author: McFarland, J. D. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH WATSON, DEFENDANT.
    Hudson County Court
    Decided June 11, 1971.

      Mr. James Flynn, Deputy Public Defender, argued the motion for defendant (Mr. Richard Sonntag, Deputy Public Defender, of counsel).

      Mr. Howard Pfeffer, Assistant Prosecutor, argued for the State (Mr. Geoffrey Gaulkin, Prosecutor; Mr. Kenneth Blane, Assistant Prosecutor, of counsel).
   McFarland, J. D. C.

(temporarily assigned). After a trial by jury on April 22, 26, 27, 1971, defendant was convicted of contributing to the delinquency of a minor. He is a married man with five children by his wife. He has also fathered three children by the complaining witness, Maude Watkins. He is over 40 years old and has no criminal convictions except a recent plea in New York to a similar charge. He proclaims his innocence as to both the New York and New Jersey charges.

On May 3, 1971 the prosecutor, in support of a motion to revoke defendant’s release in custody of the probation department, submitted the sworn affidavit of Maude Watkins that defendant had threatened her life. After accepting (without allowing cross examination) defendant’s testimony and that of one other witness for him, the court remanded defendant to the Hudson County jail pending sentence. Defendant himself added to his strong denial of the charge an offer to submit to a lie detector test. The polygraph examination was held and, in the opinion of the examiner, defendant is telling the truth in stating that he did not threaten Maude Watkins. It follows that Maude Watkins is not telling the truth.

Defense counsel then made a formal motion for judicial acceptance of the polygraph test in post-conviction matters before the court. The prosecutor, who had never consented to the use of the test, objects, contending this would be contrary to law. He does acknowledge the usefulness of the polygraph as an investigatory tool, and also the qualifications of the examiner, Sergeant John Lyng, who performs most of his tests for the Jersey City Police Department in investigations that take place before arrest or charge.

Por reasons not material to this opinion, the court refuses to release defendant before the required Menlo Park examination, so that the sole question remaining is whether the court can accept the polygraph report in its presentence consideration.

The Supreme Court of New Jersey does not hesitate to admit evidence obtained through the use of scientific aids, State v. Walker, 37 N. J. 208 at 215 (1962) citing cases regarding radar, fingerprints, blood grouping. The court does not give the same judicial recognition to a polygraph examination. It sums up its position as follows:

We do not now express any opinion as to whether the results of a lie detector test should under all circumstances, be excluded in criminal cases. It is enough for us to say that in the circumstances of the present case the trial court did not err in its ruling, [at 217]

The situation in State v. Walker was an offer to submit to a polygraph test during the heat of a jury trial, provided the results could be used in evidence. What the trial judge banned was a forced imposition on the prosecutor of evidence that both he and the court might believe was of no benefit and would prejudice the jury.

Certain prosecutors have confidence in polygraph tests and are quite willing to allow the result of a polygraph to determine whether they should prosecute or dismiss, and such a stipulation has been held valid and enforceable. Butler v. State, 228 So. 2d 421, 36 A. L. R. 3d 1274 (Fla. App. 1969). In that case defendant and the state, shortly after the initial indictment, agreed that he would take a polygraph test and each party would rely on the test results. The initial indictment was nolle prossed on the basis of the test, but defendant was later reindicted and convicted. This conviction was set aside in Butler.

It is quite reasonable that counsel and trial courts be either proponents or opponents of polygraphs. The judicial use of opinions based upon polygraph examinations should not usurp the constitutional right of all parties to have a fair, unprejudiced jury trial.

Our courts have decided that a defendant may not tell the jury that he offered to submit to a lie detection test if the State would stipulate that the results would be evidential, State v. Peetros, 45 N. J. 540 (1965); the prosecutor may not refer to defendant’s failure to submit to a polygraph, State v. Driver, 38 N. J. 255 (1962); State v. LaRocca, 81 N. J. Super. 40 (App. Div. 1963); a defendant who submitted to the test but not its admissibility was prejudiced by testimony indirectly showing the result thereof, State v. Arnwine, 67 N. J. Super. 483 (App. Div. 1961); the result of a lie detector test of a witness being brought before the jury is error, such test not being consented to by defense counsel, State v. Parsons, 83 N. J. Super. 430 (App. Div. 1964); the introduction of the test ■without consent was denied in a trial de novo, sustained in State v. Emery, 27 N. J. 348 (1958).

All these eases are in conformity with the present status of the law in the United States as I understand it, and as the trial judge understood it in State v. Kavanaugh, 52 N. J. 7 (1968). The cases presented to our appellate courts have two distinguishing characteristics: first, the test was proposed for use in the trial, second, there was no consent by opposing counsel or the trial judge. Of course, the accuracy of a lie detector test depends upon proper administration by a competent examiner in a proper setting. In the opinion of Richard 0. Arthur, nationally known polygraph expert, based upon a five-year study his polygraph technique achieves an accuracy of 96%, with a 3% margin of indefinite determinations and a 1% maximum possible error. “The Polygraph: An Invaluable Judicial Aid,” 50 A. B. A. J. 1130 (1964).

Opinion testimony based upon an early pathometer (lie detector) was admitted in evidence for the accused as early as 30 years ago People v. Kenny, 167 Misc. 51, 3 N. 7. S. 2d 348 (Sup. Ct. 1938). Thereafter, the New York Court of Appeals ruled that without proof tending to show general scientific recognition that the pathometer possesses efficacy, it is not error to exclude expert testimony based upon it. People v. Forte, 279 N. 7. 204, 18 N. E. (2d) 31 (1938).

I would respectfully suggest that the confidence our textbook writers have in polygraph tests — see McCormack, Evidence § 174 (1954) — is lately achieving recognition in the courts.

In Carpinelli v. Manhattan Bottling Corp., 21 A. D. 2d 792, 250 N. 7. S. 2d 756 (App. Div. 1964) defendant in a negligence action made a motion before trial to examine the infant plaintiff by psychogalvanic skin reaction tests. The motion was denied. However, the Appellate Division held that the motion should have been granted with certain prescribed safeguards. Admissibility of the evidence would ultimately rest in the discretion of the trial judge, and the exercise of his discretion would depend upon “the reasonable certitude of such findings and results.” The court also stated: “It is not disputed that these tests are of some value, at least for .research purposes, and they may result in important evidence of the infant plaintiff’s condition.”

See also Habersham v. Grimaldi, 18 App. Div. 2d 615, 234 N. Y. S. 2d 599 (App. Div. 1962), requiring.submission to a galvanic skin response in connection with tests of hearing.

I am not suggesting that the Garpinelli and Habersham cases are a sound application of the law in criminal cases. On the contrary, they authorize lie detection devices to bo nsed in an undesirable way, because they permit one party to force another party to submit to a test for possible use in a trial.

Prosecutors do not normally take a position on sentencing, or on even the contents of the presentence report. But they have a right to do so. This practice has developed through recognition of the court’s primary responsibility. I am holding that after trial, expert testimony based upon a polygraph test examination will be admitted for consideration on behalf of a defendant who voluntarily takes a test, to show facts not decided by the trial jury or material to their deliberations — for example, to show his attitude, obedience to instructions of the court, and disprove accusations that he has not been tried for.

Sentencing is a heavy responsibility for the court. The State and defendant no longer have the adversary rights they had during the course of the trial. My duty is to have the best available information concerning every aspect of the defendant’s life. Williams v. New York, 337 U. S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

Recognizing the need for safeguards, I will condition my ruling by accepting from the prosecutor any of the following: an opinion of any person who disputes the reliability of the polygraph, a reexamination of defendant before another qualified polygraph expert; a polygraph examination of Maude Watkins. Those examinations are to be restricted to the subject matter of the prior examination of defendant unless he consents to enlargement of the examination.


source: Caselaw Access Project

author: Carton, J. A. D.

license: Public Domain

text:
    MELVIN P. WINDSOR, INC., PLAINTIFF-APPELLANT, v. MAYFLOWER SAVINGS & LOAN ASSOCIATION, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court ot New Jersey Appellate Division
    Argued June 1, 1971
    Decided June 24, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Frank W. Hoak argued the cause for appellant (Messrs. Campbell & Campbell, attorneys).

      Mr. Yale L. Apter argued the cause for respondent.
   The opinion of the court was delivered by

Carton, J. A. D.

This action was brought to confirm an arbitration award against defendant. Plaintiff moved for summary judgment, and upon its denial prosecuted, with leave of court, this interlocutory appeal.

The order appealed from denying plaintiff’s motion must be affirmed.

It is well settled that arbitration is looked upon favorably by the courts and that every intendment is indulged in favor of an award. Since the arbitrators were selected by mutual agreement of the parties to decide the facts and the law, “[¿Judicial review of an award is extremely narrow, generally confined to matters of corruption or errors appearing on the fact of the award.” Daly v. Komline-Sanderson Engineering Corp., 40 N. J. 175, 178 (1963); Carpenter v. Bloomer, 54 N. J. Super. 157 (App. Div. 1959); N. J. S. A. 2A:2-L-8 and 9.

In light of the scope of review, we perceive no basis upon which this award should be vacated with respect to defendant’s objections that the award was not contained in one writing, that the signatures of a majority of the arbitrators were not on the award itself, and that the documents comprising the award were not delivered personally to defendant. Any error or omission in these respects did not reflect upon the decision itself and must be considered of a technical nature and therefore subject to correction. Cf. Palizzotto v. Local 641, 67 N. J. Super. 145, 150 (Ch. Div. 1961), aff’d o. b. 36 N. J. 294 (1962).

Contrary to defendant’s assertion, the award was handed down within a reasonable time. As to their diligence, we conclude that the arbitrators substantially complied with the literal terms of the arbitration agreement.

NTor do we find merit in defendant’s argument that a fact question is raised in that a letter sent by defendant’s attorney, dated December 3, 1969, could reasonably be found to have been an implied recission of defendant’s submission to arbitration.

However, we conclude that a question of fact has been raised as a result of defendant’s contention that the arbitrator it appointed was effectively excluded from deliberations and participation in the ultimate award. It appears that the panel of arbitrators did not meet or confer after August 21, 1969, the date of their third and final meeting. The third, impartial arbitrator, appointed by the respective arbitrators chosen by plaintiff and defendant, alone prepared the decision and award. By way of affidavit, Handshuh claimed that:

* * * [TJhore was never any meeting or discussion or conference held by the three arbitrators, nor was I consulted by these gentlemen as to my opinion. * * * I was never given the courtesy of discussing the contents of the award, nor did I ever waive my rights to deliberate with the other arbitrators and arrive at a decision. * * *

Generally, a panel of arbitrators must mutually deliberate and reach a final determination and an award. This rule is enunciated in 6 C. J. S. Arbitration and Award § 67a at 206-207:

Inasmuch as the parties have the right to the presence and effect of the arguments, experience, and judgment of each arbitrator during the whole proceeding, it is, as a general rule, essential that there should be a unanimous participation by the arbitrators in the consultations and deliberations upon the award to be made. This is true although authority is conferred upon the arbitrators to make a majority award, either by the terms of the submission itself or by some special statutory provision or because the matter involved is one of public concern, for even where fewer than the whole number of arbitrators may make a valid award, they cannot do so without consulting the other arbitrators. However, the failure of one or a minority of a number of arbitrators to appear and act with the majority, after sufficient notice and reasonable opportunity therefor, constitutes, substantially, a dissent from the action of the majority which enable the latter to proceed, in the absence of such minority, to the rendition of a majority award in ease a majority award has been authorized, unless unanimity of action is absolutely required, by statute, as a condition precedent to the exercise of authority. * * *

The arbitration agreement impliedly requires the arbitrators to confer for the purpose of making a final award. The state of the record leaves it unclear as to whether such mutual consultation ever took place.

We are not persuaded by plaintiffs argument that it conclusively appears as a fact that defendant expected no more than a decision by the third arbitrator, as an individual, to be joined in by one or both of the remaining arbitrators. It appears to us that a question of facts exists as to whether defendant waived the requirement of mutual deliberations among all three arbitrators.

The matter is remanded to the trial court for a trial limited to the two issues enumerated above. In the event of a determination that the arbitrators substantially complied with their responsibility to confer in the manner prescribed by the agreement or that there was a waiver of that requirement, judgment should be entered confirming the arbitration award. In the event the finding is that the arbitrators breached their responsibility and that there was no waiver, the court should enter judgment requiring the arbitrators to meet forthwith and render an award in accordance with the provisions of the arbitration contract within a specified date.

Affirmed. No costs.


author: Halpern, J. A. D.

text:
    EVELYN STEPHANIE STURDIVANT, PETITIONER-RESPONDENT, v. GENERAL BRASS & MACHINE CORP., RESPONDENT-APPELLANT. BELLA STURDIVANT, PETITIONER-RESPONDENT, v. GENERAL BRASS & MACHINE CORP., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 2, 1971
    Decided June 18, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Edwin J. McCreedy argued the cause for appellant General Brass & Machine Corp., (Messrs. Conant, Halberstadter & McCuire, attorneys; Mr. McCreedy, of counsel).

      Mr. Leslie S. Kohn argued the cause for petitioner, Evelyn Stephanie Sturdivant (Messrs. Kohn, Kirsch & Needle, attorneys; Mr. Kohn, of counsel).

      Messrs. Abromson and Cummis filed a statement in lieu of brief for petitioner, Bella Sturdivant.
   The opinion of the court was delivered by

Halpern, J. A. D.

This is a consolidated dependency action under the Workmen’s Compensation Act, N. J. S. A. 34:15-7 et seq., brought by the widow and mother of John Wesley Sturdivant who on February 20, 1967 suffered a fatal heart attack while working at respondent’s plant.

The judge of compensation, and the County Court on appeal, determined that decedent’s death resulted from a compensable accident which arose out of and during the course of his employment. On July 17, 1970 a judgment was entered in favor of both petitioners awarding compensation benefits to them, the amounts of which are not in dispute.

Prior to the formal entry of judgment on July 17, 1970 respondent’s counsel wrote to petitioner’s counsel on June 16, 1970 as follows:

We are in receipt of Judge DiBuono’s opinion affirming the judgment of the Division of Workmen’s Compensation in the above captioned matter.
Please forward an Order for Judgment for our consent. Upon the signing and filing of same, you may forward us warrants to satisfy judgment and we will see that the same are paid.

In due course warrants for satisfaction of the July 17, 1970 judgment were mailed to respondent’s counsel, who filed them with the Union County Clerk by July 27, 1970. Presumably, respondent’s insurance carrier had mailed cheeks to respondent’s counsel in full payment of the judgments for delivery to counsel for petitioners. However, before the checks were delivered to counsel for petitioners, a synopsis of the opinion in Walck v. Johns-Manville Products Corp., 56 N. J. 533 (1970) appeared in the August 20, 1970 issue of the New Jersey Lem Journal (93 N. J. L. J. 603). On August 25, 1970 respondent’s counsel wrote petitioners’ counsel that in their opinion Walck represented a change in the decisional law in heart cases, and they intended to appeal. A notice of appeal was filed the following day August 26, 1970.

On September 14, 1970 respondent moved before Judge DiBuono to get back the warrants for satisfaction of judgment previously filed. The; basis of the motion was that the warrants were “‘inadvertently filed.” The motion was granted on September 25, 1970. While the record contains only a notice of cross-appeal by the decedent’s widow of the September 25, 1970 order, we will proceed on the basis that both petitioners have cross-appealed.

We have recited the foregoing undisputed procedural history because we have determined that the County Court was without jurisdiction to make the September 25, 1970 order, and that the judgments should be paid. In so doing, we do not reach the merits of the appeal.

When respondent filed its notice of appeal, the County Court lost jurisdiction in the matter since the supervision and control of the proceedings on appeal rested with the Appellate Division. B. 2:9-1 (a). However, we prefer to treat with the merits of the application for a return of the warrants for satisfaction of judgment as though made directly to us.

The procedure used in this case to finalize the County Court’s judgment affirming the compensation awards is in common daily usage throughout the State. The legal effect of what transpires is that a contract is entered into between the parties, to terminate the litigation. In actual practice, respondent’s counsel and the insurance carrier have reviewed the county judge’s decision and have decided not to appeal but to pay the judgment. Petitioner’s counsel is requested to submit a warrant for satisfaction of judgment, and respondent’s counsel expressly, or impliedly, agrees to pay the judgment before filing the warrant for satisfaction. Petitioner’s counsel, before preparing and sending the warrant for satisfaction, has presumably consulted with his client and they have determined not to appeal from the award made to petitioner or the allowances to counsel. In short, the parties have recognized the validity of the judgment and have voluntarily entered into a contract to waive or surrender their respective right to appeal. While no- New Jersey ease in point has been brought to our attention — nor have we found any — we are in accord with the, views expressed in 4 Am. Jur. 2d, Appeal and Error, §242 at 737:

It has been broadly asserted that any act on the part of a party by which he impliedly recognizes the validity of a judgment against him operates as a waiver of his right to appeal therefrom, or to bring error to reverse it, and clearly one who voluntarily acquiesces in or ratifies a judgment against him cannot appeal from it. The acquiescence which prohibits an appeal, or destroys it when taken, is the doing or giving of the tiling which the decree commands to be done or given.

See also Annotation, “Appeal - Payment of Judgment-Effect,” 39 A. L. R. 2d 153 (1955), wherein conflicting views are set forth, depending upon individual fact patterns.

Courts look with favor upon contracts which terminate litigation. See Bauer v. Griffin, 104 N. J. Super. 530, 545 (Law Div. 1969), aff’d 108 N. J. Super. 414 (App. Div. 1970), certif. den. 56 N. J. 245 (1970); Jannarone v. W. T. Co., 65 N. J. Super. 472, 476 (App. Div. 1961), certif. den. 35 N. J. 61 (1961). When counsel requested and received the warrants for satisfaction, and thereafter filed them, his client was legally obligated to pay the judgment. On the facts in this case, to argue they were inadvertently filed is specious. No reasons are advanced by respondent, legal or equitable, which justify exercising our discretion to nullify the contract terminating this litigation.

By what we have said it is not to be interpreted that we agree with respondent’s contention that W alele changed the existing law in heart cases, or that we disagree with the conclusions reached by the judge of compensation or Judge DiBuono on the compensability of the heart attack.

The order of September 25, 1970 is reversed and respondent’s appeal is dismissed.


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

text:
    MARY C. DONALDSON, PETITIONER-APPELLANT, v. BOARD OF EDUCATION OF THE CITY OF NORTH WILDWOOD, CAPE MAY COUNTY, RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1971
    Decided June 22, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. John F. Callinan argued the cause for appellant (Messrs. Perskie and Perskie, attorneys).

      Mr. Edwin W. Bradway argued the cause for respondent Board of Education of the City of North Wildwood.

      Mr. Thomas P. Cook, attorney for New Jersey School Boards Association, field a brief amicus curiae.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, filed a statement in lieu of brief on behalf of State Board of Education {Mrs. Virginia Long Annich, Deputy Attorney General, on the statement).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Petitioner, a nontenure teacher, had been employed by respondent North Wildwood Board of Education under a contract which expired on June 30, 1969. About January 2, 1969 she was advised by the superintendent of schools of the district that he would not recommend a renewal of her teaching contract for the 1969-1970 term. A renewal contract would-have conferred tenure upon petitioner. The superintendent’s recommendation not to renew petitioner’s contract was accepted by the local board of education; petitioner’s contract was not renewed.

Petitioner filed her petition to review the local board’s action with the State Commissioner of Education. On August 21, 1969 the Commissioner dismissed the petition upon the ground that it failed to state a claim upon which relief could be granted. Thereafter, on appeal to the State Board of Education, the Commissioner’s decision was affirmed. This appeal by petitioner from the final determination of the State Board of Education followed.

The question before us is whether a nontenure teacher whose contract is not renewed, thus precluding her from obtaining tenure under N. J. S. A. 18A:28-1 et seq., has a constitutional right (a) to be furnished with a statement of reasons for the nonrenewal, and (b) to be heard before the board in regard to those reasons.

Zimmerman v. Board of Education, Newark, 38 N. J. 65 (1962), is dispositive of this issue. As stated therein:

Except for statutory conditions, a teacher is retained solely on a contract basis during Ms probationary employment. At the expiration of an annual contract period, the employment relationsMp ceases to exist unless a new contract has been entered into. * * * And except to the extent of constitutional or statutory limitations, there is no legal duty on the part oí a board to re-employ a teacher at the end of a contract term, [at 75].

Zimmerman cites (at 70) the historical view expressed in cases snch as People v. Chicago, 278 Ill. 318, 116 N. E. 158 (Sup. Ct. 1917) :

No person has a right to demand that he or she shall be employed as a teacher. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all.

This statement is subject in our State to the statutory right of tenure. It is also subject to the constitutional guarantee against discrimination. No such claim has been made in this case.

Unless and until our Legislature or Supreme Court adopts a different public policy, we feel bound by Zimmerman, supra, and the long standing interpretation of our Education Laws by the State Department of Education to conclude that nontenure teachers have no legal right to a renewal of a teaching contract, or to a statement or explanation of the reasons for nonrenewal, or to a hearing as to the reasonableness of reasons for nonrenewal, absent a showing of unconstitutional discrimination.

The decision of the State Board of Education is affirmed.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROBERT A. STOLZMAN AND ROY CORBIN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1971
    Decided June 23, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Adam H. Lawrence, Assistant Bergen County Prosecutor, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Frank L. Holstein, Assistant Bergen County Prosecutor, on the brief).

      Mr. Herbert S. Alterman argued the cause for respondent Robert A. Stolzman.

      Mr. Arthur Minuskin argued the cause for respondent Roy Corbin.
   The opinion of the court was delivered by

Lane, J. A. D.

The State upon leave granted appeals from an order granting motions of the defendants to suppress evidence seized as a result of a search under a search warrant. Before the motions were heard, defendants obtained an order directing the State to make available to them in accordance with the provisions of R. 3:5-6 “the search warrant issued by the Municipal Court of Teaneck, New Jersey and dated May 14, 1970, for premises known as Linden Court, 8A 2, Teaneck, New Jersey, together with the supporting affidavits and testimony.” In response to that order, defendants received copies of what was on file: the search warrant, the return with inventory and the affidavit of Detective Anthony V. Scolpino.

The warrant stated that it was based on “Complaint on oath and in writing having been made before me, one of the Judges of the Municipal Court of Township of Teaneck on this day by Det. Anthony Y. Scolpino.” There was no- indication on the face of the warrant or in the papers on file that the warrant was based on anything other than the affidavit of Detective Scolpino.

At the hearing on the motions to suppress and at the argument before us, the State conceded that the affidavit was insufficient to justify the issuance of the warrant. The trial judge made -specific findings as to the insufficiency of the affidavit with which we agree.

The State sought to sustain the issuance of the warrant by offering testimony from Detective Scolpino as to what he related to the judge at the time he presented the affidavit for the search warrant. The- trial judge held that this testimony was inadmissible because of -the manner in which the oath was administered.

We agree that the testimony was inadmissible but on a different ground.

Since the search was based upon a warrant, at the hearing to suppress the defendants had the burden of proof. State v. Mark, 46 N. J. 262, 273 (1966); State v. Gaudiosi, 97 N. J. Super. 565, 571 (App. Div. 1967). However, the State conceded the insufficiency of the affidavit and, therefore, had the burden of going forward with the evidence to show the validity of the warrant.

B. 3 :5 — 3 provides in part:

An applicant for a search warrant shall appear personally before the judge who must take his affidavit or testimony before issuing the warrant. The judge may also examine, under oath, any witness the applicant produces, and may in his discretion require that any person upon whose information the applicant relies appear personally and be examined under oath concerning such information.

Where a warrant is based not only upon the affidavit of the applicant but also upon testimony, a. transcript or summary of the testimony must be made. B. 3:5-6 states:

The judge who issued the warrant shall attach thereto the return, inventory and all other papers in connection therewith, including the affidavits and a transcript or summary of any oral testimony, and file them with the county clerk of the county wherein the property was seized. Thereafter the warrant, affidavit and testimony shall be confidential but on order of the Superior Court or a county court they shall be made available, on application and notice to the county prosecutor, to a person claiming to be aggrieved by an unlawful search and seizure.

Here the State failed to show that any transcript or summary was made of Detective Scolpino’s testimony.

State v. Clemente, 108 N. J. Super. 189 (App. Div. 1969), certif. den. 55 N. J. 450 (1970), would indicate that it was not necessary for the testimony to be recorded in a transcript or in summary form by the issuing judge. That question was not necessary for the decision in the. case because the court had found that the affidavit was sufficient. Id. at 198.

State v. Gwendolyn Harris, 98 N. J. Super. 502 (App. Div.), certif. den. 51 N. J. 396 (1968), held that under the facts of that case the requirements of R. 3:5-6 for filing were directory only. There was apparently no dispute as to the contents of the warrant and the supporting affidavit, both of which had been lost. The contention was that the mere failure to file the affidavit invalidated the search. The question of whether oral testimony had to be transcribed or summarized by the judge was not involved.

A warrant may only be issued where it is supported by the affidavit of the applicant or by the sworn testimony of a witness whose testimony has been taken stenographically and later transcribed or whose testimony has been incorporated in a summary by the issuing judge. R. 3:5-3. Where no transcript or summary of the testimony given before a judge issuing a warrant based not only upon the affidavit but also upon oral testimony has been made, only the affidavit may be considered by the court on the hearing of a motion to suppress. Where a transcript or summary of the sworn testimony is made, then such transcript or summary is admissible to support the warrant. We do not reach the question of whether oral testimony may be admitted on the hearing of the motion to suppress to support or explain the transcript or summary.

The basis of our holding is that for the protection of all parties involved and to facilitate the administration of justice, the recording of testimony, either by transcript or summary, should be mandatory. See Model Code of PreArraignment Procedure, § 2.01(4) and Commentary, p. 26 (Tent. Draft Eo. 3, 1970). Without such a record a fair review at a later time- is, at the least, extremely difficult. Under B. 3:5-6 a defendant is entitled to know before a hearing on a motion to suppress all of the facts upon which a warrant was issued. Given the large number of warrants that are applied for by individual police officers and issued by judges, it is too great a burden on the administration of justice to rely on the ability of an applicant or an issuing judge to accurately recall such past events. We hold that a judge issuing a warrant based partially upon oral testimony must have the testimony transcribed or prepare a summary of the testimony. The transcript or summary should be filed with the warrant and affidavit. B. 3 :5-6.

The ruling of the trial judge excluding the testimony of Detective Scolpino was correct. Without such testimony the defendants carried their burden of proving the warrant invalid.

Defendants assert additional arguments attacking the warrant. We do not reach those arguments.

The order of suppression is affirmed.


author: Fritz, J. A. D.

text:
    MARIA LOPEZ, ALSO KNOWN AS MARY AND MARIANTONIA LOPEZ, AND FRANK LOPEZ, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. ALFRED J. SWYER, M.D.; MILTON DANON, D.O.; ROBERT OSDER, D.O., AND HAROLD STRIOKER, D.O., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided June 22, 1971.

      Before Judges Goldmann, Halpern and Fritz.

      Mr. David A. Pressler argued the cause for appellants (Mrs. Sylvia B. Pressler on the brief; Messrs. Okin, Pressler & Scherby, attorneys).

      Mr. John J. Francis, Jr. argued the cause for respondent Alfred J. Swyer, M. D. (Messrs. Shanley & Fisher, attorneys).

      Mr. Francis P. Witham argued the cause for respondents Milton Danon, D. O., Robert Osder, D. O., and Harold Stricker, D. O. (Mr. John P. Markey, of counsel; Messrs. Markey and Witham, attorneys).
   The opinion of the court was delivered by

Fritz, J. A. D.

In this action charging medical malpractice, fraud, and conspiracy, plaintiffs appeal from summary judgment in favor of defendants.

The matter has been here before. Following earlier motions for summary judgment, granted as to defendant Swyer but denied as to the other defendants, plaintiffs and unsuccessful defendants sought leave to appeal. We reserved decision on these motions, and remanded for the taking of depositions of defendants — plaintiffs had been deposed prior to the motions — and for reargument before the trial court. Extensive depositions were taken of the four defendant doctors. The trial court again heard argument, and this time entered summary judgment in favor of all defendants (although all that was before the court in addition to that proffered on the earlier motions were defendants’ depositions). It is from this determination plaintiffs appeal.

We have had the benefit of all the depositions. Since Judson v. Peoples Bank & Trust Co., 17 N. J. 67 (1954), it is axiomatic that on a motion for summary judgment,

*. * * js movant’s burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact, 6 Moore’s Federal Practice, par. 56.15(3). The phrasing of our rule, R. R. 4:58-3, slightly different from Federal Rule 56(c), underscores this in the requirement that the absence of undisputed material facts must appear “palpably.” All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated, Templeton v. Borough of Glen Rock, 11 N. J. Super. 1, 4 (App. Div. 1950). And it is not to be concluded that palpably no genuine issue as to any material fact exists solely because the evidence opposing the claimed fact strikes the judge as being incredible. Arnstein v. Porter, 154 F. 2d 464, 469 (C.C.A. 2 1946). Issues of credibility are ordinarily for the trier of fact, and the judge does not function as a trier of fact in determining a motion for summary judgment. * * *. (At page 74-75.)

With this mandate in mind, we observe that the evidence offered and reasonable inferences therefrom can be said to support the following facts for the purpose of these motions.

In December 1961 plaintiff Maria Lopez, then 33 years old and a housewife and mother, noticed a lump in her right breast. She consulted defendant Milton Danon, a doctor of osteopathy, who had been her personal physician for about eight years and was in addition a close personal friend. He immediately arranged for surgery by one Dr. Laidman who is not here involved. When malignancy was discovered, a radical mastectomy was performed. Metastasis was suspected during surgery, as a a result of which “all lymph glands that they could find in the axilla * * * everyone in sight” were also removed. Metastasis was confirmed on pathologic report the following day. As a matter of caution, in that which is apparently a common practice and is not here challenged, radiation therapy was recommended by the surgeon. Danon referred plaintiff to defendant Alfred J. Swyer, a radiologist. He administered X-ray treatments daily except Sundays from January 8, 1962 to February 13, 1962. For this referral Danon received one-third of Swyer’s fee.

Commencing during the period of treatment by Swyer and continuing until the present, plaintiff’s reaction to the radiation therapy has been dramatically calamitous. From pain, nausea, and burning, including a burning of the axillary hair during treatment, plaintiff’s condition deteriorated to such an extent, for instance, that her skin burned “so severely that I bandaged myself so that nobody would see the smoke come out of me.” She developed necrotic ulcers requiring surgical repair. The X-ray burn produced suppuration from the surgical incision. The pain was intense and constant. Not the least of the resultant injuries was that of radiation fibrosis of the lung. Spontaneous rib fractures occurred. A phrenic nerve block was employed as a palliative for the intense pain. She was hospitalized 15 times while under the care of Danon, Osder, and Strieker. In March 1967 Mrs. Lopez entered New York University Hospital for reconstructive surgery. She is still under medical supervision.

As noted above, Dr. Dwyer’s treatment was concluded on February 13, 1962. Except for an X-ray taken on April 10, 1962, and one house visit when Dr. Swyer was called in the absence of Dr. Danon, Swyer did not again see plaintiff. However, the severity of plaintiff’s ensuing disability caused her to seek medical advice from Dr. Danon and those associated with him in office practice frequently and regularly until about January 1966 or shortly thereafter, when she was advised by Dr. Strieker that he would not treat her any more. She has had substantial medical treatment since, including the reconstructive surgery and continuing until the present. The treatment after early 1966 was by other doctors not here involved.

It is appropriate to note the relationship between defendant doctors during the period from December 1961 to January or February 1966. All except Dr. Swyer are doctors of osteopathy. Dr. Swyer is a radiologist. In June or July 1961 Danon engaged Osder in the office which Danon maintained, and Osder became a partner of Danon about a year later. Dr. Strieker joined the two of them as an employee-shortly after he became licensed in August 1965. Dr. Danon left the practice of medicine on December 31, 1965 and spent about six months as a junior partner in a brokerage firm. When he resumed the practice of medicine in June 1966 it was in the field of anesthesiology.

The Danon office referred patients requiring services in Dr. Swyer’s field to Dr. Swyer, at least until sometime in 1962. For this the referring doctor received a third of Swyer’s fee. Sometime in the middle of 1962, at the time of or just before plaintiff’s first hospitalization, but not later then September 1962, Danon and Osder, then partners, stopped referring patients to Swyer. Ostensibly a strained relationship was produced by impatience on the part of Swyer when Danon asked to him to locate an X-ray film of a mutual patient, not the plaintiff. (In October 1962 Dr. Swyer advised his malpractice insurance carrier of the fact that he “might have difficulty” with Mrs. Lopez.) The referral relationship between Drs. Osder and Strieker was not resumed with Swyer until 1966, after Dr. Danon had terminated his association with them.

On September 18, 1967 plaintiffs commenced this action against defendants. They charge Swyer with negligence in the radiation treatments, and Danon, Osder, and Strieker with intentionally false reassurances and willfully keeping from them proper medical advice relating to the treatment and its effects. They allege a conspiracy among Danon, Osder, and Strieker and with Swyer in connection with the improper medical advice. They assert additionally that Danon, Osder, and Strieker fell below the standard required of the reasonable physician- with respect to the reassurances and advice and were thus negligent.

Beyond denying negligence, defendants deny having misinformed plaintiffs intentionally or otherwise and disavow the existence of a conspiracy. They concede the early existence of substantial physical difficulties, set forth their advice to plaintiff with respect to the relationship of these difficulties to the Swyer treatment and as residuals thereof, and argue therefrom that plaintiff either knew or must have known of her difficulties and relationship to the Swyer treatment in 1962. It is upon this predicate that the statute of limitations is urged.

Plaintiffs’ response to the statute of limitations defense is that, while Maria Lopez was gravely ill, they did not understand that this illness was produced by the negligence of Dr. Swyer, and this because of the reassurances given her over the years by Danon, Osder and Strieker. In this regard, plaintiff admits that inquiry was made of Dr. Danon early in 1962, during treatment, about whether “malpractice” was occurring. Her husband’s deposition quotes Dr. Danon as having said, “This was not malpractice. This sometimes happens.” Dr. Danon also testified in deposition with respect to his recollection about discussion of a malpractice suit. He had such a recollection, but did not recall specifically what was said since he was “mainly a listener.”

In March 1967 Mrs. Lopez, while in a hospital for one of the stages of the reconstructive surgery, was displayed to “forty, fifty doctors” by the doctor who had charted the surgical procedure. These doctors ■ retired to an adjacent room, evidently for the purpose of discussing the case. Mrs. Lopez heard their conversation through an open door. Her testimony in this respect was as follows:

* * * So I heard this doctor mention, my name, and I began to listen very intently. And this conversation did state that here was a woman who was on 300 milligrams of demerol a day, couldn’t stand the pain, when she came. And then he made a statement that X remember verbatim, every word: “And there you see, gentlemen, what happens when the radiologist puts a patient on the table and goes out and has a cup of coffee.”

This, she says, is the first she knew of the relationship between her difficulties and the negligent treatment of Swyer.

We are of the opinion that the trial judge erred in entering judgment for defendants on a summary judgment motion. We believe plaintiffs should have the opportunity for a jury determination with respect to the factual questions of the alleged negligence of the respective doctors, the fraud and conspiracy issues, and the date or approximate date on which plaintiffs knew or might reasonably have been expected to know the nature of the injuries complained of and their relation to the alleged negligence of Dr. Swyer.

The most difficult of the questions, presented has to do with the application to this case of the law relating to the statute of limitations. The problem is compounded by the variety of plaintiffs’ claims and some disparity among the considerations to be applied in arriving at a conclusion of law pertaining to each. Eor instance, other than the conspiracy allegation, the claim against Swyer is. simply for negligent treatment. On the other hand, while the claims against Danon, Osder, and Strieker also assert, simply enough, negligent treatment by way of bad advice, in addition they allege fraud and seek, beyond this, to impose upon the physician an affirmative duty of disclosure.

A general observation should be made at the outset. Under the so-called "discovery rule” of Fernandi v. Strully, 35 N. J. 434 (1961), for defendant to prevail on a statute of limitations defense it is not enough that a plaintiff knows of the injury for which claim is made as a residual of the purported offensive treatment, but he must know or have reason to know that such treatment was negligently administered. This comment is appropriate here because defendants urge, correctly enough, that the physical injury immediately consequent to the treatment was so manifest that plaintiff must have known she had been harmed. While the severity of the injuries is beyond question under the facts of this case, and is in fact borne out by plaintiffs’ testimony, we believe that plaintiffs’ knowledge of the causal relationship of these physical injuries to negligent treatment by Swyer remains a fact question concerning which, under the circumstances of this case, the minds of reasonable men could differ. Indeed, if the testimony of Mrs. Lopez is believed, she had no reason to suspect that what was happening to her, as bad as it was, was anything other than a normal reaction to this radical treatment. Cf. Toal v. United States, 438 F. 2d 222 (2 Cir. 1971).

Contemporary consideration of statute of limitations questions in medical malpractice cases commences with Fernandi v. Strully, 35 N. J. 434 (1961). There the court construed the two-year statutory limitation relating to personal injuries (N. J. S. A. 2A:14^2). It held that the accrual of a cause of action in a medical malpractice ease does not occur — at least where a physician leaves a foreign object concealed in a patient’s body during an operation — until the patient “knows or has any reason to know about the foreign object and the existence of the cause of action based upon its presence.” The holding was obviously guarded. Policy considerations relating to such things as the statutory purpose of repose contrasted with individual injustices, and the danger of false, frivolous, speculative or uncertain claims were discussed.

Next appeared Rothman v. Silber, 90 N. J. Super. 22 (App. Div. 1966), certif. den. 46 N. J. 538 (1966). Here the alleged malpractice had to do with the administration of anesthesia, i. e., “the introduction of a foreign substance into her body.” The court recognized the guarded language of Fernandi and limited the exception to the general rule (since commonly called the “discovery rule”) to foreign substances unintentionally incorporated into the patient’s body by inadvertence. Summary judgment for defendants was entered.

In 1968 the Supreme Court had occasion to consider the “discovery rule” in three nonmedical cases. Rosenau v. New Brunswick, 61 N. J. 130 (1968) (a defective water meter); New Market Poultry Farms, Inc. v. Fellows, 51 N. J. 419 (1968) (a negligent land survey); and Diamond v. New Jersey Bell Telephone Co., 51 N. J. 594 (1968) (an improperly installed telephone conduit). While each of these cases was decided within the framework of the facts appearing in the case, each considered the potentiality for injustice in further refining the rule, and each applied the discovery rule in determining the time when the cause of action accrued.

This effort to insure a trial on the merits rather than summary disposition on a statutory defense, at least in situations where plaintiff acted promptly upon discovery of the cause of action and where harm to defendant did not appear or was nominal (or, as in Diamond, supra, at 51 N. J. 601, the disadvantage by virtue of passage of time was as great to plaintiff as to defendant), produced a reappraisal of the Rothman case in the next and most recent medical statute of limitations case. In Yerzy v. Levine, 108 N. J. Super. 222 (App. Div. 1970), Judge Labrecque, who had written the opinion in Rothman, recognized the policy established by Rosenau, New Market, and Diamond, correctly we believe, and extended the discovery rule to a situation in which a surgeon had severed the common bile duct. It is to be noted that this extension of the rule removed the requirement of Rothman stated in terms of a “foreign substance” and made the rule applicable to anatomical injury. It is to be observed at the same time that both Rothman and Yerzy were concerned with internal, hidden mistakes.

Yerzy was certified and the Supreme Court, in a brief per curiam opinion, affirmed the Appellate Division “for the reasons given by it,” but “with the modification that under the facts of this case (1) the question with respect to the statute of limitations is whether plaintiff brought this action within two years, after plaintiff knew or had reason to know that plaintiff might have a basis for a claim against the defendant.” 57 N. J. 234, 235 (1970). The inclusion of the' phrase “under the facts of this case” in the Yerzy affirmance suggests a more explicit definition of the rule here.

Defendants endeavor to distinguish the rule of Fernanda, as implemented by Rothman and Yerzy, from the present situation by pointing out that the reported cases have dealt only with internal injuries and that the severe external injuries in the present case negate “the possibility of the application of the exceptional ‘discovery’ rule.” We think such a limited view overlooks the reason for the rule. Where plaintiff has acted promptly after gaining knowledge of his injuries and their causal connection with negligent medical treatment, and the passage of time neither lends inspiration to fraudulent claims nor puts defendant at a disadvantage from a standpoint of proofs, we do not believe that the policy considerations concerning repose are paramount to those suggesting justice by a trial on the merits. In other words, we believe the true rule in any medical malpractice case to be that a cause of action does not accrue until plaintiff is or should be aware of his injury and its causal relationship to the negligent treatment unless — as mandated by the inclusion of reference in the Yerzy affirmance to the “facts of this case” — the circumstance of delay suggests injustice will thereby be done. Examination of the potential for injustice requires that the situation be measured by the criteria laid down in the cases cited above, i. e., the danger of a fraudulent, false, frivolous, speculative or uncertain claim, or substantial difficulty in defendant’s testimonial proof of a defense by virtue of the passage of time.

With reference to the instant matter, the delay suggests no such injustice. Defendants have been aware from the time of Swyer’s treatment of the extraordinary seriousness of plaintiff’s injuries. In fact, they charge her with at least constructive knowledge by virtue of the seriousness of the injuries. Most significantly, Dr. Swyer advised his malpractice carrier of the potential for difficulty. Without respect to the matter of proofs, it is inconceivable that the facts of this case lend themselves to fraudulent, false, frivolous, speculative or uncertain claims. With regard to proofs, if there is a difficulty for the defendant doctors, it is one of their own making. By their own testimony they acknowledge the mention of malpractice early in 1962. Their records are as complete as they ever were. All defendants are available for trial. The relative sharpness of their recollection, somewhat diminished by time, of course, but supported by voluminous medical records, is attested to in their depositions. In this respect, defendants certainly are at the very least no worse off than are plaintiffs. See Diamond, 51 N. J. at 601.

The statement of the late Justice Oliphant, then sitting as a Circuit Court Judge, quoted in Rosenau, from Hughes v. Eureka Flint, etc., Co., Inc., 20 N. J. Misc. 314 (Cir. Ct. 1939), is appropriate:

It imposes hardships upon a defendant by compelling him to meet a claim involving- his actions of many years before, but it would be even more undesirable and unjust to bar a plaintiff’s remedy before his cause of action existed, which is certainly equally violative of the intent of the statute, definitely not violative of its language and infinitely more abhorrent to logic and justice * * *. [At 316]

Plaintiffs urge a general extension of the statute of limitations under the so-called “continuing treatment doctrine” claiming that the “modern view” does not permit the statute of limitations to commence running in any event until the conclusion of the entire course of treatment. De Haan v. Winter, 258 Mich. 293, 241 N. W. 923 (Sup. Ct. 1932); Williams v. Elias, 140 Neb. 656, 1 N. W. 2d 121 (Sup. Ct. 1941); Frazor v. Osborne, 57 Tenn. App. 10, 414 S. W. 2d 118 (Ct. App. 1966, cert. den. 1966); Annotation, 80 A. L. R. 2d 368, esp. § 6 at 379. The proposition, as a general one, is offensive to the decisional law of our court of last resort. Tortorello v. Reinfeld, 6 N. J. 58 (1950). Under such circumstances, it is not the function of the Appellate Division to alter the rule. Orlik v. De Almeida, 45 N. J. Super. 403, 409 (App. Div. 1957).

On the other hand, Tortorello suggests that a course of negligent treatment is a continuing tort whereby (6 N. J. at 66) “* * * the statute does not ordinarily begin to run until the injurious treatment is terminated unless the patient discovered or should have discovered the injury before that time,” thus bringing us squarely upon plaintiffs’ claims here of the negligence of Danon, Osder and Strieker and their additional claims of equitable fraud.

Tortorello states that if a defendant doctor is guilty of negligent conduct, whether of commission or omission, in a continuing course of treatment, the statute does not ordinarily begin to run until the injurious treatment is terminated unless the patient discovered or should have discovered the injury and its causal connection with the negligent treatment before that time. While this is apparently dictum in the Tortorello case, the Supreme Court there announced its complete accord with the rule, and we adopt it here. Waldman v. Rohrbaugh, 241 Md. 137, 215 A. 2d 825 (Ct. App. 1966); Garlock v. Cole, 199 Cal. App. 2d 11, 18 Cal. Rptr. 393 (D. Ct. App. 1962).

In addition to the claims of negligence, plaintiffs contend that they were intentionally misled by defendant doctors. They thus assert fraud. The general limits of such fraud, which may be made the basis of a claim for relief, are (1) a representation by defendant to plaintiff with intent that the latter rely upon it; (2) knowledge on the part of defendant that the representation is in fact false; (3) belief by plaintiff that the representation is true; (4) reliance on such representation, and (5) injury. Mazza v. Winters, 95 N. J. Super. 71, 76 (App. Div. 1967). In this respect we find sufficient evidence of proof in the depositions to raise a factual question.

Plaintiffs also argue that even if they were not intentionally misled, the failure of Danon, Osder and Strieker affirmatively to come forth with proper advice constituted a wrong. The duty of a doctor affirmatively to disclose to his patient the nature of his illness and, in appropriate circumstances, its cause, has been considered in New Jersey principally in cases relating to so-called “informed consent” with respect to operative procedures. See Kaplan v. Haines, 96 N. J. Super. 242 (App. Div. 1967), affd o. b. 51 N. J. 404 (1968). We hold that the relationship between a doctor and his patient is of such a confidential and vital nature that an affirmative duty requiring the doctor to disclose to his patient fully the facts of the medical case does exist and that silence in this regard may be sufficient to infer a constructive misrepresentation. Guy v. Schuldt, 236 Ind. 101, 138 N. E. 2d 891 (Sup. Ct. 1956); Stafford v. Shultz, 42 Cal. 2d 767, 270 P. 2d 1 (Sup. Ct. 1954); Garlock v. Cole, supra. We observe that Torlorello, in the dictum referred to above, speaks of “the continuing neglect to advise a proper course of treatment” as a, “continuing tort.” 6 N. J. at 66. See also Pashley v. Pacific Electric R. Co., 25 Cal. 2d 226, 153 P. 2d 325, 329-330 (Sup. Ct. 1944) ; 41 Am. Jur., Physicians and Surgeons, § 73, 195; Estep & Van Dyke, Radiation Injuries: Statute of Limitations Inadequacies in Tort Cases,” 62 Mich. L. Rev. 753, 773-774 (1964).

By reason of medical considerations related to the welfare of the patient (for instance, the recurrent problem of whether cancer patients should be “told”), caution should be exercised in the application of such a rule consistent with fairness to the physician in the exercise of his best judgment. This balancing of delicate policy considerations and equitable principles can be best achieved by application of the yardstick set down in Kaplan-.

v * si Plaintiff lias the burden to prove what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have disclosed to his patient and the issue is one for the jury where * * * a fact issue is raised upon conflicting testimony as to whether the physician made an adequate disclosure. * ® *. [96 N. J. Super. at 257]

We turn to the conspiracy charge. No reason occurs to us in this respect for the application of any statute of limitations considerations other than those set forth above. With regard to the substantive claim, a dearth of direct proof is apparent. This is not surprising. Conspiracy is seldom written elsewhere than upon the wind. The relationship between defendants Danon, Osder and Strieker, including their questionable fee-splitting relationship with Swyer and its termination in 1962, as well as Swyer’s advice to his malpractice carrier, suggest in their totality an inference sufficient to resist a motion for summary judgment. Language from Judson is particularly apposite:

Where, as here, the opposing party charges the moving party with willful fraud and must probe the conscience of the moving party (or its officers, when, as here, a corporation) to prove his case, or in any case where the subjective elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party, a conclusion from papers alone that palpably there exists no genuine issue of material fact will ordinarily be very difficult to sustain. The telltale factor of demeanor in the presence of the trier of fact often assumes such vital importance in such cases that the opposing party should generally not be denied the opportunity to have the moving party, or its officers, appear on the witness stand before the trier of fact. * * *. [17 N. J. at 76]

With consideration for all the foregoing, a careful review of the factual presentation before the court in this matter convinces us that sufficient factual questions relating to the alleged negligence of all the physicians, the alleged fraud of Danon, Osder, and Strieker, and the alleged conspiracy remain to warrant the submission of these issues to a jury, together with the question as to when plaintiffs knew or should reasonably have known the nature of Maria’s illness and its causal relationship with the alleged negligence. Our conclusion in this regard is prompted by our duty, at this stage of the proceedings, “to- assume the truth of the allegations of the complaint except insofar as they are contradicted by concessions of the plaintiff” (New Market, 51 N. J. at 420), “notwithstanding that the plaintiffs may have difficulty at trial in establishing them” (Rosenau, 51 N. J. at 135). As directed by Judson, we give plaintiffs the benefit of all reasonable doubts in arriving at this conclusion. Although probably unnecessary, we note that defendants may, of course, contest at trial any factual conclusion which on this motion we were obliged to assume to be true. Under such circumstances, the entry of summary judgment in favor of defendants was in error.

Keversed and remanded for trial in conformity with this opinion.

      Frank Lopez, husband of Maria, sues per quod. References hereafter to plaintiff are to Maria.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. GARY BOSWELL, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided May 24, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for appellant (Mr. David S. Baime, Assistant Prosecutor, of counsel; Messrs. David S. Baime, Assistant Prosecutor, and Anthony J. Fusco, Jr., Legal Assistant, on the brief; Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Edward P. Hannigan, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney).
   Per Curiam.

The State appeals from an order suppressing narcotics and narcotic paraphernalia allegedly found in possession of defendant.

The State’s proofs at the hearing on the motion to suppress were to the following effect: Newark Narcotics Detective Scott, who had made over 200 narcotics arrests during his year and a half service with the police, testified that while he and three other officers in plain clothes wore seated in an unmarked police vehicle they received a message from headquarters that narcotics were being sold by Gary Boswell from premises at 416 South Ninth Street. They were told that this information had been received from the Governor’s office and the State Police. The detectives set up a visual surveillance about 35 feet from the two-family frame building.

Eive minutes later they observed one McNeal, known to them as a narcotics user, knock on the first-floor apartment door. Boswell, whom the detectives recognized from rogues gallery photographs carried by one of their number, responded to the knock.

McNeal entered the apartment. The police approached, intending to question McNeal when he left the building. They were on the front steps as the front door opened. Defendant, who was about to emerge from the apartment, yelled “police” when he noticed their presence and ran back into the building, down the stairs and into the basement. The police pursued. In the basement one detective observed defendant kneeling at an opening in the floor. Three females were standing next to him. McNeal had gone into the “back” area of the building out of sight.

The opening in the floor was an uncovered sewer pipe about four inches in diameter. Stagnant water was visible in the pipe about two feet below the opening. Scott testified that with the aid of a flashlight he could see a hypodermic needle floating on the surface. He had not actually seen defendant drop the needle there. After Scott made an unsuccessful attempt to retrieve the needle by inserting his hand in the pipe, the officers, using an improvised strainer, fished the needle out along with several “white caps” (packets of heroin). Defendant was then formally arrested.

Defendant’s version of the episode differed considerably. He acknowledged that his friend (MeNeal) came to his Ninth Street home on that day. After letting MeNeal in, defendant went downstairs to finish dressing. Boswell heard noise from above and returned upstairs to investigate. He came upon a police officer and heard him say to MeNeal that ■MeNeal had flushed something down the sewer. The police then allegedly put a gun to Boswell’s dhest and ordered him downstairs. Defendant asserts that he was threatened when he demanded that the police exhibit a warrant. According to defendant, the police first searched the apartment before coming upon the drain and announcing their find. Boswell denied opening the door to the detectives and that he had yelled "police” when he saw them.

At the request of the hearing judge, the officer who- received the information from the State Police was presented. Sergeant Bimbo related that headquarters was notified that the State had received complaints from the Governor’s office and others that defendant was selling narcotics from the 416 South Ninth Street address. However, the officer had not been informed of the reliability of those making the original complaints, details of the illegal activity, or how the informants happened to obtain this information. Bimbo also testified that the normal procedure for "checking out” such a tip was by setting up a surveillance.

The hearing judge accepted the version of the facts by the police officers as true. However, he concluded that since the tip had not been corroborated and nothing occurred at the scene which could give rise to a reasonable finding of probable cause, defendant’s motion must be granted.

Accepting as true, as the trial court did, the testimony of the police officers as to What occurred, we are of the opinion that the order suppressing this evidence was erroneous.

The detectives knew the tip came from the State Police and the Governor’s office but knew nothing as to the sources of their information. Apparently the Newark police had also received complaints (the nature of which being unrevealed) relating to this particular address. Detective Scott explained that the officers went to the home after receiving the tip because they were expected “to go there and do something about it.” During the brief surveillance, a known narcotics user was observed entering defendant’s apartment. The detectives approached the house itself intending to wait on the front stoop and stop McNeal as he came out. Instead they were confronted by defendant who exclaimed “police” and attempted flight.

We agree that the tip of itself would not provide probable cause to justify defendant’s arrest without a warrant. See Whiteley v. Warden, 401 U. S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). But here there was much more. Defendant’s conduct on observing the plainclothesmen, after having admitted a narcotics user to his apartment, lends credence to the original information and reasonably supports the belief that defendant was guilty of a current narcotics violation. Unlike Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), there was, no doubt as to the identity of the detectives as law enforcement authorities. Furthermore, the arresting officers in this case did not predicate their conclusion that this defendant was then violating the narcotics laws on his flight alone. In contrast, here the officers had specific information about the sale of narcotics by a particularly identified individual from a certain address. Coming upon that scene, and after seeing a narcotics user admitted, the officers encountered defendant who expressed his apprehension at the confrontation and attempted immediate escape. We hold that such conduct, combined with all the pre-existing information obtained by or known to the police, authorized them to effectuate defendant’s, arrest without a warrant. Cf. People v. Satterfield, 252 Cal. App. 2d 270, 60 Cal. Rptr. 733 (D. Ct. App. 1967). The search made to prevent the immediate destruction of loss of evidence, was well within the scope permitted under Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

Reversed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JOSEPH V. RUGGIERO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 14, 1971
    Decided June 25, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. S. Philip Klein argued the cause for defendant.

      Mr. Leonard N. Arnold, Assistant Prosecutor, argued the cause for plaintiff (Mr. Michael R. Imbriani, Somerset County Prosecutor, attorney).
   Per Curiam.

The State appeals, by leave of this court, from a pretrial grant of a motion by defendant to exclude from evidence, in an imminent trial of defendant on charges of several indecent exposures, certain lineup identifications of defendant by witnesses of the alleged acts and an identification of him in the municipal court during the course of a preliminary hearing. The trial court also ruled that the circumstances of the lineup identification were not so unduly suggestive as to deny due process, and also that the in-court identifications of defendant (i■ e., those made in the course of the voir dire hearing on the motion) were not tainted by the lineup identifications, being the independent product of observations by the witnesses of defendant at the time of the alleged crimes. Defendant has not cross-appealed from the latter determinations and consequently their correctness is not an issue before us.

We observe, preliminarily, that there is no practice rule permitting the admissibility of identification evidence to be determined by pretrial motion. Cf. State v. Graham, 114 N. J. Super. 518 (App. Div. 1971). Since, however, the questions involved have been adjudicated at a rather lengthy hearing below, we will determine the appeal on the merits.

A series of incidents of indecent exposure in Bound Brook occurring from January 19 through March 17, 1970 were reported to the police. Each of a number of teen-age girls reported having seen one of these acts, committed in each instance by a man driving a blueish or aqua station wagon who would slow down when approaching them and expose himself before them.

On March 30 Sergeant Cimino of the local police stopped a vehicle answering the stated description being driven by defendant and requested him to drive to police headquarters. There defendant was viewed through a one-way glass by two girls, victims of a March 13 exposure, but they were unable to identify him. Defendant was then told that there had been four or five other incidents of exposure with other girls and he was requested to return to the station the next day after work.

Defendant did return the next day and was placed in a police lineup of four persons, the other three being men doing repair work around the building. Five girls successively viewed the lineup through a one-way mirror. Two could not identify defendant but three did, two of them being victims of the February 25 incident, and one of that of January 19. He was then for the first time placed under arrest. We do not discuss the attendant circumstances of the identifications, since the issues on the State’s appeal are not affected thereby. The trial court held that defendant had a constitutional right to counsel at the lineup under the rationale of United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), in default of which the fact of the lineup identification would not be admissible in evidence at the instance of the State. Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967).

The State argues that the ruling was in error because (1) the lineup was prior to any indictment and (2) defendant was not in police custody at the time of the lineup. We pass the first ground, that legal question not requiring determination here. (It was left open in State v. Mustacchio, 57 N. J. 265, 269-270 (1970) and in State v. Royster, 57 N. J. 472, 482 (1971)).

It is settled in this State that where the out-of-eourt identification precedes both custody and arrest, counsel is not required. State v. Royster, supra, 57 N. J. at 482; State v. Moore, 111 N. J. Super. 528, 532 (App. Div. 1970), certif. den. 57 N. J. 210 (1971). We conclude that, for purposes of the present issue, defendant was not in custody when identified. Although he had been a subject of suspicion since the day before, he was not hold by the police. He had been requested to go to headquarters the day before, but when not then identified had been allowed to go home and was merely requested to come in again the next day, at his convenience after work. There having been neither custody nor arrest, the Wade right of counsel was not applicable.

We think the court also erred in holding inadmissible the fact of the identification of defendant at the preliminary hearing by one of the girls who had previously identified him at the station lineup. The trial court felt the circumstances of that identification were unfair in that "presumably * * * there would be some indication of who he [defendant] was and that allowing such identifications might cause defendants involuntarily to waive preliminary hearings.” However, this witness was brought to the hearing, not for the purpose of a police-arranged confrontation to secure an initial identification of the malefactor, but rather, consistently with the judicial purpose of the hearing, to establish the State’s prima facie case against defendant through a witness who it was known could identify him by reason of her previous positive identification of him at the lineup. She did pick him out of the general audience in the municipal courtroom. This was an entirely unexceptionable procedure on the part of the State and in no sense unfair. Cf. Mason v. United States, 134 U. S. App. D. C. 280, 414 F. 2d 1176 (1969); Tyler v. State, 5 Md. App. 265, 246 A. 2d 634 (Ct. Spec. App. 1968); Coleman v. State, 8 Md. App. 65, 258 A. 2d 42 (Ct. Spec. App. 1969). We are therefore in disagreement with the court’s decision as to admissibility of the identification at the preliminary hearing.

The judgment is reversed insofar as it excludes from evidence the lineup and preliminary hearing identifications.


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    IN THE MATTER OF THE SEARCH AND SEIZURE OF PROPERTY AT PREMISES OF C COMPANY IN ROSELLE, NEW JERSEY, AND IN THE MATTER OF THE SEARCH AND SEIZURE OF PROPERTY AT PREMISES OF A IN NEWARK, NEW JERSEY, AND IN THE MATTER OF THE SEARCH AND SEIZURE OF PROPERTY AT PREMISES OF B COMPANY IN EAST ORANGE, NEW JERSEY.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1971
    Decided June 18, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Alfred K. Frigola, First Assistant Prosecutor, argued the cause for appellant (Mr. Karl Asch, Union County Prosecutor, attorney).

      Mr. George J. Koelzer argued the cause for respondents (Messrs. Lum, Biunno & Tompkins, attorneys).

      Mr. Warren Brody argued the cause for respondents (Messrs. Winetsky, Brody and Winetsky, attorneys).
   Per Curiam.

The State, with leave of court, appeals from interlocutory orders entered by a Superior Court judge requiring the single affidavit, and any other supportive material upon which three search warrants issued, be made available to the parties claiming to be aggrieved by the search.

Our order granting leave to appeal also provided that the State refrain from calling four named individuals as witnesses before the Union County grand jury until further order of the Court.

On this accelerated appeal the State contends that the trial judge (a) erred in allowing disclosure of the affidavit and other supportive evidence to respondents (applicants); (b) erred in refusing to conduct an in camera hearing out of the presence of applicant’s counsel and the applicants, to determine whether justice would be served by a pre-indictment disclosure of the affidavit; and (e) abused his discretion in allowing disclosure of the affidavit and other supportive evidence, rather than direct that pursuant to R. 3:6-8 (a) any indictment returned against any of the applicants be kept secret until they are afforded opportunity to examine the affidavit.

On April 6, 1971 the Superior Court judge issued three search warrants upon the basis of a single affidavit. It appears that there was no testimony or other evidence offered in support of the application for these warrants. One warrant was to search the office of A, an attorney, in Newark. Another search warrant was for the office of B, certified pnblie accountants, in East Orange. The third search warrant was for the offices of the C company in Koselle.

On April 7, 1971 a search of each of the three premises was made, and property belonging to A, B and the C company, as well as D, the E company and F company was seized.

Prior to April 6, 1971, and continuing to May 1971, the grand jury of Union County has been investigating alleged irregularities in the granting of a subdivision to the E company by the Scotch Plains Planning Board.

D, president of the 0 and E companies; S, secretary of the E company, and a partner in B; A, registered agent of the E company, and G, a partner in B, are under subpoena to appear before the Union County grand jury in connection with the aforementioned investigation. Except for G, the State concedes that the named individuals are targets of the grand jury investigation.

Significantly, the judge who issued the search warrants entered the orders, making available to the applicants copies of the affidavit upon which the search warrants issued. Such orders have been stayed pending disposition of this appeal.

We are satisfied that the judge, in the circumstances here presented, properly ordered disclosure of the affidavit and other supportive evidence to the applicants. R. 3:5-6 expressly provides that:

[Tlhe warrant, affidavit and testimony shall be confidential but on order of the Superior Court or a county court they shall be made available, on application and notice to the county prosecutor, to a person claiming to be aggrieved by an unlawful search and seizure.

There is no merit to the State’s contention that R. 3:5 — 6 should be read in pari materia with R. 3 :13-3, the discovery and inspection rule. The respective rules are designed to apply different situations. R. 3 :13 applies to pretrial proceedings, including discovery procedures, whereas R. 3:5-6 affords relief “to a person claiming to be aggrieved by an unlawful search and seizure.”

We further note that under R. 3:5-7 a motion for the return of property and to suppress evidence may be made where a matter “is pending or threatened.” Such a motion does not depend upon the existence of an indictment. State v. Fioravanti, 78 N. J. Super. 253 (App. Div. 1963), affirmed in part and vacated in part, 46 N. J. 109 (1965). A similar view is expressed in In re Fried, 161 F. 2d 453, 458 (2 Cir. 1947) where the court held that if property has been illegally seized by a federal official, “its potential use as evidence will be restrained by the district court, although no indictment is pending.” Since such a motion may be made at a preindictment stage, it would logically follow that an application to examine or copy the evidence submitted to justify the issuance of a warrant may likewise be granted at a preindictment stage.

We recognize that situations may arise where the court may relax R. 3:5-6, pursuant to R. 1 :l-2, and make unavailable to the applicant a portion or all of the affidavit or other material submitted to the judge to support a showing of probable cause for the issuance of a search warrant. Eor example, the court could properly render unavailable to the applicant the identity of an informer whose life might be jeopardized by such disclosure.

The State further contends that the court should delay the right of the applicants to inspect the affidavit until the State has submitted proof ex parte and in camera, which conceivably would justify withholding the requested affidavit. It is a disfavored practice for a prosecutor and judge to closet themselves in chambers and alone make decisions crucial to the exercise of basic rights of unrepresented parties. Alder man v. United States, 394 U. S. 165, 183-185, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969); Dennis v. United States, 384 U. S. 855, 874-875, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (19-66).

Alternatively, the State argues that the judge should refrain from ordering the production of the affidavit and supportive data, if any, prior to the return of an indictment or the end of the grand jury investigation. It is claimed that if, in fact, an indictment is returned, it may be kept secret pusuant to R. 3:6-8 until the applicants have had an opportunity to examine the affidavit and supportive evidence. We note, however, that R. 3:6-8 merely provides that the judge “may direct that the indictment shall he kept secret until the defendant is in custody or has given bail.” It is inapplicable in the instant case. In this light, we believe no error was committed. We agree with the trial judge that persons who are indicted and subsequently acquitted never escape that stigma. In re Fried, supra, at 458.

Finally, we again observe that the judge who issued the search warrants was the same judge who granted the relief to the applicants. Obviously, he concluded that the State would not be prejudiced by the requested disclosure.

We affirm. The prosecutor will forthwith make available to the applicants the affidavit upon which the search warrants issued. The applicants are afforded ten days from the submission of said data within which to move to suppress and for the return of property pursuant to R. 3:5-7. In the interim, the appearances of A, D and S before the grand jury are stayed pending the disposition of said motion if made within the time aforesaid. We do not retain jurisdiction.


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    STATE IN THE INTEREST OF A. H. STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. A. H., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 1, 1971
    Decided June 18, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mrs. Susan T. Sinins, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Martin R. Kayne, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic. County Prosecutor, attorney).
   Per Curiam.

A. H. appeals from an adjudication of delinquency in the Juvenile and Domestic Relations Court. He complains that no prima facie case was established against him, that the court erred in reviewing the prior record during the adjudicatory stage of the proceedings, that he was denied his right of allocution, and that the court’s refusal to accept a demonstration of his arms was erroneous.

The juvenile, known to the police, was summoned to a squad car where it was stopped at an intersection, so that the officers might talk to him about an incident that had occurred the previous day. As the juvenile approached the police ear, he suddenly turned and ran. The police, suspecting something wrong, followed on foot. As they chased him, he withdrew a brown paper bag from his back pocket and discarded it. The bag was found to contain narcotics paraphernalia. (The allegation appears in the statement of facts in juvenile’s brief that “There was no testimony identifying the contents of the bag or describing the uses the items therein could be put.” As a matter of fact, the paraphernalia was actually marked in evidence over objection of defense counsel.)

At the hearing A. H., 14 years old, upon early inquiry from the judge after the charge had been explained to him, said that the charge was true and that he was entering a plea of guilty. On his counsel’s insistence and an assertion of surprise, and despite the reiteration then by A. H. of a plea of guilty, the court accepted a not guilty plea and the matter was heard. The facts set forth above were uncontroverted and proved beyond any reasonable doubt.

Even assuming that the charge was more limited than simply a complaint of violation of N. J. S. A. 2A:4-14 (2)m and was in fact a charge of a violation of N. J. S. A. 2A:170-77.5, we are satisfied that violation of the latter statute was proved beyond a reasonable doubt. While denying that he had used the objects in the bag, A. H. admitted that he knew “what other people use them for.” Prom possession of the articles am intent to use can be readily inferred. State in the Interest of J. M., 57 N. J. 442 (1971), reversing 110 N. J. Super. 337 (App. Div. 1970).

Defense counsel offered to demonstrate the arms of A. H. to the court presumably for the purpose of showing an absence of needle marks. An objection was sustained. The relevance of the offer is questionable. At best it would have demonstrated, in a negative fashion, that A. H. had not yet used the equipment found in his possession. Such negative evidence would seem of little probative value in a charge of possession with intent to use. We perceive no error here.

It would appear that during the course of the hearing the court reviewed a prior record of the juvenile’s “long history” in that court. The consideration of a prior record for the purposes of adjudication is, of course, improper. B. o :3 — 6 specifically directs that “in juvenile matters, social investigations shall be made only after findings sufficient to support an adjudication or after an adjudication and in the manner prescribed by B. 5:9-l (f).” On the other hand, the consideration of an investigation of past events is not only entirely proper for dispositional purposes but expressly sanctioned by B. 5:9-l(f). While the judge below might well have been bettor advised not to refer to such a report during testimony and before adjudication, if for no other reason than to avoid suspicion of improper use, we are satisfied that the actual use to which the judge put the report, i. e., for dispositional purposes, was not improper here and should not affect the adjudication. This is amply demonstrated by the court’s response to defense counsel’s inquiry regarding relevancy of the report after the judge had volunteered the information that he had “reviewed his record.” The court replied, “To disposition they axe relevant.”

We therefore find the adjudication of juvenile delinquency to be free of error and in this respect we affirm.

After the adjudication, the court proceeded to direct placement of A. H. in the State Home for Boys. At that point defense counsel said, “I have a recommendation, your Honor, if I can find it.” The court replied, “That’s the disposition of the Court.” Ho opportunity for allocution was offered and counsel’s attempt to find material from which to speak on behalf of A. H. was abruptly terminated by the court. In this we think the trial judge erred.

B. 3 :1-1 can be read so as to exclude application of Part III (Rules Governing Criminal Practice) to the Juvenile and Domestic Relations Court. On the other hand, B. 5:6-l specifically makes applicable the provisions of B. 3:21 where the right of allocution appears at B. 3:21-4(b). Without regard to whether application of B. 3:21-4(b) is mandated, we have no doubt that fundamental fairness compels the allowance of allocution where a juvenile has been adjudicated delinquent. See In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1965). The argument advanced by the State that B. 3:21-4(b), speaking as it does in terms of mitigation of punishment, should not apply to juvenile proceedings where rehabilitation (rather than punishment) is the watchword, is entirely unpersuasive.

This failure to comply with the rules does not convert the sentence to an “illegal” one. State v. Cerce, 46 N. J. 387 (1966). It does not affect the adjudication. The remedy is remand for resentencing. State v. James, 84 N. J. Super. 109 (App. Div. 1964).

Accordingly, we remand for further dispositional proceedings in conformity with the above at which allocution shall be allowed. In advance of such proceedings the court below shall procure an updated predisposition investigation and report pursuant to B. 5:9-10(b) and B. 5 :9-l(f).


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    OLGA MUNTZ, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ORVELL MUNTZ AND OLGA MUNTZ, GENERAL ADMINISTRATRIX OF THE ESTATE OF ORVELL MUNTZ AND OLGA MUNTZ, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. NEWARK CITY HOSPITAL AND THE CITY OF NEWARK, DEFENDANT-RESPONDENT, CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1971
    Decided June 25, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Jerry M. Finn argued the cause for appellants (Messrs. Goldberger, Siegel and Finn, attorneys; Mr. Sheldon A. Siegel, on the brief).

      Mr. Marvin A. Sachs argued the cause for respondent cross-appellant (Messrs. Feuerstein, Sachs and Maitlin, attorneys; Hir. Leonard Rosenstein, on the brief).
   The opinion of the court was delivered by

Halpern, J. A. D.

The narrow issue on plaintiffs appeal is whether the trial court erred in reducing the jury’s verdict from $35,000 to $10,000. In view of our determination that no error existed, we do not reach defendant’s cross-appeal.

The facts axe not disputed. Plaintiff’s decedent committed suicide while a patient at the Newark City Hospital. Plaintiff individually, and in her representative capacity, sought money damages from the hospital, the City of Newark and from Dr. Morton Kurland, charging them with negligence and malpractice. The jury absolved Dr. Kurland from liability and returned its verdict thusly: “We find the defendant, Newark City Hospital, negligent. The damages to be in the amount of $35,000.” The verdict made no mention of the City of Newark for the obvious reason that the case was tried on the theory that the hospital was an agency of the city, and the city’s liability was derivative. Eor the purposes of the trial and for our purposes on appeal, the Hospital and the city are one and the same entity.

As soon as the verdict was received, defense counsel moved to reduce the verdict to $10,000 in accordance with the stipulation in the pretrial order limiting the hospital’s liability to $10,000 pursuant to N. J. S. A. 2A:53A-8. When the court asked plaintiff’s attorney if he objected to the motion, he responded “No, your Honor. I might add that the pretrial order does reflect that there was an admission that the hospital was, in fact, a non-profit institution.” Judgment was ultimately entered against the hospital and the city for $10,000. Plaintiff’s application to have judgment entered against the hospital and the city for $35,000 was denied. This appeal and cross-appeal followed.

We consider first the issue of whether the stipulations in the pretrial order, and the manner in which the case was tried, foreclose this appeal. We find they do. The City was a party to the suit in name only. This is evidenced by the following: (a) the pretrial order mentions the city only in the caption of the ease; (b) the city was not referred to during the entire trial; (c) the jury’s verdict was only against the hospital; (d) the parties stipulated in the pretrial order, as a matter of law, that under N. J. S. A. 2A:53A-8 the limit of liability was $10,000, although no limitation was placed on Dr. Kurland’s liability, and (e) the case was tried on that basis, as evidenced by defense counsel’s consent to the reduction of the verdict.

R. 4:25-1 makes it crystal clear that trials must be held within the framework of the pretrial order. The rule, in relevant part, requires the pretrial order to be dictated in open court, signed by counsel and the court, and it must recite: the admissions or stipulations of the parties; the factual and legal contentions of the parties; “all claims as to damages * * * and admissions or stipulations with respect thereto, and this shall limit the claims thereto at the trial * * and a specification of the legal issues to be determined at trial. The rule then provides:

When entered, the pretrial order becomes part of the record, supersedes the pleadings where inconsistent therewith, and controls the subsequent course of action unless modified at or before the trial or pursuant to R. 4:9-2 to prevent manifest injustice.

The philosophy of the rule as expressed in Lertch v. McLean, 18 N. J. 68 (1955), is applicable in the instant case, and worth repeating:

The pretrial order is a cornerstone in the building of our practice in the trial of cases under the new judicial system. One of the purposes of the rule, R. R. 4:29-1 [now 4:25-1] is to allow great liberality in forming and amending pretrial orders so that all phases of the controversy may be finally and justly determined between the parties but as we said in Schlossberg v. Jersey City Sewerage Authority, 15 N. J. 360, 370 (1954) :
“However, the flexibility and liberality allowed by our procedural system to enable the litigants before actually going to trial to identify and agree upon the issues really in controversy between them are not to be twisted into license to roam at will at the trial outside the agreed upon issues framed in that manner and reduced to expression in the pretrial order. Litigants may move about with greatest freedom during the pleading, discovery and pretrial stages of the action, but after the framework of the case has been settled under the pleadings and the pretrial order, the introduction of additional issues or a shift of ground from those agreed upon may be made over timely and meritorious objection only as permitted by R. R. 4:29-l(b) (15) and 4:15-2 applicable to amendments offered after entry of the pretrial order, or during trial.” (Italics supplied.)
The pretrial order in this case defining the issues of negligence between the parties as being in the alternative was never amended during the course of the trial and it controlled its course. Questions or issues not presented in the pretrial order are deemed to be waived and no instruction to a jury should be given by the court inconsistent with the order. Jenkins v. Devine Foods, Inc., 3 N. J. 450 (1950).
To allow deviations from the pretrial order as now sought to be done in the instant case would in effect amount to a nullification of the purpose of the rule and destroy the aims which it was intended to attain, to advance the orderly administration of justice, [at 72-73]

It is obvious that plaintiff’s present contention is an afterthought. The pretrial order charted the course of the trial, and the stipulations contained therein, not having been amended, are dispositive of this appeal. Mattia v. Northern Ins. Co. of New York, 35 N. J. Super. 503 (App. Div. 1955). Any other approach “would subvert an important aspect of the pretrial conference practice.” Saia v. Bellizio, 53 N. J. 24, 27 (1968).

Finally, a word with respect to plaintiff’s contention that the hospital does not fall within the purview of N. J. S. A. 2A:53A-8, et seq. Plaintiff contends the hospital is an agency of the city and cannot be categorized as a nonprofit corporation or a charitable institution. We disagree. Unquestionably, the Legislature intended to grant limited immunity to hospitals not operated for profit. N. J. S. A. 2A:53A-8 and 10. No sound reason exists for holding that a city hospital, organized as Newark City Hospital was under N. J. S. A. 30:9 — 13 el seq. for treating “indigent sick and disabled,” is not entitled to the benefits of the statute. See Kress v. Newark, 9 N. J. Super. 70 (App. Div. 1950), reVd on other grounds 8 N. J. 562 (1952), and Kent v. County of Hudson, 102 N. J. Super. 208, 219-220 (App. Div. 1968), aff’d 53 N. J. 546 (1969), wherein it is clearly inferrible that the statute applies to a county hospital.

Affirmed.