author: Goldman n, P. J. A. D.

text:
    JULIO CESTERO, INDIVIDUALLY AND PER QUOD, PLAINTIFF-APPELLANT (ON COUNTERCLAIM), AND CELIA CESTERO, ETC., ET AL., PLAINTIFFS, v. JENNIE FERRARA, DEFENDANT-COUNTERCLAIMANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1970
    Decided April 29, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Vincent D. Enright, Jr., argued the cause for appellant (Messrs. Earth & Enright, attorneys).

      Mr. Adrian I. Karp argued the cause for respondent (Messrs. Van Riper, Belmont & Villanueva, attorneys).
   The opinion of the court was delivered by

Goldman n, P. J. A. D.

Plaintiff Julio Cestero appeals from a Law Division judgment entered upon a jury verdict in favor of defendant-counterclaimant Jennie Ferrara for $60,000. The jury also returned a verdict of no cause of action on the complaint brought by Julio Cestero, his wife Celia, their two infant children Ivan and Wandi, and Carlos Cestero, owner of the car in which they had been riding, seeking recovery for personal injuries and property damage. No appeal was taken from the judgment embodying that verdict.

The actions arose out of a collision between the station wagon driven by Julio Cestero and the ear operated by Jennie Ferrara, at the intersection of Route 46 and Clinton Road in Fairfield Township, Essex County. Cestero’s wife and two children were passengers in the front seat. Cestero testified that he was traveling in the westbound slow lane at about 45 m.p.h. as he approached the intersection. The weather was clear, the roads dry and traffic moderate. The intersection was controlled by traffic lights and the speed limit for Route 46 was 50 m. p. h. Cestero said that the traffic light was green for him from a distance of 100 to 200 yards from the intersection up until- the time of impact. This version of the accident was corroborated by Mrs. Cestero and an independent eyewitness, one Calderone, whose deposition was read into evidence because he was out of the State and unavailable at the time of trial.

Mrs. Ferrara had been traveling north on Clinton Road. Her testimony was that she stopped at a red traffic signal controlling the intersection and when the light turned green in her favor she proceeded into the intersection after first observing that cars in both eastbound lanes and the westbound fast lane on Route 46 had stopped for the red light. She admitted that she never saw the Cestero vehicle before the impact, which occurred after she had crossed the eastbound lanes and the westbound fast lane on Route 46. The photographs admitted in evidence show that the Cestero vehicle ran into the side of the Ferrara car with considerable impact.

Defendant produced Mae Pezdic who testified that she had been traveling east on Route 46 and intended to exit therefrom by entering Clinton Road via a jughandle and then proceed across Route 46. She said that when she came off Route 46 into the jughandle she heard a crash and noticed that the traffic light controlling the intersection ahead of her, and through which the Ferrara vehicle had already passed, was definitely green for Clinton Road. However, it changed to red just as she reached Route 46.

Mrs. Ferrara’s first recollection of the events following the collision was during emergency treatment at the Mountainside Hospital where she had been taken by ambulance. She had sustained a comminuted fracture of the right femur and multiple contusions and lacerations. Dr. Greene, who performed an open reduction and set the fracture with a plate and nails, said that there was a question of brain concussion at the time. Following the operation Mrs. Ferrara was placed in a spica cast extending from the upper abdomen to below the ankle. The cast was removed some 3^2 months later, but during that period Mrs. Ferrara was readmitted to the hospital by ambulance on three occasions for additional treatment. Following removal of the cast she used crutches, and shortly thereafter went to one crutch and then to a cane. Dr. Greene testified that the injured leg was longer than the other, causing Mrs. Ferrara to limp. He said that she would limp and be plagued with continuing pain the rest of her life. The persistent pain was to a considerable degree caused by the position of the plate and pins, and this might require another operation to remove them. Another permanent residual of defendant’s injuries was a scar running a considerable length along the outer aspect of the right thigh, and this scar was shown to the jury.

The Cesteros produced Dr. Dilger, who had examined Mrs. Ferrara for trial purposes but had never viewed her x-rays or medical records. His conclusions as to the nature of her injuries and her condition was reached 18 months after the accident on the basis of a single examination. He testified that the alignment of the injured leg was very good, both legs were of equal length, there was no muscle atrophy, and there was a slight limitation of internal rotation of the hip. Counsel for the Cesteros had Mrs. Ferrara walk the length of the courtroom in the presence of the jury so that Dr. Dilger could observe the degree of her limp, although this had been done for the doctor’s benefit during an earlier court recess. Following the court demonstration the doctor said he had noticed that Mrs. Ferrara walked “holding the leg quite stiff, which is not normal” — in other words, her limp appeared to be exaggerated.

Mrs. Ferrara’s special damages to the date of trial totalled $4,500, an uneontested figure. Her age at the time was 37, and her life expectancy was given as 38.46 years. As the court noted in the course of the argument on plaintiffs’ motion for a new trial, Mrs. Ferrara looked at least 30 years older. A former licensed beautician, she had planned to open her own beauty salon. She testified she would not be able to open her own place because she could not stand for any length of time.

A day after Mrs. Ferrara had testified counsel for Carlos Cestero moved for a mistrial, claiming that while Mrs. Ferrara was on the stand testifying on direct examination about her limp and how people commented upon it juror No. 6 was crying. (As to this, more later.) Asked by the trial judge to explain how the juror was crying, co-counsel said that ‘Toth eyes were red and there were tears in her eyes. She bowed her head down and covered her eyes with both hands.” In denying the motion the judge said that he did not think the juror was emotionally involved; he did not observe the condition co-counsel described, nor had the court clerk, who faced the juror, or defense counsel. It is to be noted that neither the attorney who claimed to have witnessed the juror’s reaction nor his co-counsel had objected at the time when the observation was made. As it turned out, juror No. 6 was not one of the 13 jurors chosen to decide the case.

The record also shows that before the return of the verdict counsel representing Mr. and Mrs. Cestero and their children stated, out of the presence of the jury, his conviction that Mrs. Ferrara would prevail and the claim of the Cesteros would be rejected by the jury. After stressing the seriousness of defendant’s injuries, her high pecuniary damages, and the other proofs concerning the liability of the parties, he called upon his co-counsel, representing Carlos Cestero, to settle the case within policy limits because he believed the verdict would exceed those limits. As an inducement, he offered to withdraw the Cesteros’ claims against Mrs. Ferrara. Following a recess, during which co-counsel got in touch with the insurance company, he announced that the company felt that it had a defensible case but authorized him to offer Mrs. Ferrara $10,000. The offer was conveyed to her by her attorney and she rejected it as entirely inadequate.

Sometime after the jury verdict of 860,000 on the Ferrara counterclaim and no cause of action on behalf of the four plaintiffs, by a vote of 11-1, counsel for Julio Cestero moved for a new trial on the counterclaim, alleging that the verdict was against the weight of the evidence and the result of mistake, passion, partiality or prejudice. When the matter of juror No. 6 crying came up, the trial judge broke in and said

Let’s get this straight. The only thing that was seen was a tear, not crying. She didn’t break down and sob * S! *.
Nobody in the courtroom noticed it except [plaintiffs’ attorney] and one other attendant * * *. On further observation, myself, this woman may have had a congenital condition because it seemed to me her eyes were always red. * * * but she was not selected as one of the 12 jurors.

On the question of liability, the judge had this to say:

* * * It seems to me that there was no evidence that I could see that the jury could not properly find [for] Mrs. Ferrara.
This was a question of who had the green light on a dangerous intersection on Route 4C.

And as to damages, he observed, as already noted, that Mrs. Ferrara looked 58 and had a severe limp that was to stay with her the rest of her life.

Appellant Cestero asserts that there was a manifest denial of justice in the trial judge’s denial of his motion for a new trial, in light of the fact that Mbs. Ferrara “displayed emotion while on the witness stand, thereby causing a juror to weep.” lie recognizes that, generally speaking, whether “misconduct” in the form of a display of emotion by a party while on the witness stand is ground for a new trial lies within the sound discretion of the trial judge, and his ruling will not he reversed unless that discretion is abused. Annotation, 69 A. L. R. 2d 954, 956 et seq. (1960); and see Dolid v. Leatherkraft Corp., 39 N. J. Super. 194, 197-198 (App. Div. 1956) ; Schuttler v. Reinhardt, 17 N. J. Super. 480, 484, 486 (App. Div. 1952). However, he argues that a new trial should have been granted because defendant’s “misconduct,” even if involuntary, clearly had a prejudicial effect on at least one juror at the moment — an “improper influence” described as so strong that the juror was unable to control hex emotions. Further, the fact that the juror was not one of the 12 chosen to deliberate and participate in the verdict would not alter the force of the argument because, having sat through all three days of the trial (and fox lJ/¡ days after the incident in question), it is a reasonable inference that she had the opportunity of improperly influencing the remaining jurors.

The argument has the barest surface appeal and we reject it. First, neither of the two attorneys opposing the defense and counterclaim had commented at the time upon the alleged effect that Mrs. Ferrara’s emotional reaction while on the witness stand might have had on juror No. 6. They remained siletnt. It was the judge, and not counsel, who in the course of a settlement conference following Mrs. Ferrara’s appearance on the witness stand, mentioned that a court attendant had noticed a tear in the juror’s eyes. And, as we have observed above, when the motion for a mistrial was made the next day, the judge said that neither he, nor the court clerk or defense counsel had observed the juror’s reaction. We have already quoted from what the judge said about the matter at the hearing on the motion fox a new trial. We find no “misconduct” (to use plaintiff’s pejorative) on the part of Mrs. Ferrara. She may have been emotionally moved when questioned about her limp, but the statement in plaintiff’s brief that she “broke down and began crying” is not substantiated by the record. We find no evidence of a prejudicial effect upon the jury, particularly in view of the fact that juror No. 6 was not one of the 12 chosen to decide the case.

It is also argued that it was manifestly unjust for the trial judge to deny the new trial motion because he had made remarks in the presence of the jury which had the potential of prejudicing it in favor of defendant. What plaintiff complains of is the judge’s remark that there were no inconsistencies between defendant’s testimony and her witness Pezdie’s testimony, as compared with their respective statements made on deposition, and that these alleged inconsistencies pertain to crucial matters which should have been left for the jury’s ultimate determination. In Mrs. Ferrara’s case, the matter involved was how many lines of traffic in the eastbound and westbound lanes were stopped when she proceeded into the intersection on the green light; and in Mrs. Pezdic’s case the reference is as to just when she saw the traffic signal change with relation to when she heard the crash.

There can be no disagreeemnt with plaintiff’s argument that the judge must conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury. Each case must be judged on its own particular facts, and unless the remarks tend to prejudice the complaining party, the verdict will not be disturbed. Comparing the alleged inconsistent trial testimony with what was said on deposition, we conclude that there was no real contradiction in the testimony, and the judge correctly so found. It has long been held that a trial judge may comment on the evidence, and it is frequently his duty to do so, provided it is to assist and not control the jury’s findings. The control of examination, both direct and cross, resides in him, to the end that the proofs may be kept within reasonable bounds. His discretion in this respect is a broad one, and we will not interfere with its exercise absent a clear abuse of that discretion. Borowicz v. Hood. 87 N. J. Super. 418, 423 (App. Div. 1965), certif. den. 45 N. J. 298 (1965); Polulich v. J. G. Schmidt Tool, Die & Stamping Co., 46 N. J. Super. 135, 143-145 (Cty. Ct. 1957); Vargo v. P. Ballantine & Sons, 119 N. J. L. 561, 565 (E. & A. 1938).

This court dealt with a similar situation in Mitilenes v. Snead, 45 N. J. Super. 246, 250-252 (1957), where plaintiff contended that the trial judge had improperly refused to permit a witness to be cross-examined as to testimony given in a previous criminal proceeding arising out of the same accident, the contention being that it was inconsistent with his trial testimony. The trial judge said that he did not see a “sufficient clarity in contradiction to allow it." We found no error, particularly in view of the fact that counsel, as here, attempted to establish a contradiction by taking a single question out of context. The rulings of the trial judge in the present case were equally well founded and we find no error.

Defendant next argues that it was reversible error for the trial judge to admit into evidence that portion of the hospital record which, it is said, recited defendant’s version of the details of the accident. The part of the hospital record which was objected to was contained in the admission sheet:

Pt. stopped for red light, started up on green light and got bit. Believes she was unconscious but has no gross loss of memory other than this.

This was followed by “Complaining of pain in rt thigh, rt shoulder and head."

Evidence Buie 63(13), which deals with the business entry exception to the hearsay rule, provides:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

Declarations of an injured person as to his condition, symptoms and feelings, made to a physician for the purpose of diagnosis and treatment, are admissible in evidence. However, statements as to the cause of the symptoms or conditions are generally held to be inadmissible. Pinter v. Parsekian, 92 N. J. Super. 392, 394 (App. Div. 1966). In that case plaintiffs’ sole medical witness was permitted to testify over objection that his patient had given him a history which recited exactly how the accident had happened. This was held to be reversible error. And so in State v. Gardner, 51 N. J. 444 (1968), where defendant was charged with murder and the crucial question was whether he had participated in an unjustified attack upon the victim which resulted in his death. The hospital record contained phrases which stated that decedent was “struck from behind by a ‘2 x 4’,” “beaten up with a wooden club,” “had apparently been beaten tonight with a wooden club.” Other statements of similar import were contained in attached letters. The court held that these statements were not medical facts in that they contained information as to the cause of the injuries which came from a source other than the physician’s examinations and, as such, should not have been brought to the attention of the jury.

Dr. Greene testified that when he first saw Mrs. Ferrara in the emergency room of the hospital where she had been brought following the accident, there was some question in his mind of a brain concussion. Since there was every indication that she required immediate surgical intervention because of her severe comminuted fracture of the right femur, it was important that he determine just how serious her head injury might be. Her ability to recall what happened was therefore important to his diagnosis and his determination as to whether to proceed to operate.

Evidence Rule 63(12) declares that a statement is admissible “if it was made in good faith and it * * * (c) described to a physician consulted for purposes of treatment the inception, general character of the cause or external source of symptoms, pain or physical sensation where such a description was relevant to diagnosis and treatment.” And see the Report of the New Jersey Supreme Court Committee on Evidence, 175—177, 183—184 (1963). There is every indication that what Mrs. Ferrara told the admitting physician was spontaneous and made in good faith, within a very brief time after the accident, and so bears the hallmark of reliability.

Additionally, it is to be observed that even were the hospital record entry to be held technically inadmissible, it had minimum or no real prejudicial effect considered in the context of the entire case. Particularly, we have in mind the fact that Mrs. Ferrara was hit after she had crossed three lanes of traffic and was about to traverse the fourth (westbound slow lane) — a maneuver that no person in his right senses would attempt when the light was red against him.

Finally, it is claimed that a new’trial should have been granted because the verdict was excessive. We have referred to Mrs. Ferrara’s special damages, the severity of her injuries, the operation on her leg and her three subsequent readmissions to the hospital, the period of her wearing a cast and then walking on crutches and with a cane, her severe limp, her persistent pain, the scar she will bear for the rest of her life, her apparent aging from the accident, the abandonment of her plan to open her own beauty parlor, and her 38.46 years of life expectancy. The denial of a new trial will not be reversed unless it clearly appears that there was a manifest denial of justice under the law. Even where a trial judge believes that an award appears excessive to him — and that is not the ease here — it does not necessarily follow that a judgment based thereon is the product of mistake, partiality, prejudice or passion. Andryishyn v. Ballinger, 61 N. J. Super. 386, 395 (App. Div. 1960), certif. den. 33 N. J. 130 (1960); Fritsche v. Westinghouse Elec. Corp., 55 N. J. 333, 330 (1970). On review, we will interfere with the verdict on the ground of its alleged exeessiveness only with reluctance and never except in a clear case. Cabakov v. Thatcher, 37 N. J. Super. 249, 257 (App. Div. 1955). Wo conclude that the verdict was not disproportionate and that it was reasonably warranted by the proofs.

The judgment is affirmed.


source: Caselaw Access Project

author: Leonabd, J. A. D.

license: Public Domain

text:
    ANGELINA JOHNSON, PLAINTIFF-APPELLANT, v. JOHN MALNATI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1970
    Decided May 11, 1970.

      Before Judges Kilkenny, Labeecque and Leonabd.

      Mr. Avrom J. Gold argued the cause for appellant {Messrs. Irving & Barry R. Mendelbaum, attorneys)

      Mr. Robert R. Tarleton argued the cause for respondent {Messrs. Keale, Tarrant é Tarleton, attorneys; Mr. Arthur G. Stein, On the Brief).
   The opinion of the court was delivered by

Leonabd, J. A. D.

Plaintiff and defendant were the operators of two motor vehicles which were involved in a collision at the intersection of Columbia Avenue and Devon Street, Kearny, on December 28, 1961. Plaintiff instituted this action to recover for personal injuries and attendant damages and defendant counterclaimed for property damage to his motor vehicle. Following a jury trial limited to liability alone, the jury returned a verdict of no cause of action as to both parties. Only plaintiff appeals.

Her contention that the assignment judge committed prejudicial error in ordering this “simple tort” case to be tried on liability alone is without substance. On January 6, 1969, the day fixed for the trial, plaintiff’s attorney requested an adjournment on the ground that his medical witness was unavailable. The case was then on the trial list for over three years. Under these circumstances, we find no mistaken exercise of discretion by the trial judge in denying the request for an adjournment and directing the matter to proceed to trial solely on the issue of liability. B. B. 4:43-2(5), now B. 4:38-2(5).

Following the accident plaintiff was taken by police ambulance to the hospital emergency room where she was met by the attendant nurse who, at the trial, was called by defendant as a witness. The nurse testified, over objection, that plaintiff while in the emergency room told her that “she misjudged a turn and hit another car * * The nurse recorded this statement in the hospital report, which document she had with her while testifying.

Plaintiff contends that the testimony of the nurse was not admissible either as a present recollection refreshed or as past-recollection recorded and that the same should have been excluded by the trial judge. She asserts that the witness referred to the hospital report and read from it while testifjdng even though she could not say that it refreshed her recollection. Thus, plaintiff argues that the report was indirectly allowed into evidence even though the trial court had previously excluded it. However, the record discloses that the witness testified that her memory was refreshed “after reading it [the report].” In any event, under the circumstances here present, it was permissible for the witness to read from the report. Evidence Buie 63(1) (b) (iii). This point lacks merit.

Following the nurse’s testimony plaintiff was recalled to the stand as a rebuttal witness and asked to describe her condition in the hospital emergency room when she allegedly made the statement in controversy. Upon objection plaintiff was not permitted to answer. In the course oí the argument between counsel as to the admissibility oí this evidence plaintiff was allowed, out of the presence of the jury, to make a proffer of her proof wherein she described her condition as follows:

I had severe pain in my stomach from hitting the steering wliee1 and pains in my chest, and my face was bleeding. I had pains in my gums and lower chin and a few teeth were knocked out and X was bleeding profusely, and I had to have a towel up to my mouth to stop the bleeding.

Upon being questioned as to her mental condition plaintiff replied, “I don’t know. All I know I had terrible pain. I don’t remember anything else.” The trial court excluded this testimony upon the ground that the trial was limited to the issue of liability and that any testimony as to plaintiff’s injuries would have been prejudicial to defendant. Tn so doing the court erred.

Tt has been generally recognized that the party against whom an alleged admission is shown may introduce evidence to explain the statement and thus diminish its weight as an admission. He may show the circumstances under which the statement was made. 31A C. J. S. Evidence § 380, at 915-917; 3 Wigmore on Evidence (3d ed. 1940) § 1044, p. 737. We have held that a witness who is confronted with a prior inconsistent statement may, in an attempt to explain away the supposed inconsistency, testify to the circumstances surrounding the giving of the statement. State v. Athorn, 92 N. J. Super. 326, 329-330 (App. Div.), certif. den. 48 N. J. 355 (1966). We conclude that the same rule is applicable to admissions. Cf. Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N. J. 293, 304-305 (1953). Thus, plaintiff’s proffered testimony as to her physical and mental condition should have been received in evidence.

The mere fact that the trial was limited to the issue of liability and that evidence of her condition would involve a general description of her injuries is not sufficient reason to exclude that evidence. Where relevant evidence is admissible for one purpose and is inadmissible for another purpose, the judge should restrict the evidence to its proper scope and instruct the jury accordingly. Evidence Rule 6. Such evidence should not be excluded. Dolan v. Newark Iron & Metal Co., 18 N. J. Super. 450, 456 (App. Div. 1952).

Defendant asserts that plaintiff is precluded from raising the contention as to the admissibility of this testimony because her attorney chose not to use her as a rebuttal witness by voluntarily withdrawing her from the stand. The record does not support this contention. Plaintiff’s attorney made several persistent, unsuccessful attempts to introduce this evidence. Each time the court ruled against him. After the proffer of proof was made the court, with finality, ruled that the testimony was inadmissible. Following this, plaintiff’s withdrawal as a rebuttal witness must be construed as an act of “respectful submission rather than one of acquiescence.” Corbett v. VanKirk, 38 N. J. Super. 478, 484 (App, Div.), certif. den. 21 N. J. 549 (1956).

Having determined that the trial court erroneously excluded this testimony, we consider next the critical issue of whether plaintiff was thereby prejudiced. Defendant argues that testimony of plaintiff’s physical condition at the time she made the statement to the nurse was already in evidence, her deposition having been read to the jury by defendant’s counsel during his case. Therein, in response to the question of whether she remembered telling anyone while lying on a police stretcher in the emergency room that she had anissed her turn as she approached the intersection, plaintiff responded, “I didn’t tell them anything at that point. My moiath was bleeding and I was half in shock.”

However, it is not the inveterate rule that the mistaken exclusion of legally admissible evidence is necessarily rendered harmless by the event that its subject matter can he inferred from other evidence which was received or that its impact otherwise came to the general attention of the jury. Corbett v. VanKirk, supra, 38 N. J. Super, at 486. The influential character and relationship of the proffered evidence to a material point in controversy and the substantiality of the right of the party to have it admitted are considerations of paramount importance. Id. at 486. As we said in Corbett,

The problem loses complexity where the excluded evidence would have been of merely slight or conjectural value and related to a factual issue as to which there was no influential materiality in the ultimate decision of the case. Such an error does not ordinarily warrant a reversal of that final judgment. To the contrary, the erroneous exclusion of evidence the existence o£ which in the case might by reason of its relevant materiality to a cardinal contentious issue therein have in reason altered the verdict more favorably to tile appellant, the mistaken ruling is regarded as an injurious impairment of a substantial right [at 486]

Here, the conduct of each driver at or about the intersection was of prime import. Each had testified to his or her respective prudent driving. Plaintiff testified she had been proceeding east on Columbia Avenue for one block and intended to travel straight on through the intersection to the next block. If so, she contemplated no turns which she could have possibly “misjudged." Defendant stated that he had slowed down for a stop sign, came to a complete stop before going into the intersection and entered the intersection first. A witness for plaintiff testified that plaintiff entered the intersection first, that defendant did not stop at the stop sign, and that defendant admitted to him that he did not stop or slow down. Thus, the issue of liability was a close one and its resolution depended primarily upon the jurors’ assessment of the credibility of the witnesses.

It is also to ho noted that the proffered testimony more greatly detailed plaintiff’s physical and mental condition than did her deposition testimony. Further, the latter was an isolated statement which was contained in the more than 30 pages of testimony read to the jury by defense counsel. Under the totality of these circumstances, we hold that the exclusion of the proffered testimony as to plaintiff’s physical and mental condition at the time she gave the statement to the nurse was inconsistent with substantial justice and was clearly capable of producing an unjust result- B. B. 1:5-3 (b), now B. 2:10-2. This conclusion mandates a finding that plaintiff was prejudiced.

Judgment reversed and the matter is remanded to the trial court for a new trial in accordance herewith.


author: Pee Cxieiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES L. PAOLINO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 4, 1970
    Decided May 12, 1970.

      Before Judges Gonfoed, Collestek and Kolovsky.

      Mr. John A. Lynch, Jr. argued the cause for appellant (Messrs. Lynch, Mannion & Lutz, attorneys).

      Mr. Raymond B. Trombadore, Eirst Assistant Prosecutor, argued the cause for respondent (Mr. Michael B. Imbriani, Somerset County Prosecutor, attorney).
   Pee Cxieiam.

Defendant appeals from his conviction for bookmaking on the ground that although he waived jury trial through his trial attorney, his conviction on trial by the judge without a jxxry was void for absence of the written consent to waiver required by former B. B. 3:7-1 (a), now B. 1:8-1 (a).

The trial record indicates a thorough understanding of, and unequivocal assent in open court by the defendant, personally, to his attorney’s agreement to waive jury trial. In such circumstances the absence of a written consent does not go to the jurisdiction of the court to try the case without a jury. See State v. Ciniglio, 57 N. J. Super. 399 (App. Div. 1959), certif. den. 31 N. J. 295 (1960), where defendant consented, but not in writing, to the continuation of the trial with 11 jurors after one became ill. After conviction defendant repudiated his waiver on the ground it was not in writing, as required by then B. R. 3:7-l (b), now B. 1:8-2 (a). The court held the requirement of a writing to be procedural and its nonobservance not to require voiding the trial outcome, absent any indication of lack of fairness in the trial. There is no fundamental distinction between a right to trial by jury and a right to trial by a jury of 12. Patton v. United States, 281 U. S. 276, 288-289, 50 S. Ct. 253, 74 L. Ed. 854 (1930).

Analogous Federal Exile 23(h) has been uniformly construed to permit oral agreement made with the full and understanding consent of defendant in open court, to validate a trial without jury. Bayless v. United States, 381 F. 2d 67, 74-75 (9 Cir. 1967).

Trial courts and prosecutors should see to it that waivers are signed by defendants, as required for good reason by the rule. But in such circumstances as these absence of a written waiver is not fatal to the conviction.

Defendant’s second ground of appeal 3S that judges should not conduct nonjury trials in gambling cases "as a matter of public policy.” This is frivolous.

Affirmed.


author: Furman, J. S. C.

text:
    WILLIAM DEBOLD, GEORGE FULLER AND FREDERICK SMITHLINE, TRUSTEES IN LIQUIDATION OF CAMBRIDGE DEVELOPMENT CORP., A NEW JERSEY CORPORATION, PLAINTIFFS, v. TOWNSHIP OF MONROE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, MONROE PLANNING BOARD OF THE TOWNSHIP OF MONROE, AND JOSEPH INDYK, IND., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 20, 1970.

      Mr. Albert 8. Gross for plaintiffs (Messrs. Gross, Demeirakis and Donohue, attorneys).

      Mr. Richard S. Cohen for the defendants Township of Monroe and Joseph Inrhk.

      Mr. Joseph Ij. Slonaher for the defendant Monroe Planning Board of the Township of Monroe.
   Furman, J. S. C.

Plaintiffs seek a declaratory judgment that Cambridge Development Corporation (Cambridge) or its prospective purchaser may develop over 150 acres in a development known as Mill Lake Manor in Monroe Township in accordance with the zoning ordinance in effect in 1956, on 75' x 100' lots in die Residence B zone and on 100' x 150' lots in the Rural Residence zone. Minimum lot sizes were upgraded by a zoning amendment in 1957 to 100' x 100' lots in the Residence B zone and to 150' x 300' lots in the Rural Residence zone.

The ten years from 1956 to 1966 are a chronicle of sporadic minimal activity by the owners of Mill Lake Manor and acquiescence in the 1956 zoning status quo by the township. Preliminary subdivision approval for 1036 lots on 435 acres was granted by the planning board on April 37, 1956 and extended on February 10, 1959 until April 37, 1963 upon the condition that something lass than 10% of the entire tract be conveyed for school and other public purposes. After fulfillment of that condition and concurrence by the Middle-sex County Planning Board, final approvals were granted by the planning board on April 19 and October 15, 1962. When Cambridge took title in March 1966, 13 model houses had been built and 37 other houses had been partly built. Plaintiffs are the trustees in liquidation of Cambridge.

Cambridge proceeded expeditiously. On April 29, 1966 it filed with the planning board two performance bonds for improvements. Upon its application the planning board adopted a resolution on May 4, 1966 requiring compliance by Cambridge with prior planning board resolutions and planning board and other municipal agreements with its predecessor in title. Cambridge constructed an on-site and off-site sanitary sewer system, a storm sewer system and a water utility and distribution system servicing other developments as well as its own. It sold off sections of the entire tract known as Mill Lake Manor to another developer, who built a total of 524 houses in conformity with the minimum lot sizes under the 1956 zoning. The remaining unimproved areas are in two large sections and one smaller section not contiguous, in the Residence B zone, and two large sections, separated by the Spotswood-Englishtown Road, in the Rural Residence zone.

The right of Cambridge or its prospective purchaser to continue the development of Mill Lake Manor under the 1956 zoning was challenged by the newly appointed township attorney in a letter dated January 20, 1970.

Initially this court holds that the purported three>year extension of the preliminary subdivision approval was ultra vires and void. Hilton Acres v. Klein, 35 N. J. 570 (1961) thus construes N. J. S. A. 40:55-1.18. In Hilton Acres the Supreme Court allowed the developer to apply for a final approval within the eight months- remaining of the three-year period of the preliminary approval when the void extension of the preliminary approval was granted. To allow Cambridge to reapply for a final approval for subdivision of the unimproved sections, within the remaining two and a fraction months of the three-year period of the preliminary approval when the void extension was granted in 1959, would be to revert 11 years in derogation of the final approval already granted to its predecessor in title.

Defendant townshin and planning board contend that the final approval was void because based upon a void preliminary approval, relying generally upon Hilton Acres, supra. The plaintiffs counter that the holding of Hilton Acres in sanctioning a grace period breathes life into the final approval, winch was applied for and granted within six months after the decision in Hilton Acres, the first definitive authority that extensions of preliminary subdivision approvals are ultra vires and void. The final approval resolutions in fact refer to the preliminary approval in 1956, not to the extension of the preliminary approval in 1959.

Assuming the validity of the final subdivision approval in 1962, the next issue to be dealt with is whether the then owner’s rights lapsed because of its lack of reasonable diligence and expedition in developing Mill Lake Manor from 1962 to 1966. The planning board’s final approval on April 19, 1962 was conditional upon the posting of performance bonds by the then owner. This condition was met. Otherwise the record is meager as to any specific activities in the development of Mill Lake Manor from the second resolution of final approval on October 15, 1962 until the conveyance of the entire tract to Cambridge 3j4 years later. Various agreements and resolutions were entered into respecting sanitary and storm sewer system. Reliable Water Company was granted a franchise to operate a water works. Presumably the 13 model houses were built in a block off the Spotswood-Englishtown Road and the 37 other houses were partly built during this period. See Cella v. Cedar Grove Board of Adjustment, 45 N. J. Super. 585 (Law Div. 1957), requiring final subdivision approval prior to the issuance of a building permit.

When Cambridge took title in March 1966 the project was dormant. Construction of the 37 houses had been abandoned and vandalism of them had been rife for some time. The building permits which had issued were specifically determined to have lapsed according to the planning board resolution of May 4, 1966. Although granted approval of a subdivision of 1036 lots on over 350 acres, Cambridge’s predecessor in title had completed only the 13 model houses and the streets, sidewalks, curbs and gutters in the immediatel vicinity. Construction had not been undertaken on sanitary sewers, storm sewers or a water distribution system.

The Supreme Court by Justice Hall stated in Levin v. Livingston Tp., 35 N. J. 500 (1961) :

* * * the statute is presently silent. It could be argued therefrom that the Legislature thereby intends that time for completion of improvements and the effectiveness of final approval shall not extend beyond a reasonable date after the grant, [at 519]

This language has been favorably cited, although no reported decision has held that a developer’s rights were cut off because of failure to proceed diligently and expeditiously following a final approval. See Virginia Construction Corp. v. Fairman, 39 N. J. 61, 69 (dictum that over two years and seven months may be a “sufficient period”); United States Home & Develop. Corp. v. LaMura, 89 N. J. Super. 254, 262 (App. Div. 1965) (holding that approximately ten months “was not so unreasonable a time as to permit destruction of plaintiff’s rights by upgrading of lot sizes”); Mountcrest Est., Inc. v. Rockaway Mayor and Tp. Com., 96 N. J. Super. 149, 157 (App. Div. 1967).

These authorities deal with the issue whether thei upgrading of lot sizes by a subsequent zoning amendment invalidates a final subdivision approval. But the principles declared apply equally to thei cutting off of a developer’s right to proceed in accordance with the minimum lot sizes in effect at the time of his preliminary approval, which were already upgraded at the time of his final approval.

This court holds that the final subdivision approval granted in 1962 lapsed because of the failure of Cambridge’s predecessor in title to proceed with reasonable diligence and expedition. The then owner relinquished its right to subdivide into minimum lot sizes pursuant to the zoning in effect in 1956, because of inactivity and delay for a substantial part of the 3J^ years from 1962 to 1966. Cambridge can stand no higher. To prevail in this litigation plaintiffs must establish some right subsequent to 1962 to subdivide the 512 unimproved lots in conformity with the 1956 zoning, now superseded and upgraded 13 years ago.

George Fuller, one of the trustees in liquidation of Cambridge and its president, was first aware of Mill Lake Manor in 1965. He had conversations with the then mayor and the then township attorney, who assured him that the subdivision approval for minimum lot sizes under the 1956 zoning was valid and in effect. Reliance upon representations by township officials which were unauthorized and contrary to law created no estoppel against the township. Feldman v. Urban Commercial, Inc., 70 N. J. Super. 463, 478 (Ch. Div. 1961); 28 Am. Jur. 2d, Estoppel and Waiver, § 130 (1966).

The then mayor and the then township attorney asked for a commitment by Cambridge to supply sanitary sewer and water distribution systems to two developments north of Mill Lake Manor, described as badly in need of such improvements. Cambridge' so agreed, although not in writing, and eventually extended the sanitary sewer and water distribution system to service the two off-site developments.

Thei planning board resolution of May 4, 1966 was not, according to its terms, a final subdivision approval. It was drawn as an agreement, reciting the preliminary and final subdivision approvals, binding Cambridge to all agreements with its predecessor in title and all planning board resolutions, and imposing the condition of new building permits.

The Municipal Planning Act (N. J. S. A. 40:55—1.1 et seq.) is silent ás to any authority in planning boards to enter agreements to extend final subdivision approvals upon new conditions. Such authority cannot be derived from the general municipal authority to enter contracts (N. J. S. A. 40:50-l et seq.; see Midtown Properties, Inc. v. Madison Tp., 68 N. J. Super. 197 (Law Div. 1961), aff’d 78 N. J. Super. 471 (App. Div. 1963)), a fortiori not under the circumstance that the final subdivision approval had lapsed because of lack of reasonable diligence and expedition. According to N. J. S. A. 40:55-1.14, the procedure to modify a final subdivision approval should be! upon notice and hearing.

Nor can the resolution stand substantively as a final subdivision approval, although not so designated. It purported to authorize the development of over 150 acres in minimum size lots in violation of the zoning amendment of nine years earlier.

Thus the planning board resolution of May 4, 1966 must be held to have been ultra vires and void. Nevertheless, plaintiffs contend that the township is equitably estopped from contesting Cambridge’s right to develop the unimproved sections of Mill Lake Manor in conformity with the zoning in effect in 1956.

The equitable estoppel claim has several aspects: (1) Cambridge, in reliance on the 1963 final approval and the 1966 resolution, expended substantial sums of money on sanitary sewer, storm sewer and water utility and distribution systems for all of Mill Lake Manor, part of which is fairly allocable to the unimproved sections; (3) Cambridge', in reliance on the 1963 final approval and the 1966 resolution, expended substantial sums of money on the development of the unimproved sections; (3) Cambridge in reliance on the 1963 final approval incurred the cost of purchasing Mill Lake Manor, although the fair market value would have been substantially less if the development must be subdivided into minimum lot sizes under the 1957 zoning; (4) Cambridge, in reliance on representations of municipal officials, agreed to and in fact carried out sanitary sewer and water distribution improvements to service two nearby developments; (5) one of Cambridge’s predecessors in title conveyed tracts of substantial acreage and value for school and other public purposes, and (6) Monroe Township may not be heard to challenge Cambridge because of its issuing of over 500 building permits in the improved sections of Mill Lake Manor from 1966 on, all on lots in conformity with the 1956 zoning.

A distinction is drawn in Gruber v. Mayor, etc., Raritan Tp., 39 N. J. 1, 15 (1962), between municipal acts which are ultra vires in the primary sense—that is, utterly beyond the jurisdiction of the municipality, therefore precluding an estoppel based upon detriment in reliance—and municipal acts which are ultra vires in the secondary sense—that is, irregular exercises of a basic municipal power, which may be the basis for an estoppel. That distinction is immaterial in this litigation.

All the substantial expenditures by Cambridge were unrelated to the minimum lot size of the remaining unimproved sections. See Virginia Construction Corp. v. Fairman, supra at 72. The sanitary sower, storm sewer and water distribution systems would have been installed whether the development was to be on smaller or larger lots. The township engineer disclosed incidentally that the practice in the township has been to require developers to provide oil-site sanitary and storm sewers for the entire upland within a drainage area. The road patterns, as laid out, are suitable for development under the 1957 zoning in the unimproved sections of the Residence B zone. Modifications of the road patterns, as laid out, are necessary in the unimproved sections of the Rural Residence zone, but no preliminary expenditures would be lost as a result of such modifications. Nor would there be any financial detriment attributable to the preliminary grading which has been accomplished.

The excess purchase price argument must be rejected factually and legally. Cambridge was a volunteer in its purchase of Mill Lake Manor, relying for its right to proceed under the 1956 zoning on a final approval to its predecessor in title, then 3)4 years old and vulnerable as stale, and on informal statements by then township officials. The total value of the lots is fractionally less under the 1957 than under the 1956 zoning. But there is no credible proof that Cambridge would not derive profits or at worst break even if the minimum lot sizes in the unimproved sections conform to the zoning ordinance in effect for 13 years. Claims of hardship or substantial loss because of potential loss of profits have been disapproved in New Jersey decisions. Greenway Homes v. River Edge, 137 N. J. L. 453, 457 (Sup. Ct. 1948); Virginia Construction Corp. v. Fairman, supra at 71-73.

The various expenditures made for the benefit of the township and of the nearby developments would have been made regardless of the minimum lot sizes in effect. In addition, in the balancing of equities Cambridge has had the benefit of the nonenforcement of the 1957 zoning amendment for over three years while half the tract has been developed at the fractionally higher total purchase price attributable to the smaller lot sizes under the 1956 zoning.

The township did not waive its right to enforcei the 1957 zoning because of its issuing of building permits in conformity with the 1956 zoning. Failure to enforce or apply the law by municipal authorities is not a waiver, nor does it give rise to an estoppel in favor of someone who asserts his reliance that the law would not be enforced or applied. Kennedy v. Newark, 29 N. J. 178, 191-92 (1959); East Orange v. Bd. of Water Com’rs, etc., 41 N. J. 6, 17-20 (1963).

A final contention by plaintiffs is that Cambridge has a statutory right to proceed because of two certificates of subdivision approval issued by the township clerk, pursuant to N. J. S. A. 40:55-1.24, one on May 9, 1968 to a law firm representing Cambridge and one on January 13, 1970 to a prospective purchaser from Cambridge. That contention is untenable. The legislative purpose is not for the protection of the owner but for the protection of a subsequent purchaser or lienor who acquires his interest for value in reliance on such a certificate. N. J. 8. A. 40:55-1.25.

Judgment is rendered in favor of defendants for all the foregoing reasons.


author: Herbert, J. S. C.

text:
    WILLIAM H. GRAY, III, PLAINTIFF, v. SERRUTO BUILDERS, INC., A NEW JERSEY CORPORATION, MR. LAURENCE AND MRS. LAURENCE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 30, 1970.

      Mr. Samuel E. Bass for plaintiff (Messrs. Freeman & Bass, attorneys).

      Mr. Yale Manoff for defendants (Messrs. Weinberg and Manoff, attorneys).
   Herbert, J. S. C.

Plaintiff, a black man, complains that his efforts to rent an apartment were rejected because of his race. He sues for a mandatory injunction that a suitable apartment be made available to him, and for compensatory and punitive damages. Defendants are Serruto Builders, Inc., a Few Jersey corporation which owns the apartment buildings in question, and Mr. and Mrs. Laurence, the superintendent of the buildings and his wife.

Plaintiff comes here without having made any application to the Division on Civil Rights for relief under the Law Against Discrimination (N. J. 8. A. 18:25-1 ei seq. at the time the alleged cause of action arose; now N. J. 8. A. 10:5-l et seq. Eor the sake of convenience, all references hereinafter will be to the statute as it is currently numbered.) Defendants challenge the jurisdiction of this court on the basis of that act, asserting that the administrative proceedings there provided are to be exclusive of all others for the redress of civil rights violations. Apparently this issue has never been directly posed before.

I think defendants5 assertion is without merit. N. J. 8. A. 10:5-27 states in relevant part:

Nothing contained in this act shall be deemed to repeal any of the provisions of the civil rights law or of any other law of this State relating to discrimination because of race, creed, color, national origin or ancestry or liability for service in the armed forces of the United States; except that, as to practices and acts declared unlawful by section eleven of this act, the procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.

The Law Against Discrimination was apparently intended to supplement, rather than replace, previously existing law in the field of civil rights. The quoted statutory language makes the jurisdiction conferred by the act exclusive only when an administrative proceeding is pending or has been concluded, and not where, as here, such a proceeding has never been instituted. This view finds support in the case of Jackson v. Concord Company, 54 N. J. 113 (1969), where, in the context of an opinion holding that the Director of the Division on Civil Rights has authority to award an aggrieved individual money damages for out-of-pocket expenses incurred as a result of discrimination against him, Justice Hall said for the Supreme Court:

It thus appears, without dealing completely with all the ramifications of the exclusive remedy provisions of this section, that the complainant here, by pursuing his grievance to completion in the Division, would be barred ihereafter from whatever action at law for out-of-pocket losses he might have baa by reason of respondents’ unlawful discrimination against Mm. [at 128; emphasis added]

The inference to be derived is that a complainant does have access to the courts until such time as he chooses to pursue his grievance administratively.

Moreover, despite defendants’ assertion that plaintiff is basing his cause of action solely upon the New Jersey Law Against Discrimination, plaintiff’s claim in fact is much broader. The complaint states defendants discriminated icin violation of Federal laws and State laws and Federal constitutional rights and State constitutional rights of the plaintiff, William H. Gray, III, and Common Law rights of the plaintiff, and in violation of N. J. S. A. 18:25~1 et seq. and N. J. S. A. 18:25-4 * *

Whatever effect the Law Against Discrimination might be argued to have on actions for the redress of civil rights violations under state law, the statute cannot interfere with this court’s jurisdiction to decide plaintiff’s claims based on federal law. Cf. Testa v. Katt, 330 U. S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947), in which the United States Supreme Court held that a state court cannot decline to entertain an action to enforce a valid federal penal law.

Having concluded that the challenge to the jurisdiction l ist fail, I turn to the proofs on discrimination. In September 1967 plaintiff went to the Williamsburg Apartments — the buildings owned by defendant Serruto Builders — and met Laurence, the superintendent. He asked to see and was shown a one-bedroom apartment. He decided it would be suitable for his needs and made an offer to take it for three years at a rental somewhat lower than the rate quoted to him by Laurence. That offer was rejected but plaintiff did not lose interest. Thereafter he made a number of other attempts to get an apartment in the Williamsburg buildings, none of which was successful.

About the middle of December 1967 plaintiff got in touch with the Montclair Pair Housing Commission. On December 16th he was informed by the Commission that apartments were available. He went at once to the Williams-burg Apartments accompanied by the chairman of the board of trustees of the Union Baptist Church of Montclair, a church of which plaintiff is the senior minister. Mrs. Laurence answered the door of the superintendent’s apartment and then summoned her husband. Plaintiff again asked Laurence about a one-bedroom apartment. The reply was to the effect that plaintiff should not worry, that he was at the top of the list of applicants and might expect to hear from his application very soon. Plaintiff mentioned the vacancy sign which he had seen on his way to the door of the Laurence apartment. Laurence responded that the sign should come down and would be taken down right away, then went on to say that the next vacancy of a one-bedroom apartment was anticipated in June. After this meeting plaintiff went back to his office at the church. The time was about two-thirty or three in the afternoon.

About three-thirty that afternoon Dr. Bernard A. Koechlin and his wife were sent to the Williamsburg Apartments. They were members of the fair housing group and went in that capacity. They are white. After going to the superintendent’s apartment and meeting Laurence they were shown two different apartments — both of the one-bedroom type — which were for rent. They were told by Laurence that one of these could be occupied as of January 1, the rental being $210 a month including garage and storage space in the basement. They were told that the other would be available on February 1. Defendants did not deny at trial the charges that apartments were offered to a white couple on December 16, 1967 after plaintiff had been told earlier in the afternoon of that day that no apartments were available. No witnesses were called by defendants.

Thus plaintiff’s proofs stand uneontradicted and unexplained. From the evasive refusal to show an apartment to plaintiff on December 16, coupled with the treatment given to Dr. and Mrs. Koeehlin later the same afternoon, discrimination against plaintiff by reason of his color can be inferred; and I find that he was discriminated against because he is black.

It does not follow as a matter of course from a finding of racial discrimination that plaintiff has a cause of action. Having chosen to make no use of the administrative remedies provided by our legislation (N. J. S. A. 10:5-1 et seq.), he cites no oiher statute explicitly authorizing civil remedies, but relies instead on the common law doctrine that remedies should be available when established rights have been encroached upon. As plaintiff claims, the law is clear that there should be no racial discrimination in the sale or rental of housing accommodations,

42 U. S. G. A. § 1982 provides:

AH citizens of the United States shall have the same right, in every Si ate and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

This statute, first enacted in 1866, has recently been held by the United States Supreme Court to bar all racial discrimination, private as well as public, in the sale or rental of property. The court’s opinion by Mr. Justice Stewart upheld the statute’s constitutionality, not on the basis of the Fourteenth Amendment to the United States Constitution, which requires “state action,” but on the basis of the Thirteenth Amendment, which has been construed to authorize legislative elimination of “the badges and the incidents of slavery.” Jones v. Alfred H. Mayer Co., 392 U. S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968). The court was apparently untroubled by the lack of remedial provisions in section 1982 and held it to be a sound basis for the injunctive relief sought by Mr. and Mrs. Jones. The opinion contains no discussion of the issue in its text, but does say this in a footnote:

The fact that 42 U. S. C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy. [392 U. S. at 414, 88 S. Ct. at 2190, 20 L. Ed. 2d at 1193, fn. 13]

Jones v. Alfred H. Mayer Co., did not, however, require the court to rule upon the availability of damages as a remedy for a violation of 42 U. S. C. A. § 1982 and that question was expressly reserved. 392 U. S. at 414, 88 S. Ct. 2186, 20 L. Ed. 2d at 1193, fn. 14. Since its decision in that case, the United States Supreme Court has considered and approved of damages as a remedy under 42 U. S. C. A. § 1982. Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969). There Mr. Justice Douglas said in his opinion for the majority:

We held in Jones v. Alfred H. Mayer Co. that although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U. S., at 414, n. 13, 88 S. Ct., at 2189. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court.
$ $ & $ $
Congress, by 28 U. S. C. § 1343(4), created federal jurisdiction for “damages or * * * equitable or other relief under any Act of Congress providing for the protection of civil rights * * We reserved in Jones v. Alfred H. Mayer Co., 392 U. S., at 414r-415, n. 14, 88 S. Ct., at 2190, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.
Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U. S. C. § 1988, * * *
* * * * *• Sj£ *
This means, ns we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 5 Cir., 298 F. 2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below, [at 238, 90 S. Ct. at 405, 24 L. Ed. 2d at 803-394)

The opinion quoted with approval language from Bell v. Hood, 327 U. S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), and Texas & P. Ry. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874 (1916), to the effect that courts will fashion appropriate remedies for the violations of established rights, and that these remedies may properly include an implied right to money damages.

The Sullivan case was originally commenced in Virginia’s state courts. It clearly confirms the view that damages are available in state courts for violations of 42 U. S. C. A. § 1982. It also supports, by its language and by analogy, the view that damages are an appropriate remedy even though not expressly authorized by statute, when individuals are aggrieved by violation of their established rights under other statutory and constitutional provisions.

Though I doubt the need to look beyond Jones v. Alfred H. Mayer Co. and Sullivan v. Little Hunting Park, Inc. for authority to support a determination that plaintiff here has a cause of action based on the racial discrimination practiced against him, and that relief in the form of an injunction or damages or both may be given, much more authority may be cited.

N. J. S. A. 10:5-12, like 42 U. S. C. A. § 1982, is explicit in its prohibition of private racial discrimination in the sale or rental of real property:

It shall be * * * an unlawful discrimination:
* * * =;■ * * *
g. For the owner, lessee, sublessee, assignee or managing agent of, or other person having the right of ownership or possession of or the right to sell, rent, lease, assign, or sublease any real property or part or portion thereof, or any agent or employee of an; of these:
(1) To refuse to sell, rent, lease, assign, or sublease or otherwise to deny to or withhold from any person or group of persons any real property or part or portion thereof because of the race, creed, color, national origin or ancestry of such person or group of persons;
# * *

The statute is firmly based on our state constitution:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those * * * of acquiring, possessing, and protecting property * * *. [N. J. Const., (1947), Art. I, par. 1.]
No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right * * * because of religious principles, race, color, ancestry or national origin. [N. J. Const. (1947), Art. I, par. 5]

The power of a court to enforce rights conferred by the New Jersey Constitution, even in the complete absence of implementing legislation, has been settled. Cooper v. Nulley Sun Printing Co., Inc., 36 N. J. 189, 196 (1961). The right of employees to organize and bargain collectively, as declared in Art. I, par. 19 but without remedies being specified, was there held enforceable and it was said that an appropriate judgment, after the taking of proofs, might include an injunction restoring the discharged employee to his position and an award for lost pay.- Can it be said that a judicial remedy for • violation of an established right is to be implied only where no other adequate remedy has been furnished by the Legislature, or that creation by statute of administrative, procedures for relief, though expressly nonexclusive (N. J. S. A. 10:5-27), eliminates the need for a court-fashioned remedy like that of Cooper ? The good sense, from a policy standpoint, of an affirmative answer to this question is plain enough. Plaintiff could have pursued the administrative remedies provided, and thus could have obtained an award for his proven damages as well as an order that he be accepted as a tenant. Courts are busier than they should be to function at their best — a condition which gets worse, not better — and it may be said that they should not be expected in a well-ordered scheme of government to do things which other agencies have been instructed to do and are equipped to do. However, to hold the existence of nonexclusive administrative relief is a bar to judicial relief would conflict with the intent if not the letter of N. J. S. A. 10:5—27, and 1 take the view that plaintiff has a cause of action based upon paragraphs 1 and 5 of Article I of New Jersey’s Constitution and upon N. J. S. A. 10:5-12 (g).

In Raison v. Board of Education, Berkeley Tp., 103 N. J. L. 547 (Sup. Ct. 1927), a judicial remedy was made available although administrative enforcement processes were not used. On demurrer to an alternative writ of mandamus it appeared that the relator sought to have his child enrolled at a public school from which the child had been excluded because of color. The court.noted that the right to be admitted to a public school was “perfectly clear,” held that the court could pass over the respondent's point that the relator had not made use of existing administrative machinery, and overruled the demurrer.

Outside of New Jersey a number of cases have been found which support the conclusion that plaintiff Gray has a cause of action for violation of his civil rights.

Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 (S. D. Cal. 1961), recognized a federal cause of action for an airline passenger who has been subjected to undue preference or unjust discrimination. The cause of action was based on the Civil Aeronautics Act of 1938 and the Federal Aviation Act of 1958, although neither contained any specific authorization for private remedies for aggrieved individuals. The court in its opinion relied heavily on a decision to the same effect by the Court of Appeals for the Second Circuit in Fitzgerald v. Pan American World Airways, 229 F. 2d 499 (1956), and said:

The rationale of the decision in Fitzgerald, supra, is that inasmuch as the Civil Aeronautics Act makes it a Federal crime to violate its provisions * * * the case falls within the doctrine which permits treatment of a criminal stamte as creating a Federal cause of action in favor of members of the class for whose protection the statute was enacted.
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This doctrine, that specific statutory authority is not an essentia] prerequisite to the existence of power in the Federal courts to grant relief in damages to enforce the object or purposes of a particular statute, has ample support in precedent.
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Without judicial intervention to redress past violations of the statute, the rights of air passengers, as declared in the Act, to travel without undue preference or unjust discrimination would be robbed of vitality and the purposes of the Act substantially thwarted. It cannot be presumed, nonetheless, that the Congress intended no relief for past infringement of the Federal rights of air passengers there declared.
F.very pertinent consideration of reason and policy, therefore, points to the compelling desirability of permitting a Federal cause of action to the aggrieved passenger as a needed force to assure full compliance with the requirements of the Act. [0'itations omitted]

In Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927), the court held unconstitutional a Texas statute barring Negroes from participating in Democratic primary elections. The court held further that an action for damages could be maintained against judges of the election by one unlawfully denied the right to vote on the basis of that statute. Mr. Justice Holmes in his opinion placed little reliance on federal statutes authorizing a private cause of action. He seemed instead to base the right of recovery primarily on the Equal Protection Clause of the Eourteenth Amendment.

Hague v. Committee for Industrial Organization, 101 F. 2d 774 (3 Cir. 1939), modified on other grounds, 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423, dealt with an action to redress the deprivation under color of state law of the constitutional and statutory federal rights of free speech, peaceful assembly and freedom from unreasonable searches and seizures. The sole relief sought by plaintiff was injunctive, and money damages were not an issue except as they affected the $3,000 jurisdictional amount required by the federal court. In the course of his opinion for the Third Circuit Court of Appeals, Judge Biggs said by way of dictum that plaintiff’s cause of action was supported by federal statute and, further, that irrespective of any federal statutes “a right of action in the individual for damages for loss of political rights existed at common law” [citing Nixon v. Herndon, supra], 101 F. 2d at 789.

Another instance of damages for a wrongful interference with voting rights is Wayne v. Venable, 260 F. 64 (8 Cir. 1919). The case seems to rest squarely on the right to sue for a violation of fundamental constitutional rights. Judge Sanborn wrote for the Eighth Circuit Court of Appeals:

The right of qualified electors to vote for a member of Congress at a general state eleclion, which is also an election at which a Congressman is to be lawfully voted for and elected, is a right ‘fundamentally based upon the Constitution [of the United States], which created the office of member of Congress, and declared it should be elective, and pointed to ilie means of ascertaining who should be electors.
An action for damages in the proper federal court lies by a qualified elector for his wrongful deprivation of this right by a defendant or by an effective eonspiray of several defendants who deprive him thereof, [at 66]

A ease very close to the case before me is Anderson v. Vantages Theater Co., 114 Wash. 24, 194 P. 813 (Sup. Ct. 1921). There an action for damages was brought by a black plaintiff alleging that he was wrongfully denied a seat in defendant’s theater solely on account of his color. The Supreme Court of Washington held that plaintiff made out a civil cause of action on the basis of a penal statute prohibiting discrimination in public accommodations. The court said in its opinion by Justice Eullerton:

This statute, while penal in form only, is both penal and remedial in its nature and effect. In addition to providing for a criminal punishment of proprietors of such, places for discriminating against the admission thereto of persons on account of race, creed, or color, it confers rights upon the individual — it confers upon all persons, regardless of their race, creed or color, the right to be admitted to the places enumerated on equal terms with all others.
The person wrongfully discriminated againsc also has a civil, remedy against the person guilty of the wrongful discrimination. A contrary contention was made under a similar statute in Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718, 9 L. R. A. 589, 21 Am. St. Rep. 576. Answering the contention, the court said:
“But it is claimed by the defendant’s counsel that this statute gives no right of action for civil damages; that it is a penal statute; and that the right of the plaintiff under it is confined to a criminal prosecution. The general rule, however, is that, where a statute imposes upon any person a specific duty for the protection or benefit of others, if he neglects or refuses to perform such duty, he is liable for any injury or detriment caused by such neglect or refusal, if such injury or hurt is of the kind which the statute was intended to prevent. * * [194 P. at 815]

Anderson v. Pantages Theater Co. has been followed, in Washington by Browning v. Slenderella Systems of Seattle, 54 Wash. 2d 440, 341 P. 2d 859 (Sup. Ct. 1959). Browning concerned an action brought by a Negress for the emotional injuries she allegedly suffered as a result of defendant’s racial discrimination against her. The Supreme Court of Washington had little difficulty finding on the facts before it that plaintiff was not served in turn at defendant’s reducing salon solely because of her race or color and that this was a violation of Washington’s public accommodation statute. The court held that a private cause of action for damages could arise from a violation of that statute, notwithstanding the fact that it was criminal in form, saying:

This court * * * takes the position that the statute, while penal in form, is remedial in its nature and effect and gives to the person wrongfully discriminated against a civil remedy against the person guilty of wrongful discrimination. Anderson v. Pantages Theatre Co., supra.
* # * * * * *
Neither [established] administrative procedures, nor the penal provisions preclude the bringing of a civil action for damages, as is done here, for the violation of a right protected by the penal statute, [at 863]

Still another case supporting a cause oí action ior the plaintiff here is Pleasants v. N. B. & M. R. R. Co., 34 Cal. 586 (Sup. Ct. 1868), where plaintiff was denied access to defendant’s street car because she was colored. In an opinion primarily discussing the quantum of damages allowable, the court simply stated without discussion that a wrongful violation of plaintiff’s right would entitle her to damages. 34 Cal. at 590. And in Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D. Va. 1949), the federal district court held that plaintiff would have a cause of action for damages if, as alleged, she was refused service in a dining room and coffee shop at an airport solely on account of her color. A motion to dismiss that part of the complaint dealing with such claim for damages was overruled.

Only one case has been found in which a private cause of action was not recognized on the basis of a statute creating an allegedly violated right, and that case is distinguishable. The case is Bachrach v. 1001 Tenants Corp., 21 App. Div. 2d 662, 249 N. Y. S. 2d 855 (App. Div. 1964), affirmed 15 N. Y. 2d 718, 256 N. Y. S. 2d 929, 205 N. E. 2d 196 (Ct. App. 1965), where the Administrative Code of the City of New York was held to create administrative remedies and judicial remedies on the initiative of an administrative agency in cases of discrimination in housing accommodations, but not private or individual remedies. The decision turned on the court’s determination that the Legislature affirmatively intended to exclude individual remedies under the Code.

The foregoing review of cases leads to the conclusion that, without Jones v. Alfred H. Mayer Co. and Sullivan v. Little Hunting Park, Inc., the weight of authority supports plaintiff’s contention he has a cause of action which is enforceable in this court. Discrimination having been found as a fact, he is entitled to an injunction; but there are still questions to answer about his right to damages on the allegations made and proofs presented. The complaint alleges “anguish,” “embarrassment” and “personal sense of the attempt of degradation of [plaintiff’s] rights as a citizen.” No proof was offered of conventional money damages. Plaintiff has not claimed he paid higher rent at another location, or had expense for travel or for anything else because he was not living at the Williamsburg Apartments, or that he lost time from his work or paid medical bills.

The specific question of money damages for mental suffering caused by racial discrimination has not yet been decided in New Jersey. Jackson v. Concord Company, supra, upheld an award of damages for the additional rental and traveling expenses complainant incurred because he was wrongfully denied an apartment, but the Supreme Court there was not faced with and did not consider the question of compensation for mental suffering. Moreover, the court in Jackson was concerned with the authority of the Director of the Division on Civil Rights to award any damages at all under the statute; the opinion in no way indicates the permissible bounds of recovery in common law judicial proceedings.

New Jersey cases have long recognized, however, that mental suffering in one form or another is a proper basis for an award of money damages.

. In Harris v. D. L. & W. R. R. Co., 77 N. J. L. 278 (Sup. Ct. 1909), plaintiff sought damages for the “indignity” and “ignominy” he suffered when defendant’s conductor took away his commutation ticket. The railroad claimed in its defense that plaintiff had wrongfully permitted other passengers to use the ticket. In the course of his opinion for the court, Justice Swayze said:

It is argued on behalf of the plaintiffs in error that it was erroneous to allow recovery of damages for the indignity and ignominy. The suggestion is that these damages are limited to personal torts and cannot be allowed where the tort is merely the conversion of personal property. We are unable to see the distinction on principle. In the ease of injuries to the person, indignity and ignominy are the almost necessary accompaniment. In injuries to personal property the tort would not so often, perhaps not generally, be accompanied with circnmsiances of indignity and ignominy, but it may be so accompanied, and we think such a case is now presented.
We think that where the indignity is the natural and proximate result of the conduct of tile defendant, damages should be recovered, and in a case where a railroad company takes up a passenger’s ticket illegally and in a public manner, with circumstances virtually amounting to an imputation of fraud, a proper case is presented. In this respect we find no error, [at 280-28.1]

The decision below was reversed on other grounds and remanded for a retrial. The second time around the case finally came before the Court of Errors and Appeals (82 N. J. L. 456), which commented on the question of damages as follows:

[T]he authorities are at one that in the action of trespass, which is based on tlie taking being violent in contemplation of law, compensatory damages are recoverable for humiliation and indignity accompanying the wrongful act. [at 458]

In Spiegel v. Evergreen Cemetery Co., 117 N. J. L. 90 (Sup. Ct. 1936), plaintiffs sued for damages caused by defendant’s failure to inter the remains of their deceased father in the proper plot and in their presence. The court held that the right to bury the dead and preserve the remains is a quasi right in property, the infringement of which may be redressed by an action in damages. With regard to plaintiffs’ claim to damages for mental anguish, the court stated in its opinion by Justice Heher:

One utterly indifferent to the natural and probable consequences of such conduct will nor, be iieard to say that he did not intend them. A reckless disregard by the wrongdoer of the legal rights of the victim is properly classable as an intentional infringement — a willful wrong. And where, as here, a grievous injury to the feelings is reasonably certain to follow, that injury is presumed to have been intended, and the consequent mental suffering is compensable.
This was a wrongful invasion of plaintiffs’ relative rights, springing from the civil and domestic relations. It was a “legally protected interest” of the plaintiffs, the tortious invasion of which is actionable and malees the actor liable for mental or emotional distress. See Torts, A. L. I., §§ 47 (b) and (c). [at 96]

Kuzma v. Millinery Workers, etc., Local 24, 27 N. J. Super. 579 (App. Div. 1953) was an action brought by a husband and wife against a labor union and some of its individual members, charging them with having wrongfully contrived to obtain the wife’s discharge from her employment. The Appellate Division held that the trial court had jurisdiction of plaintiffs’ common law tort action notwithstanding the fact that the union’s conduct may have constituted an unfair labor practice under the National Labor Relations Act. Further, the court held that damages were recoverable for the wife’s mental anguish and emotional distress, saying:

As already indicated, where a discharge from employment is caused by the wilful, malicious and oppressive act of another, those results which may be said to be the natural and proximate consequences are compensable. Spiegel v. Evergreen, Cemetery Co., supra. More specifically, consequences which arc reasonably foreseeable by the tortfeasor measure the responsibility. Since it is foreseeable that a wrongful act, such as charged here, may produce mental anguish and illness, in our present state of society it is equally within the field of reasonable foresight that the mental anguish and illness of an employed wife may burden her husband with medical expenses and deprive him of her services and consortium, [at 592-593]

Morris v. MacNabb, 25 N. J. 271 (1957), allowed compensatory damages for plaintiff’s shame, humiliation and mental anguish caused by the defendant’s inducing her by fraud to enter into a marriage which he knew would be bigamous. The court (at 280) stressed in its opinion that the damages were recoverable due to the fact that the alleged wrong was willful and malicious rather than merely negligent, but this distinction is no longer wholly valid.

The old common law rule that damages for fright and mental anguish are not recoverable for negligent, as opposed to willful, torts unless there has been a physical impact was reputiated by the New Jersey Supreme Court in Falzone v. Busch, 45 N. J. 559 (1965). There Justice Proctor said for the court:

We hold, therefore, that where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded a? proper elements of damage had they occurred as a consequence of direct physical injury rather than fright Of course, where fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in seriousness and too speculative to warrant the imposition of liability, [at 569]

This requirement of “substantial bodily injury or sickness” does not appear in the cases of willful misconduct.

Racial discrimination is necessarily willful rather than negligent, and so the harmful results it causes should not have to be proven to he “substantial” under Falzone v. Busch. Indignity must be the natural, proximate, reasonable and foreseeable result of racial discrimination. As such, it should be held compensable under the Harris, Spiegel, Kuzma and Morris cases discussed above. This result would comport with the rule generally prevailing in other jurisdictions that a plaintiff is entitled to recover either nominal or actual damages for mental suffering caused by racial discrimination.

In Browning v. Slenderella Systems of Seattle, supra, it was said:

Damages may be had for mental or emotional distress, even in the absence of any physical injury, when caused by a wrongful act intentionally done.
An act of discrimination in violation of a statute must be classed as a wrougfnl act intentionally done. [341 P. 2d at 863]

While actual damages will he awarded when they can be proved, nominal damages will be presumed from the encroachment of an established right. The court in Spiegel v. Evergreen Cemetery Co., supra, said:

It is the established rule in this state that wherever there is a breach of contract, or the invasion of a legal right, the law ordinarily infers that damage has ensued. And. in the absence of actual loss, the law vindicates the right by awarding nominal damages. The injury imports damage. ¡117 N. J. B. at 96-97]

In Browning v. Slenderella Systems of Seattle, supra, the facts were close to that of the present case in that there was no public humiliation of any kind. Only nominal damages were allowed. Judge Hill’s opinion describes the circumstances of the defendant salon’s refusal to serve the Negro plaintiff as follows:

The entire record upon the question of damages in this case is that the plaintiff was embarrassed by not being served in her turn and being conscious of the fact that it was because of her color. In the plaintiff’s words, it was “Just tho total embarrassment of the whole situation.” The defendant’s receptionist, and the manager, were courteous to her at all times, although evasive as to when she could be served. There was no public humiliation; none of the other women in the reception room was aware that there was an act of discrimination. The plaintiff’s conversation with the manager took place in the foyer between the reception room and the treatment rooms, where no one could overhear what was said.
:;i ¿ * *
The effect of the discrimination was, of course, purely subjective. ¡341 P. 2d at 865]

The court ruled that under these circumstances a judgment for $750 was excessive, and damages were reduced to the nominal amount of $100.

Por another case lacking in aggravating circumstances and limiting compensation for mental suffering to nominal damages, see Wills v. Trans World Airlines, Inc., supra, where Judge Mathes wrote:

While actual damages for violation of a person’s right to travel as a passenger aboard an interstate air carrier may include compensation for plain and blatant instances of humiliation and outrage suffered * * *, the evidence at bar is not sufficient to warrant a conclusion that the outrage occasioned by plaintiff’s removal from flight 77 was such as to justify an award intended to compensate for plaintiff’s hurt feelings as an item of actual damages.
#*#**❖* *!*
When as here the extent and nature of injury to one’s feelings by public outrage cannot be established, an award of actual damages for such injury should not be granted. [200 F. Supp. 366-367]

On the other hand, Wright v. Chicago, Burlington & Quincy R. R. Co., 223 F. Supp. 660 (N. D. Ill. 1963), was also a case lacking public humiliation, excessive rudeness and other aggravating circumstances, and yet the court there allowed plaintiffs more substantial damages. Each of the two Negro plaintiffs was allowed $500 compensatory damages for the humiliation, pain and anguish suffered as a result of discrimination practiced against them in the sale of tour tickets.

In a case with a different context, Morris v. MacNabb, supra, a jury verdict of $1,500 compensatory damages was upheld for the mental anguish allegedly suffered by a plaintiff fraudulently induced into a bigamous marriage. Apparently the sole basis for the valuation was the plaintiff’s own testimony that as a result of the bigamous marriage and attendant publicity she was embarrassed and “ashamed to get out,” “couldn’t sleep” and “couldn’t eat,”’ “had terrific headaches” and “lost quite a lot of weight.” (25 N. J. at 281)

It is my judgment that plaintiff is entitled to damages as well as to an injunction. Though our New Jersey cases have placed some stress upon public and rude humiliation— factors not present here—those factors, either together or singly, are important because they are likely to produce more severe humiliation and anguish than polite or entirely private forms of discrimination would. Yet such aggravating circumstances are relevant only to the quantum of damages and do not go to the basic question of the availability of damages.

Dr. Davidson testified about the harmful effects of plaintiff’s realization that he had been a victim of race prejudice. There was another expert witness, Dr. Burke, who dealt primarily with results of personality and psychological tests, but I find his testimony of little help because of what to me seems a lack of connection between his findings and the particular discrimination which is the subject matter of this case. On the whole, the testimony as to damages did not persuade me that the legal injury suffered calls for compensation by a money judgment in any substantial amount. That in a sense is a tribute to plaintiff himself. Having had exceptional educational opportunities he has had the character and ability to take advantage of them. He earned a Bachelor of Arts degree at Franklin and Marshall College in 1963. Thereafter he studied at Drew Theological Seminary where he was awarded the Bachelor of Divinity degree. Since leaving Drew he has pursued, on a part-time basis, post-graduate studies at Princeton Theological Seminary. At Franklin and Marshall he was a varsity athlete in a number of sports and was co-captain of the basketball team. His parents were people of education and accomplishment. He is now and for' some time has been the senior minister of the Union Baptist Church of Montclair. This record of accomplishment by one still quite young is matched by the impression plaintiff makes in person. He is a man not likely to be bowled over by a single set-back.

With torts involving bodily force, a blow hard enough to injure seriously an aged or frail person—and, of course, be a basis for substantial damages—might be borne by a strong man with no bad effects beyond a temporary, though painful, bruise. I think plaintiff’s position in this case is that of the strong man, not that of the weakling.

It should be noted also that part of plaintiff’s irritation came from his dealings with a tenant who was trying to sublet. Plaintiff by mistake attributed to the management of the apartments a newspaper advertisement run by that tenant. Ho agency between the tenant and the management has been established.

Though it is difficult to have a feeling of assurance about an exact figure, I think a damage award of $500 to plaintiff is appropriate.

Plaintiff’s claim to punitive damages is denied. The record shows discriminatory conduct on December 16, 1967 by defendant Laurence. He was an employee of the owner. Beyond concluding that Laurence’s conduct supports a finding that discrimination was practiced, I have no way of knowing why he did what he did. It may be asked whether he followed orders (perhaps against his own inclination), or acted on his own initiative, or had taken a personal dislike to plaintiff; but no question of this class can be answered from this record. Plaintiff was the victim of an intentional tort inflicted by an employee who was acting in the course of his real or apparent authority, but there is no general rule that punitive damages are to be allowed for all intentional torts. There must bo an exceptional case involving circumstances and attitudes described recently in Di Giovanni v. Pessel, 55 N. J. 188, 190 et seq. (1970).

The judgment to be presented for signature should order defendant Serruto Builders, Inc., to accept plaintiff as a tenant on the same terms quoted in 1967. The time in which the order is to be carried out shall be long enough to enable plaintiff to complete, or otherwise end, the term of any lease he now has, and to permit him to have a fair selection of Serruto’s apartments.

It should be clearly understood that Serruto Builders, Ine., as a wrongdoer, must accommodate itself to the reasonable convenience of the plaintiff in adjusting the date an apartment will be ready for him to a date when he becomes legally free of an existing tenancy and ready to move into it.

The judgment will charge both Serruto Builders, Inc. and Laurence with payment of $500 in damages as well as costs. However, Laurence’s complete name will have to be supplied.

The case is dismissed as to Mrs. Laurence with costs, no evidence of wrongdoing by her having been presented.