author: Leonard, J. A. D.

text:
    MARIA RODRIGUES, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LOUIS RODRIGUES, PLAINTIFF-APPELLANT, v. ELIZABETHTOWN GAS COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued November 18, 1968
    Decided February 17, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Leslie 8. Kohn argued the cause for plaintiff-appellant {Messrs. Kohn, Kirsch & Needle, attorneys).

      Mr. William A. Dreier argued the cause for defendamrespondent {Messrs. Mac Kenzie, Welt & Dreier, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

In this action for wrongful death, plaintiff administratrix ad prosequendum of the estate of Louis Rodrigues appeals from a judgment of involuntary dismissal of her cause of action.

Plaintiff’s decedent had been employed by Allied, Inc. of Rahway as a gas pipe-fitter and “couple-man” for about six months. Allied, an independent contractor specializing in the repair of gas leaks, was engaged by defendant, a natural gas company, to repair a leak in an underground gas line owned by defendant in the area of Cornell Street, Rahway.

On August 27, 1964 decedent and two other Allied employees, Adams, a laborer, and Charney, a foreman, traveled by Allied truck to the situs of the leaking gas line.

Upon arrival Charney, by use of an “indicator,” ascertained the location of the buried gas pipe and marked off an area three feet by three feet for excavation. Adams dug a hole at that area (on the lawn of a house fronting on Cornell Street) approximately throe feet in each dimension •—depth, width and length. This excavation exposed the leaking gas pipe (but not the leak per se), a gas main and a shut-off valve.

Immediately following the digging by Adams, decedent entered the excavation and while in a crouched position shoveled out some dirt and exposed the leak. Adams, at decedent’s request, wont to Allied’s truck and secured a piece of tape and “duck seal.” When Adams returned, decedent was standing erect with his foot over the leak. Upon receipt of these materials decedent bent down in the hole and placed them over and around the pipe at the point of the leak. However, they did not stop the leak, and Adams secured more tape and seal from the truck, which he gave to decedent. Again decedent crouched down and applied the tape and seal to the leak. But gas was still escaping with a hissing sound. Adams went to the truck for the third time and returned with an adjustable wrench that he handed to decedent. Decedent then resumed a crouched position and attempted, with the use of the wrench, to shut off the valve, hut he was not successful. Once more Adams, at decedent’s request, went to the truck to secure additional tape. Upon his return, decedent was not moving and was lying against the side of the hole in a crouched position.

Adams immediately pulled decedent out of the hole and called to a woman in a nearby house to summon “the cops, ambulance or something.” Police arrived, but their attempt to revive decedent with the use of oxygen and “another device” was to no avail. He was dead.

Adams testified that he smelled gas and heard it escaping with a “hissing” or “whistle” sound from the time he first began to dig the hole until he removed decedent therefrom. He further testified that when he and the other men first arrived at the location one of defendant’s inspectors was present, but that before the excavation began the inspector and Charney left in defendant’s truck for some fittings. They did not return until after the police had arrived.

In this action plaintiff alleges that decedent died of gas asphyxiation. Plaintiff conceded that the natural gas distributed by defendant was not poisonous and that the deceased did not die as a result of any noxious substance or carbon monoxide in the gas. She contends that decedent was asphyxiated, i. e., “gas replaced oxygen and there wasn’t enough oxygen in the air for him to remain conscious and survive.”

The pretrial order charges that defendant was negligent “in failing properly to supervise the work; properly to warn and safeguard decedent; failing to have on the site and provide necessary equipment both to prevent asphyxiation and to treat employees who might be injured; failing properly to train decedent and other persons who might be working in and about its gas lines in the proper precautions to be taken.”

However, in his opening plaintiff charged defendant with negligence in the following respects: the failure of defendant’s foreman or other personnel to remain at the job site so that decedent would not be left alone and unattended in a hole with escaping gas; the failure of defendant’s truck to remain at the site and to have had thereon proper masks, respirators and equipment to revive people who might be overcome by gas; the failure to furnish decedent with a mask, and the failure to see that proper safeguards and safety equipment were on hand.

At the trial plaintiff’s only witness was Adams, the. laborer for Allied. He testified substantially to the facts as hereinbefore related. He was then asked, while still on direct examination, “Do you know whether the Gas Company truck that was there that morning contained any pull motors [sic], oxygen, respirators or masks?” Upon objection thereto there followed protracted argument between counsel and discussion by the court. During the course of this argument counsel for plaintiff made an unusual suggestion. He asked counsel for defendant to “amend his motion [objection] so as to make a motion for involuntary dismissal and I shall stipulate sufficient facts and have Your Honor rule on it because this looks to me like a very long and expensive case for me to try.” Thereupon plaintiff’s counsel stipulated “that any additional evidence I might bring in on the question of liability would go to the question of whether or not the duty of the gas company to provide safeguards and to warn [employees of Allied of the dangers] is a nondelegable duty. Tf it is not a nondelegable duty, I submit, that I have no case. So that I would like Your Honor to rule on that. If you are going to rule adversely, I don’t see the point of wasting a couple of more days time.”

Defendant’s attorney accepted the suggestion and the trial court treated the matter as if on a motion for dismissal. During the course of the lengthy argument that followed, counsel for plaintiff stated that he intended to introduce certain standards contained in a manual of the American Gas Association, Inc. However, neither the manual nor any other proof of standards were submitted. On more than one occasion the court indicated that it was inclined to grant the motion of dismissal on the record as it existed, hut offered plaintiff an opportunity to present additional evidence. The court further indicated that it would defer the motion “to see what other proofs you have.” In spite of these offers, plaintiff produced no additional evidence and the court granted the motion for dismissal.

At the oral argument, in order to make certain that plaintiff was not deprived of substantial justice, we gave her an opportunity to advise us of the manual that she intended fo rely upon and the pertinent provisions thereof. Subsequently, we were advised by letter that it was Suggested Safe Practices for Gas Distribution Men (4th ed.), published by the Accident Prevention Committee of the American Gas Association Inc. Thereafter, we were advised by letter from counsel for defendant that the cited manual was published in 1966, two years after the accident. Since plaintiff’s counsel did not dispute this fact, we accept it as true. Thus, the proffered manual is not pertinent or relevant and we shall not consider it. We have, therefore, no other alternative than to dispose of this case on the record as made by plaintiff in the trial court, inadequate as it may be.

Plaintiff contends that one who employs an independent contractor to perform work which entails an inherent risk of injury to others will be liable to persons so injured if he fails to use reasonable care to take precautions against such risk. This liability, she argues, extends to employees of the independent contractor. The application of this contention to the present case is bottomed upon the assertion that gas is an “inherently dangerous substance.”

Generally, a landowner or contractor is under a duty to exercise reasonable care to render the work site reasonably safe for the employee of an independent contractor who comes upon those premises for the purpose of performing work thereon, and this duty is nondelegable. Piro v. Public Service Electric & Gas Co., 103 N. J. Super. 456, 463 (App. Div. 1968), affirmed 53 N. J. 7 (1968).

However, where the landowner or contractor does not retain control over the doing of the work, he is not responsible for injuries sustained by an independent contractor or his employee that result from the very defect or condition that such person is upon the land to remedy or to inspect, Broecker v. Armstrong Cork Co., 128 N. J. L. 3, 5-7 (E. & A. 1942); Walsh v. Madison Park Properties, Ltd., 102 N. J. Super. 134, 140-142 (App. Div. 1968); Reiter v. Max Marx Color & Chemical Co., 67 N. J. Super. 410, 412-413 (App. Div. 1960), affirmed 35 N. J. 37 (1961); Bergquist v. Penterman, 46 N. J. Super. 74, 82-83 (App. Div.), certification denied 25 N. J. 55 (1957); Hammond v. Eldorado Springs, 362 Mo. 530, 242 S. W. 2d 479, 480, 31 A. L. R. 2d 1367 (Mo. Sup. Ct. 1951), or which result from hazards inhering in or necessarily created by the very doing of the work itself, Gibilterra v. Rosemawr Homes, Inc., 19 N. J. 166, 170—171 (1955); Wolczak v. National Electric Products Corp., 66 N. J. Super. 64, 75 (App. Div. 1961); Jensen v. Somerset Hospital, 58 N. J. Super. 204, 208 (App. Div. 1959), certification denied 31 N. J. 551 (1960) ; Trecartin v. Mahony-Troast Construction Co., 18 N. J. Super. 380, 386 (App. Div. 1952).

In some jurisdictions, however, an exception to this latter rule is recognized where the independent contractor is employed to do work that is “inherently dangerous.” That is, work that the contractor should recognize as necessarily requiring the creation during its progress of a condition involving a grave and peculiar risk of harm to others unless special precautions are taken, and that can be safely carried on only by the exercise of special skill and care, is considered inherently dangerous. In such a situation, if the contractor is negligent in taking the requisite special precautions or in exercising the necessary skill and care, he will be liable for injuries to the employees of independent contractors. See, e. g., Woolen v. Aerojet General Corp., 57 Cal. 2d 407, 20 Cal. Rptr. 12, 369 P. 2d 708, 711 (Cal. Sup. Ct. 1962); Gowdy v. United States, 271 F. Supp. 733, 748 (D. C. W. D. Mich. 1967). On the other hand, a considerable number of jurisdictions have refused to extend the “inherently dangerous activity” rule to the employees of independent contractors. These jurisdictions have limited the application of the rule only to instances of injury to unrelated third parties, such as adjacent landowners or innocent bystanders, classes that were the initial catalysts for and beneficiaries of the evolution of the rule. See, e. g., Evans v. Whirlpool Corp., 10 Ohio St. 2d 240, 227 N. E. 2d 208, 209 (Ohio Sup. Ct. 1967); Welker v. Kennecott Copper Co., 1 Ariz. App. 395, 403 P. 2d 330, 338 (Ariz. Ct. App. 1965) ; Epperly v. City of Seattle, 65 Wash. 2d 777, 399 P. 2d 591, 596 (Wash. Sup. Ct. 1965).

This jurisdictional split has been noted but not resolved in New Jersey. See Wolczak, supra, 66 N. J. Super., at pp. 72-73. The indications are, however, that New Jersey would extend the application of the “inherently dangerous activity” rule to the employees of independent contractors. In Gibilterra, supra, 19 N. J., at p. 171 and in Marion v. Public Service Elec. & Gas Co., 72 N. J. Super. 146, 159 (App. Div. 1962), emplees of independent contractors were suing for injuries sustained by them while performing the work for which their employers had been retained by the respective contractors. Both courts held that the inherently dangerous activity rule was not applicable to the facts before them, on the single ground that the work that plaintiffs were engaged in did not amount to inherently dangerous activities. No disqualifying significance was placed upon the fact that plaintiffs in both cases were employees of independent contractors, and, had the facts been suitable, it is implicit in both opinions that recovery would have been permitted under the inherently dangerous activity doctrine. Gibilterra, supra, 19 N. J., at p. 171; Marion, supra, 72 N. J. Super., at 159. Similarly, in Breece v. J. F. Chapman & Son, Inc., 302 F. 2d 581 (3 Cir. 1962), a case governed by New Jersey substantive law, the court assumed in dictum that New Jersey law extended the inherently dangerous activity doctrine to instances of injury to employees of independent contractors. Breece, supra, at pp. 583-584.

Assuming without deciding that New Jersey would include employees of independent contractors within the purview of the inherently dangerous activity rule, the facts of the instant ease are still inappropriate to the invocation of this doctrine. The term “inherently dangerous activity” means more than danger that arises simply from the casual or collateral negligence of persons engaged in that activity under particular circumstances, or danger which arises solely from the means and methods of its performance. Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N. J. 425, 435 (1959). It signifies more than danger arising merely from negligence in the operative details of the work, Restatement, Torts 2d § 427, comment (d) (1965); Holt v. Texas- New Mexico Pipeline Co., 145 F. 2d 862, 864 (5 Cir. 1944) (applying Texas Law). The term “inherently dangerous activity” denotes that a danger inheres in the activity itself at all times, whether or not carefully performed, and imports that it is incidental to and characteristic of the work itself, Majestic, supra, 30 N. J., at p. 435. It implies a special danger inherent in the nature of the work per se. Restatement, Torts 2d, § 427.

Furthermore, the mere fact that an injured employee of an independent contractor was engaged in an activity that presented peculiar, intrinsic hazards, so that the activity could rationally bo denoted “inherently dangerous”, does not without more yield him a cause of action against the contractor or landowner. Plaintiff’s injuries must also have resulted from the very dangers that were inherent in the activity and that are the underlying reasons for that activity being defined as inherently dangerous. The rule is not applicable where plaintiff’s injuries result from some collaterally created or noninherent hazard, even though the activity engaged in might generally be classified as inherently dangerous. Breece, supra, 302 F. 2d, at p. 584, n. 1 (dictum); Holt, supra, 145 F. 2d, at p. 864; Restatement, Torts, 2d § 427, comment (d) (1965) ; see Majestic, supra, 30 N. J., at p. 435; Gibilterra, supra, 19 N. J., at pp. 171-172; Restatement, Torts 2d, § 416, comment (a) (1965).

Insofar as the possibility of fire or explosion is concerned, gas is an extraordinarily dangerous commodity, and to prevent the possibility of harm from these hazards the exercise of proportionate care is required. See Araujo v. New Jersey Natural Gas Co., 62 N. J. Super. 88 (App. Div. 1960) (explosion and fire); Oklahoma Natural Gas v. Appel, 266 P. 2d 442 (Okl. Sup. Ct. 1954) (explosion); Lee v. Gas Service Co., 166 Kan. 285, 201 P. 2d 1023 (Kan. Sup. Ct. 1963) (explosion) ; Ambriz v. Petrolane, Ltd., 49 Cal. 2d 470, 319 P. 2d 1 (Cal. Sup. Ct. 1957) (explosion and fire).

However, the instant case does not involve a fire or explosion. Involved here is the alleged asphyxiation of plaintiff’s decedent by the inhalation of natural gas. As noted above, plaintiff stipulated that the gas was nonpoisonous. Cf. Anderson v. Atlantic City Gas Co., 7 N. J. Misc. 297 (Sup. Ct. 1929) (poisonous monoxide gas). Adams testified that the gas was odorized. We take judicial notice of the fact that natural gas is lighter than air. See Gas Engineers Handbook, c. 2, p. 2/9 (Industrial Press 1965); N. J. Rules of Evidence 9(2) (e). Allied, by whom decedent was employed, was a specialist in repairing gas leaks, and decedent himself was an experienced gas pipe-fitter. On the day in question he was working out of doors in an open area and in a very shallow hole (3'). Under all of these circumstances, we hold that the danger of accidental asphyxiation was not a hazard inherent in and peculiar to decedent’s activity, but rather one which would result only from some collateral negligence in the manner or means of performance. Defendant had no reason to anticipate that the work contracted for would create a special and inherent risk of asphyxiation, so that unusual precautions on its part were required in order to escape potential liability. Thus, insofar as the danger of asphyxiation was concerned, we find that decedent was not engaged in an inherently dangerous activity and liability cannot be imposed upon defendant upon the theory that he was so engaged. Therefore, we conclude that defendant is not liable for decedent’s death.

Judgment affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    HOWARD DETLEFS, PETITIONER-RESPONDENT-CROSS-APPELLANT, v. TOWN OF WESTFIELD, A MUNICIPAL CORPORATION, RESPONDENT-APPELLANT-CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 27, 1969
    Decided February 18, 1969.

      Before Judges Gaulkin, Collester and Labbecque.

      Mr. Eugene W. Cullen argued the cause for respondent-appellant (Messrs. Sanderson & Cullen, attorneys).

      Mr. Robert B. Berenson argued the cause for petitioner-respondent (Messrs. Berenson and, Kessler, attorneys).
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

Detlefs, a Westfield fireman, was injured while examining his daughter’s car at the firehouse in preparation for repairing a malfunction therein. He suffered the loss of an eye, facial scarring and injuries to his head, neck, back and left shoulder. Because of those injuries, he retired on a disability pension pursuant to N. J. 8. A. 43:16-2. Nevertheless, predicated upon. N. J. 8. A. 34:15-43, he demanded that Westfield pay the medical, surgical and hospital expenses he had incurred. Westfield’s insurance carrier (the real party in interest in this appeal, as we shall see) refused to pay these expenses on the ground that the injuries were not compensable because not work-connected. Thereupon Detlefs filed his petition herein. The Division adjudged that the injury was work-connected and that the carrier was liable for past and future medical expenses. In addition, the Division adjudged that, had Detlefs not been pensioned, “the total award in this case would be over $17,600’’ based on “225 weeks for the loss of the eye and the enucleation, and 165 weeks for 30 per cent of partial total [for his other injuries] or a total of 390 weeks of permanent compensation,” plus “medical reimbursements and payments * * * over $2,000.” “Therefore,” said the judge of compensation, “approximately 20 per cent of that amount is $3,500, and I will assess against the respondent that amount for petitioner’s counsel fee * * even though, because of the pension, the carrier was obliged to pay only the approximately $2,000 of medical expenses. The County Court affirmed, and awarded an additional $2,000 counsel fee, again all payable by the carrier.

The carrier appeals on the grounds that (a) Detlefs had no right to file a petition in the Division, even for the medical expenses, because he was receiving the disability pension, and therefore the judgment is void; (b) even if he had the right, to file the petition, there should have been no award because the injuries were not work-connected; and (c) even if it be determined that the injuries were work-connected, the counsel fees should have been calculated only upon the approximately $2,000 of medical reimbursement and not upon said $17,600.

I

We agree with the County Court that the injuries were work-connected. There was testimony which the triers of the facts were entitled to accept that the firemen were permitted to work on their cars to while away the time while on duty, and that what Detlefs was doing when he was injured was within the scope of that permission. Cf. Yurochko v. Beckley Perforating Co., 61 N. J. Super. 1 (App. Div. 1960); Tocci v. Tessler & Weiss, Inc., 28 N. J. 582 (1959); Complitano v. Steel & Alloy Tank Co., 34 N. J. 300 (1961).

II

We hold that it was proper for Detlefs to file the petition for compensation.

The carrier’s argument may be summarized as follows: N. J. S. A. 34:15-43 bars Detlefs from all workmen’s compensation benefits, citing Reinhold v. Town of Irvington, 134 N. J. L. 416 (Sup. Ct. 1946). It is true that N. J. S. A. 34:15-43 was amended after the Reinhold case (L. 1948 c. 269) to provide “that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in section 34:15—15 of the Revised Statutes.” But, says the carrier, the statute places the duty to provide such medical treatment upon the municipality or upon the Division of Pensions, not as a workmen’s compensation benefit but as part of the pension laws. Therefore, argues the carrier, the enforcement of that right to treatment is not within the jurisdiction of the Division and is not covered by its policy.

The County Court called this argument “a strange one” and disposed of it in the following language:

“* * * It is true that the liability for medical benefits is upon the Town of Westfield, the employer (N. J. S. 34:15-15) ; but the Town has purchased insurance from the carrier to cover that liability. The provision for medical benefits for public employees who have retired on a disability pension was first added to the statute by an amendment of 1948. L. 1948, c. 269. The amendment was accompanied by the following explanatory statement:
‘Because of the recent decisions of our courts in the eases of DeLorenzo v. Newark, 134 N. J. L. 7 and Reinhold v. Irvington, 134 N. J. L. 416 a public employee permanently disabled in the actual performance of his duty who is retired upon application for pension, cannot recover medical, surgical and other expenses under the Workmen’s Compensation Act, which expenses were incurred in the treatment and alleviation of his condition.’
This statement makes it clear, if there could have been any reasonable doubt on the point, that the Legislature intended to provide for medical payments under the Workmen’s Compensation Act and not from the pension plan or some other source. Saly v. Town of Kearny, 85 N. J. Super. 586 (Hudson Cty. Ct. 1964), affirmed 90 N. J. Super. 144 (App. Div. 1966).”

We agree. Further, we note in passing that if the carrier gave no notice to Westfield, either below or here, (which appears to be the fact) that it sought to avoid the liability by shifting it to Westfield, that is in the highest degree improper. Cf. State Farm Mutual Auto Ins. Co. v. Walker, 7 Cir., 382 F. 2d 548, 552 (1967), certiorari denied 389 U. S. 1045, 88 S. Ct. 789, 19 L. Ed. 2d 837 (1968); Kaudern v. Allstate Insurance Company, 277 F. Supp. 83, 91 (D. N. J. 1967). See “Code of Professional Responsibilitjr,” of the American Bar Association Special Committee on Evaluation of Ethical Standards, preliminary draft January 15, 1969, pp. 63-64, 73. However, since we reject the carrier’s argument, no harm has been done.

In short, we hold that the medical and other treatment provided for by N. J. S. A. 34:15—43 (and, by reference, N. J. S. A. 34:15-15) are workmen’s compensation benefits, recoverable by petition filed in the Division. Cf. Sa v. H. L. Harrison & Son, Inc., 38 N. J. 203, 207 (1962).

Ill

This brings us to the question of the quantum of the fee which the Division may award in such a case.

In Burpee v. Princeton Municipal Improvement Company, 88 N. J. Super. 552 (App. Div. 1965), after the employee filed a workmen’s compensation petition, but before it was heard, the employee settled his claim against the third party responsible for his injury for $15,000. After final hearing, the Division made an award which totalled less than $15,000. The judge of compensation ruled that he had no power to award a counsel fee to the employee’s attorney because the carrier owed nothing, since the third-party recovery was greater than the compensation award. The County Court affirmed but we reversed, saying:

“* * * Here there was a judgment in favor of Burpee. The mere fact that the employer was entitled to a credit against that judgment related only to the satisfaction of the judgment and did not affect the propriety and indeed the necessity of entering it. Thus its entry gave the judge of compensation the right to allow a fee.
It was necessary to proceed with the compensation hearing and the entry of judgment for several reasons. Burpee claimed he was totally and permanently disabled as a result of his industrial accident; the employer denied it. The rate of compensation was in dispute. But even it if were then anticipated that the $15,000 would cover the 450 weeks then allowable for permanent disability, plus temporary disability and medical expenses, there was the possibility that Burpee might have to ask for further benefits after the 450 weeks, in which case the judgment on his petition would be an indisjjensable condition precedent.” (at pp. 557-558)

The carrier here seeks to distinguish Burpee principally on the ground that in that case we held that “there was a judgment in favor of Burpee. The mere fact that the employer was entitled to a credit against that judgment related only to the satisfaction of the judgment * * *. Thus its entry gave the judge of compensation the right to allow a fee * * Here, says the carrier, there was not a satisfaction of a proper judgment hut rather no right to any money judgment whatever in any sum beyond the medical reimbursement, and therefore no fee beyond 20% of $2,000 was permitted by N. J. S. A. 34:15-64.

It is true that there is that distinction between this case and Burpee. It is true also that in Burpee the petition was filed before the $15,000 settlement. Nevertheless, we hold that the rationale of Burpee should be applied here.

As we have said, it was necessary for Detlefs to file the petition to establish the right to medical reimbursement which the carrier had denied, and he had to file it within the time fixed by the workmen’s compensation act. N. J. S. A. 34:15-51; Sa v. H. L. Harrison & Son, Inc., supra. In order to prove that right he had to prove that his injury was work-connected, which the carrier had also denied. And (since the carrier did not admit it) it was also proper to prove his injuries and the resulting number of weeks for which he would have been entitled to workmen’s compensation had he not been retired. This, as in Burpee, fixed the period during which Detlefs would be entitled to the medical and other treatment provided for in N. J. S. A. 34:15-43. Sa v. H. L. Harrison & Son, Inc., supra.

N. J. 8. A. 43 :16-2 provides that a fireman retired for disability may be required before age 51, or elect at any time, to go back to duty if he is found fit to do work available for him in the fire department. In such cases, proof of the number of weeks of compensation is important because upon his return to work the pension ceases and the fireman is entitled to the weeks of compensation remaining, if any.

Detlefs is over 51 and there is no suggestion that he intends to return to work, and we do not mean to suggest that he filed this petition with the possibility of returning to work in mind. Uor do we mean to suggest that every employee retired for work-connected disability should file a petition for workmen’s compensation. And we certainly do not mean to say that a fee should be allowed in every case in which such a pensioner files a petition for workmen’s compensation. As we said in Burpee (at p. 558): “We do not mean to hold that there may not be cases in which * * * there is so little justification for prosecuting the compensation claim that no fee should be allowed.”

What we do say is that the limit the Division may allow as a counsel fee under N. J. S. A. 34:15-64 is 20% of the amount the judgment would have been had there been no pension involved. However, in deciding how much of that 20% to allow, the Division should assay the need for the petition, what was really in issue, what the carrier really contested, and base the fee upon what the attorney really had to prove. Caputo v. Best Foods, Inc., 30 N. J. Super. 552, 559 (App. Div. 1954), modified 17 N. J. 259, 269 (1955). Judged by these standards we find the fee of $3,500 in the Division very generous and the fee of $2,000 in the County Court even more so, especially since both are charged against the carrier alone. However, we cannot say that they were so high as to constitute an “abuse of discretion” which should be corrected by us.

In the County Court petitioner asked for interest on the judgment of the Division, which petitioner had docketed. The County Court correctly refused to allow interest. Cohrs v. Igoe Bros., Inc., 71 N. J. Super. 435 (App. Div. 1962).

The judgment is affirmed. No costs.


author: Per Curiam.

text:
    SAUL BRAZER AND GLORIA BRAZER, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOROUGH OF MOUNTAINSIDE, IN THE COUNTY OF UNION, A MUNICIPAL CORPORATION, AND THE PLANNING BOARD OF THE BOROUGH OF MOUNTAINSIDE IN THE COUNTY OF UNION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 17, 1969
    Decided February 24, 1969.
    Before Judges Goldmann, Kolovsky and Carton.

      Mr. Irvin B. Johnstone, Jr. argued the cause for appellants (Messrs. Johnstone & O’Dwyer, attorneys; Mr. Frank T. Swain, on the brief).

      Mr. Charles J. Irwin argued the cause for respondents.
   Per Curiam.

We affirm substantially for the reasons expressed in the opinion of Judge William E. Wood in the Law Division. 102 N. J. Super. 497 (1968). See, also, Smith v. Morris Tp. Comm., 101 N. J. Super. 271, 280 (App. Div. 1968).


author: Labrecque, J. A. D.

text:
    JOHN V. LYONS, PETITIONER-RESPONDENT, v. P & M TAXI, INC., AND NAT ECKEL t/a GARDEN STATE TAXI CO. AND NICHOLAS P. ZOPPI, RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 6, 1969
    Decided January 28, 1969.

      Before Judges Gauekin, Colbestee and Labrecque.

      Mr. Leonard J. Felzenlerg argued the cause for appellants P & M Taxi, Inc. and Nat Eckel t/a Garden State Taxi Oo. (Messrs. Roskein, Kronisch & Felzenlerg, attorneys).

      Mr. M. Marvin Soperstein argued the cause for respondent John V. Lyons (Mr. Lee Galligaro, on the brief).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Appellants P & M Taxi, Inc. (P & II) and Nat Eckel t/a Garden State Taxi Co. (Eckel) appeal from a judgment of the Essex County Court affirming a compensation award in favor oí petitioner John V. Lyons.

The facts are substantially undisputed and may be summarized as follows. Prior to March 1963 P & M was the owner of a taxicab, a taxi operator’s license issued by the City of Newark and a taximeter. On March 1, 1963 it entered into a lease and purchase agreement with Nicholas P. Zoppi (Zoppi), whereby Zoppi leased the taxi for a two year period for a consideration of $400 down and $25 per week for 104 weeks. At the end of the contract period the taxi, a 1960 Dodge Dart, was to belong to Zoppi. The meter went with the cab but was to be returned to P & M, at the end of the term fixed, in good working order. Under the agreement Zoppi was to retain all fares and tips collected and to pay all expenses of operation, including fees, licenses and premiums on a liability insurance policy covering P & M and himself which he obligated himself to procure. The only specific restrictions on Zoppi’s use of the cab were that it was to be operated under the colors and name of “Garden State Taxi Association,” in accordance with the regulations of the City of Newark and to be kept garaged within Essex County.

At the time the Zoppi contract was entered into the stockholders of P & M were Rita Eckel, a full-time schoolteacher, and her parents, Mr. and Mrs. Alberts. They were also the sole stockholders in two other corporations (Crestview Enterprises and Merele). The Garden State Taxi Association was not a corporation but a name (unregistered) adopted by P & M and the two other corporations referred to. Each corporation was licensed to operate one taxi which bore the name Garden State Taxi and was painted yellow and black. The same name and colors had been used by at least one other unafíiliated corporation of different ownership. P & M's only income receipts were the rental and insurance payments from Zoppi. At the time of the occurrence of the events here involved P & M's funds were being handled through the checking account of Crestview, assertedly because P & M was only issuing about one check a month.

Appellant Nat Eckel’s income was derived from his operation of the cab owned by Crestview for which he paid a rental fee of $8 or $9 a day. Tn addition to operating his cab he also performed some errands — without pay — for the three companies in which his wife, Rita, had an interest. Among them were the collection of rental and insurance premiums due from Zoppi and delivery of the insurance stickers required by the city ordinance to be displayed on each cab.

In February 1964 Zoppi and Lyons made an oral agreement for the operation of the P & M cab by Lyons for part of each day (12 hours) for a consideration of $7 a day payable by Lyons to Zoppi. Lyons was to pay for gas and oil used, and keep all fares collected during his 12-hour stint. One month later they entered into a written agreement whereby each was to operate it for 12 hours a day. The agreement provided that each was to retain his own fares and pay for his own gas and oil, repair expenses were to be shared, and Lyons was to pay Zoppi $500 plus $20.62 weekly (the latter was said to represent one-half of Zoppi's obligation under the arrangement with P & M). The agreement provided that Lyons was acquiring no right of ownership in the taxicab, but upon the expiration of the P & M lease the cab was to be the sole property of Zoppi. The contract was drawn by Zoppi’s attorney without the consent or participation of either P & jVI or Eckel, although Zoppi’s lease with P & M had forbidden him to sell, transfer or assign his rights without P & M’s consent. While the lease was in effect, Zoppi had had trouble with the Dodge Dart and had substituted for it a Plymouth which he paid for. However, in order that the registration might correspond with the taxi operator’s license, the Plymouth was registered under the name of P & M.

On October 31, 1964, while it was being operated by Lyons, the Plymouth was involved in a collision in which he sustained severe injuries. A petition for compensation was filed against P & M, Eckel and Zoppi.

At the trial Zoppi testified that his agreement with P & M did not require him to buy gas and oil at any particular place, he was not part of any radio group (the cab had no radio) and he received no directions as to when or where to operate the cab. Lyons testified he considered himself Zoppi’s “working partner.” He would sometimes come across Eckel while they were operating their respective calis, but Eckel never told him how or where to operate the P & M cab or gave him any other instructions. Additional facts will be referred to in connection with the portion of the discussion to which they are pertinent.

The judge of compensation dismissed the claim as to Zoppi and no appeal has been taken from this finding. He determined that Lyons was an employee of P & M and Eckel and entered an award against both. On appeal to the Essex County Court, there was an affirmance. The present appeal followed. The sole issue involved is whether, under the facts adduced, petitioner was in an employment relation with P & M or Eckel, or both, at the time he was injured.

On review, we are ordinarily required to determine whether the findings of the County Court could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole and giving due regard (in eases involving disputed facts) to the opportunity of the one who heard the witnesses to judge their credibility. Close v. Kordulak Brothers, 44 N. J. 589, 599 (1965). However, as noted, the parties are in general agreement as to the facts and, while certain of the County Court's findings are asserted to be without factual basis, appellants' challenge is principally directed to the County Court’s conclusions based thereon.

It is axiomatic that the statutory relationship which is a prerequisite to the entitlement of a petiioner to workmen's compensation depends upon the existence of a contract of hiring, either express or implied. Bendler v. Bendler, 3 N. J. 161, 167-168 (1949). Considered in terms of the relationship between Lyons and the appellants P & M and Eckel, we are satisfied that Lyons was never expressly or impliedly hired by them, and that he never thereafter acquired the status of an employee of either.

Turning first to the finding against Eckel, the proofs are plenary and without con tradition that he was not an officer or employee of P & M or its two affiliated companies, and that the only service he rendered P & M was to collect (we are not told how frequently) the rent and insurance payments due from Zoppi and deliver the monthly insurance stickers. There was no factual basis for the County Court’s conclusion that, as Garden State Taxi, he “managed” P & M’s cab, exercised “control” over petitioner or had the right to do so. Observing Lyons driving Zoppi's cab on occasion did not amount to the exercise of control over him. Garden State did not exist as an entity engaged in the management of taxicabs. The title “Garden State Taxi” and the colors associated with that title, which were attributed to Eckel, were no more than the trade name and identification assumed by the owners of the three cabs referred to. At most, Eckel was their unsalaried agent, a status which precluded any award against him. Whether manager or agent, he was not Lyons’ employer. Naseef v. Cord, Inc., 90 N. J. Super. 135, 144 (App. Div. 1966), affirmed 48 N. J. 317 (1966).

Proof was likewise entirely lacking as to any express hiring or other business relationship between Lyons and P & M. Lyons, while conceding the absence of any agreement between him and the appellants, argues that he was a partner of Zoppi whose agreement with P & M was one of hiring, hence the decision in this case “must be controlled” by Hannigan v. Goldfarb, 53 N. J. Super. 190 (App. Div. 1958) and Naseef v. Cord, Inc., supra. However, as we stressed in Hannigan, whether a taxi driver is “in fact, an employee must be determined not upon that arrangement alone but upon the totality of the facts surrounding the relationship.” (at pp. 195-196). Wholly aside from other considerations, we find neither Hannigan nor Naseef to be apposite.

In Hannigan the injured petitioner was a cab driver operating a cab owned by Goldfarb under a “three-phase arrangement” designated as a lease. Under its terms he was to pay Goldfarb $8 per day for each 12-hour shift he operated one of Goldfarb’s cabs. During the period he operated the cab he was permitted to retain all fares and tips collected and required to pay for all gas and oil used. Goldfarb owned five such taxicabs and managed five others belonging to his mother. He was a member of the 20th Century Taxicab Association (20th Century), a New Jersey corporation composed of cab owners like himself. Goldfarb operated onh, through the association and his cabs were painted the same color and bore the same “20th Century Cab” insignia as did those of the other members.

20th Century’s certificate of incorporation provided that one of its purposes was to “regulate the methods and pass rules and to enforce such rules for the carrying on of the taxi cab business under one uniform system, and which shall apply to all of its members.” Hannigan, supra, at p. 197. Each member of the association was responsible for the conduct of his cab. If a driver misbehaved, he would be reprimanded. When a “new man” came on the job, someone would be sent out with him for a day of two to assist in his training. Each driver (as distinguished from the owner), in addition to being specially licensed by the city, was required to register with the association. The association maintained a garage. It had offices where employees received telephone requests for taxi service and relayed them to the nearest member cabs (they were radio equipped). It also maintained call boxes and taxi stands for its members and provided forms for keeping track of trips made by them. Its supervisors saw to it that its regulations were enforced. Naseef, supra, involved a lease between Naseef, the cab driver, and Cord, Inc., also a member of 20th Century, under a similar arrangement.

Under such a state of facts we held that Goldfarb, who operated only through 20th Century, was engaged in the operation of a line of taxicabs as a common carrier of passengers, rather than in the mere leasing of taxicabs and that, Hannigan, as the driver of one such cab, qualified as an employee under both the “control” and “relative nature of the work” tests. Hannigan, supra, at p. 206.

The facts present in Hannigan, on which our foregoing findings necessarily depended, are conspicuously absent from the proofs before us. Garden State, as distinguished from 20th Century, was not even a “paper” association. It had no boobs, payroll, money, office or records. It had no means of soliciting business or communicating with member cabs. It had no rules of its own to which the operators of member cabs were required to adhere; furnished no facilities for the carrying on of their business and took no means of assuring that the city taxi regulations were being complied with. As the avenue whereby liability was to be imposed upon P & M, it was totally ineffective.

As to P & M itself, it would be a distortion of the facts to hold that such a corporation, composed of a schoolteacher and her parents, and owning but one licensed cab, which was leased out for a two-year period, was engaged in any activity beyond the leasing of its cab. Under its contract it retained no control over the operation. Although, unlike Hannigcm, it had ample opportunity, through Eckel, to give directions as to the cab’s operation, it is clear beyond dispute that it did not do so. Zoppi could purchase gas and oil and contract for repairs wherever he pleased. He substituted another cab when he decided this was necessary.

Wholly aside, Lyons was a stranger to the contract between Zoppi and P & M. The agreement which was the basis for his claimed status as Zoppi’s partner was in clear violation of Zoppi’s agreement with P & M, an undivided interest in which Zoppi was purporting to convey to Lyons. It was undisputed that consent to the execution of the Zoppi-Lyons agreement was never applied for or obtained from P & M, and that neither P & M nor Eckel ever had notice of the agreement, or of Lyons’ claimed status as a partner in the operation of P & M’s cab. Regardless of its effectiveness as between Zoppi and Lyons, Lyons acquired no rights against P & M through it.

We turn, finally, to consideration of Lyons’ contention that since the lease to Zoppi was held by the County Court to be invalid because in violation of the provisions of the Newark taxicab ordinance which precluded this type of leasing, he thereby became P & M’s employee for the purpose of carrying out its obligations as a taxi owner. Although the provisions of the Newark City ordinance assertedly violated (we are told they have since been amended) were discussed fully in Hannigcm and Naseef, in neither case did we hold that such violations, without more, compelled a finding that the lessor and lessee thereby became employer and employee for purposes of workmen’s compensation. See however, Wilson v. Kelleher Motor Freight Lines, Inc., 12 N. J. 261, 265-266 (1953).

Although not raised below, appellants now strenuously challenge the constitutionality of the provisions of the Newark ordinance referred to. We find it unnecessary to decide the point. Assuming the validity of the ordinance in every respect, its violation through the instrumentality of P & M’s lease could not create the relationship of employer and employee between P & M and Lyons, a stranger to the contract, and one with whom it had had no subsequent contractual dealings.

The judgment is accordingly reversed and the matter remanded to the County Court for the entry of judgment for appellants.


text:
    OSCAR GERMANN, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF GERDA GERMANN, DECEASED, PLAINTIFF-APPELLANT, v. JOSEPH P. MATRISS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 2, 1968
    Decided February 13, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Seymour Oohen argued the cause for plaintiff-appellant.

      Mr. Wilbur A. Stevens argued the cause for defendant-respondent (Messrs. Stevens and Mathias, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

[The forepart of the court’s opinion finds reversible error in the trial of a malpractice action against a dentist for tetanus infection and resulting death of a patient allegedly caused by the improper manner of sterilization of an acrylic denture inserted immediately after the extraction of teeth.]

Plaintiff’s malpractice case, as tried below, consisted of three separate causes of action: (1) a wrongful death action by plaintiff as administrator ad prosequendum (N. J. S. 2A: 31-1 et seq.); (2) a survival action by plaintiff as general administrator (N. J. S. 2A :15-3), and (3) a per quod action by plaintiff as the husband of the deceased. Defendant asserted that decedent was guilty of contributory negligence, and this issue was submitted to the jury.

At the completion of the charge plaintiff took exception to the court’s failure to charge the provisions of the Dead Man’s Act, N. J. S. 2A :81-2, which provides as follows:

“When 1 party to any civil action is a lunatic suing or defending by guardian or when 1 party sues or is sued in a representative capacity, any other party who asserts a claim or an affirmative defense against such lunatic or representative, supported by oral testimony of a promise, statement or act of the lunatic while of sound mind or of the decedent, shall be required to establish the same by clear and convincing proof.”

At the time plaintiff took this exception the court merely noted the objection. However, on plaintiff’s motion for a new trial, which was denied, the court held that the statute should not be charged in a dual action, one brought by the personal representative on a survival claim and the other by the administrator ad pros, for decedent’s death, since the survival action was "minor as compared to the major” death action and the statute would not be applicable as to the latter under Farago v. Sluke, 90 N. J. Super. 356 (App. Div. 1966), certification denied 47 N. J. 568 (1966). The basis of this determination was the court’s opinion that the jury could not follow instructions to determine contributory negligence on clear and convincing proof in the survival action and at the same time determine that issue by a preponderance of the evidence in the death action.

Plaintiff’s action was fundamentally grounded upon defendant’s failure properly to sterilize a treatment denture inserted into decedent’s mouth immediately following the extraction of 11 upper teeth. Plaintiff claimed that as a result decedent contracted tetanus, which caused her death. Defendant’s claim of contributory negligence was based on his testimony that he had instructed decedent not to remove the denture but that she was not wearing it six days later when he saw her in his office, at which time she told him that she had removed the denture the day following extraction.

The primary question that must first be answered is whether the statute applies to a negligence action in relation to the defense of contributory negligence when plaintiff sues in a representative capacity. This question has never been answered by our appellate courts. However, in Buska v. Aguinaldo, 84 N. J. Super. 577 (Law Div. 1964), it was held that N. J. S. 2A :81-2 applied to negligence actions. (There the statute was held available to the representative of a decedent sued for the latter’s negligence.) We agree with the reasoning and holding of the court in that case. Cf. Deak v. Perth Amboy Gas Light Co., 1 N. J. Misc. 457 (Sup. Ct. 1923). By the same token, we hold that the statute applies to the affirmative defense of contributory negligence when such a defense is asserted by a defendant in a negligence survival action brought by the general administrator of a deceased. In the instant ease defendant supported the assertion of this defense by “oral testimony of a statement or act * * * of the decedent.” Therefore, in the instant survival action brought by the general administrator, defendant was obligated to establish contributory negligence by “clear and convincing proof.”

However, in Farago v. Sluke, supra, we held that the Dead Man’s Act (N. J. S. 2A :81-2) was not applicable to the defense of contributory negligence in a wrongful death action by an administrator ad prosequendum, the plaintiff there not suing in a representative capacity. Thus, we reach the question whether, in the present situation, where a survival action filed by the general administrator is being jointly tried with a death action instituted by the administrator ad pros, and defendant asserts the defense of contributory negligence in both actions, N. J. S. 2A :81-2 is applicable to the contributory negligence defense asserted in the survival action, even though it is not as to the wrongful death action.

The obligation placed upon a party of proving a fact by “clear and convincing” evidence is distinct and different from the obligation to prove that fact by “a preponderance” of the evidence. N. J. S. 2A :84A-5; see also Evidence Buie 1(4). The former has been defined as “a standard of proof falling somewhere between the ordinary civil and criminal standards.” Aiello v. Knoll Golf Club, 64 N. J. Super. 156, 162 (App. Div. 1960). It “should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Ibid. Certainly the Legislature was cognizant of this difference when it mandated the “clear and convincing” burden under the circumstances set forth in N. J. S. 2A :81-2. We cannot conceive that this substantial right, so given to the representative of a decedent, may be eliminated on a basis so arbitrary as whether the survival action or the death action is the “minor” or “major” cause of action in the joint trial.

Under all the circumstances here present, we conclude that N. J. S. 2A :81-2 was applicable to the defense of contributory negligence asserted by defendant in the survival action instituted by plaintiff as general administrator. The court should therefore have charged the burden of proof by clear and convincing evidence in relation to that claim. Defendant’s contention that the jury would have been confused by the different standards to be applied to the defense of contributory negligence in each action is without merit. Our present day juries frequently have much more complex legal principles submitted to them for application to various sets of fact. Being convinced, as we are, that it was legally necessary to have the jury use the differing standards of proof for resolution of the defense of contributory negligence in relation to the respective types of action here presented, they should have been charged accordingly.

[The remainder of the court’s opinion treats with other alleged trial errors.]

Reversed and remanded for a new trial in accordance herewith.


author: Pee Curiam.

text:
    CITY OF PATERSON, ETC., PLAINTIFF-APPELLANT, v. THE PATERSON GENERAL HOSPITAL, ETC. AND FORTY-ONE (41 OTHERS) AND ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS. WILLIAM F. FORBES AND STANLEY M. LEVINE, INTERVENING PLAINTIFFS-APPELLANTS, v. THE PATERSON GENERAL HOSPITAL, ETC. AND FORTY-ONE (41 OTHERS) AND ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.

      [DOCKET NO. C-1375-65]

      [DOCKET NO. C-66-599]
    Superior Court of New Jersey Appellate Division
    Argued December 17, 1968 and February 17, 1969—
    Decided February 25, 1969.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Adolph A. Bomei argued the cause for intervening appellants (Mr. John Fiorello, on the brief).

      Mr. Arthur C. Dwyer, Legal Aid, argued the cause for appellant Oity of Paterson (Mr. Joseph L. Gonn, City Counsel, attorney).

      Mr. John W. Griggs argued the cause for respondent Paterson General Hospital (Messrs. Morrison, Lloyd & Griggs, attorneys; Mr. Bichard J. By an on the brief).
    Respondent Arthur J. Sills, Attorney General of the State of New Jersey, and the individual respondents did not file a brief.
   Pee Curiam.

On January 10, 1966, following announcement by defendant The Paterson General Hospital of plans to move the hospital from its present site on Market Street in Paterson to a tract of land about 3J4 miles away in Wayne Township, the City of Paterson instituted this action by filing a complaint in the Chancery Division “on behalf of all of the citizens, taxpayers and beneficiaries of the City of Paterson” to enjoin the proposed move. Plaintiff’s basic contention was that the hospital is a charitable trust obligated to maintain its physical facilities within the municipal limits of the city for the benefit of the people of Paterson.

By order entered on the city’s application on March 16, 1966, William E. Eorbes and Stanley M. Levine were permitted to intervene in the action “as citizens, residents and taxpayers” of the city and thereafter they filed a complaint seeking the same relief as that prayed for by the city.

The two actions were consolidated and tried before Judge Mountain. His opinion, in which he ruled in favor of the hospital, is reported at 97 N. J. Super. 514 (Ch. Div. 1967). The city and the intervenors each appealed to this court from the resultant judgment dismissing the complaints. A stay pending appeal was entered by the trial court.

While the appeal was pending, a proposed settlement of the litigation, set forth in a writing dated June 28, 1968, was agreed upon between the city and the hospital. Contending that this is a class action, the city and the hospital then moved before this court for approval of the proposed compromise. Of. B. B. 4:36-3.

Pursuant to our direction, testimony as to the reasonableness of the settlement was then taken before Judge Mountain on due notice.

After reviewing the record and hearing argument, we filed an opinion on January 6, 1969, the first paragraph of which reads as follows:

“Our review of the record- and of tlie testimony taken with respect to the reasonableness of the proposed settlement satisfies us that (1) the settlement agreed upon between the City of Paterson and the Paterson General Hospital, if carried out, is a fair and reasonable settlement, and (2) this is a class action to which R. R. 4:36-l and 3 apply, so that we may authorize the compromise despite the objection of plaintiff-intervenors.”

We find no merit in the intervenors’ contention that the compromise of the litigation may not be approved over their objection and in view of their pending appeal. This action is a class action, see R. R. 4:36-1. It is not one instituted solely to enforce the alleged individual rights of plaintiff and the intervenors. To adopt the language of the intervenors’ complaint, it was brought “on behalf of all the class of citizens, residents and taxpayers of the City of Paterson who are directly affected by the contemplated move of the defendant, The Paterson General Hospital.”

The intervenors have no greater or lesser right than any other member of the class. They cannot prevent approval by the court of a reasonable compromise of an action instituted for the benefit of the entire class of which they are only two individual members. Cf. Denicke v. Anglo California Nat. Bank of San Francisco, 141 F. 2d 285 (9th Cir. 1944) ; Rome v. Archer, 41 Del. Ch. 404, 197 A. 2d 49 (1964).

Nor is there any substance to the intervenors’ contention that to effect an approval of the settlement agreement by the governing body of the city required approval not only by the city’s Board of Finance, which the agreement did receive, but also by its Board of Aldermen and its Board of Health. The minimal powers still vested in the Paterson Board of Aldermen in no wise encompass the power to deal with agreements or actions such as are here involved, and the Board of Health is not part of the governing body of Paterson. Grosso v. City of Paterson, 55 N. J. Super. 164 (Law Div. 1959); Grosso v. Paterson, 59 N. J. Super. 412 (Law Div. 1960), affirmed 33 N. J. 477 (1960) ; R. S. 30:9-13; R. S. 30:9-16.

The trial judge’s decision, reached after a lengthy trial, leaves the hospital free to transfer its physical facilities to Wayne with no obligation to maintain any physical facilities in the City of Paterson. The proposed settlement would, among other things, require the hospital to renovate the Johnson wing of the present hospital so that it will have a 132-bed capacity and to operate therein a general hospital providing, among other things, emergency and outpatient facilities. In addition, the present laboratory building would be continued.

We are satisfied that the testimony adduced on the remand to Judge Mountain, and particularly the impressive testimony of John O. Steinle, whose reasoning and analysis we find convincing, establishes that the proposed settlement is fair and reasonable. Eurther, we find that it is to the best interest of the beneficiaries whom the plaintiff and the intervenors represent that the settlement be approved rather than that they gamble on the trial judge’s findings and conclusions being reversed on appeal.

As appears from our opinion of January 6, 1969, we withheld entering an order approving the settlement agreement submitted to us because its provisions would result in a dismissal of the appeals even if the hospital were thereafter relieved of any obligation under the settlement agreement because it did not receive the federal grant of $1 million. Eurther, we noted that we would require the substitution of a provision directing modification of the judgment entered in the trial court to incorporate therein the terms of the settlement in place of the existing provision calling for a dismissal of the complaints.

The two problems referred to in our prior opinion have now been eliminated. Both the hospital and the city have agreed that the judgment entered below is to be modified to incorporate the settlement agreement. Eurther, they have now agreed that if the hospital’s obligation to carry out the terms of the settlement terminates because it does not receive the federal grant of $1 million, then the pending appeals should be listed for argument and disposition. Final determination as to whether or not the hospital will receive the federal grant of $1 million will be made not later than April 1, 1969, the date presently fixed for the termination of the federal allocation to- the hospital, or such extension of that date as may be granted by appropriate governmental authority. If the hospital has not received the grant by the date the federal allocation terminates, the proposed settlement shall become null and void. If the settlement is voided, then and in snch event the appeals filed by the city and intervenors shall be reinstated and listed for oral argument and disposition.

We therefore order that the settlement agreement of June 28, 1968, with the modifications noted herein, be and it is hereby approved However, the mandate modifying the judgment below shall not issue until the further order of this court, to be entered on receipt of advice that the hospital has received the federal grant.

This order shall be deemed a final judgment for the purpose of permitting review by the Supreme Court. If review of our order is to be sought, it should be applied for promptly in view of the time limitations involved in connection with the federal grant.


text:
    RUSSELL SINOWAY, PLAINTIFF-APPELLANT, v. VILLAGE OF SOUTH ORANGE AND THE BOARD OF ADJUSTMENT OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 11, 1969
    Decided February 26, 1969.

      Before Judges Coneokd, Kilkenny and Leonard.

      Mr. Max Spinrad argued the cause for appellant (Messrs. Spinrad, Steinberg £ Marshall, attorneys).

      Mr. Saul J. Zucker argued the cause for respondents (Messrs. Zucker, Lowenstein, Gurny and Zucker, attorneys).
   The opinion of the court was delivered

Pee Curiam.

The building inspector of the Village of South Orange denied plaintiff’s application for a building permit to convert the porch of his residence into an office for use in his practice of optometry. The permit was denied on the ground that the building is in a “Residence A” zone, where the use of a building as a combined residence and office is prohibited under section 6, paragraph 604.0(b). By way of exception under that section, a private dwelling may be used as a combined residence and office by a “Doctor of Medicine or Dentistry,” if the person occupies it as his private dwelling and there is no display of goods or advertising signs other than one sign of not more than 200 square inches of surface.

Plaintiff appealed to the local board of adjustment and sought a variance to allow the building alterations and office use. The board denied the relief sought.

By suit in the Law Division plaintiff asserted that section 0, paragraph 604.0(h), was discriminatory and sought a judgment that it be declared null and void, and that he be permitted to use his home as a combined residence and office for the practice of optometry. He also demanded that the action of the board of adjustment be reversed and set aside; and that the building inspector be required to issue the requested permit so that he might use his home for the aforesaid dual purpose.

The Law Division upheld the validity of the challenged section of the village zoning ordinance; and it approved the denial of the building permit and the denial of the variance. Plain!iff appeals from the judgment of the Law Division.

Plaintiff argues that the profession of optometry should be accorded the same treatment under the village zoning ordinance as is accorded to the professions of medicine and dentistry. He maintains that failure to do so constitutes arbitrary, capricious and unreasonable action in violation of the Fourteenth Amendment of the United States Constitution. -Vs evidence of his claim of discrimination, he points to the fact that the ordinance would allow an ophthalmologist to have an office in his place of residence, hut denies the same right to an optometrist.

South Orange is generally a high-class residential community, especially in its “Residence A” zone. The village trustees could justifiably limit the invasion of this residential area for office use in one’s actual place of residence to the exceptional cases of doctors of medicine and dentistry. Their need is frequently required in emergency situations on short notice. Their ready availability is important to the health and welfare of the community. They sell no merchandise.

Optometrists, concerned generally with measuring the acuity of the eye, are rarely faced with emergencies. They are more involved in the fitting and sale of spectacles, besides their other functions of measuring the powers of vision to ascertain any departure from the normal. Plaintiff here already has an office at 516 Orange Street, in Newark, where he practices his profession.

The optometrist cannot be equated with an ophthalmologist. While both professions deal with the eyes and have some common functions dealing with the vision, the ophthalmologist can treat pathology; the optometrist may not. The ophthalmologist, as a physician skilled in the treatment of diseases of the eye, could render immediate treatment in ease of an emergency involving the eye, or in any emergency as a physician. The optometrist may not, being limited by his license.

We conclude that a reasonable basis exists for limiting the exception to doctors of medicine and dentistry. The classification does not constitute any invalid discrimination.

The judgment is affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. NORMAN FORER, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 11, 1969.

      Mr. Christopher B. Wood, Assistant Prosecutor, argued the cause for plaintiff (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney).

      Mr. Jaclc Wysocher, for some of the defendants (Messrs. Mandel, Wysocher, Sherman, Qlassner, Weingartner & Feingold, attorneys).

      Mr. Robert W. Lewandowshi, for some of the defendants (Messrs. Wilentz, Goldman <& Spitzer, attorneys).

      Mr. Ronald W. Spevaclc, for some of the defendants (Messrs Spevaclc & Spevach, attorneys).
   Halpekn, A. J. S. C.

This is a joint motion by 37 defendants to dismiss four indictments charging rioting, unlawful assembly and assault upon a police officer. Their motion attacks the methods used by the jury commissioners in selecting the grand jury which- indicted them, contending such methods violated the laws and constitutions of the State of New Jersey and of the United States. In particular, they contend the grand jury was not truly representative of a cross-section of the community because “blue-collar, hourly-paid wage earners,” were systematically excluded. Under attack is the system used to select grand jurors in Middle-sex County for the past 20 years.

This challenge to the grand jury array is piade under B. B. 3:3-2(6) which provides:

“(b) MOTION TO DISMISS. If a defendant lias been held to answer a complaint charging an indictable offense after the grand jury by which he is indicted has been impanelled, a motion to dismiss the indictment may be based on objections to the array.”

The complaints against defendants were filed in August 1966, and the grand jury which indicted them was sworn and impanelled in January 1968. It seems clear that B. B. 3:3-2(5) cannot be used as the vehicle for this motion since the complaints were made before the grand jury was impanelled. This motion should have been made before the January 1968 grand jury was sworn. B. B. 3:3-2(a). The obvious purpose of B. B. 3:3-2 (a) is to compel an attack on the array of grand juries to be brought before they are sworn and begin to function. If an attack is permitted after they are sworn all indictments brought in by them, and proceedings taken in reliance thereon by way of trial or plea, would be subject to challenge. No sound reason is presented for relaxing the rule under B. B. 1:27A; however, if it is ultimately decided that I misconstrued B. B. 3:3-2 (a) and (&), I will consider the defendants’ motion on its merits.

Attacks on the array of grand juries are today being made with great frequency throughout the country and in New Jersey. While the factual patterns differ, the basis of the attacks are similar to the one being made in this case. The generally accepted principles of law applicable to such attacks are that where there is a systematic exclusion from jury duty of a recognizable identifiable group within the communit)’, the Equal Protection Clause of the Fourteenth Amendment is violated irrespective of a showing of prejudice. Crawford v. Bounds, 395 F. 2d 297, 308 (4th Cir. 1968). If the exclusion results, it is condemned regardless of whether it is due to neglect or because of intentional conduct. Dow v. Carnegie-Illinois Steel Corp., 224 F. 2d 414 (3 Cir., 1955), certiorari denied 350 U. S. 971, 76 S. Ct. 442, 100 L. Ed. 842 (1956). The case of Hoyt v. Florida, 368 U. S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961) sets forth the constitutional limits:

“* * * We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which ‘single out’ any class of persons ‘for different treatment not based on some reasonable classification.’ Hernandez v. Texas, 347 U. S. 475, 478, 74 S. Ct. 667, 670, 98 L. Ed. 866 [870].” (at pp. 59, 60, 82 S. Ct., at p. 161)

When a party challenges the array of a jury, grand or petit, the burden is upon the challenger to establish an unlawful discrimination. Swain v. Alabama, 380 U. S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); State v. Smith, 102 N. J. Super. 325, 346 (Law Div. 1968). There is a presumption that the jury commissioners acted within the scope and authority of their office. Pope v. United States, 372 F. 2d 710, 723 (8 Cir. 1967); State v. Stewart, 2 N. J. Super. 15, 23 (App. Div. 1949). The means and methods used to select jurors must be designed to insure that they are impartially drawn from a- cross-section of the community. Witherspoon v. Illinois, 391 U. S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), rehearing denied 393 U. S. 898, 89 S. Ct. 67, 21 L. Ed. 2d 186. When the formation of a jury is attacked, courts test the source from which the jury list is comprised and not the composition of any given panel. Thiel v. Southern Pac. Co., 328. U. S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). A jury panel need not be a perfect mirror of the community or reflect the proportionate number of every identifiable group. Swain v. Alabama, supra.

It is against this backdrop of legal principles that I turn to the uncontradicted facts dealing with the selection of grand juries in Middlesex County. Annually, the jury commissioners secure a list of approximately 25,000 names from the Middlesex County voter registry lists. These names are proportionately selected at random from every section of the county. A questionnaire, approved as to form by the New Jersey Supreme Court, is then sent to the persons selected. R. R. 1:29-2. When returned these questionnaires are screened by the jury commissioners to determine qualifications pursuant to N. J. S. A. 2A:69-1, and exemption under N. J. S. A. 2A:69-2. The remaining names are then placed into two pools; the grand jury pool consists of approximately 800 names, and the petit jury pool of approximately 30,000 names. Upon orders of the assignment judge, entered three times a year for each stated court session, the jury commissioners select at random from such pools 200 grand jurors’ names and 3,500 petit jurors’ names. N. J. S. A. 2A:70-1. These lists are then submitted to the assignment judge of the county for processing, and thereafter are filed in the office of the county clerk as a public record. N. J. S. A. 2A :70-2 and 3. This processing is completed at least 25 days before the opening of the court session. N. J. S. A. 2A :70—3. In formulating the list of grand jurors the proofs indicate that the jury commissioners attempt to obtain qualified persons. To that end they examine the returned questionnaires and consider the juror’s occupation, education and experience.

The thrust of defendants’ attack is two-pronged. "Firstly, they charge the jury commissioners improperly limited their selection of names to the voter registry lists; and secondly, they had no right to exercise any discretion in selecting names for the grand jury list.

In using only the voter registry lists defendants argue that the jury commissioners have disregarded their affirmative duty to take appropriate action to secure a representative cross-section of the community. Cassell v. Texas, 339 U. S. 282, 289, 290, 70 S. Ct. 629, 94 L. Ed. 839 (1950). They point to the Manual for the Use of Jury Commissioners of the State of New Jersey (hereinafter “Manual”) which suggests that more than one source for names should be used. It is intimated that the jury commissioners should somehow seek out lists of names (from unnamed sources—presumably social, religious or fraternal groups) to insure having jurors from all classes, groups, religions, colors and creeds. The simple answer to this argument is that the' Manual merely suggests and does not direct. Additionally, if such were done defendants would complain that the wrong sources were utilized, or that the sources used did not have Negroes, Puerto Ricans, or other groups, as members, or that an insufficient number of them were selected.

The use of only the voter registe lists, where information on race and occupation does not appear, is a sounder constitutional method of selection because it presents no opportunity for discrimination. Any attempt to obtain names from outside sources to insure inclusion of all races, colors, creeds and groups, opens the door to a charge of deliberate discrimination in favor of such groups selected.

The use of voter registry lists has long been approved in the federal courts. United States v. Kelly, 349 F. 2d 720, 778 (2 Cir. 1965), certiorari denied 384 U. S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). Registration is available to all qualified persons and the use of voting lists does not discriminate against an identifiable racial, social or economic group. United States v. Bowe, 360 F. 2d 1, 7 (2 Cir.), certiorari denied 387 U. S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966); United States v. Birell, 276 F. Supp. 798, 822 (S. D. N. Y. 1967). In fact the Jury Selection and Service Act of 1968, 28 U. S. C. A. 1861 et seq., as implemented by a joint order of the Chief Judges of the United States District Court for the District of New Jersey, and the Third Circuit Court of Appeals, filed September 2o, 1968, and approved by the Reviewing Panel of the Third Circuit Court of Appeals, limits jury selection primarily to voter registry lists. The source used for jury selection by the Middlesex County jury commissioners meets today’s federal standards and I find it to be unobjectionable.

I turn now to defendants’ second argument that the jury commissioners improperly exercised their discretion in selecting a “better type juror” for the grand jury—■ they contend that in so doing they wrongfully discriminated against “blue-collar, hourly-paid wage earners.” They flatly charge that not a single person of that classification was included in the list of 200 grand jurors submitted for the January 1968 court session. Prom this premise they argue that since defendants are mostly, if not all, Puerto Ricans, and since (presumably) most Puerto Ricans are of the class or type discriminated against, the grand jury was illegally constituted and these indictments should be dismissed. I disagree.

In order to deal with defendants’ arguments it is necessary to define the term “blue-collar, hourly-paid wage earners.” The term “blue-collar” is defined in Random House Dictionary of the English Language (1966 ed.), as “of or pertaining to wage earning workers who wear work clothes or other specialized clothing on the job, as mechanics, longshoremen, miners, etc.” I see no special significance in the term “hourly-paid wage earners,” as used by defendants, because there is no logical distinction between wage earners paid by the hour, day or week. Is this kind of group or class sufficiently identifiable so that it can be said their systematic exclusion from a grand jury, as in cases of race, color, or creed, violates a defendant’s constitutional rights? I do not think so.

This attempted classification can only lead to uncertainty, and ultimately chaos, in the administration of justice. If “blue-collar, hourly-paid wage earners” is supposed to represent persons in the low economic class, it can readily he anticipated that there will be endless and insoluble problems. It will be argued, with justification, that many “blue-collar” workers earn more money than persons in some professions, or wage earners in categories other than “blue-collar.” Counsel, with an agile imagination, can conjure up all lands of classes or groups that he will contend were systematically excluded from jury service. Defendants’ attempted classification of “blue-collar, houriy-paid wage earners” is not a sufficiently meaningful classification of an identifiable group, or an appropriate class, to provide a basis for an attache to the array of the grand jury. United States v. American Oil Co., 286 F. Supp. 742, 745 (D. N. J. 1968).

Even if there were substance to defendants’ attempted classification, the foundation of facts upon which it rests is made of sand. Defendants’ facts are derived from the jurors’ answers to the questionnaires. Question No. 9 asks “What is your occupation?” and the juror is given a line three inches long on which to answer. It is the jurors and not the jury commissioners who, in a word or two, classify their occupations. A random selection of answers from the grand jurors on the list for the January 1968 court session runs as follows: “personnel manager,” “retired teacher,” “maintenance supervisor,” “businessman,” “bookkeeper,” “geologist,” “bank clerk,” “buyer,” “credit manager,” “housewife,” “I. B. M. operator,” “salesman,” “adv. artist,” “postal inspector,” “technician,” “banker,” “homemaker,” “engineer,” “librarian.” It is obvious that these occupations represent a true cross-section of working people from various categories of our economic life. How are we to know whether they are properly classified as “blue-collar, houriy-paid wage earners?” Defendants reach their conclusions on pure speculation. It is significant that these occupations listed for the grand jurors appear also as the occupations for many petit jurors.

Defendants also lay great stress on a letter survey counsel made of 1,000 grand jurors whose names were on the grand jury lists from 1962 through May, 1968. The letter was mailed to only 898 grand jurors. For some unexplained reason the letter inquiries were not sent to 102 of the grand jurors. Only 787 were received and I assume 111 were returned undelivered to counsel. 368 of the 187 actually served on grand juries. Only 361 (45.8%) of the 787 replied, and of those replying only 157 served as grand jurors. 2.6% of those who served indicated they were Negroes: none indicated they were Puerto Eicans. The fallacy of defendants’ arguments that these figures show an exclusion of “blue-collar, hourly-paid wage earners” is readily seen. The inquiry letter only sought to ascertain the number of Negroes or Puerto Eicans who served. Why was it so limited? Why was no effort made to ascertain their specific occupations or income? Such an inquiry might have been more relevant. For example, when a grand juror states he is a “banker,” does this mean he is an officer in the bank, or merely a teller? If he indicates he is a “maintenance supervisor,” does this mean he is in charge of some part of a plant operation or merely a janitor? Furthermore, only 361 answers were received, leaving 639 unknown quantities out of the sample 1,000, hardly sufficient on which to base a reasonable conclusion. Some unanswered questions, which would be vital to a fair analysis of any conclusion are, how many of the 639 could not afford to serve at the rate of $5 per day, plus mileage; how many were excused from service for varying kinds of economic hardship, or could not devote four months of their time to serving? How many of the 639 would fit within defendants’ classification of “blue-collar, hourly-paid wage earners?” Many similar queries can be raised, and without answers to them we are left to speculation and surmise. I therefore find that the defendants’ conclusions are based on “sample facts” which are without foundation in fact, illusory and highly speculative.

It is important to face up to defendants’ charge that jury commissioners may not exercise any discretion in formulating the list of grand jurors. They contend all names, after being screened for qualifications and exemptions, should be put in one list, and from that list the grand and petit jurors should be selected at random. Again, I do not agree.

The statute, N. J. S. A. 2A :68—1, directs the Supreme Court to appoint two jury commissioners for each county who are not members of the same political party. It prohibits the commissioners from holding any public office except that of sheriff. It is clear that the Legislature considered the office of jury commissioner to be one of great importance and responsibility because of the means provided for appointment and the restrictions imposed. This view was shared by the Supreme Court when it adopted R. R. 1:25C forbidding jury commissioners from holding elective office, or engaging in partisan political activity. If the defendants’ arguments were to be adopted there would be no need for the office of jury commissioner because the duties and functions defendants would impose on them would be routine and could be performed by any ordinary clerk. Such views are in sharp contrast with, what the Legislature and the Supreme Court envisioned — they anticipated the jury commissioners would have to exercise discretion in carrying out the statutory mandate of selecting qualified persons to serve as grand and petit jurors.

Using the returned questionnaires as a basis for their selection of the grand jury list, the jury commissioners were merely following the statutory directive to prepare two jury lists “having regard to the just distribution of jury service among those persons qualified therefor * * N. J. S. A. 2A :70-1. The means and methods used for the selection of jurors is a legislative function. Brown v. Allen, 344 U. S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1952). While no other statutory standards are given, they followed the suggestions of the Manual and tried to obtain the names of “those who are best suited to serve in such capacities” (Manual, at p. 10); they exercised their best judgment in selecting persons who are “intelligent, sensible, honest, impartial and courageous,” and did not choose persons they believed to be “politically active, easily influenced or of doubtful integrity,” (at p. 18); they refrained from excluding anyone due to “race, color, creed, national origin, or ancestry,” because to do so would have been a crime. N. J. S. A. 2A :72—7.

Grand jurors have the heavy burden of deciding, in secret, whether a person should be charged with a crime; a presentment made against a public official, or an investigation made into public affairs, corruption, syndicated crime, etc. The petit jury’s sole function is to determine issues of fact in civil and criminal cases, and to determine the guilt or innocence of a defendant charged with a crime. The functions of both are highly important, carry great responsibility and are necessary to the sound administration of justice and our form of democracy.

The New Jersey Supreme Court has recently recognized the important function played by grand juries in our system of jurisprudence. In the case of In re Addonizio, 53 N. J. 107 (1968), it approved their right to go on a fishing expedition when investigating public corruption without showing probable cause to subpoena records which the police must do to obtain a search warrant under the Eourth Amendment. It paid tribute to the importance of their function when it said:

“It must be assumed that a grand jury is not an officious meddler. It never was our rule that a grand jury may explore only specific charges already made. * * * The grand jury may investigate upon its own suggestion, and in addition to indictments for crime, it may return ‘presentments’ upon conditions of public interest even though no violation of a penal statute is found.” (at p. 124)

The need for qualified jurors has long been recognized by those concerned with the problem. The consensus is that “the jury list should represent as high a degree of intelligence, morality, integrity, and common sense as possible.” (Recommendation, Judicial Conference of the United States, 26 F. R. D. 409, 425 [1961]). When this commendable goal is joined with the equally desirable aim that the jury list be representative of a cross-section of the community, they would appear to be inherently in conflict. This is so because unless the jury commissioners are given the discretionary right to be selective, the desired results cannot be reached. If we concede that no system of jury selection will be perfect, tiren it stands to reason that jury commissioners must have the power to choose qualified jurors even though some loss results in the cross-section character of the jury composition. What the courts must be vigilant to stop are discriminatory practices which would defeat the ultimate objective of securing juries capable of dealing effectively with the complex controversies presented to them. A. B. A., Standards Relating to Trial by Jury (Tentative Draft, 1968), pp 51-57.

I therefore conclude that the jury commissioners properly exercised their judgment in formulating the grand jury lists, and their actions did not result in a systematic exclusion of any identifiable group, class, race or creed, from grand jury service in Middlesex County.

Dor the reasons expressed defendants’ motion is denied.

       September 27, 1968
      Mr. James W. Cassidy 69 Wilk Kd.
      Edison, N. J.
      Dear Hr. Cassidy:
      We are making a survey oí Grand Jurors who served in Middlesex County during the past five or six years in order to ascertain which of them, if any, are Negro or of Puerto Rican descent. Our investigation indicates that you served on one of the Grand Juries during that time. We would appreciate your advising us by noting below and returning via the enclosed envelope, as to whether you are Negro, Puerto Rican, or from neither ethnic or racial grouping.
      Thank you for your anticipated courtesy and co-operation.
      Very truly yours,
      Place check mark where--
      appropriate: JACK WXSOKER, ESQ.
      NEGRO- 313 STATE STREET
      PUERTO RICAN - PERTH AMBOY, NEW JERSEY
      OTHER--


author: Mountain, J. S. C.

text:
    LOUIS SCHWARTZ, PLAINTIFF, v. BOARD OF ALDERMEN OF CITY OF PATERSON, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 18, 1969.

      Mr. Louis Schwartz for plaintiff (Messrs. Schwartz and Schwartz, attorneys).

      Mr. Joseph A. LaCava for defendants Frank J. Sciro, City Clerk of Paterson and the City of Paterson.

      Mr. Charles H. Roemer for defendants Daniel J. Koning el ctl., constituting the individual members of the Board of Aldermen of Paterson.
   Mountain, J. S. C.

This suit seeks to compel the reapportionment of the Board of Aldermen of the City of Paterson according to the one-man one-vote principle as set forth in Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), and explicitly made applicable to municipal governments in Avery v. Midland County, 390 U. S. 474, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968). Parenthetically, the holding in Avery was clearly forecast in this State in Judge Wick’s opinion in Mauk v. Hoffman, 87 N. J. Super. 276 (Ch. Div. 1965) concerned with county government and the composition of boards of chosen freeholders.

The board of aldermen consists of 11 members, each elected from a separate aldermanie district or ward. At the time of the 1960 census these districts ranged in population from 4,120 residents in the smallest to 20,334 residents in the largest; there is very clearly a decided malapportionment.

It is nevertheless urged by the board that notwithstanding its being malapportioned, its powers are so insignificant and so essentially administrative in nature that the one-man one-vote rule should not be applied to it; that this rule applies only in respect of bodies having general powers of government. Sailors v. Kent County Board of Education, 387 U. S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967); Hadley v. Junior College Dist. of Met. Kansas City, Mo., 432 S. W. 2d 328 (Sup. Ct. 1868), rehearing denied Mo. 432 S. W. 2d 328 (Sup. Ct. 1968).

In evaluating the contentions of the parties it is first necessary to examine carefully the powers and functions of the board of aldermen. When initially created, L. 1871, c. 325, the board clearly possessed general governing powers. However, chapters 45, 46 and 62 of the Laws of 1907 (now R. S. 40 :174-6 et seq., 40 :186—5 el seq. and 40 :175-9 et seq.) made provision for the creation of a board of fire and police commissioners, a board of finance and a board of public works. Most of the powers of the board of aldermen were transferred to and divided among these three boards. Grosso v. Paterson, 55 N. J. Super. 164, 170 (Law Div. 1959), affirmed 33 N. J. 477 (1960); McCarter v. McKelvey, 78 N. J. L. 3 (Sup. Ct. 1909), affirmed sub. nom. Attorney-General v. McKelvey, 78 N. J. L. 621 (E. & A. 1910) (sustaining constitutionality). As a result of the governmental changes of 1907, the board of aldermen retained only the residuum of powers not given to the newly created bodies.

A comparison of the 1871 and 1907 legislation reveals that the powers remaining in the board of aldermen seem confined to the appointment of certain municipal officials such as the city clerk and the register of licenses, a right of veto over mayoral appointments to the board of health, and a limited authority to pass certain regulatory ordinances. The materials provided for in the inspection of the court, especially the enumerated list of ordinances of the board of aider-men supplied by the plaintiff, reveal very clearly the nature of these powers. Ordinances may be adopted with respect to the regulation or licensing of the following: constables, coin-operated amusement devices and their distributors, amusement parlors, carnivals, dance halls, dancing academies, amusement parks, pool halls, roller skating rinks, shows and entertainments, dogs, bicycles, auctions, barber and beauty shops, boat rentals, close-out sales, coin-operated laundries, itinerant photographers, junk yards and motor vehicle junk dealers, parking lots, florists, rooming houses, transient merchants and peddlers. The board is also authorized to establish and maintain a dog pound, to control the rents of substandard multiple dwellings, and to impose penalties in respect of certain miscellaneous kinds of disorderly conduct, in respect of deceptive advertising and for violations of restrictions upon beekeeping. The sum of these authorizations amounts to something far less than general powers of government. Powers normally thought of as being included within the latter at the municipal level, but not possessed by Paterson’s board of aldermen, include the power to tax, to regulate land use by zoning and planning, to regulate streets, playgrounds, parks and public buildings, to supply or make provision for water, electricity, sewer facilities and other public utilities, to issue bonds and incur indebtedness, and to exercise the power of eminent domain. The list could easily be lengthened.

While there does not appear to be a New Jersey decision which has related the present issue to comparable facts, the United States Supreme Court decision in Sailors v. Kent County Bd. of Education, supra, seems pertinent. There the court dealt with a suit to compel reapportionment of a county school board. The powers of this board included the authority to prepare an annual budget and levy taxes, to provide numerous services to constituent school districts, and to transfer areas from one school district to another. The court said of the above enumerated powers that they are “essentially administrative functions and while they are important, they are not legislative in the classical sense,” and concluded that the one-man one-vote doctrine was therefore not applicable.

It seems clear that the powers of Paterson’s board of aldermen are more administrative in nature and afford less opportunity for discrimination against under-represented districts than those of the county school board in Sailors. While a board of aldermen might ordinarily be thought of as having more general legislative powers than a board of education, this is not true in the case of the rather anomalous government of the City of Paterson. The Paterson board is limited almost exclusively to administrative functions and clearly does not possess general powers of government.

In light of what has been said, I find that the present procedure for selecting the members of the board of aider-men is not violative of the United States Constitution, and plaintiff’s application to compel the reapportionment of this board is therefore denied. There will be no costs.