author: Antell, J. S. C.

text:
    ESSEX COUNCIL NUMBER 1, NEW JERSEY CIVIL SERVICE ASSOCIATION, INC., A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS, v. KENNETH A. GIBSON, MAYOR OF THE CITY OF NEWARK,, NEW JERSEY, AND CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 7, 1971.

      Mr. Martin Fox for plaintiffs (Messrs. Fox and Fox, attorneys; Mr. Arthur D. Grossman, on the brief).

      Mr. Gerald M. Freundlich for plaintiffs American Federation of State, County and Municipal Employees AEL, CIO, etc..

      Mr. W. William Hodes for defendants (Mr. William H. Walls, Corporation Counsel of Newark, attorney).
   Antell, J. S. C.

(temporarily assigned). The narrow question presented by this class action in lieu of prerogative writs and for declaratory relief is whether the appointing authority of a municipal government may, without a commensurate increase in compensation, enlarge the work week of a selected group of municipal employees who are members of the classified civil service. The class for whose benefit this action is brought number approximately 500 to 600 employees who have served the City of Newark in various capacities at 30 hours a week for lengths of time ranging up to 23 years. That the 30-hour work week has always been a basic condition of employment appears from personnel forms on file with the city since the inception of the employments. This group is evidently a minority among city employees in this respect, since the work week prevailing for others is 35 hours.

By notice letter dated January 19, 1971, received by all the affected employees, defendant Kenneth A. Gibson, mayor of the City of Newark, directed that commencing February 1, 1971 they would be required to work an additional five hours a week. Noting that the city is faced with a deteriorated financial situation, the letter expressed the administration’s view that “in this critical time a 30 hour week is a luxury we can no longer afford.” The document is silent as to whether plaintiffs may expect any added salary or other benefits to compensate them for the forfeiture of this “luxury,” and defendants’ counsel frankly acknowledges that such an expectation would not be warranted.

Defendant city is and has been at all times material hereto subject to the provisions of the New Jersey Civil Service Law as from time to time amended over the years.

N. J. S. A. 11:22-6, 11.1 and 38 provide for tenure in office, and they safeguard plaintiffs from removals and reductions except in the manner provided by law. Plaintiffs maintain that the aggregate effect of these enactments is to disallow an increase in working hours without added pay since this is a “reduction” in disregard of tenure and in violation of statutory provisions regulating the manner by which this may be accomplished. Defendants deny that their action is a “reduction” within the meaning of section 38, supra, of the Civil Service Act. They argue that extending the work week is properly within their competence with or without good cause; that this was done in reasonable, nondiscriminatory fashion, and that action of this kind addressed to the working conditions of so large a group of employees, may be relieved against only by negotiation and not in the manner here employed. Defendants further urge that the relief sought should be denied by reason of plaintiffs’ failure to exhaust administrative remedies.

Defendants specifically disaffirm their reliance upon any claim of economic emergency in justification of the measure taken, and no evidence of the city’s financial straits was offered. Cf. Henninger v. Bergen County, 130 N. J. L. 191 (Sup. Ct. 1943).

Notwithstanding plaintiffs’ failure to pursue administrative remedies within the Civil Service establishment, the court will accept the controversy. The question is of public interest, involving as it does so numerous a class of public employees. The only question presented is one of law; there are no factual disputes, nor is there any necessity for the application of agency expertise, policy, discretion or judgment. To require exhaustion of administrative remedies would result only in useless delay which would be detrimental to the public interest. E. g., Waldor v. Untermann, 10 N. J. Super. 188, 191-192 (App. Div. 1950); Loboda v. Clark Tp., 74 N. J. Super. 159, 166 (Law Div. 1962), aff’d 40 N. J. 424 (1963); Roadway Express, Inc. v. Kingsley, 37 N. J. 136, 141 (1962). The rule requiring exhaustion of administrative remedies is neither jurisdictional nor absolute. Matawan v. Monmouth County Tax Bd., 51 N. J. 291, 296 (1968). Also favoring judicial intervention at this stage were the considerations which led the court to grant plaintiffs ad interim relief, a remedy which could probably not have been provided by the administrative agency. R. 4:69-3.

Whether the city’s five-hour extension of the work week is a “reduction” without compliance with N. J. S. A. 11:22-38 must be judged in light of underlying policy considerations intended to be promoted by the Civil Service Law. Statutes should be so construed as to suppress the mischief and advance the remedy. Newark v. Fischer, 8 N. J. 191, 200 (1951).

The Civil Service Act is a tenure of office law. Devlin v. Cooper, 124 N. J. L. 155, 158 (Sup. Ct. 1940), aff’d 125 N. J. L. 414 (E. & A. 1940). It is the purpose of civil service legislation to put positions in the classified service beyond political control and the exercise of partisanship and personal favoritism. Its underlying motivation is to obtain in the public interest an efficient public service based on merit appointment. The guarantee of tenure in office and protection against groundless demotions and reductions are important inducements to attract qualified personnel into public service. Park Ridge v. Salimone, 21 N. J. 28, 44 (1956); Mastrobattista v. Essex County Park Comm’n, 46 N. J. 138, 145 (1965). Thus it has been said that the Civil Service Law “should be given a broad construction to bring employees within its operation” and that it is entitled to be liberally construed in favor of broad tenure protection to those appointed thereunder. State Dept. of Civil Service v. Clark, 15 N. J. 334, 341 (1954); Mastrobattista v. Essex County Park Comm’n, supra, 46 N. J. at 147.

In Scancarella v. Dept. of Civil Service, 24 N. J. Super. 65 (App. Div. 1952), an incoming sheriff elected to reduce the salary of his chief clerk by some $1,300, maintaining that he was free to do this arbitrarily if he chose. In restoring the chief clerk to his original salary the court noted that although the sheriff was empowered to fix the clerk’s salary initially, the clerk thereafter passed under the protection and scope of Civil Service and his compensation became immune from reduction except as specifically provided by law. The governing considerations were noted by Justice Prancis, then temporarily assigned as a judge of the Appellate Division, in the following language and are germane to the question:

In the light of all the circumstances no other construction is reasonable. To hold otherwise would be to subvert an important part of the public policy manifested by the civil service legislation. The contrary view would permit each newly elected sheriff to reduce the salary of a career chief clerk to the minimum authorized by the statute. This power could be invoked for purely political reasons or to serve any other personal motive of the sheriff, such as a desire to persuade the incumbent clerk to resign. The existence of such power is so incompatible with the nature of public service as the Legislature has recognized that service that it should not be declared to exist in the absence of the clearest kind of legislative declaration. [At 72]

If immunizing salaries from reduction is a proper safeguard to protect civil service employees from coerced resignations, there is no reason why working hours should not be secured against enlargement to provide the same protection. The point is especially valid in light of defendants’ contention that the only limit upon the extent to which they may increase working hours is determinable solely by the market for job applicants. It follows that if the five-hour increase were to be countenanced in this case it would have to be for reasons and considerations of policy which could equally validate a 10, 15 or 20-hour increase. It is inconceivable that the Legislature intended that civil service employees should be vulnerable to such vital modifications in the most basic aspect of their employment conditions.

Although defendants contend otherwise, lengthening the working day goes beyond the mere adjusting of working conditions, such as by shortening a coffee break. The former has to do with the magnitude and scope of the day’s employment; the latter is an incident of employment having to do with the degree of liberty the employee may enjoy during working hours so that his efficiency may be thereby enhanced. The coffee break, regardless of duration, is now so generally accepted in our industrial life as to constitute a work related activity. I Larson’s Workmen’s Compensation, § 15.54 at 245, f. n. 18.

The city further maintains that since the appointing authority is empowered to fix the initial compensation for the jobs in question, there should logically be no restraint upon its power to modify those salaries from time to time as in its discretion the public interest may require. But this is the precise argument considered in Scancarella v. Dept. of Civil Service, Supra, at 72, and rejected by the court.

Tested by these principles it is concluded that by changing the work week from 30 to 35 hours — an increase of almost 17% — without good cause and without a corresponding increase in benefits, there has been a reduction in rank, status and compensation, e. g., Tanis v. Passaic County, 126 N. J. L. 303, 306 (E. & A. 1941), which is expressly forbidden by N. J. S. A. 11:22-38. Obviously, the pay and other compensation received by the plaintiffs over the years has been in contemplation of a 30-liour week. Requiring them to work longer hours while continuing salaries at present levels so dilutes their compensation that they are no longer receiving the same pay for the job. In the sense that it reflects a devaluation of their working time, it is as clearly a reduction in position as if their salaries had been decreased for the 30-hour week.

Finally, defendants argue that because the alteration in working hours was sought to be accomplished as to an entire class of employees similarly situated, the issue raised cannot be thought of as involving vested rights of individuals under the Civil Service Law, but rather as a condition of the employment contract which may be the subject of negotiation between the parties. See N. J. S. A. 34:13A-1 et seq., the New Jersey Labor Mediation Act. Passing the question of whether vested civil service rights may be the subject of negotiation, it is responded that although the employees are seeking to achieve a remedy by collective action, this fact does not alter their status as individuals, nor deprive them of the full protection of the Civil Service Laws to which they are individually entitled.

For the foregoing reasons, it is concluded that defendants’ action in attempting to increase the working week of the class of employees for whose benefit this proceeding is brought is prohibited by controlling provisions of the Civil Service Law and is therefore invalid.


source: Caselaw Access Project

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

license: Public Domain

text:
    IN THE MATTER OF THE ADOPTION OF A CHILD BY P, AND WIFE.
    Superior Court of New Jersey Appellate Division
    Argued April 5, 1971
    Decided May 19, 1971.

      Before Judges Golumasn, Leonabd and Ekitz.

      Mr. Edward Temer argued the cause for appellants.

      Mr. Roger 8. Clapp argued the cause for respondents (Messrs. Clapp & Eisenberg, attorneys; Mr. Paul I. Auerbach, pro hoc vice, of counsel).
   The opinion of the court was delivered by

Goldmaotst, P. J. A. D.

Plaintiffs P brought a County Court (Probate Division) action seeking adoption of L, the infant girl born out of wedlock to N. The application was contested by N and the natural father, W, whom N had subsequently married. Eollowing the taking of testimony the trial judge filed an opinion in which he concluded that the child’s interests would best be served by returning her to her natural parents. Plaintiffs then moved for a new trial or for permission to introduce additional testimony and to reargue the issues. The motion was denied and judgment entered in favor of the natural parents, transfer of custody from plaintiffs being stayed provided they promptly filed notice of appeal. They did so, challenging both the judgment and the denial of their motion.

The child was born March 28, 1969. The mother, then almost 22, freely and understandingly relinquished all parental rights four days later, specifically giving L into the custody of plaintiffs. Upon the filing of their complaint for adoption, dated April 18, 1969, the county judge entered an order making the baby a ward of the court, directing the Bureau of Children’s Services to conduct an investigation and file a written report concerning the status of the natural parents as well as plaintiffs’ fitness to adopt the child and provide her with a suitable home, and fixing July 8, 1969 as the date for a preliminary hearing in accordance with the statute, notice of the hearing to be served upon the mother personally.

On June 11, 1969, after the Connecticut Welfare Department had written N about the adoption (Connecticut was her home state), N wrote the following “To Whom It May Concern” letter:

My feelings about the adoption have changed. I would like to stop the proceedings. I have thought a lot about it for the last two months, and I want the baby back. The father and I plan to be married this year, and want our child with us.

The natural father, W, was married at the time of the conception and birth of the child. On July 4, 1969 he obtained a Mexican divorce from his wife, Frances. Two days later he married N in a civil ceremony, and on August 9, 1969 they exchanged church vows.

Meanwhile, the hearing originally scheduled for July 8 was postponed to December 4 and continued on December 12 and 22. The judge filed his opinion on February 13, and entered judgment on March 25, 1970.

Plaintiffs first argue that R. 1:21-2, providing for the pro hac vice admission of out-of-state attorneys, was violated in that a brief sent to the trial judge by the natural parents’ Yew York trial counsel was not signed by a New Jersey attorney. The brief (designated as “Einal Argument and Summation”) was filed by permission of the trial judge as a substitute for oral argument. That aside, the cited rule could be relaxed under B. 1 :l-2. In any event, plaintiffs can show no prejudice. The argument is frivolous.

Equally so is plaintiffs’ second contention that the proceedings were defective because the trial judge failed to order a pretrial hearing and enter a pretrial order, as required by B. 4:25-1. The point is raised as plain error, no objection to the alleged deficiency having been raised. As a matter of fact, counsel had on July 8, 1969, the date fixed for the preliminary hearing, discussed the issues involved at an unreported side-bar conference. Again, the rule in question may be relaxed, and there is no showing of prejudice. The point made is without merit.

Plaintiffs next argue that the trial judge’s opinion fails to include findings of fact and conclusions of law, as required by B. 1:7-4. This contention is patently without substance, as a reading of the opinion readily shows.

Plaintiffs’ first significant contention is that the trial judge erred in denying their motion for a new trial or for permission to introduce additional testimony and to reargue the issues. The argument made in opposition is that what plaintiffs sought to adduce would have added nothing to the case, being merely cumulative and repetitious. We cannot agree.

As noted, the April 22, 1969 order for preliminary hearing, among other things, directed the Bureau of Children’s Services to make an investigation and written report concerning the status of the child’s parents. The Bureau filed a report, apparently before June 1, 1969. It dealt in some detail with the child, the circumstances of her placement, and plaintiffs as prospective adopting parents. However, it contained nothing about the natural parents beyond the fact that a request had been made of the welfare agency in Danbury, Connecticut, to obtain a social history of the natural mother, who currently resided there, and of the putative father. Nothing more was heard until the Connecticut Commissioner of Welfare sent a report to the New Jersey Bureau of Children’s Services on January 9, 1970. That report detailed an interview the social worker had had with the natural parents, then married, at their home in Pawling, N. Y. Although it contained considerable biographic detail, it provided little insight into the character and personality of the natural father or the quality of the marital relation. The report was obviously based upon what the couple had told the social worker.

The Connecticut report was filed with the clerk of the trial court on January 15. A copy was not forwarded to plaintiffs or their attorney, and they had no notice of it until after the trial judge filed his opinion on Eebruary 13 — this despite the fact that at the conclusion of the December 1969 hearings the judge had said it was his understanding that a report would shortly be submitted with respect to the natural parents and that "[Plaintiffs] may want to examine that report. You may also want to cross-examine with respect to it by the person who prepared it [sic].” Plaintiffs never had an opportunity to do so.

It is not so that plaintiffs could have at the hearings produced the proofs for which they unsuccessfully argued on their motion. They did not receive a copy of the Connecticut report until Eebruary 28, after briefs had been filed and the court’s decision rendered. The facts stated in the report and those brought out at trial called for further investigation. Such an investigation could not reasonably have been made before the matter was decided because plaintiffs did not know the identity of W’s first wife, Frances, and so found it impossible to get in touch with her. There had been difficulty in tracing her because of an incorrect address. As might be expected, W had effectively prevented Mrs. P. from communicating with his new wife, N. It now appears that the first wile, Frances, had information which threw an important light upon the character and conduct of W. It was, of course, impossible for plaintiffs to have earlier communicated with, the Connecticut social worker who investigated the circumstances of the natural parents.

Since the policy which absolutely controls an adoption proceeding is what is in the best interests of the child, a judge should lend every effort to make certain he has all pertinent evidence relating to the parties involved. We are satisfied that the trial judge did not have the entire story in this case, certainly as concerns the natural father.

This much we now know about W. He grew up in the home of his paternal grandparents, where his father also resided after his wife left him when the boy was seven. W attended high school and obtained his diploma while in the Naval Reserve, from which he was discharged in September 1969. He had married Frances in November 1964. Their first child was born four months later, in March 1965. It appears that W left Frances in October 1965 and thereafter pretty much ignored her and the child. While on leave in January 1968 he allegedly sought a "reconciliation" with Frances, spent one night with her, and then departed, leaving her pregnant. The second child was born in September 1968. That child has been of little concern to him.

Meanwhile, when W left Frances in October 1965 he took up with N, who was then 18. He returned to N in 1968 and, at a time when Frances was carrying the child conceived in the one-night "reconciliation," impregnated N, presumably in June 1968.

Enough has been mentioned to have called for a more searching investigation into W’s character, the true story of the first marriage, the attention and support he may or may not have given his first wife and the children he had by her, and the existing marital situation involving N. As to the latter, we do know from his testimony that in their first year of marriage they have had fights and arguments about “everything possible."

We conclude that the evidence plaintiffs offered to obtain and produce was material to any determination of what was in the best interests of the child; that it could not reasonably have previously been obtained, and that it might well have changed the result.

We observe, in passing, that the order denying plaintiffs’ motion is unenlightening in its terseness. Although there is no rule requiring that findings be made on such a motion, it would have been helpful to have some indication of why the trial judge turned plaintiffs’ application aside.

All this having been said, we nonetheless see no need for further testimony because we are of the opinion that the child should not have been ordered returned to the natural parents.

The announced purpose of our Adoption Act, N. J. 8. A. 9:3-17 et 'seq., is to promote policies and procedures socially necessary and desirable for the protection not only of the child placed for adoption and its natural parents, but also the adopting parents. To that end the statute declares it necessary and desirable “to protect the child from unnecessary separation from his natural parents, from adoption by persons unfit for such responsibility, and from interference by Ms natural parents after he has been established in an adoptive home * * N. J. 8. A. 9:3-17(a), emphasis supplied.

The primary concern of our courts in adoption cases has always been what is best for the child. Although initially a natural parent has the right to custody, that right is secondary to the concern of the State, as parens patriae, in promoting the child’s welfare and best interests. In re B, 63 N. J. Super. 98, 104 (App. Div. 1960); Lavigne v. Family and Children's Society of Elizabeth, 11 N. J. 473, 479-480 (1953) (quoting with approval from Richards v. Collins, 45 N. J. Eq. 283, 287 (E. & A. 1889)).

The severance of natural ties is of such obvious finality as to call for the exercise of caution. In re N, 96 N. J. Super. 415, 423 (1967). However, where the natural parent (here, the mother) voluntarily, freely and understandingly gives consent, with a present resolution to abandon parental rights, that consent should be considered irrevocable and binding, absent fraud or some overriding equitable consideration, and assuming that such a result is not inimical to the welfare of the child. To hold otherwise would permit the natural parent, by merely indicating a changed attitude toward parental duty and obligations, to withdraw such consent and have the child returned. See In re D, 78 N. J. Super. 117, 136 (Cty. Ct. 1963).

The mother in this case had the fullest opportunity to consider the course she finally followed. She had discussed the matter with her mother, her obstetrician and a New York judge, as well as two social agencies, and then reached a firm decision to let her baby go immediately after birth. She was under no pressure from anyone; quite simply, she had concluded there was no hope of W divorcing his wife and marrying her. She now says that she was in a post-partum depression, but there is no persuasive evidence in support of this claim, either from the attending doctor or anyone else.

H changed her mind some two months after giving up the baby, when she learned that W had found a way of divorcing his wife by resorting to the Mexican courts. The road to his marrying her now appeared open, and so she entered her protest to the adoption proceedings. That she had been mistaken as to the possibility of W marrying her should not defeat the binding quality of the consent she gave. A mistake as to a future event is not of such nature as will vitiate an otherwise valid consent. Nealon v. Farris, 131 S. W. 2d 858 (Mo. Ct. App. 1939); Nelson v. Nelson, 127 Ill. App. 422 (App. Ct. 1906). Cf. Bauer v. Griffin, 104 N. J. Super. 530 (Law Div. 1969), aff’d 108 N. J. Super. 414 (App. Div. 1970), certif. den. 56 N. J. 245 (1970).

The trial judge found, in effect, that plaintiffs were good people who could furnish a fine home for the child; further, that the natural parents, except for premarital indiscretions, were morally fit and could provide a good home. Our impression is that since he did not find plaintiffs to be obviously better people, and the natural parents relatively less fit to raise the child, ho chose to preserve the natural link as being in the child’s best interests, restoring to the mother (and W) “her own flesh and blood.”

The trial judge passed over the testimony of the pediatrician and child psychologist whom plaintiffs presented as witnesses. Both testified as to the traumatic shock a very young child can experience when separated from the only mother it has ever known, and handed over to another woman, albeit the natural mother, with whom it has had no real identification. Courts have in recent years begun to pay some attention to accordant findings of child study specialists. In In re Jacques, 48 N. J. Super. 523 (Ch. Div. 1958), the court, in passing, said:

An infant begins to feel that this world is a good place through the faces he begins to recognize. These faces need not be those of his natural father and mother. He only knows that they are the ones who comfort him and brush away his fears and tears and in whom he places his love and trust. To destroy this trust would result in a feeling of rejection just at a time when his outlook on life is being formed. * * * [at 533]

Everything in the record points to the fact that the child was well adjusted and receiving every attention at plaintiffs’ hands. A host of friends and neighbors testified to the deep-rooted love and affection the baby showed the adopting parents.

Eleanor Nagy, a child psychologist, testified that she had visited plaintiffs’ home to examine the child a month before, when it was 31 weeks old. Her testing indicated that the child was within the average range of recognized intelligence and behavior scales and that she was developing in an optimum manner, indicative of the type of care and attention she was receiving. Miss Nagy testified that between the ages of three and five months a child begins to form a “focus relationship” with the mother; in the next six months or so there follows a period of what is known as “stranger anxiety.” If a child is separated from its mother during the latter period, the experience can be traumatic and upsetting; indeed, it has been found to be fairly dangerous to separate within that period. She explained that a child learns to develop a sense of trust in the early months, but if that sense is shaken, there are times when a child never really goes back to developing it, to cementing this feeling of trust, and the child grows up to be anxious and insecure. There is the possibility of permanent damage, she said, if a child is separated during the indicated period of time, depending upon the type of environment it goes into. Even going from one good environment to another could have an adverse effect.

Dr. Mancusi- Ungaro, the baby’s pediatrician, testified that the child was normal, well adjusted and receiving every attention and affection. He said there would be a certain amount of psychiatric trauma to an infant removed from a home in which it was nurtured and cared for, and this would be so here. He, too, testified that an infant shortly after birth recognizes his keeper — the mother who feeds, nurtures and caresses him. At first the child does this through sound, feeling and smell, but shortly he begins to see and focus his attention on the mother. The bond formed would be one that would be difficult to break.

The emphasis in the trial judge’s resolution of an admittedly difficult problem was upon biological parenthood rather than what has been termed psychological parenthood, i. e., the mutual interaction between adult and child described in such terms as love, attention, basic trust and confidence, considered essential for the child’s successful development. See Note, “Alternatives to ‘Parental Right’ in Child Custody Disputes Involving Third Parties,” 73 Yale L. J. 152, 158 et seq. (1963), where the writer cites outstanding authorities for the conclusion that

* * * After a period of separation from the biological parent and care by a third party, the child may learn to look upon the latter as his biological parent; any prior relationship with the biological parent may deteriorate to the point where it is not only supplanted but also incapable of resuscitation. Where this has happened, the change in custody based solely on biological relationship might, by disrupting the existing relationship of psychological parenthood, work considerable emotional harm upon the child. * * * [at 158]

The trauma of separating a child from the custody of an adult with whom an affection-relationship exists “may be psychologically equivalent in its detriment to the orphaning of that child. While, in all probability, the child would eventually form a new affection-relationship, this tie may be of lesser quality and strength” (at 161).

Although it is not the fault of the mother that two years have passed since she turned the child over to plaintiffs, the fact remains that it is only because she made a positive determination to give her child away that the problem before us developed. Even in the first few months before she suddenly changed her mind, the child had already begun to form the focus relationship of which child psychologists speak — a psychological relationship which had strengthened and deepened by the time the matter came on for hearing in December 1969. Had we been called upon to decide the issue at that time, we would not have transferred custody back to the natural parents, and this out of consideration for what is basically and truly the best interest of the child. We certainly cannot in good conscience do so now.

Eeversed and remanded for the entry of a judgment in accordance with our opinion.


author: Leonakd, J. A. D.

text:
    AARON SURKIS, AN INFANT, BY HIS GUARDIAN AD LITEM, DOROTHY F. SURKIS, AND DOROTHY F. SURKIS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. JUNE STRELECKI, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES, ETC., DEFENDANT-RESPONDENT, AND PETER SZEWZEK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued March 29, 1971
    Decided May 26, 1971.

      Before Judges Goldmanst, Leonabd and Ekitz.

      Mr. Henry H. Rubenson argued the cause for appellant.

      Mr. John V. Burns argued the cause for respondents Aaron Surkis, et als.

      Mr. Thomas J. Kapsalc argued the cause for respondent June Streleeki (Messrs. Seiffert, Frisch & Gruber, attorneys) .
   The opinion was delivered by

Leonakd, J. A. D.

In this automobile negligence personal injury ease defendant Peter Szewzek appeals from the entry of a judgment n. o. v. against him.

The infant plaintiff, by his mother as guardian ad litem, and the mother individually, brought an action against defendant June Streleeki, then Director of the Division of Motor Vehicles (Director) and defendant Peter Szewzek. The basis of the action was the allegation that on December 12, 1967 the infant plaintiff, while crossing Amboy Avenue at its intersection with Lawrence Street, Perth Amboy, was struck by an automobile traveling north on Amboy Avenue.

Plaintiffs first alleged that the automobile involved was owned and operated by an unknown person or persons (thus, pursuant to N. J. S. A. 39 :6-78, the Director was sued on one count) and, alternatively, that Szewzek was the owner and operator thereof. Both defendants denied negligence and asserted contributory negligence. Additionally, Szewzek denied that he was operating the vehicle which struck the infant at the specified time and place. To the contrary, the Director asserted that Szewzek was the driver and the action was improperly brought against her.

Trial was held on December 1 and 2, 1969. The jury returned a verdict against the Director in the sum of $18,000 in favor of the infant and $4000 in favor of the mother individually, and found a no cause of action in favor of Szewzek. Judgment was entered on December 5, 1969.

On December 12, 1969 the Director moved for a new trial on the ground that the verdict constituted a manifest denial of justice. This motion was argued on January 9, 1970 and was denied by the court. No formal order was entered. On Eebruary 6 the Director filed an amended motion for judgment or, in the alternative, for a new trial upon the same grounds as she had previously argued. This motion was argued on Eebruary 13, 1970.

The trial judge found that the jury verdict was against the weight of the evidence in only one respect — who was operating the vehicle which struck plaintiff ? He found that he could separate the jury’s finding on this issue from its finding as to negligence of the driver, lack of contributory negligence and damages. Accordingly, he ordered a new trial solely on the issue of whether the vehicle at the time of the accident was operated by an unknown person or by Szewzek. The judge specifically noted that he was not disturbing the verdict as to negligence of the driver, contributory negligence and damages. Again, no formal order was signed.

On March 5, 1970 Szewzek’s present counsel, who had been substituted for trial counsel, moved for leave to reargue the previous motions and to fix the order on said motions. Following reargument the court, by order dated March 31, 1970, set aside the verdicts against the Director and in favor of Szewzek as being against the weight of the evidence and a manifest denial of justice, and entered judgment against Szewzek notwithstanding the verdict. The amounts originally awarded by the jury were not disturbed. On this appeal Szewzek contends that the court erroneously entered the judgment (against him) notwithstanding the verdict of the jury. We agree.

The procedure for the entering of judgments notwithstanding a verdict (n.o.v.) is found in R. 4:40-1 and E. 4:40-2 (a), (b) and (c) (formerly R. R. 4:51-1 and 4:51-2(a) to (e)). R. 4:40-1 contemplates that a motion for judgment be made “either at the close of all evidence or at the close of the evidence offered by an opponent.” R. 4:40-2(a) authorizes the court to reserve decision on such a motion “made at the close of all evidence,” submit the case to the jury and within ten days after the verdict to decide the motion and enter judgment (n. o. v.) in accordance with the motion. Under (b), if the motion for judgment is denied and the case submitted to the jury, counsel may renew the motion within ten days after the verdict as a motion for a judgment n. o. v.

In the instant case neither the Director nor any other party moved for a judgment at the “close of all evidence” or at the “close of the evidence offered by an opponent” or at any other point in the trial. As noted above, she first moved for a judgment n. o. v. some two months following trial and the entry of a judgment against her.

In Poland v. Parsekian, 81 N. J. Super. 395, 401 (App. Div. 1963), certif. den. 41 N. J. 520 (1954), this court,

“in the interest of orderly practice and with a view to what we deem to be the purpose of R. R. 4:51-2,” pointed out that

* * * The rule, which is modeled after Rule 50 of the Federal Rules of Civil Procedure, was designed to permit the trial court to submit a case to the jury for factual determination where a motion, properly made at the close of the entire case raised complex questions dealing with the legal sufficiency of the proofs offered by one of the parties. The objective in view was to grant repose to the controversy if the jury decided the case in the movant’s favor or, alternatively, if the jury found against the movant, to permit the trial judge upon further reflection to decide the legal question involved. If the trial court ■then decided the motion for judgment n. O. v. in favor of the movant, and on appeal this was found to have been in error, the jury verdict would be reinstated and the parties saved the expense of the second trial which would have ensued had the case erroneously been taken from the jury.
In adopting R. R. 4:51-2 the rule makers expressly required, as a condition precedent to its operation, a motion made at the close of the entire case and a reservation of decision thereon. Ordinarily, absent a motion for dismissal at the close of a case, a party is presumed to have waived his right to a judicial determination of the legal sufficiency of his adversary’s claim. A legal point is not saved for review if the trial court is not, on proper motion, informed of the course the movant desires the court to take. We can see no reason why the rule should he othenoise in the present situation, particularly in vieio of the emphasis which the rule itself places upon the mahing of a motion at the close of all the evidence. * * * (Emphasis added)

Thus, in the instant case we are of the view that the Director was without standing to move, belatedly as she did, for judgment n. o. v. Therefore, the trial court should not have entered such a judgment against defendant Szewzek.

The Director contends that assuming that B. 4:40-1 and B. 4:40-2 mandates the making of a motion for judgment at the close of all the evidence as a prerequisite to a motion for a judgment n. o. v., such requirement should be relaxed or dispensed with, in the instant case, pursuant to B. 1 :l-2, in order to prevent “an injustice” from resulting. This contention and argument lack merit. We believe that the granting of a new trial, limited as hereinafter indicated, will result in full justice to all parties. Thus, we will not disturb the “orderly practice” commanded by these two rules. Additionally, the ten-day time limitation contained in B. 4:40-2 cannot be enlarged by “the parties nor the court.” B. 1:3-4. Therefore, the Director’s motion for a judgment n. o. v., first made some two' months following the verdict, was improperly considered by the court. For these reasons, we reverse.

On February 13, 1970 the trial judge apparently ordered a new trial limited to the sole issue of the identity of the driver of the automobile that hit plaintiff, he being of the opinion that the issues of negligence, contributory negligence and damages were properly decided by the jury. This result was a just one and the trial judge should not have altered it thereafter. The record fully supports the jury verdict as to negligence, lack of contributory negligence and damages. On the other hand, the verdicts against the Director and in favor of Szewzek, apparently grounded upon the finding that the latter was not driving the automobile at the critical time, constituted a manifest denial of justice under the law. Accordingly, these portions of the verdicts are set aside and a new trial is hereby granted, Dolson v. Anastasia, 55 N. J. 2 (1969); R. 4:49-1 (a), limited to the single factual issue of whether the automobile that hit plaintiff was being operated at the time by Szewzek or by an unknown driver. See Greenberg v. Stanley, 30 N. J. 485, 507 (1959); Tabor v. O’Grady, 61 N. J. Super. 446, 453 (App. Div. 1960); R. 4:49-1 (a).

At the retrial, the court should require the jury to return only a special verdict in the form of a written finding as to whether the automobile at the time of the accident was operated by an unknown driver or by defendant Szewzek. B. 4:39-1. The court, in accordance with the jury’s finding, should then enter a general verdict against the appropriate defendant and in favor of the infant plaintiff by his guardian ad litem in the sum of $18,000, and in favor of his mother individually in the sum of $4,000, both with costs.

Keversed and remanded in accordance herewith. No costs on this appeal.


author: Per Curiam.

text:
    HENRY G. LYNCH, ANTHONY M. DE FINO, PAUL A. ERBACH, JAMES F. LANGAN AND JOSEPH P. OLIVETTI, PLAINTIFFS-RESPONDENTS, v. THE TOWN OF WEST NEW YORK, A MUNICIPAL CORPORATION, IN THE COUNTY OF HUDSON, STATE OF NEW JERSEY: LAWRENCE T. HAVEY, RAYMOND F. GABRIEL, JOHN E. OTIS, JOHN C. CENDO AND ROLAND SABATINI, COMPRISING THE BOARD OF COMMISSIONERS OF THE SAID TOWN OF WEST NEW YORK; AND THOMAS E. RAIMUNDO, ACTING CLERK OF THE SAID TOWN OF WEST NEW YORK, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1971
    Decided April 27, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Isidore Parnes argued the cause for appellants (Mr. Louis L. Flaum, attorney).

      Mr. Sidney I. Turtz argued the cause for respondents.
   Per Curiam.

This action in lieu of prerogative writs, filed on April 8, 1971 in the Law Division pursuant to B. 4:69-1, resulted in a judgment on April 14, 1971 in favor of plaintiffs and against defendants. The judgment ordered defendants the five incumbent commissioners of the Town of West New York, to cause to be placed on the ballot for the general municipal election to be held in West New York on May 11, 1971, the following proposed ordinance:

BE IT OliDAINED by the Board of Commissioners of the Town of West New York that no person who has been elected a Commissioner for two (2) successive terms, shall again be eligible for that office for a period of five (5) years following the expiration of his second successive term.

Admittedly, the judgment was in error in setting the disqualification period at five years. The petition had referred to four years. An order amending the judgment to change the original five-year period to a four-year period of disqualification was signed and filed on April 30, 1971 following the announcement of our decision. This amendment does not alter our conclusion.

The judgment further ordered defendant acting town clerk to cause the aforesaid ordinance to be published in accordance with the requirements of N. J. S. A. 40:74-16 and printed on the ballot in accordance with the requirements of N. J. S. A. 40 :74-17.

Defendants appealed from the judgment, filing their notice of appeal with this court on April 19, 1971. Because of the imminency of the May 11, 1971 municipal election, at which five persons would be elected to serve as commissioners for the ensuing four-year term fixed by statute, N. J. S. A. 40:75-2, we granted a stay of the judgment pending disposition of a motion for a stay until the appeal would be decided. At the same time we directed that the motion for a stay pending appeal be argued orally before us on April 27, 1971, the parties agreeing to submit their supporting papers and briefs by April 26, 1971.

At the time of oral argument of the motion for a stay, counsel for both sides stipulated in open court that we might dispose of the merits of the appeal while disposing at the same time of the motion for a stay. Accordingly, we heard oral argument by both counsel as to the substantive merits of the appeal. There was no claim of any procedural deficiency, and the facts were not in dispute. We recite them briefly.

The Town of West New York is governed by a five-member commission under the commission form of government commonly known as the “Walsh Act.” N. J. S. A. 40:75-1 et seq. West New York has been so governed for many years. On the second Tuesday in May in every fourth year five commissioners are elected at the regular municipal election “to serve for the term of four years and until their successors shall have been elected and duly qualified,” as espressly provided for in N. J. 8. A. 40:75-2. Such a municipal election has been scheduled to be held on May 11, 1971.

The incumbent five commissioners are candidates for reelection. Three of the five have previously been elected commissioners for two successive terms immediately preceding the oncoming election. Whether adoption of the proposed ordinance would have any effect upon their eligibility as candidates at the ensuing election or some future election has not been ruled upon in this ease and is not presented on this appeal. Hence, we do not pass upon this potentiality. Plaintiffs are, among others, rival candidates at the May 11 election.

Acting under the initiative provision of the “'Walsh Act,” more particularly N. J. S. A. 40 :74-9 et seq., a petition was signed by the requisite number of electors and submitted to the board of commissioners requesting that the proposed ordinance be submitted to a vote of the people if not passed by the board of commissioners. The board did not pass the ordinance, nor did it submit it without alteration to a vote of the electors of the municipality within the times limited, as set forth in N. J. S. A. 40:74-14. Rather, the board’s position was and is that it lacks the power to adopt such an ordinance, even if it were willing to do so — and apparently it is not so willing — and the proposed ordinance is not a proper one for submission to a binding vote of the electors.

Because of the hoard’s public announcement of its position, the action in lieu of prerogative writs followed with the result noted above.

Because of the urgency of the situation, we recessed and conferred immediately upon conclusion of the oral arguments. Upon reconvening, we forthwith orally announced our decision and stated that a formal opinion would he filed. We ruled, and reaffirm herein, that the legislative function to establish the eligibility and term of office of the commissioners was within the powers of the State Legislature and may not be legally altered by the municipality by local ordinance, either voluntarily adopted by the board of commissioners or upon the approval of the electors under the initiative method, N. J. S. A. 40 :74 — 9 el seq. Accordingly, we reversed the judgment of the Law Division and stayed enforcement of the provisions thereof.

The Legislature has expressly fixed the term of a commissioner at four years, N. J. S. A. 40 :75 — 2. It has not limited the eligibility of a person to he a candidate by reason of his previous service as a commissioner. In fact, a commissioner’s previous experience and record may afford a sound basis for determining his fitness for further service and the desirability of continuing him as a commissioner.

Plaintiffs argue that the proposed ordinance is legally capable of adoption because N. J. S. A. 40:48-1 provides, inter alia:

The governing body of every municipality may make, amend, repeal and enforce ordinances to:
3. Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all officers and employees; and to provide for the employment and compensation of such officials and employees, in addition to those provided for by statute, as may be deemed necessary for the efficient conduct of the affairs of the municipality.

This subdivision is headed in bold-faced type: “Officers and Employees; Duties, Terms and Salaries.”

The above statutory provision does not apply to or warrant the making of an ordinance prescribing and defining the duties and terms of office of commissioners elected by the people. Their duties and terms of office are prescribed and defined by acts of the Legislature. The commissioners are not “officers or employees” to be paid compensation for the services rendered in their employment. The commissioners constitute the “governing body” of the municipality.

That there is a difference between the “governing body” and a “public officer” is made manifest by the definitions of these terms, expressly set forth in N. J. S. A. 40:48-3.4. “Governing body” is defined to include the “board of commissioners.” A “public officer” is defined as a person “authorized by ordinances adopted hereunder to exercise the powers prescribed by such ordinances.”

Obviously, there is admittedly no statutorily expressed power to pass an ordinance determining eligibility to election as a commissioner or limiting the terms for which a person may be elected. Accordingly, the proposed ordinance is inherently invalid and not a proper public question to be placed on the ballot under the initiative procedure.

The Law Division judgment of April 14, 1971 is reversed and operation of its provisions is permanently stayed.


author: Mintz, J. A. D.

text:
    STATE OE NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS A. JOHNSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 6, 1971
    Decided May 25, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Robert J. Del Tufo argued the cause for appellant.

      Mr. Michael C. Willner, Assistant Prosecutor, argued the cause for respondent (Mr. Charles M. Egan, Jr., Morris County Prosecutor, attorney; Messrs. Sheldon M. Simon, First Assistant Prosecutor, and Donald G. Collester, Jr., of counsel and on the brief).
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant was indicted for (a) forging a driver’s license bearing the name James Jenkins, in violation of N. J. S. A. 39 :3-38.1, and (b) uttering the same driver’s license, in violation of N. J. S. A. 2A:109 — 1. He was tried to a jury and acquitted on the forgery count, but convicted on the charge of uttering the forged driver’s license.

On appeal defendant contends that (a) the trial court erred in denying his motion for a judgment of acquittal at the conclusion of the State’s case and at the close of all the* evidence; (b) a prosecution for uttering a forged driver’s license is not sustainable under N. J. S. A. 2A:109-1, and (c) various errors cumulatively considered constitute prejudicial error.

On July 9, 1968 defendant was operating a motor vehicle on Route 10 in East Hanover in which James Jenkins and five females were passengers. The State’s ease was based entirely on the testimony of Detective Scioscia and Inspector Katz of the Division of Motor Vehicles. Katz clearly established that the driver’s license in the name of James Jenkins was a forgery.

Scioscia related that about 4 p-m. on July 9, 1968 he was on duty at police headquarters when defendant was brought in by two patrolmen who had stopped him on the highway. Scioscia testified that he asked defendant for identification, whereupon defendant produced the aforesaid forged driver’s license. Defendant represented that he was James Jenkins, but about one hour later admitted he was Thomas A. Johnson. The State rested..

Defendant moved for a judgment of acquittal asserting that (a) there was no proof adduced indicating that he knowingly uttered a forged driver’s license; (b) there was no proof that anyone was defrauded by said utterance, and (c) a prosecution for uttering a forged driver’s license is not within the purview of N. J. S. A. 2A:109 — 1 but is an offense which should be prosecuted under N. J. S. A. 39 :1 — 1 et seq. (Motor Vehicle and Traffic Law). The motion was denied.

N. J. S. A. 2A:109 — 1 provides that:

Any person who, with intent to prejudice, injure, damage or defraud any other person:
a. Falsely makes, alters, forges or counterfeits any record or other authentic matter of a public nature or character, or any printed or written instrument or indorsement, acceptance, transfer or assignment thereof; or
b. Utters or publishes as true, any such false, altered, forged or counterfeited matter, knowing the same to be false, altered, forged or counterfeited —
Is guilty of a high misdemeanor.

Initially, we note that defendant’s knowledge of the forged nature of the driver’s license may be inferred from his possession and utterance of the same. State v. Sabo, 86 N. J. Super. 508 (App. Div. 1965).

Secondly, the “person” defrauded within the meaning of forgery statutes can be a governmental unit. State v. Longo, 132 N. J. L. 515 (Sup. Ct. 1945).

However, we are of the view that the scheme of legislation on the subjects of forgery and motor vehicle regulation clearly indicates a legislative intent to deal with forgery of driver’s licenses and automobile registrations exclusively under N. J. S. A. 39 :1 — 1 et seq. This is readily apparent from the fact that under N. J. S. A. 39 :3-38.1(a) forgery of a motor vehicle certificate of registration or driver’s license constitutes a misdemeanor, while uttering the same certificate or license would constitute a high misdemeanor under N. J. S. A. 2A:109-1. Certainly, this is an unreasonable and unintended legislative construction. The Legislature in 1910 recognized the inadvertent deficiency in N. J. S. A. 39:3-38.1 and amended the same so as to provide that knowingly uttering a forged certificate of registration or driver’s license to a police officer, magistrate or motor vehicle inspector for purposes of identification now constitutes a misdemeanor.

This is not to say that prior to the abovementioned recent amendment persons guilty of conduct similar to that of the instant defendant could or should escape penal consequences. For example, defendant was liable under N. J. S. A. 39:3-10 for driving without a license, an offense carrying a possible $500 fine and a possible 60-day jail sentence. Likewise, under N. J. S. A. 39:3-29 defendant could be found guilty for failing to have a driver’s license in his possession or failing to exhibit his driver’s license, offenses punishable by fines not exceeding $100. Or, if the proper facts exist, defendant could be found to have violated N. J. S. A. 39 :3-40 for driving where a license has been refused, suspended or revoked, an offense which carries a $200 to $1,000 fine and a possible six month jail sentence. Relevant, too, are the provisions of N. J. S. A. 39:3-39 which prohibit lending a driver’s license or a vehicle to a nonlieensed driver.

In our view, even before the amendment of N. J. S. A. 39:3-38.1 these provisions provided punishment for acts similar or identical to that perpetrated by defendant in the instant case. While ordinarily it is not for courts to imply exceptions to or repeal of legislative enactments (see State v. Covington, 113 N. J. Super. 229 (App. Div. 1971), certif. granted 58 N. J. 329 (1971)), we conclude that the specific provisions of N. J. S. A. 39 :1-1 et seq. were always intended by the Legislature to exclusively cover the instant and related offenses. As observed in State v. Brown, 22 N. J. 405 (1956):

A statute is to be construed as a whole with reference to the system of which it is a part. * * 4 And statutes upon cognate subjects may be considered in arriving at the legislative intention, though not strictly in pari materia. This principle is essential to give unity to the laws, and to connect them in a symmetrical system, [at 415]

See also State, by Highway Com'r v. Dilley, 48 N. J. 383, 387 (1967); East Orange v. Livingston Tp., 102 N. J. Super. 512, 540 (Law Div. 1968), affirmed o. b. 54 N. J. 96 (1969).

Reversed.


author: Herbert, J. S. C.

text:
    HALA CLEANERS, INC. t/a ONE HOUR MARTINIZING, PLAINTIFF, v. SUSSEX MUTUAL INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 21, 1971.

      Mr. James G. Leonardson for plaintiff (Messrs. Stein, Bliablias and Goldman, attorneys).

      Mr. Samuel A. Gennet, for defendant (Messrs. Gennet & Methfessel, attorneys).
   Herbert, J. S. C.

Plaintiff claims that certain fire losses are covered hy a policy issued to it by defendant. Before me now is plaintiff’s application for the appointment of an umpire pursuant to lines 131 and 132 of that policy. Those lines and the entire section dealing with the subject of appraisal are found in the standard form of fire insurance contract which is incorporated in our statues. N.- J. S. A. 17:36-5.20.

Plaintiff has appointed an appraiser, but defendant has not honored plaintiff’s request that it name one. There has, of course, been no appointment of an umpire by appraisers named by the parties. Defendant opposes plaintiff’s application. It points out that liability under the policy is disputed and argues that the suit which plaintiff must bring to establish a right to be paid at all can include appropriate issues concerning the dollar value of losses sustained. Though recognizing the need of a suit to establish liability, plaintiff takes- the position here that it is entitled to have the amount of its loss established under the policy provisions labeled “Appraisal” and found in lines 123 through 140, and that such method of determining loss is available to it as a matter of right even though it might choose as an alternative to raise issues of liability and damage in a single suit on the policy.

I have not been referred to any precedents in the New Jersey courts, and have found none. A case in point is Saba v. Homeland Ins. Co., 159 Ohio St. 237, 112 N. H. 2d 1, 44 A. L. R. 2d 841 (Sup. Ct. 1953). There the court affirmed appointment of an umpire by a lower court. The application had been made by the insured after the Homeland company had refused to name an appraiser. The language in each of four policies involved was that of the widely-used standard form and identical with that found in the policy issued by defendant Sussex to plaintiff Hala Cleaners.

The following comments from the majority opinion of the Ohio Supreme Court are convincing:

The defendants in the instant case contend that the appraisal provisions are binding on the plaintiff insured but not on themselves as insurers. They urge that the provisions are revocable by themselves but not by the plaintiff insured.
The above quoted language of the policies is in part that “in case the insured and this company shall fail to agree as to the actual cash value or the amount of the loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected, within twenty days of such demand.” (Italics supplied.) This provision is not an involved one, the words are simple, and the meaning is clear. Appraisers are to be selected on the demand of either party. In none of the policies is there the slightest intimation that the selection is to be made on the demand of the insurer and not on the demand of the insured. If this were the import of the provision, there could be no excuse for the use of the word “either.”
This view is sustained by the succeeding word “each.” There is no suggestion that the insured alone shall select an appraiser on demand. As indicated by Ballentine’s Law Dictionary, the obvious meaning of the word “each” is “every one of the two or more comprising the whole.”
Nor is there doubt about the use of the next succeeding word “shall.” It clearly is employed in its ordinary mandatory sense. Furthermore, there is nothing in the context to warrant an inference that the word is used in a mandatory sense as to the insured alone and not as to the insurer. The provisions are not revocable by either.
Hence, unless these words are held to signify the exact opposite of their obvious meaning, the appraisers must be selected when demanded by the insured or by the insurer. [112 N. E. 2d at 2-3, 44. A. L. R. 2d at 844]

Saba was cited and followed in Drescher v. Excelsior Ins. Co. of N. Y., 188 F. Supp. 158 (D. C. N. J., 1960).

My conclusion is that an insured as well as an insurance company can insist that the appraisal procedures described in the standard form of fire poliejr be followed.

In both Sala and Drescher the remedy applied was tile appointment of an umpire. Although the contract language gives to a court the power to so appoint., it is my judgment that it is more appropriate at the present stage to order defendant Sussex to follow the contract and name an appraiser. There is no indication that Sussex — subject to any right of appeal of course — will not obey such an order. Then, if two appraisers cannot agree upon an umpire, one can be appointed by court order, and jurisdiction will be retained for that purpose. This form of relief is comparable to the remedy authorized by statute in cases of strict arbitration (N. J. S. A. 2A:24-3); and see Fitzgerald v. Continental Ins. Co., 275 App. Div. 453; 90 N. 7. S. 2d 430 (App. Div. 1949).


author: Gordon H. Brown, J. S. C.

text:
    JOHN C. DeGROOT AND ANNA DeGROOT, HIS WIFE, PLAINTIFFS, v. JOE MUCCIO, INDIVIDUALLY AND AS COUNTY INVESTIGATOR FOR THE COUNTY OF PASSAIC, NEW JERSEY; COUNTY OF PASSAIC; JOHN THEVOS, INDIVIDUALLY AND AS COUNTY PROSECUTOR FOR THE COUNTY OF PASSAIC; ROBERT KESSLER, INDIVIDUALLY AND AS A FORMER ASSISTANT PROSECUTOR FOR THE COUNTY OF PASSAIC; CHARLES CARROLL, INDIVIDUALLY AND AS A FORMER ASSISTANT PROSECUTOR FOR THE COUNTY OF PASSAIC; JACQUELINE NATOLI AND EDWARD LENNEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 17, 1971.

      Mr. John Thevos argued the motion to dismiss the complaint pro se and as attorney for defendant Joe Muccio.

      Mr. Robert Kessler argued the motion pro se.

      Mr. Charles Carroll argued the motion pro se.

      Mr. William J. Cleary, Jr. joined in the motion for defendant County of Passaic (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys)

      Mr. A. John Blake argued the motion for plaintiffs (Messrs. Simon, Denstman & Noonan, attorneys).
   Gordon H. Brown, J. S. C.

Plaintiffs filed an original complaint alleging against each of the defendants a wrongful participation in the prosecution of plaintiff John C. DeGroot who, with two codefendants, was tried for the murder of Gabriel DeEr'anco and acquitted.

Before the court is a motion brought by defendants John Thevos, Robert Kessler, Charles Carroll and Joe Muccio (so impleaded as “Joe”) to dismiss the action on the grounds that the first three, as prosecutor and assistant prosecutors, respectively, are immune from civil liability; that Muccio, as confidential aide to the prosecutor, has derivative immunity, and that the complaint fails to state a claim for which relief can be granted.

The complaint initially was in seven counts. It is in the first of them that the main charge is made. The gist of it is that two professed eyewitnesses (defendants Edward Lenney and Jacqueline Natoli) “lied” when they implicated De-Groot; that they lied “in fact” because his guilt “was impossible,” and that the prosecuting defendants “knew” this to be so but nevertheless used the perjury “to cover up” some investigational mistakes.

On the hearing of the motion to dismiss, the court determined that the complaint was defective in the first count because all allegations were stated in terms of conclusions. Conduct was described only in language such as the following: “The * * * defendants refused to check * * * the statements,” they “refused to bring before the court their knowledge,” and “The various statements * * * were accepted as true.”

B. 4:5-2 requires that a complaint “shall contain a statement of the facts on which the claim is based.” Some outline of a structure within which plaintiffs’ theory places defendants must appear so that conduct rather than successive states of mind is alleged. There ought to be a showing of “the constituent events of the offense and the actors involved or concerned in those events” (State v. Sullivan, 33 N. J. Super. 138, 143 (App. Div. 1954)) — to use the criminal bill of particulars analogy, which, seems to be appropriate in this special case.

An amended complaint has now been filed with the court.

Defendants have reacted with a demand that it should be stricken or impounded because it is “so grossly scandalous.” B. 4:6-5 is invoked but it does not apply. The precise objection is that the allegations amount to “false and scurrilous vilification.” The quality of plaintiffs’ allegations cannot be tested by the pending motion wherein all well-pleaded facts must be accepted as true. No matter how the language may vilify defendants, it will not be “scandalous” within the meaning of the cited rule unless it is irrelevant. Chew v. Eagan, 87 N. J. Eq. 80, 81 (Ch. 1916). Everything that plaintiffs say in the amended complaint is relevant to the subject of their grievance. There is no justification for striking or impounding the complaint. In' any event, it presents substantially the same material already publicized in the DeEranco and Kavanaugh murder trials, in the Bailey letter to Governor Hughes, as well as in the complaint filed against the movant defendants, and others, in the United States District Court. The motion to strike or to impound the amended complaint is denied.

The amended complaint presents an eighth count wherein there is further particularization which is expressly made referable to all of the first seven. Of relevance to the first count are allegations which, with their implications, present subject matters as follows:

(D
Muccio, after a threat to “frame” DeGroot, “provided” Denney (who knew nothing directly about it before) with “information” concerning the DeFraneo murder. Kessler and Carroll, with Muccio, promised money to Denney and his release from prison in return for testimony he gave against DeGroot, as an alleged eyewitness, which testimony they knew was false.
(2)
Natoli “falsely and maliciously implicated” DeGroot in the murder of Judith Kavanaugh (an integral part of the DeFraneo murder case, according to the State) and Muccio “supplied [her with] information concerning certain pornographic films” for testimony before the grand jury which he, Carroll, Kessler and Thevos knew was false.
(3)
Kessler “harrassed, bullied and intimidated” witnesses able to prove that Denney could not have been at the DeFraneo murder scene.
(4)
In putting DeGroot at a place in the Kavanaugh case, Natoli lied to the “full knowledge” of Muccio, Thevos, Kessler and Carroll because he was at his police station “as the police log and witnesses corroborated.”
(5)
Denney recanted his false testimony, but when this “was brought to the attention of Muccio and Thevos, Denney was forced to withdraw his recantation and Mr. Dowd [an attorney engaged specially by Thevos to try the case and to whom the recantation was allegedly made] was threatened with physical harm and disbarment.”

The movant defendants rely upon the rule of judicial immunity and its application covering conduct in the realm of the public prosecutor. Although insisting that the amended complaint fails to state a claim for which relief can be granted, they contend that even if there is such a statement, they are immune “because the said alleged acts were not done clearly outside their authority or jurisdiction.”

In an early decision, the Court of Errors and Appeals recognized the need to put the judge beyond the reach of “every malignant or disappointed suitor.” It was said in Grove v. Van Duyn, 44 N. J. L. 654 (E. & A. 1882) :

The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. * * * That it exists in this state in its fullest extent, has been repeatedly declared by our own courts, [at 656] |

But it has been said that there is no authoritative extension of the shield to produce a comparable protection for officials in the office occupied by defendants:

It is to be noted that in some jurisdictions a county prosecutor is not subject to a civil suit for damages at the hands of an aggrieved citizen * * * though that point has not been passed on here. [State v. Winne, 12 N. J. 152, 170 (1953)]

Even if no New Jersey Supreme Court opinion has yet explored the problem, impressive authorities mark out the ground upon which the court will doubtless stand. In Bauers v. Heisel, 361 F. 2d 581 (3 Cir. 1966), cert. den. 386 U. S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457, it was said:

=f •:= * We believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary, [at 589]

According to the Restatement, Torts, § 656, at 392 (1938):

A public prosecutor acting in his official capacity is absolutely privileged to initiate or continue criminal proceedings.

In 1 Harper and James, The Law of Torts, § 4.3 at 305 (1956), the following is stated:

Authority is not clear on the question whether an attorney at law is amenable to an action for malicious prosecution. If the attorney is an officer of the slate such as a prosecuting attorney or attorney general, it seems that he is protected by an absolute privilege and his immunity is indefeasible.

There is really no clash in the briefs on the point. Plaintiffs say: “We do not question the basic premise of the defendants that normally a Prosecutor is immune from civil liabilities * * And while plaintiffs concede that the prosecutor must have a degree of protection, defendants, on their part, acknowledge that the scope of it is not absolute: “* * * like the immunity of a judge, the immunity of a prosecutor is not without some limitation; * * Where they divide is in a definition of how the immunity can be lost. According to defendants, it happens when the prosecutors’ acts “are clearly outside their jurisdiction”; plaintiffs argue that immunity is gone at the point where what the prosecutor does is not “an integral part of his job.” Indeed, both sides in the controversy quote the same passage from Earl v. Winne, 14 N. J. 119 (1953) :

They [the prosecutor and his assistants] have the benefit of the presumption that they act legally in the discharge of their public duty, but if the presumption is overcome by convincing proof that they acted in excess of and distinct from their required official duty for personal reasons of their own, then for such acts they are civilly liable, [at 134]

Quite evidently, the dispute cannot be resolved with the help of the foregoing statement of law if it is deemed to support both arguments. In addition, it should be noted that the classic exposition of the judicial immunity doctrine in Bradley v. Fisher, 13 Wall. 335, 80 U. S. 335, 20 L. Ed. 646 (1871), does not speak in terms of presumed validity or lack of excess deviation from official duty. To the contrary, the court alluded to illegal conduct in substance:

* * * for malice or corruption in their action while exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed. [13 Wall at 651, 80 U. S. at 651]

And as to excessive action it was said:

* * * judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly, [at 651]

Doth of these fragments from Bradley make “jurisdiction” a minimal area of protection. Defendants contend that they acted within its ambit because

The defendant, John Thevos, as prosecutor, had exclusive jurisdiction over the criminal business of the County of Passaic at the time of the acts alleged io have been committed. The murder of Gabriel DeFraneo was a crime committed in Passaic County and within the exclusive jurisdiction of the defendant, John Thevos. N. J. S. A. 2A :158-4.

Thus defendants conceive of “jurisdiction,” for present purposes, as a matter of relevance — i. e., jurisdictional activity is anything bearing on the DeFranco subject matter. Plaintiffs, on the other hand, see “jurisdiction” as something qualitative, so that It exists or not depending upon whether a particular action is good or bad:

* * * he [the prosecutor] must use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the law. * * * Bad faith is ascribed to the defendants’ acts and punitive damages are sought. That alone, using the definition of reasonable and lawful, takes the allegations out of the scope of defendants’ jurisdiction.

The scope of prosecutorial immunity can be defined better by looking at what courts have tolerated or condemned rather than by collecting their legal maxims for an elaboration of this sort of debate. A review of decisional law on the subject shows that the persistence and durability of the defense is remarkable. It is not easy to find instances where it has been denied.

In Watts v. Gerking, 111 Or. 641, 222 P. 318 (1924), the Oregon Supreme Court reviewed the dismissal of an action where plaintiff sued for malicious prosecution at the hands of several persons, including defendant district attorney, and where the latter had been held to be exempt from liability because of his official capacity. The complaint alleged that, as district attornej1’, he knew he was promoting a false charge because he had actual knowledge of innocence and yet "instigated others to swear falsely against the plaintiff, knowing at the time that the charge itself was a false, fictitious, and trumped-up one” (as reported by the related opinion in 111 Or. 641, 228 P. 135, 142 (1924)).

The dismissal was reversed with the following observation:

As the statute defining the powers and prescribing the duties of district attorneys is for the protection of the public, it should be liberally construed to effectuate the purpose of its enactment, and wide latitude should be giv'en to the exercise of discretion under it. But from this it does not follow that a district attorney is not to be held accountable in a civil action for damages at the suit of an injured party for maliciously causing the arrest of such party for a pretended offense, which, at the time of the arrest, he knew had not been committed at all; for in such case the district attorney is not acting in line of his duty or within the scope of his authority. [222 P. at 321]

But iu a decisión published six months later the court repudiated its position on the merits following a rehearing. The opposite and superseding opinion has been reported in 111 Or. 641, 228 P. 135, where the court said:

It is almost inconceivable that any district attorney should commit the offense of subornation and perjury, as charged by plaintiff, and thus subject himself to criminal prosecution. * * A corrupt district attorney * * * should and would be hurled from power by an aroused public conscience. * * * The public policy of the state affords ample protection to the innocent, and a prosecutor’s endeavors should not be weakened by backfires in the nature of malicious prosecution. [228 P. at 141]

Lewis v. Brautigam, 227 F. 2d 134 (5 Cir. 1955), involved a claim that defendant state’s attorney conspired with others to force plaintiff to plead guilty by intimidations and threats, long questioning and promises' of reward. The defense of immunity was rejected:

If the State’s Attorney ordered and directed the officers to force the plaintiff to plead guilty, then certainly he is no less liable than are those who carried out his instructions. It would be wrong to hold the officers liable but the State’s Attorney exempt. On motion to dismiss, it cannot be held that such acts were either within the scope of his jurisdiction as State’s Attorney, or were authorized by law. [at 129]

And yet on at least an equal level of allegation and where the court was sensitive to what it called plaintiff’s “outraged feeling” immunity was upheld in Cawley v. Warren, 216 F. 2d 74 (7 Cir. 1954). A civil action was brought against the state’s attorney, his assistant and the foreman of a grand jury. A conspiracy was charged by which plaintiff was prosecuted with knowledge that she had committed no crime and through which conspiracy certain indictments were procured without competent witnesses or evidence of any kind. The court below had dismissed the complaint on the ground, among other things, that the alleged actions were taken by defendants in their official capacities. The dismissal was affirmed because, in the name of immunity and “as a matter of public policy, such an injured person is without relief in a civil proceeding.” (At 76)

Thus, the Lewis view was out of joint with the result reached by a coordinate appellate court the year before and which view the court criticized in a later opinion. The case was Stift v. Lynch, 267 F. 2d 237 (7 Cir. 1959), where the District Court had dismissed a complaint against a state’s attorney and his assistant who were accused of violating plaintiffs’ civil rights. It was held that the dismissal was proper notwithstanding plaintiffs’ reliance on the Lewis decision. In disposing of Lewis as not controlling, the court commented:

It must be admitted this ease is authority for the view expressed by plaintiffs, but the great weight of authority is to the contrary. * * -,ye imow 0f no other court which has followed the rule announced in the Lewis ease, [at 239]

Lewis v. Brauligam, however, has been followed since the 1959 rejection in Stift. The most conspicuous instance of recognition was by the Court of Appeals for the Ninth Circuit in Robichaud v. Ronan, 351 F. 2d 533 (1965). According to plaintiff’s allegations, defendants, a county attorney and his deputy, filed a complaint against her (she being 16 years of age) in which she was accused of murder in the first degree; their motive was malicious and they had no probable cause; they tried “by trick and deceit” to cause plaintiff to say or do things which would incriminate her, and they attempted to intimidate plaintiff into confessing crimes which she had not committed.

A dismissal of the complaint by the court below was reversed. According to the opinion:

The prosecuting attorney may have numerous roles. * * * In the Lewis case, a state’s attorney, an official prosecutor, was sued, not for acts done in the course of his quasi-judicial role but rather for acts done in his investigative role. * * * We agree with the reasoning of the Lewis case, and we must apply the principle here. * * * The title of office, quasi-judicial or even judicial, does not, of itself, immunize the officer from responsibility for unlawful acts which cannot be said to constitute an integral part of judicial process, [at 537]

In Robichaud the distinction between a prosecutor’s conduct in giiosi-judieial and investigative roles was stressed. This analysis has subsequently been refined so that in the opinion of at least one court “the doctrine of immunity to civil rights litigation has been devalued.” Peterson v. Stanczak, 48 F. R. D. 426, 431 (N. D. Ill. 1969). In that ease it was held that defendants (a state’s attorney and his assistant) were not immune because, since they were charged with participation in a conspiracy to force a confession to murder, they were acting outside their judicial or quasi-judicial capacities and, instead, were behaving as policemen.

Viability of a distinction between prosecutorial acts in and outside of traditional procedures is questionable as long as the result in Yaselli v. Goff, 12 F. 2d 396 (2 Cir. 1926), continues to be approved by the United States Supreme Court. Defendant Goff, at the time a special assistant to the Attorney General of the United States, was, together with co-defendants, charged with conspiring to accuse plaintiff and others of a conspiracy to defraud the Government in a shipping matter with knowledge that the accusation was false. He allegedly caused false evidence to be presented to the grand jurors, “poisoned” their minds and secured an indictment. By answer, defendant pleaded immunity because in all the proceedings he acted “in the due performance of his duties as such special assistant.” Plaintiff’s reply alleged that defendant obtained the official appointment just for the purpose of the prosecution after a plan, including appointment of a receiver for plaintiff’s company so as to get access to papers upon which to base the prosecution, and a request for defendant’s appointment on representations involving false evidence, and that defendant and the others were maliciously motivated for a specified reason. It was further asserted that defendant had obtained his office “for the purpose of using such appointment as a shield and cloak to protect” himself in his machinations.

The trial court struck the reply, dismissed the complaint and taxed costs against plaintiff. The judgment was affirmed. The court held that defendant acted “in the performance of the duties imposed upon him by law,” so that his immunity was “absolute.” As for the “novel question” raised by the reply, it was held:

If he cannot be charged with acting willfully and maliciously after he gets appointed to the office, no more can he be charged with having conspired to get into the office in order to act willfully and maliciously after he gets his appointment, [at 408]

The United States Supreme Court affirmed per curiam “on the authority of Bradley v. Fisher.” 275 U. S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927).

It appears from all of the foregoing authorities that:

A prosecuting attorney is commonly granted a judicial type of immunity against civil suits. He is exempt from accountability to charges of malice, corruption or acts in “excess of * * * jurisdiction.”
The shield has protected against specific accusations of having “instigated others to swear falsely” in a “trumped-up” prosecution and of falsifying maliciously and corruptly to secure the prosecutional status.

The court should make new law only to the extent that a disposition of the case at hand compels it. In the present instance there is noi need to innovate.

Eirstly, the allegations of the, amended complaint as they are grouped into transactions (2), (3) and (4) do not state actionable claims for relief.

In transaction (2) there is an insufficient claim because no allegation is made that when Natoli “falsely and maliciously implicated” DeGroot she did so on the initiative of any defendant, and there is no allegation that the pornographic film testimony had anything to do with him.

As for transaction (3) it is not alleged that the Kessler tactics were directed by the other defendants even though they “dispatched” him to Baltimore. Nor is it claimed that there was any resulting net prejudice in the form of deprivation of evidence from the witnesses.

What is claimed in transaction (4) is ineffectual because the only fact alleged to support the conclusion that defendants had “full knowledge” of Natoli’s perjury is an alibi said to have been “corroborated” by witnesses and a “police log.” This court must take judicial notice of the DeGroot trial transcript which shows that his whereabouts at the time was a credibility issue given to the jury as one on which reasonable men could differ.

Accordingly, defendants’ motion to dismiss the amended complaint for failure to state a claim is granted as to paragraphs 2 (1) through (t).

This leaves for disposition alleged transactions (1) and (5) as they are derived from the eighth count of the amended complaint.

In (1) nothing less than subornation of prejury is claimed, and it must be held that the pleader has stated enough of a factual outline so that, with the benefit of reasonable inferences, the standard of B. 4:5-2 is satisfied. The asserted fabrication attains an ultimate peak of wickedness in light of the prosecutor’s demand for the death penalty. It is actually an understatement where plaintiffs say in their brief that “The allegations in the Complaint are serious and plaintiffs have full knowledge of their gravity.” The allegations are not “serious,” they are horrendous. Nothing like them has been presented in the decisional law offered by the parties or in what has come to light in the court’s research.

In the frequently cited case of Watts v. Gerking, supra, the complaint alleged that the defendant district attorney consciously promoted a false charge because he “instigated others to swear falsely against the plaintiff, knowing that the charge itself was a false, fictitious and trumped-up one.” However, plaintiff was thusly prosecuted for no more than a violation of the liquor law of Oregon. Two justices dissented from the decision. In his separate dissent one of them said:

To contend, under any proper conception of sound public policy, that any prosecuting officer has the privilege of bringing a person into court and charging him with and prosecuting him for a crime which he knows him to be innocent of, without being answerable for the damages caused thereby, upou the theory that the public good will be best subserved thereby, is a proposition too monstrous to be debated in a court of justice * * *. [228 P. at 144]

It is not necessary here to hold that a prosecutor in New Jersey has a defense to civil suits, as has been adjudicated elsewhere — nor is a measurement of its scope required. Instead, the court holds that if the full quantum of protection intended by the court in Bauers v. Heisel, supra, were available to defendants Thevos, Kessler, Carroll and Muccio, they should not be insulated from accountability to plaintiffs for what the latter claim happened in transaction (1) (Transaction (5) is ancillary, depending upon proof of (1) in order that the so-called “recantation” would have significance.) A reason for denying such immunity is presented in the quotation from Watts above. But citation of authority is unnecessary for the proposition that conduct such as is alleged in transaction (1) is actionable in tort. Fo rationalization conld possibly shield evil acts of such magnitude.

Defendants’ motion to dismiss is therefore denied as to paragraphs 2(a) through (k) and as to (u) and (v) of the eighth count, as added by the amended complaint.

Since it is the enormity of plaintiffs’ claim which deprives defendants of immunity, its substance should be tested quickly. Truth can no longer be assumed. Plaintiffs’ right to make these allegations must soon be actively defended pursuant to the regular rules of court as this civil litigation follows the normal course of discovery where defendants can use devices available for forcing disclosure of evidence. Eull revelation of the quality of plaintiffs’ case will be complete, regardless of what defendants may or may not do in that respect, when the judge at the pretrial conference performs the function directed by R. 4:25. In particular, he must require plaintiffs to specify “the factual * * * contentions * * * as to the liability of * * * [each] defendant.” R. 4:25-l(b) (3). The contentions can present only operative facts — conclusions, generalizations and self-serving declarations will not suffice:

Our practice embraces the thesis that parties should know their case before they try it. To that end, our rules permit full discovery, and the pretrial conference is designed to compel it. [Starr v. Berry, 25 N. J. 573, 585 (1958) ]

It has been stressed that the success of a pretrial conference depends upon the presiding judge:

It is his duty to compel the litigants to reveal fully their legal and factual positions to the end that they will know precisely what is involved before the case comes to trial. [Mayfair Farms, etc. v. Kruvant Enterprises Co., 35 N. J. 558, 560 (1961)]

The case at bar is very different from the ordinary civil action. There is a separate judicial concern here where usually there is none. A full defense is availably or unavailable to these defendants depending upon an adjudication by the court. Although it has been determined that the defense is not appropriate in this instance, the public interest factors which justify exempting prosecutors from liability in tort, as they were catalogued in Bauers v. Heisel, supra, are still relevont:

We find the traditional arguments in support of immunity applicable here; they are “(1) the danger of influencing public officials by threat of a law suit; (2) the deterrent effect of potential liability on men who are considering entering public life; (3) the drain on the valuable time of the official caused by insubstantial suits * * *; (4) the unfairness of subjecting officials to liability for the acts of their subordinates; (5) the theory that the official owes a duty to the public and not to the individual; (6) the feeling that the ballot and the formal removal proceeding are more appropriate ways to enforce honesty and efficiency of public officers.” Note, 66 Harv. L. Rev. 1285, 1295, n. 54 (1953). [361 F. 2d at 590, n. 9]

These are the considerations which weigh heavily in favor of granting immunity against plaintiffs’ civil suit. Outweighing the social benefit which these factors are meant to promote is the immensity of the supposed wrongdoing. The price for this subordination of one aspect of the public interest must be an immediate exploration of the content and merit of plaintiffs’ claim.

The time for specifying the operative facts, “the factual * * * contentions * * * as to the liability of * * * [each] defendant,” (R. 4:2o-l(b) (3)) will be accelerated. On or before .Tune 7, 1971, plaintiffs shall file directly with the court, and serve on each of movant defendants, under circumstances of confidentiality, an outline of the substance of the testimony of each witness and copies of all written evidence deemed to be probative of transaction (1). The court retains jurisdiction as to this branch of the controversy.

In the second count of the complaint as amended it is alleged that Thovos, Kessler and Carroll committed legal malpractice against DeGroot because they did not provide him with “all evidence which they had in their possession which might exculpate him” from the murder charge, in violation of a duty imposed by the New Jersey “Rules of Ethics” and United States Supreme Court decisions.

Plaintiffs’ brief contains the following:

The plaintiffs must admit to the Court that they have been unable to find a case in which a suit for malpractice was tried in the Courts without the benefit of a normal attorney-client relationship Regardless of this, the plaintiffs submit that the damages claimed by the plaintiffs as the result of the defendant-attorney’s breach of duty should not go without reparation and that justice is better served by holding that an attorney is liable for his legal malpractice not only to his clients but to all others who can demonstrate damage proximately caused by the breach.

The court will not disturb settled concepts by enlarging the duty of a lawyer so as to create what plaintiffs admit to be “a hybrid in the field of legal malpractice.” Establishing such a precedent would carry a trial court over the boundary set by Canon 20 of the Canons of Judicial Ethics. The second count of the original complaint is therefore dismissed.

A conspiracy “to falsely imprison the plaintiff, John C. DeGroot, by the suppression of evidence and by the creation of false evidence” is alleged in the fourth count of the complaint as amended. The only part of this charge which is left in the case are the contentions comprehended in transaction (1) above — the gist of which fits the assertion that there was “the creation of false evidence.”

It has been ruled in this decision that the amended complaint presents triable issues of fact in such an area. The outcome will depend upon whether plaintiffs can prove by a preponderance of evidence that defendants acted in the manner described. Eormulation of the fourth count does not include any additional elements of fact but simply puts the label of “conspiracy” on conduct already outlined. This does not spell out a separate cause of action and for this reason the fourth count is dismissed.

A conformable order should be submitted.