author: Eastwood, J. A. D,

text:
    THIRZA E. MATFLERD, PLAINTIFF-RESPONDENT, v. RUDOLPH C. MATFLERD, DEFENDANT-APPELLANT.
    Superior Court of Now Jersey Appellate Division
    Argued October 30, 1950
    Decided November 14, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Milton M. Unger argued the cause for the plaintiff-respondent (Messrs. Milton M. and Adrian M. Unger, attorneys).

      Mr. Morris N. Hartman argued the cause for the defendant-appellant (Mr. Dougal Herr, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D,

The issue on this appeal involves the custody of Charles Matflerd, infant son of the parties hereto, who was horn on February 7, 1948. Defendant, Rudolph 0. Matflerd, appeals from the judgment of the Chancery Division of this court, awarding the custody to the plaintiff, Thirza E. Matflerd, and directing defendant to pay to plaintiff the sum of $97.85, representing charges for moving plaintiff’s furniture. The plaintiff is a resident of the State of New York and defendant resides in New Jersey.

No useful purpose will be served by reviewing the evidence in detail. Suffice it to say, the parties were married at New York City on June 17, 1944, at which time defendant was a medical student and plaintiff a student nurse. Both were residents of New York State. Prior to August, 1948, there were no serious differences. The incident which disrupted their marital life occurred in August, 1948, when Mrs. Matflerd, in an apparent state of remorse, confessed to her husband that during her coverture she had committed an act of adultery with a former school teacher. The breach caused thereby widened as the weeks' and months passed. Mrs. Matflerd, evidently obsessed with the notion that she might lose the custody of her child, on numerous occasions manifested emotional and mental anxiety and apprehension. A final separation of the parties occurred sometime early in 1949, after which the plaintiff went to Reno, Nevada, for the avowed purpose of obtaining a divorce, the trip being financed by her husband. Her divorce plans were abandoned, however, when her husband insisted that the decree must provide for the award of the custody of the child to him. Thereupon, Mrs. Matflerd returned to her home in New York, travelled to New Brunswick in a futile attempt to gain possession of her child from her husband’s parents, and thereupon instituted this action for separate maintenance for herself, custody of the child and his support. Upon conclusion of the hearings which extended over a period of several months, the Chancery Division held that while both parents were suitable persons to have the custody of the child, under the proofs, Mrs. Matflerd was the most suitable one to whom to entrust him. The trial court dismissed plaintiff’s complaint for separate maintenance and to establish an interest in certain bank accounts; awarded custody to the mother with generous rights of visitation to the father, provided plaintiff enter into a bond in the sum of $1,000 for the production of the child whenever the court may so direct; made an allowance of $10 per week for the support of the child, plus reasonable medical and dental expenses; directed defendant to pay to plaintiff the sum of $91.85 for van charges for moving furniture and allowed plaintiff counsel fees and costs.

Appellant contends that the judgment of the Chancery Division should be reversed, on the grounds that the mother is an unfit person and has questionable mental stability; that both parents having been judged to be competent and fit persons, the child’s custody should not be awarded to his nonresident wife in view of JR. 8. 9 :2-4; that the deposition of Dr. Bernstein, psychiatrist, was erroneously admitted in evidence and that the court erred in directing him to pay for the charges for moving plaintiff’s furniture.

The trial court found: “Erom my examination of the medical testimony of the plaintiff and from my observation of the plaintiff in court, I felt that her moodiness, her nervousness and her threats and acts to harm herself were due in part to the incompatibility of plaintiff and defendant and mainly due to remorse and regret over her act of adultery. Plaintiff shows no animosity towards her husband; plaintiff admits defendant loves the child; and that the child has received excellent attention at her mother-in-law’s home,” also, that she admitted her act of adultery in “a frank, although non-eallous, manner,” and “there is no doubt that by training and upbringing plaintiff is well qualified to care for her child and to instill in the child love and affection for the defendant-father. She is conscious of her duty as a custodian of the child. * * * I am convinced plaintiff will devote her life to him.” Our examination of the record convinces us of the accuracy of the court’s findings. Neither the father nor the mother has the greater right of the custody of their child in a contest between them. Turney v. Nooney, 5 N. J. Super. 392, 397 (App. Div. 1949). The happiness and welfare of the child is the determining factor. Seitz v. Seitz, 6 N. J. Super. 65 (App. Div. 1949). In promoting the child’s welfare, the court should strain every effort to attain the affection of both parents rather than one. In the absence of misconduct by the mother, it is customary to award to her the custody of a child of tender years. Dixon v. Dixon, 71 N. J. Eq. 281 (E. & A. 1906). The misconduct of the wife does not preclude the award of custody to her, if the proofs establish that his best interests and welfare are served thereby. Feinberg v. Feinberg, 59 A. 880 (Ch. 1905, not officially reported); affirmed, 72 N. J. Eq. 445 (E. & A. 1907); Dilatush v. Dilatush, 86 N. J. Eq. 346 (Ch. 1916); Bakley v. Bakley, 65 A. 440 (Ch. 1907, not officially reported). Each case must be determined on its own peculiar facts. In determining to which parent the child should be delivered, the court will consider the personal safety, morals, health and happiness of the child. Children of tender years are not awarded to the mother because of any rule or law, but only because the mother will take better and more expert care of a small child than can the father. Seitz v. Seitz, 1 N. J. Super. 234, 240 (App. Div. 1949).

Under his second ground, defendant contends that the trial court erred in awarding custody to plaintiff, a nonresident, in violation of R. S. 9:2-4, as amended by P. L. 1948, c. 321, p. 1296, which provides:

“In making an order or judgment relative to the custody of the children pending a controversy between their parents, or in regard to tlieir final possession, the rights of both parents, in the absence of misconduct, shall be held to be equal, and they shall be equally charged with their care, nurture, education and welfare, and the happiness and welfare of the children shall determine the custody or possession.
“The court may make the necessary orders and judgments from time to time in relation to such custody or possession, but the father, as such, shall not have preference over the mother as to the award of custody of such minor child if the best interests of the child otherwise may be protected, and in no case shall the court having jurisdiction in this State over the person and custody of any minor permit such child to lie removed from this State where the mother or father resides in this State and is the suitable person who should have the custody of such child for its best welfare.”

Defendant argues that this provision of the statute “should be construed to say that if a suitable parent resides in New Jersey, the child should not be removed therefrom;” that “where, as in the instant matter, both parents have been determined to be suitable, the statute would have no sensible meaning to avoid removal of children from this state unless The’ means ‘a’.” To give to the statute the effect contended for by defendant would, under the circumstances here, nullify the very purpose of the law and contravene the settled rule that the best interests and welfare of the child are the determinative factors and should take precedence over conflicting claims of the parents. In construing this provision of the statute in an attempt to ascertain the legislative intent, one must consider the entire provision. We cannot limit it to the latter portion thereof, separated from that which precedes it. The first paragraph thereof provides “* * * and the happiness and welfare of the children shall determine the custody or possession.” We think that the only logical construction of this provision is that the award shall be made to the parent, regardless of residence, who is the most suitable person to whom the custody should be given for its “best welfare.” Fried v. Fried, 99 N. J. Eq. 106 (Ch. 1926). It has been held that B. S. 9:2-4 does not preclude an award of custody to the non-resident wife where the husband, living in the State, is not the suitable person. Fried v. Fried, supra. “Misconduct, in this statute, means such conduct as to deprive the spouse of a moral right to the custody of his or her children.” Carson v. Carson, 54 A. 149 (Ch. 1903, not officially reported). We think that the meaning of the word “misconduct” in the statute necessarily means proof of such “misconduct” as would characterize the parent as “unfit” or “unsuitable.” Our review of the testimony convinces us that it does not support a conclusion that the one act of misconduct stamps the plaintiff as unfit. In fact, the proofs here evidence an unusually great love and affection by the mother for the child and a devotion to his best interests and welfare at all times. As a trained nurse with wide experience, Mrs. Matflerd will be employed only eight hours a day, from three in the afternoon until eleven at night, during which period the boy will be under the care and supervision of the plaintiff’s mother, who is admittedly a splendid person. During the remainder of the day, the plaintiff will be free to devote her time and attention to her son. On the other hand, the husband, a medical doctor, pursuing his profession in New York City, would have opportunity to see his son only two or three times a week at the home of his parents at New Brunswick, this State. Consequently, he will not be able to give to the child the almost continuous supervision, love and affection that Mrs. Matfierd is in a position to give. The father’s right of visitation has been generously provided for. The evidence here indicates, and the court so found, that neither parent is wanting in affection for their son and undoubtedly both desire to do whatever is best for him. A mere reading of the testimony makes it difficult to evaluate the testimony on such an important and delicate issue. In these cases the trial court, who saw the witnesses and their manner of conduct, was in a much better position to arrive at sound conclusions on the issue of the custody of the child. We are called upon to determine whether the conclusions of the learned judge that the custody of the child should be taken from the father and awarded to the mother are justified by the proofs. Prom our examination of the testimony and the legitimate inferences drawn therefrom, we are satisfied that the best interests and welfare of the child, taking into consideration all the facts and circumstances, will be best served by awarding custody of him to the mother.

We think the court erred in directing that the husband pay for the transportation charges of the furniture surrendered by him to his wife, amounting to the sum of IDT’.SS. Plaintiff urges that this part of the judgment is justified under the complaint wherein the plaintiff prayed for other and further relief. While it is true that the court made an order on June 9, 1949, “to deliver or cause to be delivered to the plaintiff the furniture in the home formerly occupied by them in Eochester, New York,” it did not constitute a right of action that had accrued at the time the complaint was filed, nor was there any subsequent amendment thereto justifying the order. The order was made at the conclusion of a hearing and determination of plaintiff’s application for support pendente lite, counsel fees and suit money. The court denied the application for pendente lite support and custody of the child. It is urged that the defendant consented to the form of the order and did not raise any objection to the provision. The defendant contends, however, that the trial judge erred in construing this provision as he did; that the defendant was only required to deliver or cause to be delivered the furniture, and that was the end of his responsibility. We do not find any legal support for the court’s action and that part of the judgment is set aside.

We find no merit in the other grounds of appeal advanced by defendant.

A counsel fee of $500 and $75 for typing appendix and brief are allowed plaintiff.

The judgment of the Chancery Division respecting custody of the minor child and the terms thereof is affirmed and that part of the judgment directing defendant to pay the charges for moving the furniture amounting to $97.85 is reversed.


source: Caselaw Access Project

author: Eastwood, J. A. D.

license: Public Domain

text:
    CITY OF JERSEY CITY, APPELLANT, v. DEPARTMENT OF CIVIL SERVICE, STATE OF NEW JERSEY AND WILLIAM J. TIMNEY, JAMES F. MALONEY, EDWARD M. MALONE, JOHN J. MEEHAN, JOSEPH M. LEPIS AND FRANK A. VERGA, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 16, 1950
    Decided November 14, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Mortimer Neuman argued the cause for the appellant (Mr. John B. Graf, Corporation Counsel, City of Jersey City, attorney).

      Mr. Edward A. Markley argued the cause for the respondents (Messrs. Markley & Broadhurst, attorneys; Mr. James J. Langan, of counsel and on the brief).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The City of Jersey City appeals from an order of the Department of Civil Service, State of New Jersey (hereafter referred to as “the Department”), directing that the respondents, William J. Timney, James E. Maloney, Edward M. Malone, John J. Meehan, Joseph M. Lepis and Prank A. Yerga, be restored to their pay and positions as legal assistants, effective as of August 20, 1949, on the ground that they had been illegally and summarily dismissed without any charges being preferred against them and without a hearing. William J. Timney filed a cross-appeal asserting that the Department erroneously failed to direct his reinstatement to the position of municipal court clerk.

On the certification of the city to ihe Department, the plaintiffs were recorded as holding the title of legal assistant, which, under R. S. 11:22-26 was in the exempt division of the classified civil service. Timney was appointed January 2, 1935, as acting clerk of the First Criminal Court of Jersey City; on February 1, 1936, as legal assistant in the law department; on January 1, 1949, as clerk of the Municipal Court, Part I, and chief clerk of all parts, which appointments were certified to the Department as permanent. J ames F. Maloney, Edward M. Malone, Joseph M. Lepis, John J. Meehan and Frank A. Yerga were appointed legal assistants on July 1, 1937, December 1, 1938, November 16, 1942, November 19, 1934, and December 1, 1946, respectively, and their appointments were duly certified to the Department. During the ensuing years, the budget ordinances of Jersey City contained items in the appropriation reading “Assistants to Corporation Counsel” and “Court Clerks and other Employees" and appropriated sums of money therefor from which the respondents' salaries were paid. Timney was notified on August 16, 1949, that his services in the Municipal Court were no longer required and he was directed to report to John B. Graf, Corporation Counsel, for assignment. On August 16, 1949, he was advised by the corporation counsel that after August 20th his services as legal assistant would be required no longer and he would be dismissed from his position as of that date. The other legal assistants were similarly notified by the corporation counsel by letters dated August 16, 1949, that their services would be terminated on August 20th. While not affecting the issue here, the commission adopted an ordinance on October 18, 1949, creating a law department, under the authority of which several legal assistants were appointed to perform duties similar to those theretofore performed by the respondents. Under the authority of the law known as the Walsh Act, the City of Jersey City adopted the commission form of government in 1913, and has been since governed thereby. At the election in May, 1949, an entirely new board of commissioners was elected and thereafter assumed office. It was the action of the new regime that brought about the dismissal of the respondents and the adoption of an ordinance creating the aforementioned law department. The respondents appealed from their dismissal to the Department. Following a hearing, the Department directed that the respondents be restored to their positions and pay as legal assistants, holding, inter alia:

“The records of the Civil Service Department show that appellants wore recorded as holding- the title of Legal Assistant. At the time their appointments were recorded, the position of Legal Assistant was in the exempt division of the classified civil service pursuant to R. S. 11 :22-26. They are protected by R. S. 11:21-6 and cannot be dismissed, except by the procedures set forth in the law.”

The City of Jersey City contends that the Department was in error in restoring respondents to their positions, on the ground that they had never been lawfully appointed, either originally or at any time thereafter; that their appointments were a nullity, having been made by resolution, and that they were only de facto employees and never did nor conld they acquire the status of de jure employees. The Department refused to pass upon the validity of their appointments, holding that it had no such jurisdiction.

In the briefs of the respective parties, considerable discussion is devoted to the applicability of P. L. 1894, c. 258, p. 385, and P. L. 1911, c. 175, p. 261, R. S. 40:171-115 et seq. However, we deem it unnecessary to discuss those acts for the reason that, at the argument, respondents conceded that they were not applicable to the issue here and the appellant, City of Jersey City, contended that the 1911 act was repealed in tolo by P. L. 1920, c. 65, p. 175, R. S. 40:171-112 et seq. We are in accord with the view that the 1894 and 1911 acts have no applicability to this issue. The act of 1920 (P. L. 1920, c. 65, p. 117), which we think is controlling, provides as follows:

“1. In each city of the first class in this State there shall be established a law department, which shall consist of a city or corporation counsel, appointed by the governing body of such city, a private secretary, appointed by the city or corporation counsel, and two assistant city or corporation counsels, and as many legal assistants, clerks and other employees as the city or corporation counsel, with the consent of the governing body, shall appoint. Such assistant city or corporation counsels and private secretary shall be removable at the pleasure of the city or corporation counsel, but the legal assistants, clerks and other employees shall be deemed to be within purview of an act entitled ‘An act regulating the employment, tenure and discharge of certain officers and employees of this State, and of the various counties and municipalities thereof, and providing for a Civil Service Commission, and, defining its powers and duties,’ approved April tenth, one thousand nine hundred and eight, and the acts supplementary thereto and amendatory thereof, and shall not be removed except as in said act provided.
“2. The city or corporation counsel shall be chief law officer of the city, and attorney or solicitor of record in all court proceedings wherein the city or any of its officers, boards, bodies or commissions, by reason of any suits growing out of their official position, shall be a party. He shall advise all city officers and bodies of any matters relating to city government, when requested to do so, and shall supervise the preparation of all contracts deeds and other documents and all statutes, .ordinances and resolutions referred to the law department for preparation. The other members of the law department shall perform such duties therein as may from time to time be assigned to them by the city or corporation counsel.”

On July 25, 1921, the then corporation counsel notified the board of commissioners in writing that he had appointed the first and second assistant corporation counsel and four legal, assistants, “subject to your approval and in accordance with c. 65, P. L. 1920.” By resolution of the commission, the appointments and salaries were confirmed. The subsequent appointments of the legal assistants whose positions axe involved in this litigation, were similarly made by the corporation counsel and their appointments and salaries were approved by resolution of the board of commissioners.

The City of Jersey City contends that the appointments in question never had any legal efficacy, having been accomplished by resolution of the board of commissioners; that it required the adoption of an ordinance to implement the statute; that notwithstanding the fact that the 1920 law is silent as to the method to be pursued in order to effectuate its objective, it was bound by the provisions of the Home Rule Act of 1917, R. S. 40:48-1; that the 1920 act in this respect is in pari materia with the Home Rule Act, and the latter act expressly j>rovides that the creation of municipal offices or positions and the fixing of salaries therefor shall be by ordinance. The respondents contend that the 1920 act, having been enacted subsequent to the Home Rule Act, is complete in every respect so far as the subject matter contained therein is concerned; that it created the law department without the necessity for any enabling municipal legislation; that where an act is silent as to the method to be followed by the governing body to effectuate the purpose of the statute, it may be accomplished by resolution ox ordinance; that the appointments of the corporation counsel, the two assistants and the legal assistants made by the corporation counsel, approved by the board of commissioners, constituted the law department in conformity with the act in question; that the result thus achieved by resolutions of the board of commissioners was legally valid.

The City of Jersey City correctly contends that where an office or position is created by a municipality, it must be done by ordinance and it is invalid if it is accomplished by the adoption of a resolution by the governing body, citing Davaillon v. Elizabeth, 121 N. J. L. 380 (Sup. Ct. 1938); Handlon v. Town of Belleville, 4 N. J. 99 (Sup. Ct. 1950), and other eases in support thereof. Our review of these cases convinces us that they deal with positions not created by statute, but those within the discretionary authority delegated to the governing body either by the Home Rule Act or other statutes. The pertinent portion of the Home Rule Act (R. S. 40:48-1 (3)) respecting the creation of municipal offices and positions provides that the municipality:

“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 tlie efficient conduct of the affairs of the municipality

“It is settled law that under R. S. 40:48-1, a municipal office or position, if not created by statute, can come into being only by ordinance of the local governing body. The sense of the statute is that, because the creation of offices and positions involves an increase of the financial burden of local government, the power is exercisable only by ordinance, a deliberative process requiring notice to the public.” Handlon v. Town of Belleville, supra. The Handlon case dealt with the appointment of a recorder and Mr. Justice Heher, speaking for the Supreme Court, said: “We do not perceive in these provisions (R. S. 2:225-1 and R. S. 2:16-4) a legislative direction for the appointment of a clerk of the local court, even though the post be deemed unnecessary. The need is a matter for the discretion of the local authority. We find in the cited act no suggestion of a legislative determination of the need without regard to local conditions.” (Parenthesis ours.) The 1920 act not only creates the law department and the specific positions constituting same, but also describes the duties of the corporation counsel, delegates to him power to appoint the two assistant city or corporation counsel as well as a private secretary, the legal assistants, clerks and other employees “* * * as the city or corporation counsel, with the consent of the governing bod]», shall appoint.” The act further provides that “Such assistant city or corporation counsels and private secretary shall be removable at the pleasure of the city or corporation counsel, but the legal assistants, clerks and other employees shall be deemed to be within purview of an act entitled ‘An act regulating the employment, tenure and discharge of certain officers and employees of this State, and of the various counties and municipalities thereof, and providing for a Civil Service Commission, and defining its powers and duties/ approved April tenth, one thousand nine hundred and eight, and the acts supplementary thereto and amendatory thereof, and shall not be removed except as in said act provided;” further, that “The other members of the law 'department shall perform such duties therein as may from time to time be assigned to them by the city or corporation counsel.” It follows, therefore, as a corollary that the positions were created by the 1920 act.

The appellant contends that the language of the 1920 act merely authorizes the city to set up the law department; that it is not mandatory; that the word “shall” in the act is to be construed as “permissive,” citing the case of Orange v. Goldberg, 137 N. J. L. 73 (Sup. Ct. 1948). The Goldberg case is to be distinguished from the case at bar. In that case, it was held that Goldberg was not legally appointed originally, his appointment to the office having been made merely in writing by a then director of the public works in the municipality. There is nothing in the opinion to indicate that there was any action of the governing body, either by resolution or ordinance, appointing Goldberg to the position of assistant city counsel or that his position was created by statute. The appellant also relies upon the case of Brenner v. Bayonne, 132 N. J. L. 47 (Sup. Ct. 1944); affirmed, 132 N. J. L. 469 (E. & A. 1945). The Brenner case is also distinguishable from the case at bar, in that while the statute applicable there, R. S. 40:171-109, provided that all cities of the second class shall engage city counsel and fix the terms of their office at three years, the court held that it merely provided “* * * how offices in second class cities shall be filled and provides for the terms thereof. * * * It is significant that the statute did not prescribe the duties o£ the offices but simply provided that the officers so appointed ‘shall perform the same duties and receive the same emoluments as are now provided by existing laws. It seems to us that this statute created no new offices but was for the purpose of replacing existing officers.” Mr. Justice Trenehard, in Haythorn v. Van Keuren & Son, 79 N. J. L. 101 (Sup. Ct. 1909), states the settled rule, viz.:

“The presumption is that the word ‘shall’ in a statute is used in an imperative and not in a directory sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in tile context which will justify a different meaning. 25 Am. & Eng. Encycl. L. (2d Ed.) 633.
“There is nothing in the language of the section to indicate that the word ‘shall’ was used in a permissive sense, * *

Appellant concedes that the four sections of the. 1920 act (including the repealer, section 4) constitute “a comprehensive, systematic, and self-contained charter, so to say, for the law departments of first class cities.” We concur except insofar as it fails to fix salaries.

Appellant argues a further ground for reversal, viz.: that the positions of the respondents were invalid in that no ordinance fixing their salaries was ever adopted. The respondents argue that while the 1920 statute does not require a salary ordinance, during each of the years that they served as legal assistants, budget ordinances were enacted by the city appropriating the sums of money necessary to pay their salaries and, therefore, assuming arguendo that a salary ordinance was necessary, the budget ordinances satisfied the requirements of the Home Rule Act. Although we have concluded that the 1920 act created the positions in question, in order to make the appointments of the respondents legally effective, it was essential that another and further step be undertaken by the governing body, to wit: the adoption of an ordinance fixing the salaries for these positions. To constitute the respondents as de jure employees, they could not rely solely on the .statutory creation of their positions under the 1920 act. The act in question made no provision for the fixing of salaries; therefore, the provisions of the Home Rule Act of 1917 became applicable. The 1920 act and the provisions of the Home Rule Act (R. S. 40:46 — 23; as amended, P. L. 1948, c. 282, p. 1188 and R. S. 40:48-1) are unquestionably in pari materia. R. S. 40:46-23, as amended, provides:

“The governing body may, by ordinance, notwithstanding any maximum or minimum limitation fixed by statute, fix .and determine the salaries, wages or compensation to be paid to each officer and employee of the municipality who, by law, is entitled thereto, except the members of the governing body and mayor or other chief executive officer therein, * *

The salary of each of the respondents was fixed by resolution at the time of their respective appointments. The annual budget ordinance, relied upon by respondents, could not in itself be characterized as a salary-fixing ordinance. The purpose of an annual municipal budget is to appropriate and provide the necessary monies for the payment of salaries and other administrative expenses during the year for which the budget is adopted. A reference to the annual budgets of Jersey City for the years in question disclose, inter alia, that appropriations in a lump sum were set up for the payment of salaries of those designated as “Assistants to the Corporation Counsel.” No specific mention of the names of the respondents is made therein nor to the amount of salary to be paid them. The budget ordinance did not satisfy the statutory requirement. Van Brookhoven v. Kennedy, 125 N. J. L. 178 (Sup. Ct. 1940); affirmed on Supreme Court opinion, 125 N. J. L. 507 (E. & A. 1941). To give legal vitality to the positions in question, it was mandatory that the municipality, as an integral part of the action required to be undertaken by it, adopt a salary ordinance. Such an ordinance not having been adopted, the respondents are not entitled to the claimed positions. Toomey v. McCaffrey, 116 N. J. L. 364 (Sup. Ct. 1936); Davaillon v. Elizabeth, 121 N. J. L. 380 (Sup. Ct. 1938); Hale v. Town of Kearny, 99 N. J. L. 334 (Sup. Ct. 1924).

As to respondent Timney’s cross-appeal, we find no merit therein. His appointment on January 1, 1949, as clerk of the Municipal Court, Part I, and chief: clerk of all parts, was made pursuant to an ordinance adopted under the authority of P. L. 1948, c. 264, amended, P. L. 1948, c. 394 (R. S. 2:8A-1 et seq.). Under that act, the municipality was authorized (a) to provide for a clerk of the municipal court and to provide for compensation and (b) to designate any officer or employee of the municipality to serve as a clerk of the municipal court with or without additional compensation. Timney was “designated” to act as such clerk. Later, his designation was revoked and he was returned to his position as legal assistant. He had not resigned his position as legal assistant nor was that position terminated when he was designated as clerk to the courts. Almost immediately after his designation as clerk had been terminated, he was dismissed as legal assistant. Under our determination, Mr. Tinmey is not entitled to restoration either to the position of court clerk or legal assistant.

The order of the Civil Service Department is reversed, without costs.


author: Wiliam J. Brennan, Jr., J. A. D.

text:
    MARY CORTESE, PLAINTIFF-RESPONDENT, v. VITO CORTESE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1950
    Decided November 15, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Lawrence Friedman argued the cause for appellant (Mr. Philip Insabella, attorney).

      Mr. G. Dixon Speakman argued the cause for respondent (Mr. William B. Vanderbilt on the brief).
   The opinion of the court was delivered by

Wiliam J. Brennan, Jr., J. A. D.

The Essex County Juvenile and Domestic Eelations Court ordered defendant to pay his wife, the plaintiff, a sum weekly for the support of herself and an infant child born less than five months after their marriage, and denied defendant’s application for a blood test under R. S. 2:99-4. The wife admitted pre-marital sexual relations within the probable limits of conception with both the defendant and another and acknowledged her uncertainty as to the child’s paternity. She refused to submit herself and the child to a blood test. She claimed she told defendant before their engagement on June 28, 1947, when about two months pregnant, of her uncertainty whether he or the other, a married man, was the father of the child to be born and that, nevertheless, he agreed to marry her. Defendant denied having knowledge of her relations with anyone except himself until 15 months after the child’s birth when he says she taunted him during a dispute at their home that he was not the child’s father, and he left her.

This is a civil action, plaintiffs complaint being for “adequate support” under P. L. 1946, c. 77, § 2, amending R. S. 9:18-14. Frank v. Juvenile & Domestic Relations Court of Essex County, 137 N. J. L. 364 (Sup. Ct. 1948); Lasasso v. Lasasso, 1 N. J. 324 (1949).

The question presented by defendant’s appeal is whether the denial of defendant’s motion for an order compelling a blood grouping test was a proper exercise of judicial discretion in the circumstances.

The trial court was empowered under R. S. 2:99-4 to order the requested test. The statute provides:

“Whenever it shall be relevant in a civil action to determine the parentage or the identity of any child or other person, the court, by order, may direct that any party to the action and the person whose parentage or identity is involved submit to one or more blood grouping tests, to be made by duly qualified physicians under such restrictions and directions as the court or judge shall deem proper. Whenever such test is ordered and made, the testimony of the experts to the results thereof, subject to cross examination as in section one, shall be receivable in evidence, but only in cases where definite exclusion is indicated. The order for such blood grouping tests also may direct that the testimony of such experts and of the persons so to be examined be taken by deposition. The court shall determine how and by whom the costs of such examinations shall be paid.”

The source of the section is P. L. 1939, c. 221, § 2. The first section of that statute, now R. S. 2:99-3, is applicable to criminal and g'Masi-criminal proceedings, for example, bastardy and filiation cases. .The second section, with which we are concerned here, is applicable to civil causes in which it is relevant to determine the parentage or identity of any child or person.

The statute relates to the obtaining of evidence in the field of contested paternity where the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.

The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but “they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts,” Beach v. Beach, 114 F. 2d 480 (D. C. Cir. 1940), and see Annotation, 163 A. L. R. 923; Jordan v. Mace, _ Me. _, 69 A. 2d 670 (Sup. Jud. Ct. 1949); Report, Committee on Medicolegal Blood-grouping Tests, 108 Am. Med. Ass’n. Journal, 2138-2142 (June, 1937). A wealth of medical, scientific and legal references will be found in S cha I lew, Disputed Paternity Proceedings (2d Ed. 1947), p. 184; Wigmore on Evidence, vol. I, § 165a et seq. (3d Ed. 1940). Blood tests can now disprove paternity in over one-half of the paternity cases involving innocent men. 63 Harvard Law Review 1271 (May, 1950).

It is plain we should hold, as we do, that this unanimity of respected authorities justifies our taking judicial notice of the general recognition of the accuracy and value of the tests when properly performed by persons skilled in giving them. The law does not hesitate to adopt scientific aids to the discovery of truth which have achieved such recognition. Cf. State v. Cerciello, 86 N. J. L. 309, at 314 (E. & A. 1914), where the admissibility in evidence of finger prints, now universally acknowledged to be virtually dispositive of issues of identity, was first approved in the State by our highest court on “* * * the theory that the evolution in practical affairs of life, whereby the progressive and scientific tendencies of the age are manifest in every other department of human endeavor, cannot bo ignored in legal procedure, but that the law in its efforts to enforce justice by demonstrating a fact in issue, will allow evidence of those scientific processes, which are the work of educated and skillful men in their various departments and apply them to the demonstration of a fact * *

We do not, unfortunately, have the benefit of the reasons upon which the trial court based its denial of defendant’s motion. In the light of the wide acceptance of the value of the tests and the legislative recognition implicit in the statute of their competency to help the courts in the search for truth,, we think only reasons of considerable force should move a court in a civil case to deny a motion for an order to compel a blood test when, as in this case, the issue of parentage is relevant and, it may be, crucial, in the disposition of the matter.

Plaintiff argues in support of the trial court’s action that the ordering of the tests is discretionary with the trial court under the terms of the statute. This is true, but judicial discretion is not an arbitrary or personal discretion to be exercised according to the whim or caprice of the individual judge; it is a mere legal discretion and he should use the authority reposed in him when the essential requisites for its exercise exist and the justice of the course is apparent. McFeely v. Board of Pension Commissioners of Hoboken, 1 N. J. 212, at 215 (1948). We are empowered to review his action and to reverse it when it appears his judicial discretion was not properly exercised in the circumstances, and it also appears the error injuriously affected the substantial rights of a party. State v. Hunter, 4 N. J. Super. 531, at 535 (App. Div. 1949); cf. Rules 1:2-20 and 3:81-13.

It has been said the word “may” shall be taken “to be mandatory, when the thing to be done is for the sake of Justice, or the public good,” Davison et al. v. Davison's Adm'r., 17 N. J. L. 169 (Sup. Ct. 1839). We do not go so far in construing this statute. Proof that the giving of the test would endanger the health of a person submitting to it necessarily would- be a proper reason for exercising discretion to deny an order to compel such person to take the test, although the giving of a few drops of blood can rarely in the light of-medical experience have that consequence and the burden of proof to show that probability in a given ease should be on the person making the assertion. Too, if, on proper proofs, the court entertains doubts whether this highly technical test can be adequate^ performed by competent and qualified technicians, Article, Schatkin & Levine, “Paternity Blood Tests,” 62 N. J. L. J. 341 (October 5, 1939), cf. State v. Hunter supra, it could hardly be suggested the court had exceeded the limits of permissible judicial discretion in denying an order to compel the taking of the tests. In the absence of these or other like special circumstances, however, we think the demonstrated utility of this tool of evidence should move trial courts in civil actions to employ it freely.

We perceive no valid reason why, standing alone, the refusal of this plaintiff to submit voluntarily to the tests justifies, as she suggests, the denial of an order to compel her to do so when such test will or may materially assist in determining the right of the matter. “The citizen holds his citizenship subject to the duty to furnish to the courts, from time to time and within reasonable limits, such assistance as the courts majr demand of him in their effort to ascertain truth in controversies before them.” State v. Damm, 64 S. D. 309, 266 N. W. 667 (1936) (affirming on rehearing (1933) 62 S. D. 123, 252 N. W. 7). This is a truism particularly apt to a litigant who like this plaintiff invokes the judicial process in her own behalf.

Plaintiff argues the statute implies she may not be ordered to submit to the tests if she refuses to do so. This is not so. True, the first section of the statute, applicable to criminal and qMasi-criminal proceedings, has language which may arguably imply a privilege of declination. This is the last sentence, reading “Whenever the court orders such blood grouping tests to be taken and one of the persons thus directed shall refuse to submit to such tests, such fact shall be disclosed upon the trial in the discretion of the court.” We are not called upon in this civil case to express an opinion whether the courts may require the defendant in a criminal ease to submit to a blood test and furnish blood for such purpose. Even assuming a person in a criminal case is privileged by force of the quoted sentence to refuse to submit to a test, such privilege cannot be successfully claimed by a person concerned in a civil action because no like provision implying the privilege appears in the second section applicable to civil cases. This omission cannot have been accidental; it is presumed to have been a matter of legislative design. It is apparent the omission reflects a legislative intent that in civil actions the trial court in a proper case shall have authority to order the tests despite a refusal voluntarily to submit, and, as a necessary corollary, to enforce obedience to such order by appropriate and familiar judicial sanctions. Cf. Rule 3:37-2(b); Bissell v. Bissell, 93 N. J. Eq. 537 (Ch. 1922); and see R. S. 9:18-30.

Plaintiff at the oral argument withdrew the contention in her brief that the statute, if construed to empower the trial court to issue and enforce a compulsory order, would be unconstitutional as an invasion of the right of personal privacy in violation of Article I, paragraph 1, of the State Constitution. We, nevertheless, state our view because of the conflict of decisions on the question in Bednarik v. Bednarik, 18 N. J. Misc. 633 (Ch. 1940) and Anthony v. Anthony, 9 N. J. Super. 411 (Ch. Div. 1950). We hold the statute as interpreted here is not unconstitutional; the contrary holding in the Bednarilc case is expressly disapproved.

Plaintiff’s final contention is that the denial of the compulsory order was in any event proper because even test results disproving defendant’s paternity would not suffice to overcome the potency of the presumption of legitimacy. That presumption, however, may be rebutted. Justice Swayze said in Wallace v. Wallace, 73 N. J. Eq. 403 (E. & A. 1907), “* * * this presumption may be overcome * * *.” Chief Justice Gummere expressed it, “that issue born of that marriage is prima facie legitimate,” Vreeland v. Vreeland, 78 N. J. Eq. 256 at 261 (E. & A. 1910).

Plaintiff’s argument actually goes to the question whether the statutory language making a result disproving paternity “receivable in evidence” is to be interpreted to treat the result as merely a form of expert evidence not necessarily barring a finding of paternity contrary to the test result, Berry v. Chaplin, 74 Cal. App. 2d 652, 169 P. 2d 442 (1946); cf. State v. Cerciello, supra, or is to be deemed conclusive evidence of non-paternity routing the presumption of legitimacy, 163 A. L. R. 959, see Jordan v. Mace, supra.

The differing views are discussed in Schatlcin, Disputed Paternity Proceedings, supra, who at p. 184, reveals his own preference: “As far as the accuracy, reliability, dependability — even infallibility — of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely. Furthermore, that the weight of enlightened legal authority is in favor of according decisive evidentiary effect to reliably reported blood test exclusions, is shown by the favorable comment on instances of judicial acceptance of exclusions, and the critical, deprecatory view of judicial disregard of conclusions, which have appeared in law reviews throughout the country;” and see Articles, 124 New York Law Journal, 12, 20 (July 5 and 6, 1950).

We are not called upon to resolve this question at this time. The issue can arise only when and if a blood test is made and the result excludes defendant’s paternity. It is sufficient we hold the interests of justice require the trial court to reconsider defendant’s motion in light of our opinion to the end that valuable evidence relevant to the case may not be overlooked if it may be obtained in a manner consistent with the rights of the parties and of the child through blood tests properly performed.

Reversed. No costs.


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

text:
    J. EARLE MILLS, PETITIONER-RESPONDENT, v. MONTE CHRISTI CORP., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1950
    Decided November 20, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Andrew Lawrie argued the cause for the appellant.

      Mr. Edmund J. Canzona argued the cause for the respondent (Messrs. Parsons, Labrecque, Canzona & Combs, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment entered in the Union County Court sustaining an award for petitioner by the Division of Workmen’s Compensation of the Department of Labor and Industry. .

The petitioner J. Earle Mills was employed by the appellant company as plant superintendent. On December 5, 1946, while in the company’s office, he was asked by a female employee to pick up a five-gallon bottle of water and place it in the drinking fountain. He testified that "I turned around and reached down and got the bottle of water, and as I grabbed ahold of the crate to lift it off the floor, a terrific pain hit me in the back.” It appears from the evidence that he had then suffered a back injury, later diagnosed as a herniated disc, which resulted in extensive medical and surgical treatment and disability. Before the described incident the petitioner had always performed his customary work in normal fashion and, according to his testimony, never had any prior indication of back injury or treatment therefor.

There was medical testimony on petitioner’s behalf that his physical action at the time of the incident of December 5th was causally related to his injury consisting of a herniated disc. On the other hand, there was testimony by Dr. Ehrlich and Dr. Ein on the appellant’s behalf suggesting that there had been a progressive degenerative process culminating in the “final episode” but not causally related to the exertion or strain of December 5th. However, Dr, Ehrlich did indicate that it was uncommon to have a real herniation without preceding symptoms and effort and that any lifting or bending effort could bring it about. Similarly, Dr. Ein stated that “in a large percentage of the cases” effort produced the herniation and that in his experience “there has always been a history of trauma.” Both of the lower tribunals found that the particular strain or exertion incident to the bending or lifting by the petitioner on December 5th brought on his back injury which was the result of an accident arising out of and in the course of his employment within the contemplation of the Workmen’s Compensation Act.

The concurring findings below were supported by adequate evidence and, in the light thereof, we have little difficulty in accepting the conclusion that the petitioner was entitled to an award under the Workmen’s Compensation Act. He was properly engaged at his employer’s place of business during his working hours in an activity which may be said to have been on his employer’s behalf and the risk of injury was incidental to his employment. The specific incident of December 5th was an unbooked for mishap or untoward event which was not expected or designed and constitutes an accident within the liberal intendment of the act. Hall v. Doremus, 114 N. J. L. 47, 49 (Sup. Ct. 1934). The fact that the strain or exertion which brought on the herniation was not an unusual one or that the employee was predisposed thereto, is no ground for denial of ail award. See Van Meter v. E. R. Morehouse, Inc., 13 N. J. Misc. 558, 559 (Sup. Ct. 1935); Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (E. & A. 1939); Ciocca v. National Sugar Refining Co. of New Jersey, 124 N. J. L. 329 (E. & A. 1940); Cavanaugh v. Murphy Varnish Co., 130 N. J. L. 107 (Sup. Ct. 1943); affirmed, 131 N. J. L. 163 (E. & A. 1944). In the Van Meter ease the former Supreme Court reversed a determination which had disallowed an award to a farm laborer who had a weakened condition and experienced a pain in his back, later described by medical testimony as a sprained back, while engaged in his assigned work oí clearing a field by pulling out great weeds and bushes. And in Rosenberg v. Netherland Cab Co., 269 App. Div. 914, 57 N. Y. S. 2d 551 (1945). leave to app. denied. 295 N. Y. 992, 65 N. E. 2d 105 (1946), an award was sustained where a taxicab driver stooped down to read his meter and suffered a herniated disc. Cf. McSweeney’s Case, 318 Mass. 620, 63 N. E. 2d 353 (1945); Cutter-Hammer, Inc., v. Industrial Commission, 248 Wis. 229, 21 N. W. 2d 256 (1946); Gavula v. Sims Co., 155 Pa. Super. 206, 38 A. 2d 482 (1944).

Fotwithstanding the foregoing, the appellant urges that the current doctrine of our Supreme Court (Seiken v. Todd Dry Dock, Inc., 2 N. J. 469 (1949)), which requires proof of “unusual strain or exertion” in heart disease cases is applicable and precludes an award in the instant matter. This doctrine is apparently grounded upon the judicially declared presumption that death from heart disease is ordinarily the result of natural physiological causes rather than trauma or particular effort. Seiken v. Todd Dry Dock, Inc., supra, at p. 475. It has not escaped criticism (Heher, J., concurring in Temple v. Storch Trucking Co., 3 N. J. 42, 46 (1949)), and has not been extended to other injuries, such as that suffered by the petitioner, resulting from a strain or exertion incident to the employment. Indeed in Temple y. Storch Trucking Co., 2 N. J. Super. 146, 151 (App. Div. 1949), Judge Colie applied the unusual strain or exertion doctrine in a heart disease case but distinguished Ciocca v. National Sugar Refining Co. of New Jersey and Bollinger v. Wagaraw Building Supply Co., supra, on the sole ground that neither “was a case involving a heart condition.” And in Kayser v. Erie County Highway Department, 276 App. Div. 789, 92 N. Y. S. 2d 612 (1949), the court pointed out that “The dieart cases’ where it is usually required to show some special effort as a precipitating cause of the attack, stand in a class by themselves, but they do so because their generalized nature makes it difficult factually to attribute the attack to the work.”

We need not here determine whether the doctrine of the Seiken case is to be extended to situations involving other diseases which ordinarily are unrelated to trauma or particular effort. It is sufficient to note that, in the instant matter, the medical testimony disclosed that the herniation of a disc ordinarily results from trauma or particular effort. This, coupled with the evidence relating to the incident of December 5th, was sufficient to support the finding that the petitioner’s physical action at that time brought on his back injury and present disability. It seems hardly the subject of dispute that an award would be proper if a common fracture, dislocation, or similar orthopedic injury had resulted; we fail to observe any significant basis for differentiating, for purposes of establishing compensability under the Workmen’s Compensation Act, such injuries from that suffered by the petitioner. The suggested introduction of an artificial requirement that there be a showing in any of these instances of unusual or extraordinary strain or exertion finds no basis in the terms of the act and would appear to be contrary to its underlying beneficent purposes. Cf. Fenton v. J. Thorley & Co., Limited (1903) A. C. 443, 446, 452.

The judgment is affirmed.


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

text:
    JOHN J. BREEN, T/A BANKERS REALTY COMPANY, PLAINTIFF-RESPONDENT, v. ALEXANDER DEBRON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1950
    Decided November 15, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Dominick F. Pachella argued the cause for appellant (Mr. Thomas S. Clancy, attorney).

      Mr. John F. Selser argued the cause for respondent (Messrs. Selser & Shenier, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The question presented is whether the court below erred in denying defendant’s motion for dismissal.

The plaintiff, a real estate broker, sued the defendant, demanding commission for the sale of defendant’s property to Adeline Galiena and Louis J. Galiena. The plaintiff relied on a notice in writing which he served upon the defendant under the following provision of R. S. 25:1— 9:

“Any broker or real estate agent selling or exchanging real estate pursuant to an oral agreement with the owner of such real estate, who shall actually effect such sale or exchange before such oral agreement shall have been repudiated or terminated by the owner in writing as hereinafter provided, may recover from such owner the amount of commission on sueli sale or exchange, if the broker or agent shall, within five days after the making of the oral agreement and prior to the actual sale or exchange of such real estate, serve upon the owner a notice in writing, setting forth the terms of the oral agreement and stating the rate or amount of commission to be paid thereunder, and if Hie owner shall not have repudiated or terminated the oral agreement prior to the actual sale or exchange of the real estate.”

The writing relied upon was the following letter:

“May 30, 1948.
“Mr. Alex Debron
“405 Aurora Avenue
“Cliffside Park, N. J.
“Dear Mr. Debron:
“Confirming your oral authorization to sell premises known as E/S Buckingham Road, Palisade, New Jersey, at a price of $45,000., or any lesser sum you may agree to accept.
“Pursuant thereto, we have this date shown the premises to Mr. Rozen of Binghampton, New York. It is understood and agreed that if the property is sold at any time to Mr. Rozen, or anyone associated with him, or acting in his behalf or related io Mm by blood or marriage, you will pay the commission of 5% to the undersigned.
“Very truly yours,
“BANKERS REALTY
“By: John J. Breen.”

There was testimony that the actual oral agreement between the plaintiff and the defendant was a general authority to sell the property at a commission of five per cent. It was conceded that the property was not sold to “Mr. Rozen, or anyone associated with him, or acting in his behalf or related to him by blood or marriage.”

The court below denied the motion to dismiss on the ground that a question of fact for the jury was presented as to whether the writing set forth terms of an oral agreement which gave the plaintiff a general authority to sell at a commission rate of five per cent.

Under the statute, the notice must set forth “the terms of the oral agreement” and state “the rate or amount of commission” to be paid under the terms of the claimed oral agreement. Assuming that the plaintiff’s notice in writing complies with the requirements of the statute, his right to recover commission still depends upon the terms of the agreement as set forth in his written notice. It is the oral agreement as set forth in the notice which the owner is permitted to repudiate or terminate, and upon which the broker must rely. The notice stated: “It is understood and agreed that if the property is sold at any time to Mr. Rozen, or anyone associated with him, or acting in his behalf or related to him by blood or marriage, you will pay the commission of 5% to the undersigned,” and contained no other provision for the payment of commission. The language is clear and unambiguous and there was no evidence of any surrounding circumstances or usages which could create doubt of its meaning in the mind of a reasonable man. Therefore, the construction and effect of the writing was a matter of law to be determined by the court and not by the jury. Edge v. Boardwalk Securities Corp., 115 N. J. L. 286 (E. & A. 1935); Whittle v. Associated Indemnity Corp., 130 N. J. L. 576 (E. & A. 1943).

When, as here, the agreement provides that a specified commission is to be paid for sale to a particular person or persons, the broker cannot recover commission on the sale to another. Feist & Feist v. Bloomfield Bank & Trust Co., 120 N. J. L. 221 (E. & A. 1938), 126 N. J. L. 455 (E. & A. 1941). Since it was conceded that the sale was not made to any person named or described in the broker’s- written notice, the court below should have granted the motion to dismiss.

This conclusion makes it unnecessary to consider the other grounds for reversal urged by the defendant. The judgment is reversed with costs and the cause remanded for entry of judgment for the defendant.


author: Wm. J. Brennan, Jr., J. A. D.

text:
    TOWNSHIP OF TEANECK, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT, v. DIVISION OF TAX APPEALS IN THE DEPARTMENT OF TAXATION AND FINANCE OF THE STATE OF NEW JERSEY, AND EDYTHE P. WHIPPLE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1950
    Decided November 29, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Dominick F. Pachella argued the cause for appellant (Messrs. Pachella & Chary, attorneys).

      Mr. Louis G. Morten argued the cause for respondent.
   The opinion of the court was delivered by

Wm. J. Brennan, Jr., J. A. D.

The assessor of the Township of Teaneck listed a property of over three acres with a nine-room dwelling house and garage thereon as exempt from taxation for the year 1948.

The property was deeded to the Township by Frederic Andreas and his wife bjr deed dated July 17, 1945. The conveyance was subject to several conditions. We are concerned on this appeal only with the first, which reads: "The said Frederic Andreas and Mabel Moore Andreas, his wife, or either, or the survivor of them, shall have the right to the full, complete, and undisturbed possession, use, enjoyment and control of said land and premises so long as either may live, and without the obligation to pay any tax or taxes on said premises.”

The Township enacted an ordinance on September 4, 1945, accepting the gift of the property “to be used for park purposes” “upon the termination of the life estate” when the property was to be known as the Maria W. Andreas Memorial Park and the dwelling to be immediately taken down and removed from the premises.

The former Court of Errors and Appeals in an opinion filed March 20, 1947, struck down the ordinance as an ultra vires agreement to grant tax exemption. Whipple v. Township of Teaneck, 135 N. J. L. 345 (E. & A. 1947).

On March 27, 1947, Mr. Andreas addressed a letter to the Township Council “as to how best to remove the objections that have been raised to the acceptance of my deed of July 17, 1945,” and stating “it was decided” “that I should and hereby do agree to pay all the taxes levied against the property from January 1, 1946, until such time as our right to occupy and use the premises shall cease.”

Doubtless this letter inspired the Township Council on April 1, 1947, to adopt a resolution reciting the Township “hereby accepts the deed of Frederic Andreas and Mabel Moore Andreas, his wife, covering the land and premises hereinafter described to the Township of Teaneck for use for park, playground, and other recreational purposes or activities, subject to the reservations, exceptions, conditions, and restrictions therein set forth, except the condition that Frederic Andreas and Mabel Moore Andreas, his wife, shall not be obligated to pay any tax or taxes on said premises during their life tenancy, which condition they have waived.”

Despondent Whipple insists the resolution is ultra vires and void for the same reasons the former Court of Errors and Appeals hold the ordinance to be invalid. Her counsel argues the letter signed only by Mr. Andreas does not in law amount to an abandonment by the grantors of the invalid tax exemption condition and contends the Township for this reason acquired no title under the deed and thus was not the owner of the property on the assessment date.

We have no occasion to consider or decide the question of the Township’s title, and do not understand the Court of Errors and Appeals passed on that question. If we assume, as.did the assessor, that the Township became the owner upon the delivery of the deed, the property on the facts proved was nonetheless taxable for the year 1948.

The assessor listed the property as exempt on the 1948 assessing date, October 1, 1947, under R. S. 54:4 — 3.3, as amended P. L. 1944, c. 24, p. 63, § 1, exempting from taxation, among others, the property of taxing districts “used for public purposes.”

Whipple filed an appeal with the Bergen County Board of Taxation which by judgment entered October 6, 1948, determined the property was not exempt but taxable. The Division of Tax Appeals in the Department of Taxation and Finance affirmed the County Board’s determination, and this appeal is by the Township from the Division’s judgment entered March 16, 1950.

The decisive question is whether the property was “used for public purposes” on the assessing date, within the meaning of R. S. 54:4-3.3.

It is very clear the property was not used for public purposes on the assessment date in the sense contemplated by the exemption statute. The Township stipulated at the hearing before the Division of Tax Appeals “the premises on that day were occupied by Mr. and Mrs. Andreas for dwelling purposes in accordance with the contents of the deed;” “they were residing there as they had theretofore;” “it was only used by them, occupied by them.”

The case is controlled by Jamouneau v. Division of Tax Appeals, 2 N. J. 325 (1949), construing “used for public purposes” in the exemption statute to “* * * require a public use, in addition to public ownership, as a condition to exemption from taxation * *

The lands cannot be said, on the facts proved, to be in “potential public use,” that is, idle, and awaiting application to public purposes, as the Township contends, relying on Township of Teaneck v. State Board of Tax Appeals, 110 N. J. L. 28 (Sup. Ct. 1932); affirmed, 111 N. J. L. 242 (E. & A. 1933). The Township had no right to possession on October 1,1947, and indeed, under the grant, could have none until the termination of the life estates. The situation in that respect does not differ from the leasehold arrangement considered in the Jamouneau case, except the date when the right of public use accrues is in this case uncertain. The intervening life estates, however, on October 1, 1947, constituted an obstacle to public user of equal force; it may with like effect be said as of the assessing date “* * * the die has been cast contrarily and the property is frankly, solely and absolutely in private use * * Jamouneau v. Division of Tax Appeals, supra, at p. 332.

Affirmed.


author: Jayne, J. A. D.

text:
    JULIA FORBRINGER, ET AL., PLAINTIFFS-RESPONDENTS, LOUISE MAGLIO, PLAINTIFF-APPELLANT, v. LEONORA ROMANO, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1950
    Decided November 20, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Ira C. Moore, Jr., argued the cause for plaintiff-appellant (Mr. C. Alan Phillips, of counsel; Messrs. Whiting & Moore, attorneys).

      Mr. Max M. Albach argued the cause for defendants-respondents (Messrs. Ruback, Albach & Weisman, attorneys).

      Mr. Woodruff J. English argued the cause for defendant-respondent Overlook Hospital Association (Messrs. McCarter, English & Studer, attorneys).
   The opinion of the court was delivered by

Jayne, J. A. D.

One Antonio Maglio, a resident of the Township of Millburn, Essex County, New Jersey, died on December 9, 1948. He liad duly executed a last will and testament dated September 11, 1939, which was admitted to probate oil January 18, 1949.

The will was not composed with the clarity and explicitness of expression to be desired, which deficiency inspired the institution of an action in the Chancery Division to elicit a judicial construction of the instrument. The present appeal brings before us for review the final judgment in that proceeding.

The particular paragraphs of the will which are of immediate pertinency are here transcribed:

“THIRD: I direct my Executors, hereinafter named, to divide the entire rest, residue and remainder of my estate, personal estate or mixed, whatsoever same may consist and wheresoever situate, or to which I may he entitled at the time of my death, into six equal parts, each of said parts I give, devise and bequeath unto my Trustees, hereinafter named to be held by him, for the uses and trusts and for the purposes hereinafter set forth.
“FOl'RTH: 1 direct that within three months after my dentil that my Executors and Trustees appoint a board of three appraisers, which appraisers shall appraise any and all real property of which I may die seized and their appraisal shall he absolute and final for the purposes hereinafter designated, and binding upon all my heirs, my heirs at law and upon all the beneficiaries under this will.
“FIFTH: I hereby give, devise and bequeath unto my Trustees, hereinafter named, all my real estate and I do hereby authorize and empower my said Trustees to dispose of, sell and convey any part of my real estate and I further authorize my Trustees to sub-divide any part of my real estate and to sell same in tracts or lots or by the entire tract.
“SIXTH: I do hereby further authorize my Trustees in their sole discretions to manage my real estate holdings in such manner as they deem fit and essential.
“SEVENTH: I hereby direct that my Trustees do hereby divide any moneys received from any sale or conveyance of any real estate into six equal parts, each of which part they are to retain control over as Trustees in same manner as in the Fourth paragraph of this will.
“EIGHTH: I direct that my Trustees do open six Trust accounts in any State Bank by them chosen for the benefit of those hereinafter named and 1 direct that my Trustees make no disbursement of any of the principal of the Trust Funds for a period of thirty-five (35) years but that the beneficiary of the Trusts are to receive the interest on the Trust Fund each year.
“NINTH: If as a result of economic conditions or otherwise, my real estate does not return a' favorable profit, I hereby authorize my Trustees to use moneys in the Trust Funds provided, however, that each-Trust Fund be assessed an equal amount. If there are no funds available I then direct my Trustees to call upon the beneficiaries hereinafter named to assist, however, if they, my heirs, fail to assist my Trustees, I then direct that all my real estate be conveyed in fee simple to the Overlook Hospital, Summit, New Jersey.
“TENTH: I further direct that if some of my beneficiaries refuse to assist that upon service of notice upon those refusing beneficiaries to signify their intention to aid in (30) days that upon failure to aid his or her trust be terminated and be divided among the other beneficiaries in equal shares.
“TWELFTH: I hereby direct that my Trustees hereinafter named set up Six Trust Funds one for each of the following:
“(1) Roceo Caruso, my son-in-law, of the City of Newark, County of Essex and State of New Jersey.
“(2) Leonora Romano, my daughter, of the City of Newark, County of Essex and State of New Jersey.
“(3) Concetta Cireilo, my daughter, of the Township of Bernardsville, County of Somerset, and State of New Jersey.
“(4) Julia Forbright, my daughter, of the Town of"Summit, County of Essex and State of New Jersey.
.“(5) Rose Tarantino, my daughter, of the Town of South Orange, County of Essex and State of New Jersey.
“(6) Louise Maglio, my daughter, of the Town of Millburn, County of Essex and State of New Jersey.
“THIRTEENTH: I direct that upon the death of any of my beneficiaries that his or her Trust Fund pass to his or her children in equal shares provided however that the Trust be continued as hereinabove stated only with the beneficiaries changed.”

Before undertaking a discussion of the several criticisms of the judgment, it may he preliminarily observed that the appellant concurs with the trial judge that it was the intention of the testator that the six beneficiaries designated in the “Twelfth” paragraph should each, immediately upon the death of the testator, become vested with one-sixth share of the testator’s personal estate notwithstanding the direction that it is bequeathed to the trustees to be deposited in trust funds. Whether the postponement of' enjoyment for the specified period of 35 years is valid, and whether the contemplated gift over to the grandchildren upon the mentioned contingency is not repugnant to the prior gift, are, however, questions which the appellant inter alia retains and desires to project.

We must at once recognize that in undertaking to construe the present will the fundamental duty arises to detect the intention of the testator from a studious consideration of his entire will, in the light of the pertinent circumstances which in his case actually surrounded the composition of his will, and also regard the presumption against intestacy which attains even greater tenacity where the subject of the gift comprises the residuary estate.

The point upon which the appellant initially places emphasis is that the testator failed to make a complete and valid disposition of his real estate.

It is immediately noticeable that in paragraph “Third” of the will the testator directs that a division be made of “the entire rest, residue and remainder of my estate” with the qualifying adjectives “personal estate or mixed.” It is also manifest that in transmitting the six equal parts to the trustees the testator uses the verb “devise.”

In Miller v. Worrall, 62 N. J. Eq. 776 (E. & A. 1901), the following conclusion was expressed: “While the testatrix here uses the words ‘all the rest and residue of my property’ and tiie word ‘devise,’ still we think, in view of the use of the words ‘personal and mixed’ immediately following ‘property,’ that these words must be held to qualify and define the kind of property intended to be disposed of by the will, and that no broader signification can be given to the words ‘personal and mixed,’ as here used, than their well-recognized meaning conveys, and if there be doubt, that doubt must be resolved in favor of the heir as against one who claims as a devisee.

“The testatrix, in using the words ‘personal and mixed,’ is using technicaJ words, and by well-settled rules of construction they must be given their technical meaning.”

Accompanying the reported opinion iri the Miller cane is a full and complete copy of the terse will of the testatrix, and it becomes exceedingly significant to observe that nowhere in the entire will is any reference whatsoever made to any real property of the testatrix, nor is an intention, as the court concluded, to dispose of real estate at all evident or apparent in the will. Therefore it was held that the words “personal and mixed” should be given their technical meaning.

In contrast, express references to the testator’s real estate are made in paragraphs “Fourth,” “Fifth,” “Sixth,” “Seventh,” and “Ninth” of the present will.

In the instant case, a coalition of paragraphs “Third” and “Fifth” will leave little more than a shadow of insignificant doubt concerning the manifest intention of the testator to dispose of the entire, rest, residue, and remainder of his estate, real, personal, and mixed. Peer v. Jenkins, 102 N. J. Eq. 235, 238 (E. & A. 1928); 7 Clapp on Wills and Administration, § 896.

This determination substantially narrows the scope of the appeal.

The testamentary scheme or plan of distribution perceived by the learned trial judge upon consideration of the entire will is described as follows: “The intention of the testator was that all his property be divided into six parts; that the division be accomplished by the liquidation of assets; that the six parts belong to the six persons named in the Twelfth paragraph of the will and that for each such-person a separate and earmarked trust fund be set up in a state bank; that the interest earned by each trust fund be paid to each beneficiary annually; and that the principal of such fund be paid to the specific beneficiary at the end of thirty-five years, and that if in the interim the beneficiary dies, the funds should belong to the children of the beneficiary forthwith'and be paid over to them when the thirty-five-year period expires, the interest of the fund to be paid annually in the interim to such issue. He intended that the estate'vest in the six named beneficiaries, in six equal parts, forthwith upon his death, and remain vested for the thirty-five-year period, the possession and enjoyment being postponed for the thirty-five years, but that the fruits thereof be enjoyed by the named beneficiaries in the interim.”

We agree that the foregoing statement is expressive of the apparent basic intention and purpose of the testator within the reasonable import and meaning of the words which were employed in the inexact composition of the will. The cardinal rule is to pay respect to the real intention of the testator in whatever form it finds expression.

True, the intention of the testator will not prevail if it is inimical to an established rule of law.

The appellant proposes that the testamentary requirement that the trustees shall refrain from making any distribution of the principal of any of the six trusts for a period of 35 years renders decedent’s purpose violative of the rule against perpetuities. Not so. The latter rule is directed solely against the postponement of the vesting of estates and is not applicable to their possession or enjoyment. Lembeck v. Lembeck, 73 N. J. Eq. 427 (Ch. 1907); affirmed, 74 N. J. Eq. 848 (E. & A. 1908); In re Smisson, 79 N. J. Eq. 233 (Ch. 1912); Canda v. Canda, 92 N. J. Eq. 423 (E. & A. 1921); Trippe v. National Newark, &c., Banking Co., 98 N. J. Eq. 462 (Ch. 1925); affirmed, 300 N. J. Eq. 356 (E. & A. 1926).

A gift to a trustee is regarded in equity as a gift to the cestui. Neilson v. Bishop, 45 N. J. Eq. 473 (Ch. 1889); In re Collins, 99 N. J. Eq. 333 (Prerog. 1926); Traverso v. Traverso, 99 N. J. Eq. 514 (Ch. 1926); affirmed, sub nom. Traverso v. McMillin, 101 N. J. Eq. 308 (E. & A. 1927); Byrne v. Byrne, 123 N. J. Eq. 6 (Ch. 1938); affirmed, 124 N. J. Eq. 273 (E. & A. 1938); Skovborg v. Smith, 8 N. J. Super. 424 (Ch. 1950); Speth v. Speth, 8 N. J. Super. 587 (Ch. 1950).

Where, as here, the interest accruing on the corpus of the trust is directed to be paid to the beneficiary until he is to receive the corpus, the gift will be deemed vested. Gifford v. Thorn, 9 N. J. Eq. 702, 708 (E. & A. 1855); Dusenberry v. Johnson, 59 N. J. Eq. 336 (Ch. 1899); Fidelity Union Trust Co. v. Rowland, 99 N. J. Eq. 72 (Ch. 1926).

Moreover, the scheme of the present will seems to generate the impression that it was the testator’s intention that the real estate should, at such opportunities as the trustees deem conducive to the best interests of his beneficiaries, be converted into money before distribution. Cf. Wurts’ Executors v. Page, 19 N. J. Eq. 365 (Ch. 1869). Necessary implication is equivalent to expression. Appleby v. Appleby, 139 N. J. Eq. 73, 83 (Ch. 1946).

Another suggestion put forth by the appellant is that the decedent’s purpose, if not offending the rule against perpetuities, nevertheless imposes an unreasonable restraint upon the alienation of property. Parenthetically, we divulge our opinion that the period of 35 years specified by the testator was intended to commence at his death.

There is a distinction between restraints on use and enjoyment and restraints on alienation. Trusts are normally associated with the former. And then in the consideration of the subject a further distinction must be made between an active and a passive trust. In general, a restraint solely on use and enjoyment will not be nullified unless it clearly exceeds reasonable limitations in the circumstances of the given case.

Certain aspects of the subject were discussed in Speth v. Speth, supra, in which it is disclosed that our courts in this particular are not in accord with Professor Gray and the English cases. Vide, Mesce v. Gradone, 1 N. J. 159 (1948).

Suffice here to say that we classify the present testamentary trust as an active one, and in the circumstances the appellant’s point is not meritorious.

A postponement of the enjoyment of corpus has been repeatedly approved. Lembeck v. Lembeck, supra; Fidelity Union Trust Co. v. Rowland, supra; Potter v. Watkins, 99 N. J. Eq. 538 (Ch. 1926); Martin v. Gifford, 101 N. J. Eq. 411 (Ch. 1927); Dwyer v. National Newark, &c., Banking Co., 103 N. J. Eq. 481 (Ch. 1928); affirmed, 104 N. J. Eq. 498 (E. & A. 1929); Fidelity Union Trust Co. v. Dignan, 105 N. J. Eq. 750 (Ch. 1929); Camden Safe Deposit, &c., Co. v. Scott, 121 N. J. Eq. 366, 374 (E. & A. 1937); 3 Page on Wills 704, § 1262; 3 Scott on Trusts (1939 Ed.) 1823, § 334.

The appellant in the concluding portion oí his brief has addressed to us a number of interrogatories relative to possible eventualities in the future administration of the estate, in case of substitution of beneficiaries and with respect to the quality of the interest of the defendant Overlook Hospital. Our courts normally decline to interpret and construe testamentary passages and declare the nebulous or fortuitous rights of contingent beneficiaries unless there is some present or imminent need for enlightenment. Hickes v. Jones. 138 N. J. Eq. 280 (Ch. 1946), where the pertinent citations are assembled.

The judgment under review is affirmed.


author: Per Curiam.

text:
    WILLIAM GEORGE HOEY, EXECUTOR OF THE LAST WILL AND TESTAMENT OF MARY JANE HOEY, PLAINTIFF-APPELLANT, v. ANNA HOEY DELL, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1950
    Decided November 20, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Edward R. McGlynn argued the cause for the appellant (Messrs. McGlynn, Weintraub & Stein, attorneys).

      Mr. Walter P. Reilly argued the cause for the respondent (Messrs. Sanderson & Engel, attorneys).
   The opinion of the court was delivered

Per Curiam.

The testimony presented below is set forth in the opinion filed by Judge Stein and reported at 7 N. J. Super. 398 (Ch. Div. 1950); we agree with his conclusion that it established a valid gift on Thanksgiving Day, 1948, from the decedent to the defendant of the sum on deposit in the savings account at the Savings Investment and Trust Company of East Orange.

The appellant urges that under R. S. 2:97-2 the court should have excluded the defendant’s testimony of her conversation with the decedent at the time of the gift. However, the first objection to this testimony was not made until long after it was completed; it came too late. See Rowland v. Rowland, 40 N. J. Eq. 281, 284 (E. & A. 1885). Furthermore, it was admissible since the complaint included a charge of misrepresentation, fraud and deceit. See Neuman v. Fantl, 119 N. J. Eq. 351, 355 (E. & A. 1935).

The appellant further urges that the gift was incomplete because the withdrawal slip was signed by the decedent in blank. We consider this point to be without merit. The delivery of the savings bank book with donative intent, plus the signed withdrawal slip with authority in the defendant to fill it in, effectively stripped the decedent of dominion and control of the account; indeed, our courts have recognized the validity of such gift even where the delivery of the book was not accompanied by any withdrawal slip. See In re Curran, 3 N. J. Misc. 717 (Orphans Ct. 1925); Hickey v. Kahl, 129 N. J. Eq. 233, 238 (Ch. 1941). Cf. Long Branch Banking Co. v. Winter, 112 N. J. Eq. 218, 220 (E. & A. 1933).

The judgment is affirmed.


text:
    LEO M. WALDOR, PLAINTIFF-RESPONDENT, v. JOHN J. UNTERMANN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1950
    Decided November 29, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Julius Kass argued the cause for the appellant (Mr. Jacol) H. Bernstein, attorney).

      Mr. Raymond C. Connell argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment entered in the Law Division which determined that the defendant was not lawfully appointed to the office of member of the Board of Education of the City of Newark and directed his ouster.

The plaintiff, as a taxpayer of the City of Newark, filed a complaint pursuant to Rule 3 :81-2 which alleged that, on or about July 1, 1949, the defendant was appointed as a member of the Board of Education of the City of Newark and thereafter assumed and continued to occupy the office although he had not met the residence requirement of R.. 8. 18 :6-8, and sought his ouster. Affidavits attached to the complaint set forth that the defendant had not been a resident of the City of Newark for a period of three years preceding his appointment, maintained his home in the Township of Maplewood, was registered to vote as a resident of that Township until March, 1949, and voted in that Township in the general elections for the years 1946 through 1948.

Following the filing of the complaint the Law Division issued an order to show cause why the defendant should not be enjoined from carrying on the duties of member of the Board of Education. Thereupon the defendant served notice of motion to dismiss the complaint on the ground that the court lacked jurisdiction because the “plaintiff had failed to exhaust his remedies before the Commissioner of Education and the State Board of Education as required by the statutes of New Jersey in such case made and provided.” See R. S. 18:3-14. When the order to show cause and the motion to dismiss came on for argument before Judge Colie the parties entered into an oral stipulation that the court may render final judgment thereon. We take this stipulation, as did Judge Colie, to have been intended as an agreement authorizing the court to dispose of the matter on the papers before it and the arguments of counsel with like effect as if trial had been had and completed. The defendant filed no affidavits whatever in opposition to those asserting that he was not a qualified resident of the City of Newark and the Law Division’s finding on this factual issue was justified upon the record before it. Cf. Taub v. Taub, 9 N. J. Super., 219 (App. Div. 1950). The sole legal contention raised by the defendant before the Law Division was that there was a lack of jurisdiction because of the plaintiff’s failure to exhaust his administrative remedies; this contention was found to be without merit. See Waldor v. Untermann, 7 N. J. Super. 605 (Law Div. 1950). Before this court the appellant has renewed this contention as his first and primary point on appeal.

The rule that administrative remedies must ordinarily be exhausted before resort is had to the courts has long found recognition in onr State. See Jefferson v. Board of Education, 64 N. J. L. 59 (Sup. Ct. 1899). Cf. State, Young v. Parker, 34 N. J. L. 49 (Sup. Ct. 1869); State, Hall v. Snedeker, 42 N., J. L. 76 (Sup. Ct. 1880). It was intended as a simple rule of orderly procedure (Ward v. Keenan, 3 N. J. 298, 302 (1949); 25 N. Y. U. L. Rev. 401 (1950)) and has been of significant aid to the proper administration of justice. However, it was neither jurisdictional nor absolute and was departed from where, in the opinion of the court, the interests of justice so required. See Lane v. Bigelow, 135 N. J. L. 195, 200 (E. & A. 1947); Conaway v. Atlantic City, 107 N. J. L. 404, 408 (Sup. Ct. 1931); Koven v. Stanley, 84 N. J. L. 446, 447 (Sup. Ct. 1913). In the Lane case the Court of Errors and Appeals permitted judicial determination without exhaustion of the administrative remedy available under the Zoning Act and adopted the position taken earlier in the Conaway case that the court had “power to intervene, and in a proper case will intervene, without waiting for intermediate statutory remedies to be exhausted.” In the Koven case the court entertained a quo warranto proceeding to determine the title to office of members of a school board without awaiting determination of the double appeal to the Commissioner and the State Board of Education. After expressing his thought that the administrative tribunals could not take dispositive action on the issue presented Justice Swayze said: “I think it clear that where so important a question as the title of members of a school board to their office is involved, a proper exercise of discretion permits, if it does not require, the speedy adoption of the only final and effective procedure to determine the question.”

The appellant urges that the foregoing cases, particularly the decision in the Koven case, are not entitled to any weight in \riew of the adoption of Rule 3:81-14 and the holdings of our Supreme Court in Ward v. Keenan, supra, and State v. Yaccarino, 3 N. J. 291 (1949). Rule 3:81 — 14 provides for the exhaustion of administrative remedies “except where it is manifest that the interests of justice require otherwise.” This rule of procedure is neither jurisdictional (Constitution, 1947, art. 6, § 3, par. 2, § 5, par. 4) nor is it absolute as its terms disclose. Cf. Rule 3:1-2. In the Ward case the Supreme Court, after rejecting the far reaching views of Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 82 L. Ed. 638 (1938) (see 51 Harv. L. Rev. 1251, 1264 (1938); 63 Harv. L. Rev. 690, 691 (1950)), stated that the exhaustion doctrine may properly be considered inapplicable (1) where the jurisdiction of the administrative tribunal is challenged on persuasive grounds and (2) where the charges asserted before the administrative tribunal are so palpably defective as to render its jurisdiction colorable. Fowhere in its opinion do we find support for the appellant’s argument that these were inflexibly declared to be the only instances in which the court may entertain a proceeding in advance of the exhaustion of available administrative remedies. Indeed, when Rule 3 :81 — 14 was adopted it was well recognized that there may be other situations in which the interests of justice will clearly dictate immediate judicial determination without awaiting the administrative process, and the very purpose of its general and comprehensive phraseology was to permit these to be dealt with properly as they arise. Cf. Salmond, Jurisprudence (10th ed. 1947), p. 52. The Yaccarino case likewise furnishes no aid to the appellant; there the court simply held that appeals from convictions in the Municipal Courts shall be taken under Rule 2:11 to the County Courts and the discretion of the Appellate Division to review a cause directly from a local criminal court under Rule 4:5 is confined to extraordinary cases.

In the light of the foregoing we have concluded that the Law Division did not commit reversible error by refusing to dismiss the complaint as sought by the defendant. Admittedly, the meritorious controversy between the parties presented only the simple factual issue as to the defendant’s residence and did not involve any questions of administrative policy, discretion or judgment. On the record this factual issue was not contested by tide defendant;" instead, and apparently without indicating that there may be tona fide dispute thereon, he chose to rely entirely on the obtainment of deferment of judicial determination until after administrative appeals were taken and completed. Admittedly, the matter was of importance to the community and expeditious determination was directly in the public interest. While we firmly believe that the policy of judicial seif-limitation embodied in the doctrine of exhaustion of administrative remedies is a wholesome one and should generally receive sympathetic recognition, we are unable to find that the lower court’s departure, under the particular circumstances presented to it, was in excess of its authority under Rule 3:81-14. Cf. Davis, “Administrative Law Doctrines of Exhaustion of Remedies, Ripeness for Review, and Primary Jurisdiction,” 28 Tex. L. Rev. 168, 183 (1949).

The second and final point raised by the appellant in his brief and at the argument on the appeal is that the complaint “is barred by the Statute of Limitations applicable thereto.” See R. S. 2:80—7. This point is now being raised for the first lime and was not in any sense presented below. The appellant acknowledges the general rule that the defense of limitations is waived unless affirmatively raised in due time, lie contends, however, that it is inapplicable in the instant matter since the complaint disclosed that it was filed beyond the prescribed period of limitations. That fact, however, did not excuse the defendant from raising the defense of limitations in the Law Division, perhaps, in his notice of motion to dismiss (Feil v. Senisi, 7 N. J. Super. 517, 518 (Law Div. 1950)), or in any event at the argument in lieu of trial before Judge Colie. It seems to us that appropriate regard for orderly judicial process dictated that the Law Division be given fair opportunity to pass on the point and that it be not withheld until appeal. Since no jurisdictional deficiency in connection therewith has been argued by the appellant we see no reason for considering the limitations defense or the plaintiff’s contentions in response thereto. See State v. Jones, 4 N. J. 207, 214 (1950), rehearing denied 4 N. J. 374 (1950).

It may be noted that since the above was written the Supreme Court has declared unconstitutional the particular statutory limitation which the defendant has sought to assert before us as a defense. Fischer v. Township of Bedminster, 5 N. J. 534 (1950).

The judgment is affirmed.