defendant restated the intention of the parties to execute subsequent articles of contract. It also supplemented the express warranties, inherent in this sale based on samples, by expressly modifying plaintiff’s treatment of quality control, providing for cancellation “in the event that quality or service falls below the established standards” (viz., the samples approved on March 17, 1964). Plaintiff expressed no concern over the form of this letter agreement so expanded by defendant’s rider, and defendant’s consent is unilaterally made manifest by his signature.

' These documents and the actions of the parties bespeak a contractual relationship. Certainly, G-raulich’s position would have been more secure if the initial capital investment on the venture was backed by a $50,000 deposit. Nevertheless, although defendant refused to make the deposit, plaintiff’s bargain was secured by the totality of defendant’s commitment. Plaintiff’s only limitation under the contract related to its ability to supply the same quality food from the Long Island production commissary as warranted by the original samples prepared at its home commissary in New Jersey.

To enforce this quality control defendant issued the pertinent relative clause of the rider in the present tense, “in the event that quality of product or service falls below the established standards.” This protective clause depended upon quality standards established by the samples, taste-tested and approved by defendant before the agreement and rider were drafted. By using the words “in the event” the draftsman contemplated a subsequent situation which would arise if the “quality of product or service falls helow” the standards of the samples. Therefore, when defendant signed under the letter and rider he could, and did, enter into a contractual state secured by the express warranties of the samples and the condition subsequent incorporated by the rider.

■ The Code N. J. S. 12A : 1-102, 103, comprehending reasonable commercial practices, liberalized the formalities of the common law relating to strict compliance with the statute of frauds; and with formation, readjustment and performance of contracts, as well as the individual remedies for contractual breach. Anderson’s Uniform Commercial Code (1961) §2- § 103.2; Corman, "Uniform Commercial Code,” 17 Rutgers L. Rev. 1, 14 (1962). See also Hawkland, Sales and Bulk Sales, c. 1, p. 2 (1958). By recognizing the commercial reality of cure, and the allocation of the risk of loss to insurance, this uniform legislation favoring established relationships has eliminated much of the mindbending logic that went into the construction of conditional terms appearing in pre-Code circumstances. Compare 3A Corbin on Contracts, §§ 628, 629 (1960) (1964 Supp.). While not previously expressed in New Jersey, the Code, N. J. S. 12A :2-204, mandates constructions that favor “a liberal policy regarding formation of contracts of sale.” Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F. 2d 114, 120 (3 Cir. 1965) ; Hawkland, Sales and Bulk Sales, supra, c. 1, p. 2. The uniformity of remedies N. J. S. 12A :2-701 to 725 provides adequate safeguards counterbalancing the Code’s predisposition to determine a relationship contractual. Notwithstanding this predilection, sales of goods where, as here, the price term exceeds $500, must comply with the statute of frauds to be legally enforceable.

On the instant facts the “specially manufactured goods” exception to the statute is immaterial since the quantity term is expressed with the requisite certainty (see N. J. S. 12A :2-306(1) re requirements clause) and the document signed by the party “against whom enforcement is sought.” N. J. S. 12A:2-201(1) .The instrument, if it evidences contractual intent, is enforceable under the statute of frauds.

The modes for formation of contracts are described generally by N. J. 8. 12A :2-204:

“(1) A-contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.”

The New Jersey study comment relating to §3 cites Mantell v. International Plastic Harmonica Corp., 141 N. J. Eq. 379 (E. & A. 1947). The commentators summarize:

“In that case a manufacturer agreed to supply a distributor with its total output of harmonicas up to a certain maxima, ‘at the lowest price and with the highest discount’ given to any other distributor in the United States. The manufacturer subsequently selected another distributor, contending that the first contract was unenforceable because of lack of definiteness. The court held that the contract was enforceable. In articulating the rule of the case, the court took a dim view of the defense of lack of definiteness where commercial contracts are involved.” N. J. S. 12A :2-204(3), comment, p. 115.

As stated, price, time delivery, quantity and quality terms are all contained in the interim contract agreement. The only indefiniteness is the absence of a formula clause relating to the quality of the component ingredients in each platter. Therefore, the contract being of apparent certainty, it affords a rational basis for supplying appropriate remedies in the event of breach, provided the parties “have intended to make a contract.”

The contractual intention of the parties may be evidenced by their conduct, N. J. S. 12A :2-204(l), and the agreement N. J. S. 12A :2-204(2). The agreement satisfying the statute of frauds was made on the determined date of April 1, 1964. It is expressly not intended to be an integration. Thus, parol or extrinsic evidence may be used to explain the interim agreement, or, to use a more Code-oriented term, the confirmatory memorandum. N. J. S. 12A :2-202. The parties use the commercial words “contract”, “agreement” and “cancellation.” Defining these words, the Code, N. J. S. 12A :2-106(1), limits them to the present or future sale of goods. The same section describes a “contract for sale” as including both present and future sales of goods. The agreement signed by defendant here purported to be for the year 1964. This contract period formed at defendant’s request extended over nine months. When read in conjunction with defendant’s protective rather than conditional cancellation clause, this documents an “agreement” intended to constitute an installment contract precedently unconditioned.

Were this internal analysis of the instrument not enough to evince a meeting of the minds, and here we think it did, the conduct of the present parties was, of itself, sufficient ground to establish a contractual relationship. The haste necessary to complete preparations for the Pair; plaintiffs creation of a Long Island commissary and its capital investment in the component materials; defendant’s absolute commitment to plaintiff’s unconventional theory of preparation — all demonstrably indicate conduct, or a course of dealing, that recognized the existence of a mutual contractual intention. N. J. S. 124 :2-204(1). Guided by this reasoning we find that the parties intended to be contractually united from the time defendant signed the April 1, 1964 “interim agreement.” Accordingly, we find the trial court’s noncontractual characterization of the instant relationship erroneous.

Prescinding from the merits we take up the scope of this review. The record of appeal presents a full trial transcript in which the evidential background upon which each litigant relies is clearly stated. The parties have submitted supplemental briefs informatively keying the relevant facts to the “Performance,” “Breach,” and “Repudiation” parts of the Uniform Commercial Code. Plaintiff, apparently anticipating the possibility of a determination that a contractual relationship existed, requests a remand to the trial division for “full finding of fact.” Defendant has requested this court to make a full disposition of the case on the merits.

Both the law and facts are clear. Therefore, we invoke our power to exercise original jurisdiction as conferred by R. R. 1:5-4(b), R. R. 2:5.

Giving due regard to the original trier’s opportunity to observe the demeanor and to judge the credibility of the witnesses, we find as a matter of fact that the deliveries of April 23 and 25, 1964 did not conform to the samples originally presented and approved. Since warranties of sample and description are characterized as “express warranties,” the “whole of the goods shall conform to the sample or— model.” N. J. S. 12A :2-313(1) (c). The “goods” to “conform” to the sample or model must be “in accordance with the obligations under the contract” N. J. S. 12A :2-106(2) ; here, to comply with the standards established by the March 17 taste-test of the samples. Any distinguishing language would be controlled by the sample as presented on March 17. Additionally, the implied warranty of fitness for purpose attaches to contracts of this type, where, as here, they are not specifically excluded. A breach of these warranties triggers a buyer’s rights following seller’s breach as catalogued in N. J. S. 12A :2-711. These remedies include, but are not limited to, cancellation N. J. S. 12A:2-711(1), 2-106(4) “if the breach goes to the whole of the contract.” N. J. S. 12A:2-612(3).

N. J. 8. 12A :2-612 discloses the rights of the parties to installment contracts:

' “(1) An ‘installment contract’ is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause ‘each delivery is a separate contract’ or its equivalent.
. (2) The buyer may reject any installment which is non-conforming if the non-conformity substantially impairs the value of that installment and cannot be cured or if the non-conformity is a defect in the required documents; but if the non-conformity does not fall within subsection (3) and the seller gives adequate assurance of its cure the buyer must accept that. installment.
(3) Whenever non-conformity or default with respect to, one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a non-conforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments.”

Here, Holterbosch had the right to reject any installment that was nonconforming, provided that the nonconformity substantially impaired the value of that installment and could not be cured. N. J. S. 124:2-612(2). “Cure,” novel to New Jersey’s jurisprudence, permits the seller to cure a defective tender through repair, replacement or price allowance if he reasonably notifies the buyer of his curative intention and, in effecting the cure, makes a timely conforming delivery. N. J. S. 124:2-508(1).

The effect of the installment contract section, N. J. S. 124 :2-612(2), is to extend the time for cure past the contract delivery date for that nonconforming installment, provided the nonconformity does not “substantially [impair] the value of that installment” and can be cured. We find that Holterbosch was justified in rejecting Graulich’s tender of the April 23 initial installment since the nonconformity of the tendered goods with the accepted sample was incurable, and thus substantially impaired the value of that installment.

Replacing considerations of anticipatory repudiation and the material injury with the test of substantial impairment, N. J. S. 124 :2-612 adopts a more restrictive seller-oriented approach favoring “the continuance of the contract in the absence of an overt cancellation.” See Comment to § 12A:2-612, par. 6; also New Jersey Study Comment par. 2; Hawkland, supra, 3, c. (3), p. 116. To allow an aggrieved party to cancel an installment contract, N. J. S. 12A:2-612(3) requires (1) the breach be of the whole contract which occurs when the nonconformity of “one or more installments substantially impairs the value of the whole contract;” and (2) that seasonable notification of cancellation has been given if the buyer has accepted a non-conforming installment.

What amounts to substantial impairment presents a question of fact. Analyzing this factual question, the New Jersey commentators counsel that the test as to whether the nonconformity in any given installment justifies cancelling the entire contract depends on whether the nonconformity substantially impairs the value of the whole contract, and not on whether it indicates an intent or likelihood that the future deliveries also will be defective. Continuing, the Comment relates the intent underlying a breach to insecurity and those sections of the Code providing buyer with adequate assurance of performance, §2-609, and anticipatory repudiation, §2-610. More practical in its treatment of “substantial impairment”, the official Comment states that “substantial impairment of the value of an installment can turn not only on the quality of the goods but also on such factors as time, quantity, assortment and the like. It must be judged in terms of the normal or specifically known purposes of the contract.” Comment to §2-612, par. 4; also, Hawkland, supra, at p. 117.

At the Lowenbrau Pavilion on April 23, 1964 plaintiff Graulich, timely noticed of the nonconforming initial tender, gave assurance that future tenders would be cured to match the original samples. Unequivocally committed to the microwave kitchen method, defendant lent plaintiff three members from its staff in aid of this adjustment. Since plaintiff was given the opportunity to cure, there is no need to touch upon the substantiality of the initial nonconforming installment.

The second installment tender was as unsatisfactory as the first. The meat was dry, the gravy “gooey” and the complaints abundant. After the nonconforming second delivery it became apparent that eleventh-hour efforts attempting to rework and adjust the platters failed. Translating this into legal parlance, there was a nonconforming tender of the initial installment on a contract for the sale of goods; upon tender the buyer Holterbosch notified the seller Graulich of the nonconformity and unacceptable nature of the platters tendered; the failure of the cure assured by plaintiff, seller, was evidenced by a subsequently defective nonconforming delivery. The second unacceptable delivery and the failure of plaintiff’s additional curative efforts left defendant in a position for one week without food. Time was critical. Plaintiff knew that platters of maximum quality were required on a daily installment basis. Because of defendant’s immediate need for quality food and plaintiff’s failure to cure, we find that the nonconformity of the second delivery, projected upon the circumstances of this case, “substantially impair [ed] the value of the whole contract [and resulted in] a breach of the whole” N. J. S. 12A :2-612(3). If the breach goes to the whole contract the buyer may cancel the whole contract. N. J. S. 12A :2-711 (1). Accordingly, we find that Holterbosch was justified in cancelling the installment agreement signed on April 1, 1964.

Since defendant’s counterclaim was withdrawn it is unnecessary to treat of the right retained by a cancelling party to press any remedy for breach of the whole contract. N. J. S. 12A :2-106(4).

Judgment in favor of defendant for the reasons herein stated. Costs to defendant.