author: Per Curiam.

text:
    ANNE BENNETT AND WILLIAM BENNETT, PLAINTIFFS-RESPONDENTS, v. HELEN GORDON, DEFENDANT-RESPONDENT, AND BOROUGH OF EAST PATERSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 13, 1968 —
    Decided June 6, 1968.

      Before Judges Goldmann, Kilkenny and Caeton.

      Mr. Leopold A. Monaco argued the cause for appellant (Mr. Luden Baron, attorney).

      Mr. Paul O’Rourke argued the cause for respondents Bennett (Messrs. Goldstein & Bailen, attorneys).

      Mr. Edward O. Ilillis argued the cause for respondent Gordon (Mr. Henry O. Habick, attorney).
   Per Curiam.

Plaintiffs Anne Bennett and her husband William brought this action to recover damages for personal injuries sustained when she fell on an up-raised portion of the sidewalk in front of premises owned by defendant Gordon in defendant borough. The trial court granted an involuntary dismissal as to defendant-property owner Gordon. The jury awarded damages to plaintiffs. Defendant borough appeals from the resultant judgment.

The facts are simple and essentially undisputed. About 9 p.m. on May 1, 1965 Mrs. Bennett, while on her way to visit a neighbor a few doors down Hillman Drive, tripped and fell over a concrete slab upraised about three inches higher than the rest of the sidewalk fronting on defendant Gordon’s property. She testified that although she was looking “down ahead” of her as she walked she did not see the raised slab. Acknowledging that she had prior knowledge of the condition of the sidewalk, she said that the street was dark on the night of the accident, that she “was not thinking about” the raised slab, and “didn’t pay any attention to it.” It seems conceded by all parties that a tree, planted over 25 years ago by defendant Gordon, caused the sidewalk fco heave at the point where plaintiff fell.

East Paterson had adopted an ordinance in 1953 creating a Shade Tree Commission. The terms of that ordinance provided that the Shade Tree Commission “shall have powers by virtue of the provisions * * * of N. J. S. A. 40 :64-1 to 14.” N. J. S. A. 40 :64-5 provides, among .other things, that such a Shade Tree Commission shall have the power to: • ■

“a. Exercise full and exclusive control over tlie regulation, planting and care of shade and ornamental trees and shrubbery now located, or which may hereafter be planted in any public highway *' * * including the planting, -trimming,-, spraying, care and protection thereof;
b. Regulate and control the use of the ground surrounding the same, so far as may be necessary for their' proper growth, care arid protection ; -' - !
c. Move or require the removal of any tree, or part thereof, dangerous to public safety ;.
e. Administer treatment to, or remove, any tree situate upon private property which is believed to harbour a disease or insects readily communicable to neighboring healthy trees in the care of the municipality and enter upon private property for that purpose, with the consent of the owner thereof * *

The ordinance made it unlawful for any person to do certain specified acts, including removing, cutting, breaking or injuring any tree or part thereof, in any way so as to injure or destroy any shade tree. It also prohibited any person from planting, taking down' or removing any shade tree without first having obtained written permission from the Commission to do so. The Commission was authorized to remove or require the removal of any tree or part thereof which was dangerous to public safety. Any person violating any of the provisions of the ordinance was made subject to a fine not exceeding $100.

Roy Roth, a member of the Shade Tree Commission, testified that the Borough had engaged independent contractors to work on the trees. He said that the only instructions given by the Commission were for the trimming of the trees to a height of 14 feet, painting them and removing the branches and debris. The reason for the 14-foot regulation was to provide clearance for garbage trucks and large trucks going through the streets. The work, he said, was limited- to trimming for road clearance because this was as much as the budget allowed. The procedure followed was to trim the trees of one section of the town during the first three months of the year and to rotate so that a certain section would be done each year during those same months. He testified that such work was done in the area of Hillman Drive in 1965.

Defendant municipality argues that its motion for dismissal should have been granted because plaintiffs failed to prove the municipality guilty of any active wrongdoing. Plaintiffs rely upon the authority of Hayden v. Curley, 34 N. J. 420, 428 (1961).

' Discussing the concept of “active wrongdoing,” Justice Proctor, speaking for the Court in Hayden, said:

“The negligent creation of such a public nuisance is usually the result of an affirmative act accompanied or followed by an omission. It is the omission which transmutes the condition created by llie prior affirmative act from a lawful obstruction into a nuisance. * * * Our courts have held that an affirmative act in the causative sequence resulting in injury is sufficient to sustain municipal liability. The last event * * * may be non-action, but the total sequence constitutes active wrongdoing.” 34 N. J., at pp. 425-426.

He then examined the evidence and assessed the municipality’s conduct as follows:

“By planting the tree, the city affirmatively created an obstruction in the public way. * s’ * By assuming sole responsibility for the maintenance of the tree [pursuant to a shade tree ordinance], the city also assumed the duty of avoiding dangerous conditions attributable to its growth. There was evidence that the city failed to fulfill that duty. Under these circumstances, the jury could have reasonably found that the planting of the tree without subsequent adequate inspection or maintenance constituted active wrongdoing.” 34 N. J., at pp. 427-428. (Emphasis added)

The underscored language clearly indicates that the key to the municipality’s liability in that case was its affirmative act of planting the offending tree. This act, coupled with the subsequent negligent omissions in inspection and maintenance, comprised a sequence held to constitute active wrongdoing.

In the present case also, there was evidence sufficient to support a finding of a negligent omission on the part of the municipality in failing to inspect or maintain the tree. However, the municipality’s affirmative act of planting it, found sufficient in Hayden to turn the scale in favor of liability, is not present here. Consequently, unless another affirmative act is shown to exist in this case, imposition of liability on the basis of active wrongdoing cannot be justified.

Plaintiffs assert the action of the governing body of defendant municipality in adopting the ordinance which created the Shade Tree Commission and authorized that agency to regulate the planting and care of ornamental trees comprises such an affirmative act. We do not agree that the mere adoption of the ordinance can be so regarded. That action represented the exercise of the governing body’s legislative power. Cf. Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214 (1966); Veiling v. Borough of Ramsey, 94 N. J. Super. 459 (App. Div. 1967). The ordinance simply provided the instrument or mechanics by which the municipality was enabled to undertake a phase or category of activities not theretofore exercised by it.

We view the function thus authorized as differing in no material respect from various other functions which this municipality, along with other municipalities, is authorized to perform under the powers conferred by the general legislation concerning municipalities. In no basic sense would the situation be different had the Legislature conferred this power of regulation directly upon the governing body or some other municipal agency. Mere negligence in the performance of such functions or mere failure to perform them has not up to this time been held sufficient to render a municipality liable in tort under traditional concepts of active wrongdoing as a basis for municipal liability. Cf. B. W. King, Inc. v. Town of West New York, 49 N. J. 318 (1967).

Moreover, the steps taken pursuant to the ordinance cannot be viewed as affirmative acts in the causative chain leading to plaintiff’s injury in the same way as the planting of the tree was found causally related to the injury in Hayden. Only the omissions connected with what the Commission's employees did are causally related to the accident; e. g., the failure to inspect, trim and remove the roots as well as the branches.

Nor are we persuaded that the presence of a provision in the ordinance prohibiting any person from planting or removing any shade tree without a permit and making it unlawful for anyone to do any act so as to injure or destroy any shade tree has the effect of changing the legislative nature of the municipality’s action so as to constitute an affirmative act.

Our conclusion is predicated upon the assumption that the traditional concept of active wrongdoing as a basis for municipal tort liability is still viable and that the authority of Hayden v. Curley in this area of municipal tort law remains unimpaired. We note, however, that recent cases involving municipal tort liability indicate that the old distinction between proprietary and governmental functions may no longer have efficacy. See B. W. King, Inc. v. Town of West New York, supra, 49 N. J., at p. 324; Bergen v. Koppenal, 97 N. J. Super. 265, 268 (App. Div. 1967), certification granted 51 N. J. 183 (1968). In its place, it has been said, has appeared the notion that

“[T]he relevant inquiry is whether or not the municipality is under a duty to act, as distinguished from a situation where the taking of any action is discretionary, or the matter involves the making of a basic governmental policy decision.” Bergen v. Koppenal, supra, 97 N. J. Super., at p. 268.

Our Supreme Court has indicated that the issue is not why immunity should not apply, but why it should apply. B. W. King, Inc. v. Town of West New York, supra, 49 N. J., at pp. 324-25.

Examining the factual situation presented here from that standpoint, we are satisfied that the municipality could, as it did, properly make a policy decision to limit the scope of the maintenance work on the shade trees in the municipality. Ror this it should not be held responsible in tort. The failure to do more than trim the branches of the trees was the result of budget limitations and the exercise of legislative discretion. See Visidor Corp. v. Borough of Cliffside Park, supra; Hoy v. Capelli, 48 N. J. 81 (1966); Amelchenko v. Borough of Freehold, 42 N. J. 541 (1964).

The borough also asserts on this appeal that the trial court erred in granting defendant Gordon’s motion for dismissal. This assertion is resisted only by defendant Gordon, plaintiffs taking no position on the issue. In our view Hayden v. Curley, supra, and Rose v. Slough, 92 N. J. L. 233 (E. & A. 1918), are dispositive. In both cases the court held that where a municipality assumes exclusive control of the trees within its territory an abutting property owner “will be exempt from liability to respond in damages * * * to an individual who has suffered an injury of which the tree was the producing cause.” 34 N. J., at p. 429; 92 N. J. L., at p. 239.

The fact that defendant Gordon, unlike the abutting property owners in Hayden and Rose, planted the offending tree does not change the legal situation. Here the municipality by its ordinance authorized the assumption of complete control and maintenance of the trees by the Commission and limited such control on the part of the abutting owner. It would-be obviously inequitable to subject the property owner to liability where he had no right to maintain the tree and no legal authority to remedy any danger it might create.

We note that the Shade Tree Commission was not made a party to the present suit and that responsibility for the alleged wrongdoing as between the respective municipal bodies was not an issue in this case. See Hayden v. Curley, supra. Consequently, and in view of our determination that the defendant is not liable under the circumstances of the present case, we express no opinion as to the effect of the following provision of the shade tree statute:

“Nothing in this chapter contained shall be construed to make any shade tree commission or any member thereof responsible for the death or injury of any person, or for an injury to any property or highway tree or shrub.” N. J. S. A. 40 :64-14.

Our determination that neither defendant is liable to plaintiffs in the present case makes it unnecessary to consider the additional arguments urged by defendant that plaintiff was guilty of contributory negligence as a matter of law and that the trial judge committed error in the instruction to the jury on the issue of contributory negligence.

The judgment appealed from is reversed with the direction that judgment bo entered in favor of both defendants.


source: Caselaw Access Project

license: Public Domain

text:
    JENNIE TANCREDI, PLAINTIFF-RESPONDENT, v. VINCENT TANCREDI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 20, 1968 —
    Decided June 6, 1968.

      Before Judges Sullivan, Eoley and Leonaed.

      Mr. George E. Sabbath argued the cause for defendant-appellant (Messrs. Saltzman and Swartz, attorneys).

      Mr. Hillard Ghapniclc argued the cause for plaintiff-respondent (Messrs. Krugman, Ghapniclc, Grimshaw At Dubow, attorneys).
   Per Curiam.

The Superior Court, Chancery Division, entered judgment against defendant for support arrearages in the sum of $30,240 and also directed him to pay plaintiff $20 per week for support and maintenance. From these rulings defendant appeals.

The parties were married in 1919 and divorced in 1949. By the terms of the divorce judgment defendant was required to pay $40 per week for the support of plaintiff and a child of the marriage.

On or about December 15, 1966 plaintiff proceeded against defendant upon a complaint and order to show cause. She sought a judgment for the total amount of arrearages allegedly due her under the 1949 divorce decree and an ordei requiring defendant to pay her support and maintenance. Defendant filed a crossmotion to eliminate the provisions for support and maintenance from the original divorce judgment.

The enforcement, collection, modification and ex-tinguishment of unpaid arrearages of support and maintenance payments are matters always addressed to sound discretion. Each case demands careful examination and weighing of all its essential facts. Liss v. Liss, 19 N. J. Super. 358, 361 (App. Div. 1952); Federbush v. Federbush, 5 N. J. Super. 107, 110 (App. Div. 1949); Madden v. Madden, 136 N. J. Eq. 132 (E. & A. 1945). If it appears that the wife has maintained herself for a considerable period of time without receiving the judicially prescribed support, equitable considerations dictate whether, and to what extent, the defending husband should be forced to pay arrearages. Madden, supra, at p. 136.

Here the trial court heard and determined these matters upon numerous lengthy affidavits filed by and on behalf of the respective parties. The affidavits submitted were contradictory on, inter alia, the following pertinent issues: (1) whether defendant ever made any payments to plaintiff pursuant to the 1949 judgment; (2) whether plaintiff supported herself since 1954, when she contends defendant terminated his payments; (3) why plaintiff waited 12 years before asserting her legal rights to the support arrearages; (4) whether the parties, prior to the 1949 divorce, entered into a binding agreement that defendant was to transfer certain assets to plaintiff in lieu of support, and whether pursuant to that agreement he assigned and transferred to her cash and other assets, and (5) what is the present financial status of the parties?

The trial court upon the affidavits submitted resolved the above-noted conflicts in plaintiff’s favor and found that “plaintiff is entitled under equitable principles to the relief which she is seeking.” In so doing, it abused its discretion.

Although a trial court may hear and decide a motion or an order to show cause exclusively upon affidavits, it should not do so when the affidavits show, as they do here, that there is a genuine issue as to material facts. See R. R. 4:44-4 and R. R. 4:85-5. Where the disposition of such proceedings hinges upon factual issues and credibility is involved, the court should, in the exercise of the discretion conferred by the aforementioned rules, take oral testimony. See Romano v. Maglio, 41 N. J. Super. 561, 573 (App. Div. 1956), certification denied 22 N. J. 574 (1956), certiorari denied 353 U. S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720 (1957). “Only by such procedure can a court make certain that it has fully explored the issue and correctly adjudged it. Urossexamination is the most effective device known to our trial procedure for seeking the truth.’ * * *” First National Bank of Freehold v. Viviani, 60 N. J. Super. 221, 225 (App. Div. 1960). The fact that counsel “waived oral testimony” should not deter the court from so proceeding.

Thus, under the circumstances here present, we conclude that this matter should be reversed and remanded for a plenary hearing.

jSTo costs.


author: Labrecque, J. A. D.

text:
    WILMA E. MUENCH AND PAUL MUENCH, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. MEDFORD LAKES COMPANY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1967 —
    Decided June 7, 1968.

      Before Judges Conbobd, Collester and Labbecqtje.

      Mr. James M. Davis, Jr. argued the cause for plaintiffs-appellants (Messrs. Powell & Davis, attorneys).

      Mr. Michael A. Orlando argued the cause for defendant-respondent County of Burlington (Messrs. Orlando & Cummins, attorneys).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiff Wilma E. Muench suffered serious injuries on the night of May 4, 1962 while walking on the left (east) side of Lenape Trail in the Borough of Medford Lakes. She stepped aside to avoid an oncoming car and fell several feet to the bed of a stream which ran beneath the road. In the subsequent suit to recover for her injuries and her husband’s per quod damages, there were dismissals as to all the named defendants except the County of Burlington (county). The jury returned a verdict of no cause of action in favor of the latter and plaintiffs appeal.

Plaintiffs reside on Lenape Trail, Medford Lakes, about .6 of a mile from the scene of the accident. Prom the testimony the jury could have found that Lenape Trail was a municipally maintained street about one mile in length running in a general north-south direction which crossed a stream known as Ballinger Creek by means of a structure maintained by the county which was designated on the county engineer’s bridge record as Bridge No. D5.133.

According to the record in question, the crossing over the stream originally had been by moans of a timber stringer bridge, 14 feet long, with stone abutments and wings, a wooden deck and wooden guardrails. In 1927 the wooden bridge was replaced by 40 feet of 36" corrugated pipe, surmounted by an earthen fill retained by concrete head walls. By the time of the accident a 36" concrete pipe had been (prior to 1952) substituted and the retaining wall was constructed of concrete topped by Belgian blocks. The water in the creek had an approximate depth of iy2 feet at the time of the accident. There was a low wooden dam where the creek entered the pipe. There was no railing on the east side of Lenape Trail at the point where Mrs. Muench allegedly fell.

The right-of-way of Lenape Trail was 66 feet wide. The traveled portion was two lanes wide, improved with an oiled surface and marked with a center line (which corresponded with the center of the right-of-way) at the point where it crossed the creek. The pipe was apparently not centered in the right-of-way, the center line of the road being 15 feet from the head wall on the east side and 26 feet from the corresponding head wall on the west. Prior to the accident, the last inspection of the structure by the county engineer’s office had taken place in 1952.

On the evening of the accident, shortly past midnight, Mrs. Mueneh was walking in a southerly direction on the east side of Lenape Trail towards her home. As she was proceeding a car approached her from the south traveling fast. It passed so closely that she was forced to step aside, and in doing so fell down the bank beyond the retaining wall into the creek. The street was not lighted, there was no sidewalk and the foliage was heavy and close to the road.

Although the pretrial order had listed as issues “negligence, contributory negligence, governmental immunity, contribution, ownership of bridge and Lenape Trail, dominion and control of the bridge and Lenape Trail,” the ease was submitted to the jury on the plaintiffs’ theory that the county had been negligent in the performance of its duty under the Bridge Act, R. 8. 27:19 — 1 et seq., and the charge was keyed to that statute.

R. 8. 27:19 — 1 provides:

“The board of chosen freeholders may construct, or acquire by gift, purchase or condemnation, and maintain and operate, and widen when necessary, viaducts and bridges, including drawbridges, in the county, when and where the public convenience requires, and keep all viaducts and bridges wholly within the county in repair and in safe condition for public travel.” (Emphasis added)

Prior to 1860 no action could lie by an individual against a county for injuries sustained in consequence of the failure to keep a county bridge in repair. Board of Chosen Freeholders of Sussex County v. Strader, 18 N. J. L. 108 (Sup. Ct. 1840). In that year the Legislature enacted a supplement to the Bridge Act which later became R. S. 27 :19-10. It now provides:

“If the board of chosen freeholders of a county, or boards of chosen freeholders of two or more counties, are chargeable by law with the construction, erection, rebuilding or repair of a viaduct or bridge, and shall wrongfully neglect to perform their duty in that behalf, by reason whereof a person shall receive injury or damage to his person or property, he may bring an action at law against the county or counties and recover judgment to the extent of the injury or damage sustained.” (Emphasis added)

The case was tried before the judge and a jury. Over plaintiffs’ objection, and in the face of a request to charge to the contrary, the trial judge left it to the jury to determine whether the structure in question was a bridge or viaduct within the intendment of the statute. The jury returned a verdict for defendant which was sustained on plaintiffs’ motion for a new trial.

Initially, appellants contend that under the evidence the issue of whether the structure was a bridge or viaduct as contemplated by the cited statute was a question of law for determination by the court. We are in agreement. The facts bearing upon the issue were not in dispute. The structure was fully described; its uses and function were obvious. Whether it was such a structure as came within the statute and thus called for the exercise of reasonable care by the county (providing the jury found it had constructed or assumed to maintain it) was for the court. It was error to submit this question of law to the jury for factual determination.

We turn next to consideration of the basic question, i. e., whether, as appellants contend, the statute was applicable to the structure in question. If it was not, plaintiffs suffered no prejudice by the improper submission of the issue to the jury.

At the trial, liability under the statute was resisted by the county on the ground, inter alia, that the structure was not a bridge bnt a culvert. A culvert has been generally defined as a transverse drain or waterway under a road, railroad, canal, etc., Webster’s New International Dictionary (2d ed. 1950). Although such a structure has sometimes been held to be synonymous with a bridge, Central Bridge and Construction Co. v. Saunders County, 106 Neb. 484, 184 N. W. 220, 223 (Sup. Ct. 1921), the weight of authority appears to be to the contrary, Board of Commissioners of Carroll County v. Bailey, 122 Ind. 46, 23 N. E. 672 (Sup. Ct. 1890); Cleveland v. Town of Washington, 79 Vt. 498, 65 A. 584, 585 (Sup. Ct. 1907); Williamson v. Hossley, 127 Miss. 505, 90 So. 184 (Sup. Ct. 1922); Floyd County v. Stewart, 97 Ga. App. 67, 101 S. E. 2d 879 (Ct. App. 1958).

Generally, the word “culvert,” as distinguished from “bridge,” has been applied to a pipe or sluiceway under a road utilized principally to carry off surface water. However, the structure here involved was much more than a culvert and certainly performed all of the functions of a bridge. The latter has been defined as a structure erected over a depression or obstacle, as over a river, chasm, roadway, railroad, etc., carrying a roadway for passengers, vehicles, etc., Webster’s New International Dictionary (2d ed. 1950). See Robinson v. Board of Chosen Freeholders of Passaic County, 91 N. J. L. 154 (E. & A. 1917); Whitall v. Board of Chosen Freeholders of Gloucester County, 40 N. J. L. 302 (Sup. Ct. 1878). Here the structure spanned Ballinger Creek which connected with a branch of Rancocas Creek which flowed into the Delaware River and through Delaware Bay to the ocean.

It is doubtful whether in 1860, when § 10 was enacted, structures of this type were in general use for the purpose of spanning streams of the size of Ballinger Creek. However, engineering has made much progress in the interim and now it is not unusual to find a wooden or steel structure replaced by a large pipe or a series of such pipes which permit the free passage of a stream while eliminating the maintenance problems of the old structure. The illustration which accompanies the definition of a culvert in Webster’s New World Dictionary of the American Language (1959) shows a concrete or stone arch bridge carrying a road over a stream. Webster’s New International Dictionary (1961) now gives as an alternate definition of a culvert “a bridge over a culvert” (emphasis added).

As noted, passage over Ballinger Creek had been accomplished until 1927 by use of a wooden timber bridge equipped with railings. Had that bridge remained in service the county undoubtedly would have continued liable for negligence in its maintenance. The county’s inspection record indicated that substantial repairs were needed and contemplated in 1927. The jury could have found that in lieu thereof the county elected to substitute the present structure. It contained an earth fill retained by headwalls in place of the old bridge deck, but lacked any equivalent of the guardrails which had been part of the old structure. It can hardly be denied that if guardrails had been furnished or the head-walls had been built up sufficiently high to perform that function, the structure would have qualified as a stone bridge spanning the stream. Cf. Mullen v. Board of Chosen Freeholders of Essex County, 107 N. J. L. 301 (E. & A. 1931). We see no reason to hold that, because of the absence of such guardrails, it was any less a bridge, especially since the jury could have found that the absence of a guardrail was one of the causes of plaintiff’s fall. It would be a departure from logic to permit the county to avoid the liability imposed by law upon it through what the jury could have found was a form of neglect against which that very law was intended to protect the traveling public.

By reason of the foregoing we are satisfied and hold that the structure in question was a bridge or viaduct as contemplated by § 10 of the Bridge Act. Here, in contrast with B. W. King, Inc. v. Town of West New York, 49 N. J. 318, 325 (1967), the Legislature has spoken and evidenced its clear intent that governmental immunity shall not apply in eases involving county bridges. Monaco v. Comfort Bus Lines, Inc., 134 N. J. L. 553 (E. & A. 1946). In King the court held “the analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply.” 49 N. J., at p. 325. Here, we see no reason why the Legislature’s positive declaration of duty should not apply.

The trial judge should have instructed the jury as a matter of law that the structure in question was a bridge, leaving it to the jury to factually determine whether the county was responsible for its construction or maintenance, whether it exercised reasonable care in doing so, and if it did not, whether its lack of due care contributed to the occurrence complained of and the injuries which followed. The omission to do so was error which requires reversal.

Turning to the remaining points raised, we are satisfied that plaintiffs’ motion for direction of a verdict in their favor on the issue of liability was properly denied, Mullen, supra, at p. 307, and that the issue of Mrs. Muench’s contributory negligence was for the jury. We find it unnecessary to pass upon plaintiffs’ contention that an endorsement on the county’s liability insurance policy precluded the raising of the defense of governmental immunity unless the County expressly requested the carrier to raise it. Cf. Hughes v. County of Burlington, 99 N. J. Super. 405, 414-15 (App. Div. 1968), certification denied 51 N. J. 575. Here the case was tried solely on the theory that the county was liable under § 10 of the Bridge Act, the existence and terms of the policy were not in issue, and there was no evidence adduced bearing thereon.

The judgment of the Law Division is accordingly reversed and the cause remanded for a new trial.


author: Lewis, J. A. D.

text:
    EDGAR P. SMITH, ET AL., PLAINTIFFS-RESPONDENTS, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MORRIS, ET AL., DEFENDANTS, AND KARL SCHROTH AND J. & M. ASSOCIATES, DEFENDANTS-APPELLANTS.
    Superior Court oí New Jersey Appellate Division.
    Argued March 25, 1968 —
    Decided June 7, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Howard 8. Mitniclc argued the cause for appellants (Messrs. Jacobs <& Mitniclc, attorneys).

      Mr. Garret A. Hobart, IV argued the cause for respondents (Messrs. Schenck, Price, Smith & King, attorneys; Mr. Harold A. Price and Mr. Hobart, of counsel and on the brief).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendants Karl Schroth and J. & M. Associates (herein developers) appeal from a judgment of the Law Division in favor of plaintiffs (herein objectors) dedaring null and void the preliminary approval of two major land subdivisions granted by defendants Planning Board and Township: Committee of the Township of Mortis.

The parcels involved are located in an E-2 residential zone (minimum size of. building lots 35,000 square feet) and are approximately 800 feet apart, with frontages on the northerly side of Spring Valley Eoad. The one is known as the Van' Cleve Estates or Cooper Tract, and the other as the Eggert Tract. In voiding the approvals, the trial court held that the board and township committee disregarded the provisions of the township’s Land Subdivision Ordinance restricting to 600 feet the length of dead-end streets and that their action in so doing represented an “arbitrary exercise of zoning authoritj1'.”

It is here argued (1) the board had the power to approve subdivision plans which provide for streets in excess of 600 feet and properly exercised it, and (2) the Eggert subdivision does not contain a dead-end street in excess of that length.

A resumé of the background facts will be helpful in casting' the critical' issues in their proper perspective.

The Cooper Tract

The Van Cleve development consists of approximately ten acres and contemplates eight building lots with a single access street, “Charlotte Lane.” The street begins at Spring Valley Eoad and the westerly borderline of the tract, and follows an irregular course through the property for a distance of approximately 1100 feet, terminating with a culde-sac in the northeasterly corner of the property.

Developers’ initial application to the board was for a minor subdivision of two lots out of the ten acres. It was reviewed at a conference meeting on April 6, 1964, at which time concern was evinced as to development plans for the remaining acreage. Subsequently, a plat for the entire tract was submitted for classification and, on July 20, 1964, it was classified as a major subdivision. Within a month thereafter application was made for preliminary approval and then followed a series of conference meetings, regular meetings and publie hearings at which the neighboring plaintiffs and their counsel voiced objections.

The principal problems involved the adequacy of water supply and storm drainage, the installation of sanitary sewers, zoning compliance and the acquisition of easements, all of which necessitated sundry negotiations with the township engineer, board of health, sewer survey committee, water department, county planning board and county park commission. However, at a regular meeting on December 21, 1964 a member of the board made inquiry as to the length of the road, to which the chairman replied, “this is not a permanent dead end street * * * it is up to the discretion of the Board to approve a dead end street of this length if they feel that it will eventually continue through.” The minutes of an adjourned hearing on March 15, 1965 reveal that when objectors’ engineer was questioned concerning the length of the dead-end street, ho “pointed out that the Planning Board has the right to use their own discretion and vary from the provisions of the ordinance,” and that the developers’ engineer observed, “there are other roads of this type in this municipality and in several other municipalities.”

On April 19, 1965 the board granted conditional preliminary approval, whereupon plaintiffs appealed to the township committee, which held a publie hearing on June 3. The latter affirmed the action of the board after making the following determination:

“* * «■ (a) ag aji 0f yjg matters raised by the appellants, the Township Committee finds and determines that no basis of fact exists to substantiate the appellants’ objections to this preliminary approval; (b) as to all of the actions taken by the Planning Board, all of which have been reviewed by this Committee, the Committee finds that the Planning Board acted properly in all respectsj; (c) that McCrosky-Reuter, Morris Township Planning Consultants, having reviewed the preliminary subdivision, recommends to this Township Committee that the subdivision is in order and should be approved.”

The Eggert Tract

The Eggert subdivision, approximately 18 acres, was designed for 14 building lots to be serviced by two thoroughfares. The first, a bisecting street, “Blue Stone Terrace,” is projected to extend at right angles to Spring Valley Road for a distance of approximately 890 feet toward the rear of the development where it dead-ends with a cul-de-sac. The second road, “Marshall Lane,” emerges at right angles from that access street (about 550 feet from Spring Valley Road) and continues in a westerly direction for approximately 290 feet to a cul-de-sac at the westerly side of the tract. At this juncture we note there is no merit to the contention that “Blue Stone Terrace” is not a dead-end street in excess of 600 feet because it is intersected by “Marshall Lane.”

The tract was classified as a major subdivision on March 15, 1965. Objections, problems, proceedings and hearings then ensued similar to those encountered by the developers with respect to the Cooper tract. On August 16, 1965 the board granted preliminary approval subject to stated conditions. That decision was appealed to the township committee which held a public hearing in September at which time the engineer for the objectors expressed criticism of many things but not the length of the streets. On November 11, 1965 the Township Committee, after a public hearing, affirmed the action of the board by a resolution in form substantially the same as the one adopted for the Cooper tract.

In Lieu Proceedings

Plaintiffs instituted separate proceedings in the Law Division to set aside the respective subdivision approvals; the actions were consolidated for trial. In substance, plaintiffs claimed: (1) procedural inadequacies; (2) the approved plats were not properly designed from an engineering viewpoint; (3) provisions for water supply, drainage and sewerage disposal were insufficient; (4) the board improperly interceded oil the developers’ behalf in negotiations for an easement from the county park commission and board of chosen freeholders; (5) an easement for sewer mains could not be obtained; (0) the township committee unduly relied upon the opinion of planning experts, and (7) the approvals violated the municipal ordinance with respect to the limitations upon length of dead-end streets (we note that (7) was argued at the trial as to both tracts but at the pretrial it was relied upon by plaintiffs only with respect to the Cooper tract).

The developers and the municipal defendants filed answers averring, in substance, that the preliminary approvals were reasonable and legal, they were granted after a complete investigation and public hearings, and that the actions of the board and township committee were within proper municipal jurisdiction and discretion. Additionally, the developers filed a counterclaim against the plaintiffs for compensatory and punitive damages, charging tortious interference with economic advantages accruing to them in the lawful development of their property.

All of the issues raised by the objectors, except those relating to the roads, were resolved in favor of defendants. The trial court’s findings against plaintiffs are amply supported by the record and should not be disturbed.

The judgment adverse to the developers was predicated solely upon a determination that the municipal bodies acted “in total disregard” of the local ordinance restrictions on the length of dead-end streets. The trial judge so concluded “with a great deal of regret,” stating:

“It is clear to me that the public interest was ever foremost in the minds of ihe municipal officials. It is regrettable that in a matter of this dimension one departure from the requirements imposed by law should vitiate such a laudable effort. In my view, however, that one departure is one of considerable substance.”

In the course of argument on a motion to settle the form of the judgment, counsel for the municipal bodies requested that the matter be remanded to the planning board to consider whether the subdivider-defendants were entitled to a relaxation of the ordinance requirements within the framework of its provisions. The trial court declined to do so. At the same hearing plaintiffs moved for a dismissal of the developers’ counterclaim, which was granted with the comment that if “plaintiffs’ complaint is ultimately dismissed on an appeal, the defendant [s] should have the opportunity at least to have the issue further examined.”

Dead-End Streets Issue

We turn now to' the township land subdivision ordinance. Article VIII, “Design Standards,” section 2, “Streets,” (m) provides that “Dead-end streets (culs-de-sac) shall not be longer than '600 ft. * * Article XI, “Administration,” section 1, reads:

. «* * * if the subdivider or his agent can clearly demonstrate that, because of peculiar conditions pertaining to his land, the literal enforcement of ope or more of these regulations is impracticable or will exact undue hardship, the planning board may permit such variance or variances as may be reasonable and within the general purpose and intent of the rules, regulations and standards established by this ordinance.”

It is thus perfectly clear that the planning board does not have the absolute authority and discretion to approve plans which are at variance with the express terms of the local legislation. The ordinance under review was adopted pursuant to N. J. S. A. 40:55-1.1 et seq. (L. 1953, c. 433), the enabling legislation known as the Municipal Planning Act. Certain pertinent sections should be noted:

N. J. S. A. 40:55-1.14 permits the municipal governing body to provide by ordinance for the regulation of subdivisions within the municipality by “approval of the planning board acting' in lieu of the governing body of all plats,” provided such 'ordinance “establishes regulations, requirements, and standards for plat approval by the planning board.”

N. J. S. A. 40:55-1.15 provides that the governing body shall adopt by ordinance “standards for approving the design of subdivisions and the required street improvements, requirements for the submission of subdivision plats, and the procedure to be followed by subdividers.” It also contains a provision that “Where there is a municipal zoning ordinance, the standards in the subdivision ordinance with respect to minimum lot sizes and lot area requirements shall be identical with the provisions of the zoning ordinance.”

N. J. S. A. 40 :55-1.19 mandates that on an appeal to the township committee, and after hearing thereon, “The findings and reasons for the disposition of the appeal shall be stated on the records of the governing body.”

N. J. S. A. 40 :55-1.20 states that the planning board shall require, “among other conditions in the public interest,” that the tract shall be adequately drained, shall have streets of sufficient width and grade to accommodate traffic and fire fighting equipment and shall be coordinated so as to compose a convenient system, conforming to the official map or, if there is no official map, “relating properly to the existing street system.”

Municipalities are vested with a broad delegation of authority to promulgate “regulations, requirements and standards” governing subdivision approvals and, since their power is to be broadly construed, they have the right to adopt a variance procedure if it be appropriately circumscribed in its scope.

This is not a case dealing with a grant of an “undue hardship” variance from a municipal zoning ordinance, and the analogous authorities to which we have been cited, interpreting N. J. S. A. 40 :55-39(c), are not controlling. Municipal planning embraces zoning but the converse does not hold true. Planning legislation and zoning, although sometimes deemed a single conception, do not cover identical fields of municipal endeavor. Angermeier v. Sea Girt, 27 N. J. 298, 308 (1958). Cf. Smilow v. Orange Planning Board, 58 N. J. Super. 108 (App. Div. 1959). “Zoning covers the immediate use of land, while planning restricts transferability-and future use.” Stoker v. Town of Irvington, 71 N. J. Super. 370, 379 (Law Div. 1961). It is pointed out in Note, “Land Subdivision Control,” 65 Harv. L. Rev. 1226, 1227 (1952) :

“Zoning presupposes that the needs of the community have become sufficiently crystallized to permit the enactment of specific regulations. Subdivision control, on the other hand, establishes more general standards to be specifically applied by an administrative body in order to insure that the change of use will not be detrimental to the community.”

The action of the planning board must be viewed in light of the legislative intent and purpose in enacting the Municipal Planning Act and the objectives sought by the township in adopting an ordinance implementing that legislation. Municipal agencies, when considering land subdivision problems, should bear in mind that more is involved than the mere buying, selling, using and developing of land, for “subdividers are dealing in the permanent assets of the community.” Haar, Land Use Planning, p 347 (1959). It is the planning board’s duty “to protect the public and future owners of property in the subdivision by requiring, among other conditions, adequate road facilities.” Noble v. Chairman and Tp. Com. of Mendham Tp., 91 N. J. Super. 111, 119 (App. Div. 1966), certification denied 48 N. J. 120 (1966). See also Newark, etc., Cream Co. v. Parsippany-Troy Hills Tp., 47 N. J. Super. 306, 333 (Law Div. 1957); Levin v. Livingston Tp., 35 N. J. 500, 511 (1961); Cunningham, “Control of Land Use in New Jersey Under the 1953 Planning Statutes,” 15 Rutgers L. Rev. 1, 49-50 (1960); Williams, “Development Controls and Planning Controls: The View from 1964,” 19 Rutgers L. Rev. 86, 94-95 (1964).

In the instant matter a relaxation or “variance” with respect to the length of dead-end roads, which the subdivision ordinance purports in general terms to authorize, within the concept of law applicable to municipal planning, is dependent upon the board’s findings of fact and a decision based thereon that the subdividers have “clearly” demonstrated to the board’s satisfaction, in the first instance, that because of the peculiar conditions of the subject land a literal enforcement of the maximum road length would be “impracticable” (a term not used in zoning, N. J. S. A. 40 :55-39(c)), or that it would “exact undue hardship,” and also, if such a variance be granted, it would be “reasonable” and “within the general purpose and intent of the rules, regulations and standards” established by the ordinance. Article XI, section 1, supra.

The planning board, however, made no fact findings upon which a reviewing court could pass judgment on the propriety of its conclusion. Indeed, as the trial court stated, the problem “received little attention” although “upon occasion isolated comment appeared and the matter was forgotten, for the moment at least.”

Neither of the preliminary approvals made any reference to the need for a variance. The municipal bodies manifestly misconceived a fundamental requirement of the ordinance and acted under a mistaken belief as to their authority. It is plain from a reading of the record that throughout the local proceedings the municipal defendants, the engineers who testified and all interested parties assumed that the board had the unfettered right to approve plat plans embracing dead-end streets that exceeded the prescribed maximum length. In this, of course, they were in error and, accordingly, the Law Division was justified in finding that the municipal action in that regard represented an arbitrary exercise of authority. However, in the circumstances, the trial court should have granted the request of the municipal defendants for a remand. Compare Mansfield & Swett, Inc., v. Town of West Orange, 120 N. J. L. 145, 160 (Sup. Ct. 1938). Cf. Stafford Smith v. Zoning Bd., etc., Madison, 59 N. J. Super. 553, 560 (App. Div. 1960); Highpoint, Inc. v. Bloomfield Planning Board, 80 N. J. Super. 570, 574-575 (Law Div. 1963), reversed 87 N. J. Super. 58 (App. Div. 1964).

Justice to all concerned requires a remand by this court to the board for a re-examination of the road plans and to make essential findings within the intendment of the township land subdivision ordinance as distinguished from the zoning ordinance. The board shall make specific findings as to whether a strict enforcement of the subdivision ordinance limitation on the length of dead-end roads, in light of the overall municipal planning, would be “impracticable” or would “exact undue hardship” because of the peculiar conditions pertaining to the developers’ land, and whether a variance or relaxation of the 600-foot length requirement would be reasonable and within the general purposes and intent of the subdivision ordinance.

The matter is remanded to the planning board for further proceedings not inconsistent with this opinion.

So ordered. We do not retain jurisdiction.


author: Antell, J. S. C.

text:
    BENJAMIN SHALIT AND MILDRED SHALIT, PLAINTIFFS, v. INVESTORS SAVINGS AND LOAN ASSOCIATION, A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued May 3, 1968 —
    Decided May 15, 1968.

      Mr. Julius Stein for plaintiffs (Messrs. Stein & Stein, attorneys).

      Mr. John P. Walsh for defendant (Messrs. Herrigel, Bolán and Herrigel, attorneys).
   The opinion of the court was delivered by

Antell, J. S. C.

(temporarily assigned). Plaintiffs sue for $14,635 which they paid for defendant’s waiver of its right to accelerate payment of a certain bond and mortgage executed by plaintiffs. Plaintiffs argue that the payment is usurious, was made under duress, and that the receipt thereof exceeded defendant’s authority under the laws governing Savings and Loan Associations. On this motion by defendant for summary judgment the following material facts appear:

Plaintiffs, a builder and his wife, executed a bond for $320,000 secured by a mortgage on August 1, 1962 in order to finance the construction of a multi-unit dwelling on Bloomfield Avenue in Verona, New Jersey. The mortgage provided:

“* * * if there shall be any change in the ownership of the mortgaged property, then and in such event, the aforesaid principal sum with accrued interest shall, at the option of the Mortgagee, become due and payable immediately, anything herein contained or contained in the bond to the contrary notwithstanding.”

On December 22, 1966 plaintiffs, through their counsel, advised defendant in writing that they had entered into a contract to sell the premises subject to the mortgage. Noting the acceleration clause in the mortgage, the letter asked that defendant:

“® * * advise us under what conditions you will waive your right to accelerate the payment of the principal and interest and permit the assumption of the mortgage by the Purchaser. If an arrangement can be entered into for that purpose, we will appreciate it if you will forward to us several applications to be completed by the prospective Purchaser.”

Following short negotiations a payment by plaintiffs in the amount of $14,635 was agreed upon in exchange for the defendant’s consent to transfer of title without calling the mortgage. An assumption agreement was thereafter executed by plaintiffs’ successor in title, 70 Park Avenue, Inc., and the agreed upon premium paid by the plaintiffs on February 13, 1967. Demand for the return of-the premium monies was made on behalf of plaintiffs under date of March 8, 1967 by the same counsel who represented the plaintiffs throughout the transaction. The letter of demand stated'! “It is our opinion that the payment demanded by you was unjust and inequitable and constitutes payment under duress”. Defendant has refused- to return the monies demanded;

As noted, plaintiffs contend that the premium payment constituted a usurious charge by the defendant, that the defendant was not lawfully empowered to receive such payment and that the payment aforesaid was made under duress.

It has long been settled that if a note or security is valid when made, no subsequent act can make it usurious. Donnington v. Meeker, 11 N. J. Eq. 362, 365 (Ch. 1857). In Bloomfield Sav. Bank v. Howard S. Stainton & Co., 60 N. J. Super. 524, 532 (App. Div. 1960), the court stated that it was “totally without justification” to characterize the payment of money for the privilege of prepaying a mortgage loan as usurious. The principle of that decision appears to govern here inasmuch as in both cases the premium was paid by the mortgagor, not as interest “for loan of any money” (N. J. S. A. 31 :1-1), but to induce the surrender of a right enjoyed by the mortgagee. In the Bloomfield Savings case the mortgagee yielded its right to continue the investment of its funds. Here, the mortgagee relinquished its right' to call in the full amount of the principal balance for reinvestment at more favorable rates of interest. Hence I conclude that the payment sought to be recovered is not usury.

In his answering affidavit plaintiff builder recites that prior to executing the bond and mortgage he received certain construction mortgage monies from the defendant for which he paid total fees of $6,500. Prior to closing the permanent loan on August 1, 1962 it came to his attention that the mortgage papers -contained the controversial acceleration provision. Plaintiff states he objected to it strenuously and thereafter conferred with an officer of the defendant concerning its purport. lie states, further, that he was assured by the officer that the only purpose of the clause was to reserve to the defendant an opportunity to check the moral and financial worth of any proposed buyer and that the defendant would not accelerate the loan if such a buyer were found to be financially and morally satisfactory. Eelying on these assurances, and having in mind the $6,500 he had already invested in the mortgage application and that the construction mortgage of $320,000 was already in default, he did not

“* * * consider it economically feasible to attempt to get a permanent mortgage from another source. In addition, even if I was able to secure a permanent mortgage from another source, I would have had to pay Investors an additional penalty of $6,400. This provision was contained in the construction mortgage which I executed, as above indicated.”

Plaintiff continues that by the fall of 1966 he had become involved in other undertakings and “needed additional cash to purchase the development and to pay off obligations that I had incurred.” He determined, therefore, to sell the Verona property and entered into a series of agreements through intermediary corporations, the details and purposes of which are not here relevant, in order to transfer title ultimately to 70 Park Avenue, Inc. He brought the proposed sale to defendant’s attention around December 22, 1966 and, as plaintiff says, he then learned for the first time that the defendant insisted upon the payment of a premium in consideration of its agreement to forego calling the loan. He was told firmly that defendant would not approve any buyer regardless of its financial condition unless the premium was paid. This put him “in a tough spot.” He was badly in need of cash and had no alternative but to agree to the premium complained of.

On these asserted facts plaintiffs rest their claim that the monies were paid under duress. I find, however, that although it is inferable therefrom that plaintiffs’ judgment was guided by difficult and compelling business exigencies, these allegations do not authorize the inference of a will so overborn and paralyzed as to preclude the exercise of an essentially free and unconstrained volition. I conclude as a matter of law that the claim of duress cannot be supported under applicable principles. Woodside Homes, Inc. v. Morristown, 26 N. J. 529, 544 (1958); Rubinstein v. Rubinstein, 20 N. J. 359 (1956); Ewert v. Lichtman, 141 N. J. Eq. 34 (Ch. 1947).

I further conclude that the conversations referred to are inadmissible parol and not receivable within any of the recognized exceptions. Atlantic Northern Airline, Inc. v. Schwimmer, 12 N. J. 293, 301-303 (1953); Union Fur Shop, Inc. v. Max Melzer, Inc. 133 N. J. Eq. 416, 419 (E. & A. 1943); Garden State Plaza Corp. v. S. S. Kresge, 78 N. J. Super, 485, 495 et seq. (App. Div.), certification denied 40 N. J. 226 (1963). Fraud is not alleged nor does any ambiguity appear from the chosen language. The proffered evidence would not serve the purpose of interpreting debatable language. Rather, it would import into the clause a condition precedent entirely alien to its express written terms.

Citing N. J. S. A. 17:12B-48, plaintiffs also maintain that it was beyond the statutory power of the defendant to demand and receive the premium payment. This enactment provides:

“Without limiting the generality of the foregoing, every association shall have power to * * * (10) take from its members, a premium for priority or privilege of loan or acquisition of real estate and no premium so taken shall he deemed usurious. The rate of premium may be agreed upon or be determined by auction.” (Emphasis supplied)

It is argued that since the foregoing provision is operative only in connection with the making of loans, it furnishes no authority for defendant to take the payment in return for the waiver of an acceleration privilege. Because no specific grant of such authority is categorically enumerated elsewhere in the Savings and Loan Associations Act, the conclusion is urged that by bargaining for and receiving the payment the defendant acted ultra vires. Obviously, this reasoning cannot stand side by side with the plaintiffs’ claim of usury since, as they themselves aver, usury postulates the making of a loan. Moreover, it presupposes the necessity of a specific grant of statutory authority for a savings and loan association to execute this particular kind of transaction. But the preceding section of the statute, section 47, provides:

“Every association sliall have all of the powers conferred by this act, both expressed and implied, and such others as are incidental thereto, and incidental or necessary to the operation of its business and the attainment of its purpose. Such powers shall be exercised in conformity with the provisions contained in this act.”

The authorized purposes of a savings and loan association are stated in N. J. S. A. 17:12B-12:

“Associations operating under the provisions of this act shall be mutual associations for the purpose of promoting thrift, home ownership and housing.”

It is concluded that the right to receive a payment of money in exchange for its mortgage acceleration privilege is within those powers at least incidental and necessary to the business of a savings and loan association and the attainment of its purpose as such. The object of clause (10), section 48, which authorizes the taking of a payment for a loan, is to remove from the Usury Act, N. J. S. A. 31:1-1 et seq., transactions which would be otherwise forbidden by its terms. It does not imply a prohibition upon all business measures and activities which are not specifically sanctioned by statute. E. g. Paley v. Barton Savings and Loan Ass’n, 82 N. J. Super. 75, 81 (App. Div.), certification denied 41 N. J. 602 (1964). It -would further appear that plaintiffs are estopped to assert this claim. Eastern Acceptance Corp. v. Godfrey, 14 N. J. Misc. 187, 183A 822 (Sup. Ct. 1936); Treacy v. Vigersky, 10 N. J. Misc. 410, 159A 312 (Sup. Ct. 1932).

' - Since it is palpably shown from the pleadings and depositions and affidavits on file -that there is no genuine issue as to any material fact challenged, I conclude .that the defendant is’ entitled to judgment as a matter of law.

'Motion granted.


text:
    CATHERINE CASEY, PLAINTIFF-RESPONDENT, v. JAMES M. O’NEIL, DEFENDANT-APPELLANT, AND EMMA R. DAVIES, DEFENDANT-RESPONDENT. JAMES M. O’NEIL, ET AL., PLAINTIFFS, v. EMMA R. DAVIES, DEFENDANT. RICHARD R. DAVIES, PLAINTIFF, v. JAMES M. O’NEIL, DEFENDANT. LAURA FARROW, ETC., ET AL., PLAINTIFFS-RESPONDENTS, v. JAMES M. O’NEIL, DEFENDANT-APPELLANT, AND EMMA R. DAVIES, DEFENDANT-RESPONDENT.
    Superior Court, of New Jersey 'Appellate Division
    Argued May 27, 1968 —
    Decided June 11, 1968.

      Before Judges Goldmann, Kilkenny and Caeton.

      Mr. Gerald Kaplan argued the cause for appellant (Messrs. Lieb and Teich, attorneys).

      Mr. Edward F. Neagle, Jr. argued the cause for respondent Emma R. Davies (Messrs. Fox, Neagle & Mastrangelo, attorneys) .
   Per Curiam.

These personal injury and property damage actions arose out of a two-car collision at the Y-shaped intersection of Routes 15 and 94 in Lafayette Township.

Defendant-appellant James O’Neil was driving his car north on Route 15 along the base or stem of the Y, intending to continue up the left branch (Route 94). Defendant-respondent Emma Davies was traveling south down the right branch and came in contact with O’Neil’s car as the latter turned to enter the left branch.

Various passengers sued both drivers and the drivers sued each other. In the consolidated trial limited to the issue of liability only, the jury returned a verdict absolving O’Neil but finding that Mrs. Davies had been negligent.

The trial judge granted Mrs. Davies’ motion for a new trial on the ground that he had erred in refusing to give the following instruction:

“With respect to a left turn, involving as it does a movement across the path of other traffic, the risk of harm is ordinarily increased beyond that which exists when a car is proceeding. along a direct course. Hence, with respect to a left turn, a reasonably prudent man would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger.”

The requested instruction is derived from one approved by the Supreme Court for a U-turn situation in Ambrose v. Cyphers, 29 N. J. 138, 150 (1959). In substance that instruction was applied also by the Appellate Division to a left turn at a T-intersection in Spillias v. Radics, 65 N. J. Super. 458, 460 (App. Div. 1961).

O’Neil contends that the Ambrose-typo instruction, while appropriate for a II-turn or a typical cross intersection or T-interseetion, should not be used for a Y-intersection. He argues that he was not making an actual left turn but was' merely following the contour of the roadway and further that Mrs. Davies was attempting to accomplish the same kind of maneuver in going south from the right arm of the Y.

Wo read Ambrose as an attempt to formulate a general instruction which may be made applicable to any vehicle movement across the path of other traffic. That instruction naturally relates to any type of left turn, whether it involves a right angle such as a typical cross or T-intersection, or an angle different from one of 90 degrees. Ambrose simply analyzed and formulated a legal principle pragmatically applied for many years: that under certain special factual circumstances commonly encountered in traffic cases, it is desirable to inform the jury that the particular situation calls for the exercise of an increased amount of care. See 29 N. J., at pp. 146-149. See also Pignatore v. Public Service Coordinated Transport, 26 N. J. Super. 234, 237-239 (App. Div. 1953).

With this principle in mind, it is clear that an Ambrosetype instruction was necessary in the present case. The crucial factor is not the shape of the intersection but the attempt to cross in the path of an approaching vehicle. The O’Neil car was doing precisely that. The instruction requested was therefore appropriate. Moreover, since the Davies vehicle was also making a left turn across the path of the other vehicle, the instruction should be made applicable to both drivers upon any new trial.

We are not persuaded that the charge as given by the trial court embodied the essence of the Ambrose rule. There is, of course, no requirement that the precise language set forth in Ambrose be employed, but its content must be reflected in the charge that is given. It is not enough to instruct the jury that they should determine whether, under the circumstances, reasonable care was exercised. In effect, this is all that the trial judge informed the jury in this case. He recognized this deficiency in granting the new trial.

Eespondent also urges that the trial court erred in refusing to give other requested instructions. These requests, embodying as they do variations of the Ambrose-type charge, should be synthesized into one comprehensive instruction on the issue at the new trial.

We find no merit in the further ground advanced on Mrs. Davies’ behalf that the comments of counsel were improper and prejudicial.

Affirmed.


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

text:
    POULTRYMEN’S SERVICE CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. ABRAHAM WINTER, ET AL., DEFENDANTS-RESPONDENTS, AND CELIA ZASLOW, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF LOUIS ZASLOW, DECEASED, SURETIES-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968 —
    Decided June 11, 1968.

      Mr. Lionel F: Briggs, argued the ¡cause for-appellant.

      Mr. Robert B. Silverman argued the causé for respondents (Messrs. ‘Braun & Braun> attorneys). . • •
    Before Judges Sullivan, Eoley and Leonard.-
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

Plaintiff appeals from the denial of its motion to amerce the sureties on a bail bond in a, capias proceeding.

In 1957 plaintiff commenced a suit against - defendant Abraham Winter on an allegedly fraudulently incurred debt and obtained the issuance of a writ of capias ad respondendum. 'Defendant Winter was taken' into custody under the writ and'secured his release by filing a bail bond in the peDal sum of $12,504.62 on which the sureties were Louis-Zaslow and Celia Zaslow his wife. The condition of the bond was that defendant at all times render himself amenable to the orders and processes of the court, etc. See R. R. 4:66-4(a). Ultimately on June 2, 1961, by stipulation between the parties, a- $16,000 judgment sounding in fraud was entered in favor of plaintiff against Winter.

Discovery proceedings against Winter in 1963 resulted in an order dated November 15, 1963, which required Winter to pay to plaintiff the sum of $10 per week from his income. Defendant has at all times fully complied with the terms of such order.

In August 1967 plaintiff caused a writ of capias ad satisfaciendum (ca. sa.) to be issued on its judgment. Sa,id writ directed the sheriff to take Winter into custody and bring him before the court to satisfy plaintiff’s judgment. However, plaintiff instructed the sheriff to hold the writ for the required period of time and then to merely return it “not found.” It is not disputed that at all times Winter was actually' residing in the county and was amenable to the orders and processes of the court.

Based on the legal fiction, as shown by the sheriff’s return, that defendant could not be found in the county, plaintiff, on September 12, 196?, moved to amerce the sureties claiming in effect that there had been a breach of the condition of the bond. When the motion was heard by the court on October 20, 196?, counsel for defendant characterized the sheriff’s return on the ca. sci. as a “sham,” adding “if you want my defendant — ask for him. Don’t go down to the sheriff, make him falsify. * * *” The eou rt, by letter opinion dated October 25, 196?, held that if defendant surrendered himself within a period of ten days from the date of the court’s opinion, the bail W'ould be discharged. Surrender in court was made on November 1, 196?, and an order was entered dismissing plaintiff’s motion to amerce.

Plaintiff contends on appeal that, under N. J. S. 2A :15-47, where proceedings have been commenced to amerce the bail, the defendant has a period of 20 days within which to surrender himself and that surrender cannot be made after that period unless for good cause the court grants further time. In the instant case the surrender was not made within 20 days after plaintiff’s motion to amerce was filed, nor was any application made within that period for an extension of time to make this surrender. Plaintiff therefore argues that the court was without power after the 20-day period had expired to give an extension of time for the surrender. Plaintiff further argues that, in any event, the surrender made by defendant was invalid because no written notice of intention to render in discharge of bail, as required by N. J. S. 2A: 15-47, was given to plaintiff.

We conclude that the trial judge’s ruling was correct. However, we rest our conclusion on the ground that there had been no breach of the condition of the bond so that no basis for amercement of the surety existed, and the 20-day grace period set forth in N. J. S. 2A :15-47 never came into play. Further, plaintiff’s surrender was pursuant to court order, and not in connection with proceedings to render in discharge of bail under N. J. S. 2A :15-47.

A proceeding or action to amerce the surety- can only be taken after there has been a breach of the condition of the bond. Under N. J. S. 2A :15-44, if the bail fails to bring in the body of the defendant when ordered by the court, amercement of the bail shall be had. The reason for this is that defendant is not amenable to the orders and processes of the court and the condition of the bond has thereby been breached. Another basis for amercement exists where a writ of ca. sa. has issued to the sheriff who makes a return that defendant cannot be found in the county. In such case the return prima facie establishes a breach of the condition of the bond.

It is this latter procedure that plaintiff utilized in the instant case. Ordinarily the sheriff’s return “not found” on the writ would be sufficient to allow plaintiff to proceed against the bail. However, it is undisputed that here the sheriff’s return was a fiction, that in fact defendant could be found in the county, and that he was amenable to the orders and processes of the court as evidenced by his prompt surrender when ordered to do so by the court.

The procedure employed by plaintiff herein is supported by early case law which refused to require the sheriff to make a bona fide attempt to execute the ca. sa. before proceedings could be instituted against the bail, on the ground that delivery of the writ to the sheriff acted as notice to the bail that plaintiff intended to proceed against the person of defendant. The cases held that it was incumbent on the bail to search the sheriff’s office and ascertain whether a ca. sa. had been delivered to the sheriff. See VanWinkle v. Alling et al. Exrs., & c., 17 N. J. L. 446 (Sup. Ct. 1840); Cockran ads. Drake, 18 N. J. L. 9 (Sup. Ct. 1840).

We reject these holdings as harsh and unrealistic and conclude that in the facts and circumstances presented, despite the sheriff’s return “not found,” there was in fact no breach of the condition of the bond so that no basis for amercement of the bail existed. Plaintiff’s motion to amerce had no standing and was properly denied.

We note that the trial court stated that, upon defendant’s surrender, the bail would be discharged. However, the order actually entered merely dismisses plaintiff’s motion to amerce. Neither defendant nor the surety has cross-appealed from this portion of the trial court’s order.

Affirmed.


text:
    EVELYN G. BROWN, GUARDIAN AD LITEM FOR PHYLLIS BROWN AND JULIE BROWN, PLAINTIFF-APPELLANT, v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD OF THE STATE OF NEW JERSEY, AND JACK E. MEREDITH, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968 —
    Decided June 11, 1968.

      Mr. Howard H. Xestin argued the cause for appellant (Messrs. Hofmann •& Humphreys, attorneys).

      Mr. Thomas J. Savage, Deputy Attorney General, argued the cause for defendant Unsatisfied Claim and Judgment Fund Board (Mr. Arthur' J. Sills, Attorney General of New Jersey, attorney).
    Before Judges Sullivan, Foley and Leonard.
   Per Curiam.

We are in full agreement with the trial court’s ruling, reported at 96 N. J. Super. 91 (Law Div. 1967), that the Unsatisfied Claim and Judgment Fund Law, N. J. S. A. 39 :6-61 et seq., does not apply to an accident occurring outside the State of . New Jersey, even though the vehicle, the operation of which allegedly caused the accident, was an uninsured automobile registered in this State.

Affirmed.


author: Kilkenny, J. A. D.

text:
    METRIC INVESTMENT, INC., PLAINTIFF-APPELLANT, v. CHARLES PATTERSON AND ROSE PATTERSON, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968 —
    Decided June 11, 1968.

      Before Judges Goldmann, Kilkenny and Cakton.

      Mr. Isadore B. Miller argued the cause for appellant (Messrs. Miller and Platt, attorneys).

      Mr. Glenn JE. Davis argued the cause for respondents (Mr. Joseph O. Doren, attorney).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

By amended complaint, plaintiff sought a judgment1 against defendants based on a charge of fraud. Defendants' defaulted in pleading. After default was entered, plaintiff submitted 'its proof. The trial court found its proof ' insufficient to warrant entry of a ■ judgment for fraud because there was no showing that the allegedly false representations by defendants were made to plaintiff, or with the intent that it should rely on them. Coneededly, the false representations were contained' in a credit statement which defendants gave to • a third party, a contractor who made home improvements for them. Accordingly, the requested judgment in fraud against defendants was denied and judgment was entered in favor of defendants.

Plaintiff appeals from the adverse judgment. It maintains that the trial court erred in determining that the false representation. made by defendants to someone else other than plaintiff is not actionable in fraud in a suit by it.

Defendants contracted with Jalsco Construction Company for certain work on their home. They executed a credit statement on August 15, 1966. In listing therein their “fixed obligations, installment accounts; mortgages, LOANS and debts to banks, finance.companies and Government, agencies,” defendants, noted only “R. E. Scott, Westfield Ave., Eliz,, N. J.” as a. debtor, and stated ■ the debt was incurred in 1964, its present balance was $15,000 and the monthly payments were $118.

On September 1, 1966, defendants executed and delivered their negotiable promissory note payable to the order of “Jalsco Const. Co. Inc.” in the amount of $1822.20. Presumably, the consideration for this note was the work done by Jalsco on defendants’ home. This note was payable in 60 consecutive monthly installments of $30.37 each, the first payable on November 1, 1966 with interest. There were the usual provisions accelerating payment of the full balance on default, a 15% attorney’s fee for collection of the debt, and the like.

Jalsco sold the note to plaintiff, transferring it by its endorsement “without recourse,” except that it warranted that it furnished and installed the articles and materials and had fully completed all work which constituted the consideration for which the note was executed and delivered by the maker. Plaintiff endorsed it “with recourse” to First State Bank of Union. Subsequently, on March 28, 1967, this bank assigned the note back to plaintiff.

On xkpril 5, 1967, plaintiff as holder sued defendants as makers of the note, alleging in its complaint that only $60.74 had been paid on account, leaving a balance of $1761.46. Recovery thereof was sought, plus $264.22 attorney’s fees of 15%, together with late charges and costs of suit.

Thereafter, defendants filed a petition in bankruptcy, in which they scheduled many debts not listed in and antedating the credit statement given by them on August 15, 1966. On October 2, 1967, defendants received their discharge in bankruptcy.

To avoid the normal effect of a discharge in bankruptcy plaintiff filed an amended complaint on July 31, 1967, whereby it added a second count. Therein, it alleged as a separate cause that defendants made false representations in their credit statement “with intent to defraud the plaintiff,” knowing that the representations were false when made because of their indebtedness to other listed creditors. Plaintiff further asserted that it was induced to purchase defendants’ note in reliance upon these false representations. It demanded judgment for the amount due on the note “and punitive damages.” Obviously, plaintiff’s purpose in adding the second count was to obtain a judgment against defendants based on fraud, a debt not dischargeable in bankruptcy.

As first noted above, defendants defaulted in pleading, a default was entered, but judgment in plaintiff’s favor was denied. This appeal followed.

Plaintiff’s proofs consisted of the credit statement, the note, defendants’ bankruptcy schedule of debts — received in evidence as exhibits • — ■ and the testimony of Nicholas A. Blasi, president of plaintiff, and Edward G. Smith, an assistant vice-president of Eirst State Bank of Union in charge of installment loans.

Smith testified that, in addition to the note transaction involved herein, his bank had made a home modernization loan of $3105 to defendants in June of 1966, prior to defendants’ credit statement herein of August 15, 1966. Defendants made no payments, or only one or two payments on that loan before the bank received notice of defendants’ bankruptcy.

Blasi testified that in the summer of 1966 plaintiff processed a home improvement loan for defendants, “for some storm windows, awnings and so on,” approved the loan and paid the contractor (Jalsco) for the work. Blasi stated that the contractor submitted defendants’ signed credit application, and that credit was extended and the loan made on the basis of that application. He admitted that defendants dealt initially with the contractor and the latter dealt with it with relation to financing the contract. Also, the note was concededly executed subsequent to the credit application. Blasi confirmed that plaintiff received the note by endorsement from Jalsco; it endorsed the note to Eirst State Bank of Union under an agreement it had with the bank on these loans; and, upon default in the payments, the bank reassigned the note to it.

Blasi further testified as to the balance due on the note and the receipt of notice of defendants’ bankruptcy. He identified the bankruptcy schedule of defendants’ debts, which was received in evidence.

Subsequently, according to Blasi, investigation revealed that defendants had three outstanding loans at the time of their credit application of August 15, 1966, which were not disclosed therein. Commerce Investment of Trenton was owed a balance of $380; Eirst State Bank of Union, approximately $3100, and Jay and Strict Company of North Brunswick, $454.08. Blasi stated that plaintiff would not have extended credit on the Jalsco contract if it had known of those other debts. Defendants made no complaints about Jalsco’s work and gave “financial difficulties” as their reason for not paying. They “just had too many obligations to pay.”

On questioning by the trial court, Blasi stated that plaintiff received the credit statement from Jalsco; never saw or dealt with defendants personally; first reviewed the credit statement, and then agreed to accept the note, which was already signed and attached to the statement.

On redirect Blasi testified as to plaintiff’s procedure. The contractor makes a telephone call to its office giving the credit information. It processes the application by checking the credit statement attached to the note with the telephone information “to see if they jive.” And “if the credit statement contained more creditors than had been phoned in,” plaintiff “would not negotiate this note to the contractor.”

Based upon these proofs, the trial court found that the statements were false, but they were not made to this plaintiff. Tn the absence of proof that the representations were made to plaintiff, or made with the intent that it or someone similarly situated should rely on them, the trial court found a necessary element of proof was missing for entry of judgment on the ground of fraud. Reliance was placed upon Lembeck v. Gerken, 88 N. J. L. 329 (E. & A. 1915).

Iñ that' case, defendant sold a piece of land to a person other than plaintiff, making certain false representations to the 'purchaser who, in- reliance thereon, purchased the land, which in turn was sold to plaintiff. It was held that plain'tiff could not maintain ah action for deceit against defendant on the ground , that the representations made to the third .party, and' upon which he relied, were false, where the proof 'failed' to show that the third party was acting as the agent of the plaintiff in the purchase, or that defendant knew that he was in fact acting as.the agent for someone else in the purchase.

Lembeck v. Gerken cites with approval (88 N. J. L., at p. 331) the following legal doctrine expressed by Judge Cooley .in his work on Torts (3d ed. p. 940) :

■ “No one lias a right to accept and rely upon the representation of others but those to influence whose actions they were made. If 'every one might take up and act upon any assertion he heard made ■ or saw in print as one made' for him to act upon, and the truth of •which was warranted by the asserter, the ordinary conversation of business and of society would become unsafe and the customary ■publication of current news or supposed news would only be made under the most serious pecuniary responsibility.”

On the other hand, where.false representations are ■made to one person with the intent that they be communicated •to. others for the purpose of inducing the others to rely upon thein, they may form the basis of an action for fraud by those.others. 37 Am. Jur. 2d, Fraud and Deceit, §§ 189, 190, 191 (1968); Annotation 91 A. L. R. 1363, 1372 (1934). In Judson v. Peoples Bank & Trust Co., 25 N. J. 17 (1957), it •was held that where a defendant made false representations to one member of a family and urged him to transmit the ■representations to other members of the family for the purpose of inducing them to sell their shares in the family ■corporation at a decreased value, defendant’s conduct would support a charge of fraud even by those to whom defendant’s false representations'had not directly been made by him.

Can it be said that one who makes a fraudulent misrepresentation in a credit statement to the payee of a negotiable instrument, in order to induce him to rely thereon in accepting the instrument, reasonably intends that others to whom the paper may thereafter be transferred will also be expected to rely upon the representations in the statement, if it accompanies the instrument? Lembeck v. Gerken does not answer this question precisely because a transfer of land was involved in that case.

If a fraudulent misrepresentation is “embodied” in a “negotiable instrument,” the person so misrepresenting “is subject to liability to another who in the course of a business transaction deals with him or with a third person in reliance upon the truth of the representation.” 3 Restatement, Torts § 532 (1938). Comment (a) thereto points out that such a misrepresentation is made to all persons who may in the ordinary course of business have occasion to deal in a business transaction with such instruments referred to in this section.

Plaintiff urges upon us the applicability of §532. We find it is not pertinent because the credit statement of August 15, 1966 was separate and apart from the negotiable note of September 1, 1966. The fraudulent misrepresentation was not “embodied” in the note. There was no proof that defendants attached the credit statement to the note. Admittedly, they did not deliver both papers to plaintiff. Rather, it was the contractor, Jalsco, who did so.

Plaintiff also places reliance upon § 533 of the aforesaid Restatement. It provides that “the maker of a fraudulent misrepresentation in a business transaction is subject to liability to another who acts in justifiable reliance upon it, if the misrepresentation, although not made directly to the other, is made to a third person for the purpose of having him repeat its terms or communicate its substance to the other in order to influence his conduct in a particular transaction or type of transaction.”

Is § 533 applicable herein? Although defendants’ misrepresentations were not made directly to plaintiff, but to a third party, Jalsco Construction Company, can it reasonably be concluded that the credit statement, relied upon by Jalsco in accepting installment payments as provided in the negotiable note, was also for the purpose of having Jalsco repeat its terms or communicate its substance to another in order to induce conduct by the other in this “type of transaction”? We proceed to a consideration of that question.

Home modernization loans are commonplace in our modern society. Home owners, by direct approach of contractors and widespread advertising, are importuned daily to have that extra room added to the house; to avoid further painting by the use of aluminum siding; to close in the open porch with jalousies; to install storm windows and doors and fiberglass awnings; to create new recreation rooms in the basement, and make countless other improvements. They are assured that they can improve now and pay later, over a period of years with low monthly installments.

The business transaction, except for those who can pay cash, follows a customary type. The homeowner enters into a contract for the improvements to be made. He frequently furnishes a credit statement and signs a negotiable note. The contractor, usually unable to finance many transactions, resorts to a bank or other lending institution and obtains funds for further jobs by selling his paper at a discount. As a rule, the finance companies will purchase the notes with readily available cash at a large discount, but without recourse to the contractor, except for his warranty that he has completed the job. The finance companies, in turn, borrow from the banks at a rate of interest below the discount price, but subject to recourse by the banks against them if the makers of the notes fail to live up to their obligations. Such was the situation here.

Defendants’ bankruptcy schedule of debts deflects that, prior to this transaction, they had incurred debts, still unpaid, for a color television, an encyclopedia, rugs, aluminum siding on the house, and a vacuum cleaner. The merchandise was purchased under conditional sale contracts. The obligations were generally financed through some credit or investment corporation. It could conceivably be found that they knew that persons with whom they dealt on credit may probably or will finance the indebtedness through others; and, therefore, papers signed by them in connection with a credit transaction might be relied upon by others.

However, Comment (b) under § 533 states:

“It is not enough to make the rule stated in this Section applicable that the maker of the misrepresentation knows that its recipient map probably, or mil to a substantial certainty, repeat it to a third person for the purpose of influencing his conduct in transactions with him. The misrepresentation must be made for the purpose of having it repeated in terms or communicated in substance to the third person.” (Italics ours)

There is no proof in the record before us that defendants made the misrepresentations “for the purpose of having it repeated” to plaintiff or some other third person. “It is not enough,” as Comment (b) points out, that defendants knew, on the basis of their prior credit transactions, that Jalsco might probably or would to a substantial certainty repeat the credit information to some third person.

The trial court, therefore, properly found a vital omission in plaintiff’s proofs of any showing that the representations were made with the intent that plaintiff or someone similarly situated should rely on them. Certainly, there was no proof that defendants gave the credit statement to Jalsco “for the purpose of having it repeated.” Defendants did not testify as to their “purpose,” and no representative of Jalsco did either. Eor aught we know, the credit statement was given to Jalsco two weeks before the note was executed merely as an assurance to Jalsco of payment, without any “purpose” that it be communicated to others.

Plaintiff urges upon us Bank of Montreal v. Thayer, 7 F. 622 (Iowa Cir. 1881). That case is inapposite on its facts. There, the receiver of a railroad executed certificates payable to A, “or bearer” and falsely represented in the certificates that they constituted a first lien. It was held that an action in fraud would lie against the receiver by a “bearer” of a certificate. The representation was made to any “bearer” and thus was made to a class, of whom plaintiff was one. Moreover, the misrepresentation was “embodied” in the instrument. The same is not true in the instant case.

For the foregoing reasons, the judgment is affirmed.


author: Leonard, J. A. D.

text:
    DONALD S. BEAN, PLAINTIFF-APPELLANT, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES IN THE DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968 —
    -Decided June 13, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Laurence B. Orloff argued the cause for plaintiff-appellant (Messrs. Greene <& Orloff, attorneys).

      Mr. Thomas J.-Savage, Deputy Attorney General, argued the cause for defendant-respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

’ Because of plaintiff’s refusal to submit to a chemical breath test the Director of Motor Yehicles ordered plaintiff’s driving privileges suspended for six months. N. J. S. A. 39:4-50.2; N. J. S. A. 39:4-50.4. From that determination plaintiff appeals.

Plaintiff was apprehended on November 22, 1966 for drivng under the influence of intoxicating liquor. N. J. S. A. 39:4-50(a). At the time of his arrest the police requested that plaintiff submit to a chemical breath test. Plaintiff admittedly refused to comply. On December 27, 1966 plaintiff was convicted of drunken driving in the Weehawken Municipal Court. That court, in addition to imposing a fine, suspended plaintiff’s driver’s license for two years.

On October 26, 1967 the Director, after a departmental hearing, found that plaintiff had refused to submit to the breath test and ordered his driving privileges suspended for six months. This suspension was to run consecutively to the previously imposed two-year suspension for violation of N. J. S. A. 39:4-50(a). Thus the suspensions imposed upon plaintiff totaled "two years and six months from December 27, 1966.”

On appeal plaintiff first contends that N. J. S. A. 39 :4-50.4 requires revocation “for a period of six months from the date of the Director’s determination,” and therefore the Director exceeded her powers in attempting to run the suspension from the expiration of the two-year suspension imposed by the municipal court. Thus, plaintiff argues that the Director should have caused the N. J. 8. A. 39 :4-50.4 suspension to commence on October 26, 1967, even though this would result in the second suspension running concurrently with the one first imposed.

Plaintiff alternatively argues that at the very least the Director, in her discretion, could have ordered the six-month suspension to run concurrently with the court imposed two-year suspension. Accordingly, he asserts that the Director acted arbitrarily and capriciously in refusing to exercise this discretion.

N. J. S. A. 39:4-50.4 in pertinent part provides as follows:

“* * * if after a hearing the Director shall find against the person on such issues, he shall revoke such person’s license * * * for a period of 6 months from the date of the director’s determination. * * * Such revocation shall he independent of any revocation imposed hy virtue of a conviction under the provisions of section 39:4-50 of the Revised Statxites.” (Emphasis added)

In construing this statute we must give effect to the overriding plan or purpose of the Legislature as fairly expressed in its language. We must seek to avoid an interpretation that will render any part of the enactment “inoperative, superfluous or meaningless.” See O’Rourke v. Board of Review, 24 N. J. 607, 610-611 (1957); State v. Congdon, 76 N. J. Super. 493, 500 (App. Div. 1962).

N. J. S. A. 39:4-50.2, the implied consent law, was promulgated to aid our courts and law enforcement agencies in the development of objective scientific evidence of intoxication. N. J. S. A. 39 :A-50.4 was enacted to further this purpose by inducing a motorist suspected of driving while under the influence of alcohol to submit to objective analysis of his intoxication level.

If this latter statute were construed in conformity with either of plaintiff’s alternative contentions a driver convicted of drunken driving who did not submit to the chemical test might receive no greater punishment than a convicted driver who had compiled with the police requests. Such interpretation would encourage motorists arrested for this serious offense to refuse to submit to the relevant tests. This would result in the defeat of the laudatory Legislative aim.

Moreover, to adopt either of plaintiff’s interpretations would render the last sentence of N. J. S. A. 39:4-50.4 inoperative and meaningless. Had the Legislature intended a suspension under this statute to run concurrently with one imposed under N. J. S. A. 39:4-50, it surely would not have made a revocation under the former “independent of any revocation' imposed by virtue of a conviction under the provisions of” the latter. Thus we construe N. J. S. A. 39 :4-50.4 to mandate that the six-month suspension imposed by the Director for nonsubmission to the chemical test be in addition to any suspension imposed by virtue of a conviction under, N. J. S. A. 39 :4-50. Therefore, in the circumstances here present, we hold that the Director had no discretion. She could only impose a suspension consecutive to the court imposed two-year revocation.

Defendant finally contends that the implied consent law as here applied violates his right against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This point has no merit. See Schmerber v. State of California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Kendershi, 99 N. J. Super. 224, 228-229 (App. Div. 1968); State v. Swiderski, 94 N. J. Super. 14, 20-23 (App. Div. 1967).

Judgment affirmed.