author: Kilkenny, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY BLANCA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided April 2, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Samuel H. Davis, Assigned Attorney, argued the cause for appellant.

      Mr. John D. Grossi, Assistant Prosecutor, argued the cause for respondent (Mr. James A. Tumulty, Jr., Prosecutor of Hudson County, attorney).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Defendant appeals as an indigent and with the aid of assigned counsel from convictions of armed robbery (N. J. S. 2A: 141-1 and 2A:151-5) and of carrying concealed pistols in an automobile without first having obtained a permit to carry the same (N. J. S. 2A: 151-41). He was found guilty after a jury trial and was sentenced to concurrent indeterminate terms at Bordentown Reformatory.

Three others — Massey, Poster and Reid — were jointly indicted and tried with defendant Blanca for the same offenses, but this appeal is by Blanca alone.

At the outset, defendant’s attorney on appeal frankly concedes that certain grounds advanced by the assigned trial attorney for dismissal of the indictments against defendant are without legal merit. We agree. We mention them for the sake of completeness.

Defendant moved for a dismissal at trial on the following .grounds: (1) he had not been shown the original indictment; (2) he had not been present at the grand jury proceedings; (3) he had not been advised of his constitutional rights under the Miranda doctrine, and (4) no attorney represented him at the arraignment in municipal court. As to (1), the original indictment is on file with the county clerk, pursuant to R. R. 3:4-1(b), and the assigned trial counsel received a copy as required by R. R. 3:5-1. As to (2), defendant was not entitled under R. R. 3:3-6 to be present or have anyone present during the grand jury proceedings. As to (3), Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is not applicable because defendant did not testify and no police officer testified as to any statements made by him. As to (4), defendant was in no way prejudiced by the absence of an attorney at the preliminary hearing before the municipal magistrate. State v. Hale, 45 N. J. 255, 263 (1965), certification denied 384 U. S. 884, 86 S. Ct. 1981, 16 L. Ed. 2d 1001 (1966), is dispositive of this contention.

Defendant’s attorney on appeal also candidly admits that he considered challenging the propriety of the procedure used by the police when defendants were identified at the police station in Jersey City and later at the county jail, in view of recent decisions of the United States Supreme Court in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. State of California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). However, the doctrine of those cases affects only pre-indictment identifications made after June 12, 1967. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Defendant’s identifications preceded that date, having been made in 1966. Cf. State v. Sinclair, 49 N. J. 525, 544-547 (1967).

We deem it expedient also to note at the outset that defendant’s brief does not challenge his conviction on the charge of armed robbery. Its three points are directed to the concealed weapons charge. In its conclusion we are asked only to reverse “the conviction of defendant Blanca on the charge of carrying a concealed weapon in a motor vehicle.”

The State’s proofs clearly establish that on April 9, 1966, just before the 10 p.m. closing time, an armed robbery was committed by three Hegro males at IrVs Liquor Store, 1067 Avenue C, near 52nd Street, in Bayonne, New Jersey. Two of the robbers, one of whom was identified as Blanca, pointed pistols at Esther Botwinik, one of the co-owners of the store, and took over $900 in cash from the register, a $26.50 check given that day by a customer in payment of liquor purchased, some 70-odd dollars from Mrs. Botwinik’s purse, and a bottle of scotch whiskey, Johnny Walker Red Label, from a shelf as the robbers departed. Upon their arrest within an hour’s time, Blanca was identified as one of the robbers who held a gun while the robbery was being perpetrated.

Blanca did not testify and he called no defense witnesses. Nor did Massey or Poster, who were identified before and at trial as the other two of the three who actively participated in the commission of the crime. The only defendant to testify was Reid, the owner and driver of the automobile in which the other three were riding when taken into custody. We need not discuss Reid’s claim of innocence. His automobile was, according to Reid, at 53rd Street and Broadway in Bayonne, not far from the scene of the robbery, at the time the robbery was committed.

Immediately following the robbery, Esther’s son, Stuart, who witnessed the crime, and two store employees who came upon the scene while the crime was being committed, went by automobile to find the fleeing robbers. They had gone about three minutes and nine blocks to 59th Street and the Boulevard when Stuart observed an automobile with apparently nervous male Negroes in it, one of whom looked like one of the robbers. The color and license number of the car were noted as they followed in close pursuit, both vehicles proceeding northly toward Jersey City. The police were notified, a county-wide radio alert went out from Bayonne police headquarters, and the suspected car was ultimately stopped by the Jersey City police at 120 Summit Avenue in that city, about a block and a half from where Reid, the owner-driver, lived.

Blanca was in the front passenger seat, Massey was behind him in the rear. Poster was also in the rear behind the driver Reid. The police who had followed them in a patrol squad car ordered the four out of the vehicle and frisked each at the scene. As Massey pushed the front seat of this two-door car forward, the police saw a loaded pistol in plain view on the floor of the rear of the car. They also saw a bottle of Johnny Walker Red Label and some clothing, which they seized. A crowd had begun to gather and the four, as well as the car, were taken to Fourth Precinct to unsnarl the traffic and for the sake of convenience in making further searches.

Search of Foster disclosed that he had in his pocket a roll of bills amounting to $90], with which there was the check stolen from the cash register. Massey had $74 in cash. Thus, these items and the bottle of scotch tallied with the cash, check and bottle taken during the robbery. The clothing was later identified as that worn by the robbers.

About ten minutes after the police brought the suspects to the Fourth Precinct, Stuart Botwinik, who had witnessed the crime and the use of two guns, called this to the attention of Sgt. Kelly, who then had only the one pistol found in the rear of the car. The sergeant and another police officer went out and continued to search the automobile. They found another automatic pistol under the rubber mat at the front seat where defendant Blanca had been sitting when the police stopped the car. Thus, two pistols found in the car tallied with two pistols used at the time of the robbery. The search of the four occupants and the car revealed only these two pistols.

We now consider the three grounds urged for reversal of the concealed weapons conviction.

I

Defendant argues that his conviction under N. J. S. 2A: 151-41 must be set aside because of the absence of proof that he failed to obtain a permit to carry a firearm.

Concededly, there was no proof at trial that this defendant did or did not have the statutorily required permit.

N. J. S. 2A :151-41 provides in pertinent part:

* * any person who carries in any automobile * * * or otherwise concealed in his possession:
(a) A pistol * * * without first having obtained a permit to carry the same in accordance with the provisions of this chapter; * * *.
Is guilty of a misdeameanor.”

Erom this language defendant argues that failure to obtain a permit is an essential element of the crime and must be proved by the State. He contends that to require him to come forward with proof would violate his constitutional rights, including the right against self-incrimination.

We cannot see how a defendant would incriminate himself by the production of exculpatory evidence — the permit, if he had one. That evidence could be produced even without defendant’s talcing the stand. For example, the official records could establish the fact. No such proof was offered.

We held in State v. Rabatin, 25 N. J. Super. 24 (1953), certification denied 13 N. J. 361 (1953):

“The fact that the State failed to prove that the defendant did not first obtain the requisite permit to carry the revolver is of no aid to the defendant. It was not incumbent upon the State to show that no permit had been issued to the defendant.” (at pp. 30-31).

We reasoned that the truth or falsity of the averment lay more immediately within the knowledge of the defendant himself and the onus probandi rested upon him.

In State v. New York Central Railroad Co., 37 N. J. Super. 42 (1955), we reiterated this rule, stating:

“Where the charge or indictment includes a negative averment, the truth or falsity of which lies peculiarly within the knowledge of the defendant, the burden of evidence, or of going forward with proof on that issue, as distinguished from the burden of proof, rests with the defendant.” (at p. 51).

We have been referred to no case overruling or modifying State v. Rabatin, supra. On its authority, we deem defendant’s first point not a sound basis for reversal.

II

The next claim made by defendant is that N. J. S. 2A: 151-7 is unconstitutional and the trial court’s quotation of it in charging the jury constituted reversible error.

N. J. S. 2A :151-7 provides:

“The presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time.”

The trial judge read this section of the law to the jury. He also instructed them, however, that to convict a given defendant the State was required to prove beyond a reasonable doubt that he was aware of the presence of the guns in the automobile and was able to exercise intentional control over them.

Defendant argues that there is no logical basis for an inference or presumption of possession of a firearm by an occupant of an automobile merely, from the fact of its presence in the car in which he is riding.

We recently considered the validity of N. J. S. 2A :151-7 in State v. Lewis, 93 N. J. Super. 212 (1966), certification denied 386 U. S. 986, 87 S. Ct. 1297, 18 L. Ed. 2d 238 (1967). There, a gun was found in the pocket of a coat of one of the occupants of the automobile. We held that N. J. S. 2A:151-7 could not, under those circumstances, be held applicable to all occupants of the car. In reaching our decision, we assumed the constitutionality of this statutory provision- but did not expressly determine that issue.

It seems to us that the validity and applicablity of N. J. S. 2A :151-7 must be judged in the light of the totality of the circumstances in a particular case. Eor example, if an owner-driver of an automobile had a gun locked in the glove compartment or trunk of his car, to which he held the key, it would violate common sense to conclude that other occupants of the vehicle might be presumed to be in possession of it, and especially where they were unaware of its presence and had no power of control over it. The trial judge made that clear to the jury when after reading the statute, he told them that conviction required proof by the State beyond a reasonable doubt that the occupant must have been aware of the presence of the gun and able to exercise intentional control over it.

We have similar situations based upon common law principles. Eor example, every child is presumed to be legitimate. But if the mother and her husband are both Caucasian and the child is a mulatto, the presumption may not logically be drawn. Cf. In re Findlay, 253 N. Y. 1, 170 N. E. 471 (Ct. App. 1930). So, too, if a person is found in possession of the fruits of a recent crime, an inference may be drawn of guilty possession. Thus, we speak colloquially of a person “caught with the goods.” But the circumstances may leave it to the jury to draw the inference. Cf. People v. Galbo, 218 N. Y. 283, 112 N. E. 1041 (Ct. App. 1916).

In the instant case, two pistols were used in perpetrating this Bayonne robbery — one was in the hand of defendant Blanca; the other in the hand of his confederate Massey. When the police stopped the automobile in which they were riding within the hour, two, and only two, pistols were found in the car. One was alongside Massey on the floor in the rear where he was seated; the other under the rubber mat in the front where defendant Blanca was seated. Each was loaded and each was readily available for use by the same two persons who had used them at the liquor store. Moreover, the one under the rubber mat in the front at Blanca’s feet— Exhibit S-l — was identified by Stuart Botwinik and Stanley Piatowski as the one held by Blanca during the robbery; and pistol — Exhibit S-2 — found in the rear alongside Massey was identified by Stuart as the kind Massey used.

Under the circumstances the trial judge’s reading of N. J. S. 2A.151-7 to the jury with the limitations noted above was not reversible error. We might also note that a similar statute has been upheld as constitutional in Yew York. Cf. People v. Russo, 303 N. Y. 673, 102 N. E. 2d 834 (Ct. App. 1951), affirming 278 App. Div. 98, 103 N. Y. S. 2d 603 (App. Div. 1950).

Ill

Defendant’s final point is that his motion prior to trial to suppress the evidence of the second gun found under the rubber mat should have been granted because that subsequent search and seizure was illegal.

Obviously, no claim of illegal search and seizure could validly be made as to the first pistol, which was in clear view and seized by the police as the occupant stepped out of the vehicle. That gun was revealed without a search. Cf. State v. Griffin, 84 N. J. Super. 508, 517 (App. Div. 1964).

But defendant argues that the search of the vehicle by the police without a warrant after they and their car had been brought to the Fourth Precinct headquarters violated their constitutional rights.

We find no merit in this argument. Defendant and his fellow robbers were taken into custody by the Jersey City police on the basis of probable cause to believe that they had committed a robbery in Bayonne. They personally, and the automobile in which they were riding, tallied with the description given to the Bayonne police by persons who witnessed the robbery. Moreover, the presence of the pistol on the rear floor of the car also furnished probable cause for their arrest.

Since there was legal justification for the arrest without a warrant, it follows that the police were legally justified in searching defendants and the car incidental to that arrest. The gathering crowd on Summit Avenue, where they were apprehended, with the resulting blocking of traffic, as testified to by Sgt. Kelly, entitled the police, as a matter of convenience, to take the defendants and the car to headquarters for a more adequate search there. The fact that only one gun was first observed would not preclude a continued and more intensive search of the car some ten minutes later when a witness to the crime informed the police that two guns were used.

See State v. Fioravanti, 46 N. J. 109, at p. 124 (1965), certiorari denied 384 U. S. 919, 86 S. Gt. 1365, 16 L. Ed. 2d 440 (1966), where our Supreme Court indicated that a search need not be made at the "precise moment” of the arrest when "a more prudent or equally prudent course is to move the car and its contents to a more convenient or suitable place for the search.” See, too, State v. BoyTcins, 50 N. J. 73, 78 (1967).

Eor the foregoing reasons, the Judgments of conviction for armed robbery and for carrying pistols concealed in an automobile without the necessary permit are affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF HAMMONTON, PLAINTIFF-RESPONDENT, v. HARTFORD FIRE INSURANCE COMPANY, UNITED STATES FIDELITY AND GUARANTY CO., INSURANCE COMPANY OF NORTH AMERICA AND NORTH RIVER INSURANCE CO., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1968
    Decided April 3, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Neil F. Deighan, Jr. argued the cause for defendants-appellants (Messrs. Kisselman, Devine, Deighan & Montano, attorneys).

      Mr. Charles A. McGeary argued the cause for plaintiff-respondent (Messrs. Bleakly, Stockwell & Zink, attorneys).
   Per Curiam.

Each of the four defendant insurance companies issued a $5,000 policy insuring the owner of certain premises against loss by fire, with a standard mortgagee clause making the loss payable to plaintiff as its interest might appear. While the mortgage was under foreclosure, a fire caused more than $20,000 damage. Defendants denied liability as to the owner but, since there was $31,000 due on the mortgage, defendants admitted their liability to plaintiff. However, defendants refused to pay plaintiff the $20,000 unless plaintiff first gave them an assignment of an undivided $20,000 interest in the mortgage and agreed that defendants would be entitled to share proportionately in any monies collected upon the mortgage by foreclosure or otherwise. In other words, defendants maintained that the standard mortgagee clause required that they be paid 20/31 of all sums thereafter recovered upon the mortgage debt. Plaintiff rejected this demand and instituted this action.

Plaintiff moved for summary judgment, contending that the standard mortgagee clause entitled it to be paid the balance of its indebtedness (above the $20,000) in full out of any monies realized from the enforcement of the mortgage, whether by foreclosure sale or payment by the mortgagors or owners, before defendants received any part thereof; and that defendants were entitled to an assignment only if they paid the mortgage debt in full. In this plaintiff was plainly right. The standard mortgagee clause expressly provides that “no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of its claim.” There are few cases in which the court found it necessary to expressly hold that the insurer’s rights are subordinate to the mortgagee’s, probably because that is so obvious and well settled under our form of mortgagee clause that the question is seldom raised. See Perretta v. St. Paul Fire & Marine Ins. Co., 106 Misc. 91, 174 N. Y. S. 131 (Sup. Ct. 1919), affirmed 188 App. Div. 983, 177 N. Y. S. 923 (App. Div. 1919); Eddy v. London Assur. Corp., 143 N. Y. 311, 38 N. E. 307, 308-309, 25 L. R. A. 686 (Ct. App. 1894); cf. Phoenix Ins. Co. v. First Nat. Bank, 85 Va. 765, 8 S. E. 719, 2 L. R. A. 667 (Sup. Ct. 1889); Providence Washington Ins. Co. v. Hogges, 67 N. J. Super. 475, 482 (App. Div. 1961). Even under mortgagee clauses not as emphatic as ours, the mortgagee’s rights have been given priority. See Lervold v. Republic Mut. Fire Ins. Co., 142 Kan. 43, 45 P. 2d 839, 106 A. L. R. 673 (Sup. Ct. 1935) Annotation, 106 A. L. R. 679 (1937).

Plaintiff’s motion for summary judgment therefore should have been granted. Instead, the trial judge entered an order:

“* * * authorizing the plaintiff to sell the real estate under the judgment of foreclosure which it holds, upon notice to all parties in interest, and that any deficiency which shall be found to exist on plaintiff’s judgment, including interest and costs, after the sale of said real estate, shall be paid from the fire insurance policies issued to cover said property. No interest shall be chargeable against the proceeds of said fire insurance policies.”

Defendants appeal from this order. To begin with, the order is interlocutory and no application was made by defendants for leave to appeal. In order to dispose of the matter completely, we now grant the leave, nunc pro tunc.

The order appealed from gave defendants more than they are entitled to. There should have been summary judgment in favor of plaintiff for $20,000 with interest thereon from the date it should have been paid. However, probably because of the value of the remains of the mortgaged property, plaintiff is satisfied with the order appealed from and did not cross-appeal. The order is therefore affirmed, with costs.


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

text:
    HOUSING AUTHORITY OF THE CITY OF EAST ORANGE, PLAINTIFFS, v. MANCEL L. WARRICK AND LEE WARRICK, DEFENDANTS-APPELLANTS, v. WALTER L. CLEARY, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1968
    Decided April 4, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Lawrence S. Schwartz argued the cause for appellants (Messrs. Rubin, Dolgoff & Sussman, attorneys).

      Mr. Anthony J. Belfiore argued the cause for respondents.
   The opinion of the court was delivered by

Conford, S. J. A. D.

The Warricks and the Cleary relatives are contestants over a fund of $12,000 deposited in court by the Housing Authority of the City of East Orange in satisfaction of a written agreement between itself as optioneepurchaser and the Warricks and Cleary, together, as “seller,” for acquisition of a residence property in East Orange. The deposit was made in the course of condemnation proceedings necessitated by the unavailability of a long-missing sister of Cleary who had a one-eighth interest in the title. Cleary claims that the Warricks forfeited their interest in the property by default under an earlier installment-contract sale of the property entered into with them by Cleary (purportedly “single,” but actually for himself and his relatives who shared title with him), as seller. Eollowing a hearing on counter-motions to withdraw the fund on deposit, the Law Division agreed with that contention and ordered distribution of the moneys free from any participation by the War-ricks. We conclude this was error.

On December 22, 1960 Cleary entered into the installment-contract sale agreement with the Warricks which, although inartistically and ambiguously drawn (on a standard real estate contract form with typed-in addenda), was in substance to the following effect. The sale price was fixed at $11,000, payable $100 per month beginning in December 1960 until “payment of $3,000 upon said indebtedness,” whereupon the purchasers had the option of then paying the principal balance “and obtaining a deed” or continuing the $100 monthly payments until $4,200 was paid and then paying the balance (put in terms of — “it will then become the duty of the purchasers to obtain a mortgage of $6,800 for the unpaid balance”). The first reference in the instrument to the $100 payments describes them as “for the use and occupation” of the premises, the agreement specifying that the premises were to be occupied by the purchasers as a dwelling. The purchasers were also to pay taxes and water charges and obtain liability and fire insurance in favor of the sellers.

It is obvious that the real intention of the agreement was that the purchasers’ payments represented not merely the value of use and occupation but partly compensation for the fee, the balance of the $11,000 price for the latter to be paid when $3,000 or $4,200 (at the purchasers’ option) had been paid in the form of the $100 monthly installments.

The agreement recited that the purchasers’ failure to pay any of the monthly installments of $100 or the other periodic charges should be considered a default of the contract, that thereupon all payments theretofore made would be regarded as for use and occupation, the contract be considered terminated and the purchasers would vacate on 30 days notice.

It is thus seen that by May 1964 (or within a reasonable time thereafter) the absolute obligation of purchasers to have met a $6,800 purchase-price balance ($11,000 less $4,200 in monthly payments) would have matured in the normal course.

It is clear from the record that from time to time the Warricks would fall behind in their payments and would more or less catch up after grants of extensions by Cleary, who apparently found this course more advantageous than declaring a default at any time prior to May 1964.

In 1963 or early 1964 the Housing Authority of East Orange (a public agency with power of condemnation) became interested in the property and offered Mr. Warrick $10,200 for it. He refused and demanded $12,000, to which the Housing Authority ultimately acceded. On April 27, 1964 the Warricks and Cleary signed, as “seller,” in the presence of the same witness, a mimeographed “Offer For Sale of Land,” prepared by the Housing Authority, giving it a 90-day irrevocable option (and thereafter until terminated by sellers) to purchase the property for $12,000. This was formally accepted by the Authority May 4, 1964. Under the offer, closing was to take place not more than 60 days after acceptance, the sellers to give a general warranty deed conveying a “good and marketable fee simple title.” The Authority reserved the right, after acceptance, in lieu of completing the purchase, to acquire the property by condemnation, in which event it was agreed that the $12,000 price would be taken to be the fair market value of and just compensation for the property.

Ultimately such condemnation was instituted, apparently because of the outstanding title interest of Cleary’s sister. An award of $12,000 was entered in the condemnation and the money paid into court. This proceeding arises from the respective claims thereto of the present contestants.

On May 29, 1964, notwithstanding the pending sale to the Housing Authority for $12,000, Cleary’s attorney wrote the Warricks informing them that the installment contract was terminated for their failure “to make payments according to the terms in the contract.” They were told to vacate in 30 days. It appears that at the time the Warricks were in default of several months’ payments under the agreement as well as for part of the 1964 real estate taxes. Warrick responded by letter of June 3, 1964. He said, in purport, that he had explained to Mr. Belfiore, Cleary’s attorney, and to Cleary, that he had had the money for the arrears but needed time pending settlement with the Housing Authority as he was required to make a substantial down payment on other residence property he was purchasing to replace that being taken by the Authority. He further said in the letter that: “Mr. Cleary told me he would wait until the settlement was made to get the full balance due on the property. Had you notified me of your intentions I would have taken care of the arrears instead of the down payment on the new home.” There was no response to this communication.

Early in July 1964 the Warricks paid and Cleary accepted $600 for six monthly installments past due on the salé contract, and at the end of the month they paid him $100 more for the period from “7-25-64 to 8/25/64.” This completed payment of the $4,200 which under the contract was to be followed by payment of the purchase-price balance of $6,800, to be financed by a mortgage. The first half of 1964 taxes was also paid by the Warricks at that time. Cleary testified that he carried fire insurance on the property because the Warricks did not, but he never demanded payment from them. Warrick testified he did carry fire and liability insurance, but did not say whether it covered Cleary’s interest.

Warrick testified that when the contract was originally made with Cleary, Belfiore represented the latter and told him (Warrick) that the title question concerning Cleary’s missing sister could be “cleared up in six month’s time.” The Warricks were not represented. Belfiore charged them $35 as one-half of the expense of drawing and recording the contract. Neither Cleary nor Belfiore denied the alleged representation as to feasibility of disposition of the title question. (Belfiore testified as to other matters.) Cleary confirmed that Warrick knew of the title problem at the cutset.

Warrick testified that at the time of and after the agreement with the Housing Authority he was continually after Cleary to clear up the title question, as the closing with the Authority was apparently being delayed solely because of the outstanding interest of Cleary’s missing sister. Warrick said .he was in a position to get short-term financing of his obligation to Cleary pending the closing of the Housing Authority purchase if only the title question could be cleared. Cleary admitted that Warrick was calling him about this frequently and that he referred him to his attorney. He said: “He was just interested in getting the case cleared up and so was I.” On redirect examination, Cleary testified he couldn’t get the property title cleared at Warrick’s request because “it didn’t belong to me [Cleary] — the property,” apparently referring to the outstanding interest of his missing sister.

Warrick testified that after the Housing Authority agreement he got Oleary’s consent to his making up the installment arrears and consequently sent him $600, as noted above, and paid the first half 1964 taxes. Cleary denies this promise, but admits receiving and keeping the money as well as the additional $100 Warrick sent him for the July-August installment although his attorney had previously defaulted Warrick on the contract.

Warrick also testified that when the Housing Authority offer was first made to him he informed Cleary about it and asked whether the latter would wait for the principal balance due on the contract between them until it could be paid off out of the Housing Authority closing moneys, and Cleary acceded. Cleary seemingly denied this, but not very directly. He admitted on cross-examination that during the period Warrick was entreating him to get the title cleared up he regarded the latter as still having an interest in the property “if he got it paid” or “got it [the balance] cleared up.”

Warrick vacated the premises August 15, 1964. The record does not indicate when the Housing Authority took possession.

The trial court regarded the issue before it as mainly one concerning the construction of the contract and whether it should be regarded as an equitable mortgage. It concluded that there was no equitable mortgage, relying on Dorman v. Fisher, 52 N. J. Super. 70 (App. Div. 1958), affirmed 31 N. J. 13 (1959). Eurther, it found no fraud; that the contract was unambiguous; and that the Warricks had defaulted on the contract in respect of the monthly payments, in not procuring insurance naming the seller and in not tendering the principal balance due under the contract. Their claim to an interest in the fund in court was therefore denied.

The Warricks appeal, asserting an equitable right to be considered owners of the property, under all the circumstances, after having paid Cleary $4,200 in monthly payments and thus become entitled to obtain a mortgage for the $6,800 balance. They contend they are therefore entitled to such balance of the $12,000 paid into court as remains after deduction of the $6,800 due the Cleary interests and any unpaid taxes. Alternatively, they seek rescission for defect of title and restitution of the $4,200 paid in.

In Dorman v. Fisher, supra, the holdings of this court and of the Supreme Court were simply that an installment contract of the general character of the present one is not to be construed, por se, as the equivalent of an equitable mortgage with corresponding rights in the parties. It was stated by the Supreme Court, however: “We are not called upon to consider whether equitable relief in some form may be available where literal enforcement of a contract would be unconscionable.” (31 N. J., at p. 15).

We are convinced that under any reasonable view of the present proofs such literal enforcement of this contract as would deprive the Warricks of any interest in the fund in court would be unconscionable and should not be sanctioned by a court having equity powers.

It is here highly significant that on April 27, 1964, although the Warricks were in arrears several months in their monthly payments, and for taxes, Cleary joined with them in extending, as sellers, an option of purchase of the property to the Housing Authority for $12,000. It was Mr. Warrick, according to the uncontradicted evidence, who negotiated this arrangement with the Authority, having been successful in raising an original offer of the Authority from $10,200 to $12,000. The entry by Cleary into that offer with the War-ricks as “seller” was a clear recognition and affirmation of the continued subsistence of the status of the Warricks’ equity in the property and contract of sale. The then existing state of default in the payments under the installment contract was obviously a recurrent condition which Cleary had acquiesced in from the beginning, he apparently having been satisfied until then to go along with the chronic late payments by the Warricks rather than take the property back. The Warricks had no reason in advance to suspect that once the Offer for Sale had been executed, with acceptance by the Authority obviously a practically assured eventuality, Cleary would suddenly spring the trap of forfeiture in order to obtain for himself the entirety of the $12,000 cash into which the property was about to be converted and refuse them the same opportunity he always previously had, to make good the arrearages, so as to enable them to save the substantial equity in the forthcoming $12,000 to which their installment contract would entitle them. This, in our view, is a plain situation of lulling others into a sense of security by misleading conduct and the consequent taking of unconscionable advantage, violative of elementary principles of fair dealing. Cf. Baerenklau v. Peerless Realty Co., 80 N. J. Eq. 26, 34 (Ch. 1912); and see Oliver v. Lawson, 92 N. J. Super. 331, 335 (App. Div. 1966).

The foregoing conclusions are fortified by the apparent truth of Warrick’s testimony that after the Housing Authority’s offer materialized he began urging Cleary to get the long-standing title question cleared up so that the deal could be closed with the Authority and the parties be enabled to divide the $12,000 in accordance with their respective interests under their contract of sale. Cleary does not testify he responded to Warrick that this was no longer the latter’s concern, as he had lost his interest by default. He admits Warrick was pursuing him on the matter and says, in effect, that he merely told Warrick the solution of the title problem was up to counsel. Here, again, is an implicit recognition of Warrick’s interest, and further evidence of lulling, at least to the extent that these conversations may have preceded the notice of forfeiture on May 29, 1964. The trial court made no specific findings of fact on this facet of the case.

Cleary’s greedy disposition in the matter is further manifested by his taking and keeping the $700 which Warrick sent him after the declaration of default in a vain effort to keep his equity alive, when he (Cleary) knew he was not intending to recognize that equity, obviously contemplated by Warrick as the condition for the acceptance of the money by Cleary.

We are also not in accord with the trial court’s determination that the Warricks defaulted in not tendering the full balance of $6,800 when it became due at the end of May, 1964. In the first place, the default notice of May 29, 1964 was not predicated on failure to pay the balance of principal, but to make the periodic payments. Second, time was not made of the essence by the contract insofar as the balance of $6,800 was concerned (if at all). Indeed, the contract literally provided that the purchasers would be under the “duty * * * to obtain a mortgage of $6,800 for the unpaid balance.” Clearly the purchaser would be entitled to a reasonable time for this purpose. Warrick’s testimony, in effect, that he told Cleary that if the title were cleared he could get temporary financing of his obligation to him on the strength of the $12,000 contract with the Housing Authority is consonant with the attendant circumstances and not incredible, was not denied by Cleary, and was not negated by any specific fact finding of the trial court. These observations hold, whatever might be found, factually, as to the truth of Warrick’s specific contentions: (a) that Cleary agreed to accept the $700 payments to render the Warricks current on the contract, and (b) that Cleary agreed to wait for the contract balance for disbursement out of the Housing Authority closing moneys, on the faith of which the Warricks failed to avail themselves of other sources of capital for the purpose. No specific findings of fact on these issues were made by the trial court.

We hold that in the entirety of the attendant circumstances, especially the imminent transformation of the property into $12,000 cash through the Housing Authority purchase, it was grossly unconscionable for Cleary suddenly and without warning to forfeit the Warricks’ interest in the property contrary to his continuous previous conduct in indulging lateness of payments. Had he not done so it is highly probable, if not certain, that he would have been made whole on his contract dues (subject to any delay or adjustment on account of the outstanding title interest) out of the Housing Authority sale proceeds, or directly from the War-ricks on request therefor, and that the Warricks would have realized their rightful participation in the remainder of such proceeds.

The judgment is reversed and the cause remanded to the end that there be awarded to the Warricks such portion of the $12,000 fund in court as remains after deducting the $6,800 due the Cleary interests on the contract, any unpaid taxes or tax title claims, and legal interest on the $6,800 from July 29, 1964 (when the last $100 of the $4,200 was paid and accepted) to the date of taking of possession by the Housing Authority. Moreover, if inspection of the fire and liability policies procured by the Warricks shows they did not comply with the contract, there will further be deducted in favor of Cleary any sums paid out by him for such insurance, with legal interest to the date aforesaid.

So ordered.

       Belfiore should not have been trying the case and testifying in it as a witness. Canons of Professional Ethics, 19.

       “* * * I think it is very clear that this conduct on the part of the realty company amounted to a waiver of their right to claim a forfeiture without notice, without warning, so that the complainants could again be put upon their guard.”


author: Carton, J. A. D.

text:
    ROBERT MICHAEL HIGGINS, APPELLANT, v. NEW JERSEY BUREAU OF SECURITIES, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 11, 1968
    Decided April 5, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Morris M. Schnitzer argued the cause for appellant (Messrs. Kasen, Schnitzer & Kraemer, attorneys; Mr. Wal-dron Kraemer on the brief).

      Mr. John W. Hayden, Jr., Assistant Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Samuel Bornstein, Deputy Attorney General, of counsel; Mrs. Virginia Long Annich, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Carton, J. A. D.

Robert Michael Higgins appeals from an order of respondent Bureau of Securities revoking his registration as a securities agent in New Jersey. The grounds for the revocation were that Higgins’ application for registration contains false and misleading statements in a material respect and that his character is such that he is not qualified to be an agent.

On November 30, 1966 Higgins filed an “Agent Application” form provided by the Bureau, seeking registration as a securities agent. Hnder oath he answered in the negative each of the following questions on the application:

“13. Have you:
d. been arrested or convicted of any crime, misdemeanor or disorderly persons offense?
********
g. been subject to any disciplinary action, past or pending, by any administrative, governmental or regulatory body?
h. been charged with a violation of any statute, rule, regulation or ordinance of any municipal, administrative, regulatory or other governmental body?

By virtue of N. J. S. A. 49 :3-57(a), which provides that, unless denied by the Bureau, an application becomes effective 30 days after filing, Higgins was licensed on January 7, 1967 as an agent to sell securities. Thereafter, respondent served notice of an intention to revoke Higgins’ registration, charging that his application contained false and misleading statements. Prior to hearing, respondent served supplemental charges that appellant was not qualified to act as an agent on the basis of character, by virtue of his false answers to the application and other occurrences during his military career.

Higgins’ military service record, admitted into evidence at the hearing before the Chief of the Bureau, reveals court martial convictions spanning the years 1953 to 1956 for, among other things, A. W. O. L. violations, desertion, resisting arrest, and grand larceny by means of force and violence. For the latter offense appellant was sentenced to three years and six months at hard labor, forfeiture of pay and a dishonorable discharge in 1956. In addition, investigation by the Bureau showed that Higgins had been arrested on January 2, 1954 by the New York Police Department on a grand larceny charge arising out of an auto theft.

Higgins, in his defense to the charge of giving false answers, stressed that he did not think the questions called for him to divulge offenses or courts martial while in the military service. As to the charge of being unfit in character, he excused these episodes of his military career as youthful escapades attributable to an underprivileged childhood and drink and claimed he was now a reformed or redeemed person. He did, however, concede his involvement in a New York auto theft, his arrest by military police upon several occasions, and his knowing participation in the larceny with force and violence. As to this most serious charge, Higgins admitted that he and a friend had struck a sleeping fellow soldier with a tire iron and robbed him of $400 in Military Payment Certificates.

He also contended that after his discharge from the military in 1956 he had turned over a new leaf, and pointed to his record of employment and improved economic circumstances since that time. However, the Bureau Chief in his findings concluded that even this record was questionable and evidenced appellant’s irresponsibility. Although appellant had worked four years with a securities firm in New York immediately after he completed serving his prison sentence, during which time he married, the Bureau Chief was satisfied that appellant had left the firm in 1963 under doubtful circumstances indicating that he had been fired.

The Bureau Chief found from his observation of Higgins and after hearing him testify that “when he answered the questions under paragraph 13 as he did, he did so deliberately with full knowledge of what the questions entailed hoping to get away with it * * and that Higgins was fully aware and conscious of what he was doing when he falsified his answers. He found also that appellant’s “record in this case demonstrates a very serious defect in character and lack of moral stability,” and that “he is not qualified on the basis of character to act as an agent * *

On this appeal Higgins argues that the revocation of registration for giving false answers to questions 13 (d), (g) and (h) was invalid because the questions themselves were illegal, and for the further reason that the answers given were not false. He contends that the Bureau’s additional and alternative finding that he was not qualified on the basis of character is not supported by the record. He further asserts that even if the Bureau Chief’s findings were allowed to stand, the penalty of revocation should be reduced.

We conclude that none of these contentions has merit and that the order appealed from must be affirmed.

A brief review of the pertinent provisions of the Hniform Securities Act in the light of its beneficent purpose clearly shows that the lack of substance to appellant’s contention that questions 13 (d), (g) and (h) exceeded the authority of the agency. Security sales, because they may easily become the subject of great abuses upon the buying public, have long been the subject of governmental regulation both nationally and in this State. The area is a sensitive one and therefore it is in the public interest to require those who deal in it as a business to meet high standards.

New Jersey has recently adopted the Uniform Securities Law which requires that all persons engaged in the sale of securities must register with the Securities Bureau by applying for a license, N. J. S. A. 49 :3 — 56. N. J. S. A. 49:3-57 (a) to (f) establishes a comprehensive registration plan. One of the determinations the Bureau Chief must make as to each applicant before a license may be issued is whether the applicant has suffered “any injunction or administrative order or conviction of a misdemeanor involving a security or any aspect of the securities business and any conviction of a high misdemeanor or felony.” N. J. S. A. 49:3-57(a) (4). N. J. S. A. 49:3-58 enlarges that range.

N. J. S. A. 49 :3-58 (a) provides that the Bureau Chief may deny, suspend or revoke any registration granted under the act if he finds: “(1) that the order is in the public interest * * *,” and that any one of several designated conditions exist. The pertinent provisions read:

“(2) that the applicant or registrant * * * (i) has filed an application for registration which as of its effective date, or as of any date after filing in the case of an order denying effectiveness, was incomplete in any material respect or contained any statement ichiah was, in the light of the circumstances under which it was made, false or misleading with respect to any material fact;
* * * * * * * *
(iii) has been convicted of any crime involving a security or any aspect of the security business or any crime involving moral turpitude;
* * * * * * * *
(ix) is not qualified on the basis of such factors as character, training, experience and knowledge of the security business * * *.” (Emphasis supplied)

We interpret these provisions of the statute to authorize the Chief of the Bureau to query applicants as to any kind of convictions which they may have suffered in courts as well as other governmental proceedings. Convictions certainly have a bearing on a determination as to the applicant’s character. We see no justification for the argument made by appellant that the Bureau must confine its inquiry to an applicant’s conduct directly relating to the security business in searching for indicia of character and may not inquire concerning the applicant’s life in general.

Nor do we find merit in the suggestion that appellant’s privacy is improperly invaded by the questions posed. An applicant seeking admission to a licensed profession must expect that the licensing authority may legitimately inquire into those portions of his private life which affect the public interest and the exercise of the licensed profession among the public.

The Legislature had lodged in the Bureau the responsibility of determining whether the applicant’s character is consistent with the trust placed in him by the issuance of the license. It would be extremely difficult, if not impossible, for the Bureau to perform that important function properly if the Bureau’s inquiry were circumscribed in the manner contended for by appellant. We are satisfied that the questions were well within the statutory limits set by the Legislature.

The Bureau Chief’s finding that appellant knowingly falsified the answers which he gave to 13 (d), (g) and (h) is amply supported by the record. Appellant makes the ingenious argument that the answers were not false because “in seeking admission to a civilian occupation [he] responded reasonably by tendering his civilian record.” He urges further that the frame of reference for the application and questionnaire was the securities business and his mind was “channeled into that business” and he was “not thinking of military service.” He argues that the terms “conviction,” “felony” and “high misdemeanor” are drawn from civilian life and not found in military terminology and that they reflect the statutory language of legislators “aware of the dichotomy of civilian and military life.”

We are not persuaded bj' these assertions. Appellant’s own army record belies his claim that these terms are not used in military parlance, for reference is there made to his “Court Martial Conviction.” See also Article 52 of the 'Uniform Code of Military Justice, 10 U. 8. C. A. § 852, where the term “convicted” is employed. But even assuming that appellant was justified in giving a negative answer to the questions regarding prior convictions, he could not have made the same error with respect to question 13(g) inquiring whether he had been “subject to any disciplinary action, past or pending, by any administrative, governmental or regulatory body.” The questions are sufficiently clear to convey to anyone intelligent enough to act as a securities agent the nature of the information sought to be elicited.

The Bureau Chief who heard appellant’s testimony expressly found that appellant knew what the questions entailed but deliberately answered them falsely, hoping his army background would escape detection. The record demonstrates that appellant had not forgotten these incidents of his military life. He further understood that the army was a “governmental body.” He must have understood that the six courts martial he had had in his military career were “disciplinary actions” and that these resulted from violation of regulations.

In reviewing the action of the Bureau, this court must give weight to the opportunity of the hearer to observe appellant and judge the credibility of his testimony. Abeles v. Adams Engineering Co., 35 N. J. 411 (1961). Since there was substantial credible evidence to support his findings and conclusion, we must accept the determination of the administrative agency. This court may not substitute its own factual findings. Atkinson v. Parsekian, 37 N. J. 143 (1962). In re Commissioner of Banking v. Parkwood Co., 98 N. J. Super. 263 (App. Div. 1967).

Tested by the same criteria, we find no valid basis for disturbing the Bureau’s further determination that appellant is unqualified on the basis of character to act as an agent to sell securities. One may agree with appellant’s view that the requirement of character as a qualification for a public license “ought to be understood in terms of moral stamina and purpose.” But the record simply does not support the contention that “Higgins’ record since the episode in Japan in 1956 is unexceptionable in moral terms.” Nor does it necessarily demonstrate, as appellant proclaims, “an ability to stand straight in tough weather.” Appellant’s indiscretions in the army weigh against him, particularly the savage assault upon his fellow soldier which led to his dishonorable discharge. That aside, his willful falsehoods in the application recently made, aggravated by the fact that he did so under oath, must also be thrown into the scale along with his civilian record in gauging whether the balance has been tipped in his favor. The Legislature had lodged in the Bureau Chief the responsibility for making that assessment. Here again, we must defer to the presumption of expertness on the part of the administrative agency in the specialized field of knowledge concerned. Freud v. Davis, 64 N. J. Super. 242 (App. Div. 1960). A factor to be considered is the sensitive area involved.

It is no answer that appellant is currently earning a high salary. His present economic success does not convey any assurance of the possession or utilization of the traits envisioned by the statute. Nor is it any answer that appellant deals only with traders who would ostensibly be as sophisticated and experienced as he is. If licensed, this registration would entitle him to deal with the public; he could not properly be confined to that phase of the securities business involving traders alone, even if it were considered appropriate to do so.

Nor are we persuaded that appellant’s position is improved by the fact that N. J. S. A. 49 :3-58 (a) (iii) provides that if an applicant can show good character for the ten years preceding the application, even convictions of high misdemeanors shall not bar his licensing. The application itself directs that if the applicant’s answer to item 13(a) is “yes,” he is to state any facts showing that during the ten-year period his conduct warrants his registration notwithstanding the criminal conviction. Appellant said he read the entire application. He was thus alerted to this ameliorative provision of the law. Rather than avail himself of this method of giving himself a clean slate, he chose to deceive and conceal in the hope, as the Bureau Chief found, that he would get away with it.

Finally, appellant makes the plea that even if he was properly found guilty of the transgressions charged, the penalty imposed is too harsh. The Bureau Chief is granted the discretionary power in N. J. S. A. 49 :3 — 58 to "deny, suspend, or revoke any registration * * In this delicate discretionary area we should be loathe to substitute our judgment as a reviewing court for that of the Bureau Chief who heard the testimony of the applicant and had an opportunity to observe his demeanor. Where more than one result could have been permissible, and the agency has chosen one of them, we may not say the choice made was the wrong one, or that it was arbitrary, capricious or unreasonable. See United Hunters Ass’n of New Jersey, Inc. v. Adams, 36 N. J. 288 (1962).

Affirmed.


author: Foley, J. A. D.

text:
    MARGUERITE V. REILLY, APPELLANT, v. ANDREW SPIEGELHALTER, ET AL., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1968
    Decided April 8, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Soloman Friss argued the cause for appellant (Mr. Patrick T. McGahn, Jr. attorney).

      Mr. Nathan C. Staller argued the cause for respondent.
   The opinion of the court was delivered by

Foley, J. A. D.

Plaintiff appeals from a judgment of involuntary dismissal granted in the Law Division. Defendants cross-appeal from the denial by the trial court of their motion to dismiss on plaintiff’s opening statement.

In her complaint plaintiff alleged that on August 2, 1963 she had occasion to enter upon the premises of defendants, and, as she was entering the premises, she tripped and fell as a result of the concealed presence of a dangerous sprinkler head negligently installed and maintained by defendant’s “in a place and fashion perilous to all who entered upon or passed by said premises,” and as a result suffered the injuries for which she sought damages.

We deal first with the cross-appeal. Plaintiff’s opening statement to the jury may be summarized as follows: Between 8:30 and 9:00 p.m. on August 2, 1963 plaintiff was collecting funds for a hospital in Sea Isle City. She approached the home of defendants which “had a lawn in front of it and the lawn had a sprinkler system in it.”’ One of the sprinkler heads was located “at the apex, the point where the sidewálk and the walk to [defendants’] house met.” As she left the sidewalk in front of the house and entered the pathway to the house, “the front of her shoe, caught on a sprinkler head which we will demonstrate to you was about an inch off the ground and colored gray.” As a result of her foot catching in the sprinkler' head she fell and fractured her right elbow. It was stated further that plaintiff would describe to the jury “certain features of the, accident” and what happened after it.

It was also stated that plaintiff would show that “this, sprinkler head over which [she] tripped being in the apex of . the lawn surrounded by grass was invisible at that hour of the evening to a passerby, it was raised above the ground to a level that made it a rather dangerous agency and that [defendants] either knew this or should’ have known this and should have taken certain steps to alleviate this difficulty which presented certain dangers to people entering the walk.”

The attorney for defendants then proceeded to open. In substance he stated that plaintiff was completely unknown to the Spiegelhalters and was soliciting funds for her own charitable interests. He pointed out that the sprinkler system is installed entirely within the boundaries of the grass area of the lawn fronting defendants’ residence, and that plaintiff had not been invited by defendants to enter upon their premises. He contended that she was a mere licensee and as such no duty was owed to her by defendants other than to refrain from willful or wanton injury.

At the conclusion of the openings plaintiff was called to the stand and sworn. At that juncture defendants moved for a judgment of dismissal on plaintiff’s opening upon the ground that there was nothing in plaintiff’s statement "which would indicate liability” on the part of defendants that there was no duty on defendants to provide plaintiff with a means of access to the premises "other than the walk that she was on,” and that plaintiff’s opening indicated that she was not on the walk because the sprinkler head was on the lawn, and so did not constitute an obstruction of the public way. After hearing argument the trial judge denied defendants’ motion.

Initially, it should be pointed out that a motion addressed to the opening should be made immediately upon the conclusion of that phase of the case. This traditionally has been the order of procedure both before and after 1948, when the new judicial system and rules implementing it became operative. Defendants attempt to justify the timeliness of the motion to dismiss by citing R. R. 4:44-1, which provides:

“In all trials, unless otherwise provided in the pretrial order, before any evidence is offered the plaintiff shall make an opening statement and immediately thereafter, the defendant shall make an opening statement.” (Emphasis added)

Defendants argue that the words “immediately thereafter” preclude the propriety of a motion to dismiss on plaintiff’s opening at the conclusion thereof. We do not attach the same significance to these words. They simply mean that defendants’ opening should be made at the beginning of the ease, following plaintiff’s opening, and before evidence is taken, rather than at some later stage. Thus, we conclude that the rule was not intended to revise the previously accepted practice. The trial judge, therefore, would have been justified in the exercise of his discretion to deny defendants’ motion to dismiss upon the ground of untimeliness. However, the judicial action under review was not rested upon this approach and so we will treat with it on its merits.

The purpose of an opening statement is to inform the jury in a general way of the nature of the action and the basic facts intended to be proved. Passaic Valley Sewerge Com’rs v. Geo. M. Brewster, etc., Inc., 32 N. J. 595, 605 (1960). A dismissal on an opening may be granted, but only where it is clearly evident that no cause of action could be made out after accepting as true all the facts stated therein and all proper inferences to be drawn therefrom. Ibid.

A trial court has liberal discretion in deciding whether to grant a dismissal on an opening statement and it should never be granted unless the facts are undisputed and the law is free from doubt. “The case is rare indeed where the interests of justice will not be served by withholding action on or by denying the motion and receiving the plaintiff’s proof.” Sherman v. Josephson, 44 N. J. Super. 419, 426 (App. Div. 1957).

We need not pass upon the interesting question of the legal status of plaintiff as an uninvited solicitor of charitable contributions, i.e., invitee vis-a-vis licensee vis-avis trespasser. Suffice it to say that defendants conceded in their opening that plaintiff was at least a licensee. As to one in this category the landowner was bound to give warning of any concealed danger known to be present, and to abstain from creating any condition which could reasonably be foreseen as a dangerous instrumentality for harm. Snyder v. I. Jay Realty Co., 30 N. J. 303, 316 (1959). We are satisfied that plaintiff’s opening, however oversimplified it may, have been, set forth a factual recital sufficiently comprehensive to justify the trial court’s discretionary denial of defendants’ motion at that stage of the ease.

The pertinent facts relevant to plaintiff’s appeal follow. In the course of pretrial discovery defendants propounded interrogatories which in pertinent part included the following questions and answers:

“34A. Set forth the names and addresses of all witnesses having knowledge of any facts or circumstances surrounding the happening of the accident.
ANSWER: Thomas J. Reilly, 628 Beverly Boulevard,
Upper Darby, Pennsylvania,
Richard D. Reilly, 550 Damp Post Dane,
Aston, Pennsylvania.
36. Were you alone at the time of the alleged accident. If not, give names and addresses of all persons who were with you.
ANSWER: Xes.”

Immediately after defendants’ motion to dismiss was denied, their attorney moved to suppress the testimony of plaintiff on the ground that she, in response to interrogatory 34A, had not included her own name and address. The trial court granted the motion to suppress plaintiff’s testimony relying mainly upon Kronmiller v. Caruso, 57 N. J. Super. 331 (App. Div. 1959). The effect of this action was to completely deprive plaintiff of all available means of proving facts in, support of her claim for relief and resulted in the involuntary dismissal of her case. We find it wholly insupportable.

In Kronmiller plaintiff’s interrogatories requested the names of all, passengers who were riding in an automobile owned by defendant Caruso and operated by defendant Sutherland, and also the names of all those who witnessed the accident. In response defendants did not mention that defendant Caruso herself was one of these individuals and. the trial court refused to allow her' to testify as to the facts. of the accident. This court affirmed. However, in doing so we said the purpose of the rules involved was to prevent surprise and concealment and to facilitate jury determinations on the merits, and that in this respect they are as fully applicable to disclosing the names of witnesses who are parties as those who are not. We observed that the interrogator may know of the identity of the opposing party but may be unaware of his intention to appear at the trial as a witness concerning the subject matter of the accident. This statement was plainly applicable to the Kronmiller case. Plaintiff knew that defendant Caruso was the owner of the car. He also knew that at the time of the accident it was being driven by defendant Sutherland. On the face of things he may not have known that the non-driving owner witnessed the occurrence.

The situation in the case before us is entirely different. Defendants knew that plaintiff claimed to have been injured on their property. They knew also that she was alone at the time of the accident and therefore, inferentially, that as far as she was concerned it was unwitnessed. In these circumstances it was entirely unrealistic for defendants to assume that plaintiff would not be a witness at the trial because she did not include her name in the answers to their interrogatories. The element of surprise referred to in Kron-müler was absent. Indeed, defendants’ attorney on the oral argument with commendable frankness stated that he was not surprised that plaintiff was called as a witness under the existing circumstances. That being the case the court’s ruling was clearly erroneous.

We are moved to write at some length in this matter because of the representation of defendants’ counsel that, his ample experience in the trial courts in which he appears has been that Kronmiller is being given a broad interpretation by trial judges, similar to that given to it by the trial, judge in this ease. If so, it should be stated that it was not. intended that the holding was an immutable edict. As a matter of fact such a pragmatic approach clearly would constitute an unwarranted invasion of the wide discretion invested in the trial courts in problems of this kind.

Aside from the facts of this particular case, where-there is an unwitting failure to supply a name in answer to an interrogatory the court should weigh the effect of such failure on a case by case basis, having in mind that in its discretion it may always suspend the operation of the rule and permit an amendment of the answer (if necessary) on such terms as the court conceives to be fair and just. The-overriding objective, ordinarily, should be to give the defaulting party his day in court, with due regard to protecting the opposing party from the effects of surprise or other prejudicial factors.

On the main appeal we reverse and remand; on the cross-appeal we affirm.


text:
    KONSTANTY DEROWSKI, PLAINTIFF-RESPONDENT, v. FRANK ZAREMBA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1968
    Decided April 11, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. James J. Casby, Jr. argued the cause for appellant.

      Mr. Antonio F. Doganiero argued the cause for respondent.
   The opinion of the court was delivered

Per Curiam.

Plaintiff brought an action to recover compensatory and punitive damages by reason of defendant’s assault and battery upon him. The proofs as to what happened were at complete variance. The jury found in plaintiff’s favor, awarding $2,500 compensatory and $2,500 punitive damages. Defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence and the result of mistake, partiality, prejudice or passion, was denied. Defendant appeals the resultant judgment as well as the denial of his motion.

Defendant again argues the same grounds as were advanced on his motion for a new trial. We will not disturb the verdict or the judgment entered theron. Kulbacki v. Sobchinsky, 38 N. J. 435, 444-445, 446 et seq.

During the cross-examination of defendant, plaintiff’s attorney was permitted to inquire as to his assets despite timely objection by defense counsel. Defendant claims this .constituted error. Plaintiff’s proofs established a prima facie case of assault and battery which would justify an award of punitive damages. An inquiry into defendant’s net .worth was therefore relevant. Cross-examination of a party witness, on a matter so directly in issue and relevant, was properly permitted. See Babirecki v. Virgil, 97 N. J. Eq. 315, 320-321 (E. & A. 1925). Moreover, considerable latitude is ordinarily allowed in cross-examination of a party to a civil action who offers himself as a witness in his own behalf. The examination may take a wider range than would be permissible if the witness were not a party, even though the subject matter was not touched upon in direct examination. Weiss v. Weiss, 95 N. J. L. 125, 128 (E. & A. 1920), an action to recover damages for slander, where defendant was questioned as to his net worth on cross-examination.

We do not find the damages awarded to be excessive.

The judgment is affirmed.