author: Harrison, J. C. C.

text:
    THREE L CORPORATION, PLAINTIFF, v. BOARD OF ADJUSTMENT, CITY OF NEWARK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 3, 1972.

      Mr. John C. Love, attorney for plaintiff (Mr. Joseph Charles on the brief).

      Mr. Louis Asarnow, attorney for defendant.
   Harrison, J. C. C.

(temporarily assigned). Plaintiff Three L. Corporation brings an action in lieu of prerogative writs pursuant to B. 4:69 to review the decision of the Newark Board of Adjustment denying its application for a use varianee to operate a day nursery for a maximum of 30 children at 107-113 Grumman Avenue. Plaintiff is the contract purchaser of the above premises, a 93' x 100' lot with a 2^-family residence and two-car garage, located in a Second Residential District. The building inspector initially denied the permit for this purpose on the grounds that the proposed use is not permitted in the zone. Plaintiff appealed and the board denied its application following a hearing on September 7, 1971 based upon the findings that plaintiff’s use would (1) increase traffic congestion, (2) change the residential character of the neighborhood and (3) decrease property values. Involved herein is the application of the zoning law, N. J. 8. A. 40:55-39.

The Newark zoning ordinance enacted June 9, 1954 applicable to this Second Residential District permits only the establishment of single-family homes, two-and three-family attached dwellings, public schools (elementary and high), private schools not conducted for a profit, not to include nursery schools, museums and libraries, physician’s and dentist’s offices if located in their homes, and home occupations. The Rabbinical College of New Jersey previously owned and operated the premises under a use variance granted August 1, 1956 to operate the premises as a college.

We first dispose of the issue of whether the ordinance itself unconstitutionally discriminates against private schools conducted for profit so as to deprive their owners of property without due process and of the equal protection of the law. The function of this court in an action in lieu of prerogative writs pursuant to B. 4:69-4 is to review the facts and make independent findings thereon. Appellate courts, not trial courts, generally should rule on issues of constitutionality. Chalmers v. Chalmers, 117 N. J. Super. 474, 478 (Ch. Div. 1971). The constitutional validity of the distinction between profit and nonprofit private day schools under N. J. 8. A. 40:55-33.1 has already been upheld in this State in St. Cassian’s Catholic Church v. Allen, 77 N. J. Super. 99 (Law Div. 1962), rev’d on other grounds 40 N. J. 46 (1963), which interpretation has been iterated in Tp. Com., Denville v. Bd. of Ed., Morris Cty, 59 N. J. 143 (1971).

As the protection of the statute does not apply to the type of school involved here, the vehicle for the accommodation of zoning with individual situations is either a special exception if provided for in the ordinance, or a variance as authorized in N. J. S. A. 40:55-39. Special reasons, public good, and purpose of the ordinance are to be considered in determining, as we must here, whether the local board soundly exercised its discretion. See Roman Catholic Diocese of Newark v. Ho-Ho-Kus, 47 N. J. 211, 217 (1966).

A private day nursery thus being unauthorized in a Second Residential District, a variance is sought under N. J. B. A. 40:55-39, providing in pertinent part as follows:

The board of adjustment shall have the power to:
* $ $ $ if! -r *
d. Recommend in particular eases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure of use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. * * * No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

Two critical findings are-required by statute: (1) an affirmative finding that “special reasons” “in particular cases” exist; and (2) negative findings applicable in all zoning relief situations that the “relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” The applicant is required to supply competent and credible evidence to apprise the board of the nature of the zoning burden sought to- be alleviated and to demonstrate that the statutory requirements have been fulfilled. Tomko v. Vissers, 21 N. J. 226, 238 (1956).

“Special reasons” is a flexible concept that may be broadly defined by the purposes of zoning, such as health, morals or the general welfare, set forth in N. J. S. A. 40:55-32. De Simone v. Greater Englewood Housing Corp., 56 N. J. 428, 440 (1970); Ward v. Scott, 11 N. J. 117 (1952). The court in Bonsall v. Mendham Tp., 116 N. J. Super. 337, 344 (App. Div. 1971), points out that “No rigid formula has been devised to test a valid (d) variance on general welfare grounds and each case must turn upon its own circumstances.” The cases in this State in which a significant factor has been the contribution of the proposed use to the “general welfare” have all dealt with uses which inherently servo the public good, schools readily fitting into such classification. That activity in itself provides a basis for a finding of “special reasons.” Kohl v. Mayor, etc., Fair Lawn, 50 N. J. 268, 279 (1967). The court in Kunzler v. Hoffman, 48 N. J. 277 (1966), dealing with a private profit mental hospital, provides guidelines fox circumstances which have been accepted by the courts as “special reasons” within subsection 39(d) and which will be shown to apply to the circumstances in our ease: (1) urgent need for the type of facility in question; (2) substantial benefit to public, town, community; and (3) no real or substantial threat to residences.

Relief from a denial of a variance may be had only upon a finding by the reviewing court that the refusal was arbitrary, capricious and unreasonable, amounting to a manifest abuse of discretionary authority. Bonsall v. Mendham Tp., supra, 116 N. J. Super, at 343. My review of the record herein leads me to the conclusion that a sound exercise of discretion required that the board permit the variance and not deny it on untenable grounds. I hold such denial to be arbitrary in view of the evidence presented as follows:

The board cited increased traffic congestion and parking problems as one ground for refusal of the variance. Several objectors at the hearing complained that traffic to and from the school would add to the already congested Weequahic Park exit. However, there was considerable evidence rebutting these assertions. Mr. Jemmott, owner of plaintiff corporation, testified that a two-car garage on the property provides parking accommodations for the resident staff. Inquiries from neighborhood parents suggested that an estimated 10 to 15 children would live within walking distance of the school. Hours of arrival and departure tailored to the individual mother’s working schedule would prevent rush hour congestion. If a traffic situation were created, the corporation promised to furnish group transportation. Although residents expressed fears and hypothesized heavier traffic and parking problems, they did not show, nor did the board find, potential “unmanageable congestion,” as required by Black v. Montclair, 34 N. J. 105, 114 (1961). In Grate v. Tp. of Springfield, 117 N. J. Super. 130, 143 (Law Div. 1971), the court held that even though one purpose of zoning is to relieve street congestion,

* * * a municipality should not use the zoning power to regulate minor traffic problems in rapidly growing communities, and such powers should be used only to deal with such problems in their major aspects as they affect the entire community or major portion thereof.

The 30-student maximum for the proposed day nursery makes it reasonably certain that there would be no profound effect on community traffic patterns.

Defendant further claims that traffic congestion, coupled with noise of children playing, would destroy the peace and quiet of the area. Plaintiff offered competent, credible and uncontradicted evidence that the regular program, qualified instructors and constant supervision as required by the State would assure the orderly conduct of the children at the school.

The board in addition made a finding that the presence of a day care facility would alter the residential character of the neighborhood by introducing a “commercial development” into a Second Residential District. The record indicates that an organized program conducted by State certified instructors would provide control over undue noise. Although the record shows that every other structure on Grumman Avenue is a private family residence, the board admits that the neighborhood is not totally, bnt “almost exclusively residential.” The ordinance itself authorizes uses other than strictly residential, including schools, museums and libraries, and indeed a school was previously operated on the property in question. The ordinance allows doctor’s and dentist’s offices as well, undeniably a proprietary use despite the fact that they must be attached to a residence. It should be noted that the character of the structure, i. e., the family residential appearance would be retained with the nursery school use of the premises, quite similar to the residential appearances of homes used by doctors and dentists for their professional purposes. Thus, from either an educational, economic or esthetic point of view, the requested use does not depart from those envisoned in the zone plan.

Private day care centers should be treated as community facilities rather than arbitrarily classified as proprietary uses, and should be considered as being comparable to elementary or public nursery schools fox purposes of zoning. The very nature of the use i. e., educational, gives rise to special reasons pursuant to Kohl v. Mayor, etc., Fair Lawn, supra, 50 N. J. at 279. Additionally, day care center services meet community objectives in much the same manner as other more familiar community institutions such as schools and public nurseries, even though the State did not see fit to make nursery level compulsory. A private nursery school serves, in addition to the educational function, an important social community purpose for mothers. Public nursery schools can be established by a board of education in any school under its control, pursuant to N. J. 8. A. 18A:44-1. If a public facility is not provided in the district, the availability of a local private nursery serves a legitimate education need, sanctioned, though not required, by the State.

Child care centers are defined and regulated under N. J. S. A. 18A:70-1 et seq. N. J. S. A. 18A:70-3 provides for establishment by the State Commissioner of Education of standards to govern the education of children cared for in such a facility. The facility must be open for inspection and the certificate may be revoked at any time for good cause. Although a distinction is made under N. J. S. A. 40 ¡55-33.1 between private schools operated for profit and public and private schools whose prime motive is service to the community, it does not follow that a proprietary enterprise in educating and caring for children and relieving working mothers does not also serve the community. Indeed, under the private enterprise system, private corporations such as hospitals, utility companies and transportation carriers, rather than the federal or state governments, are encouraged to fulfill crucial economic and social functions. The fairest disposition of this matter requires a categorization based upon the actual nature and quality of the services rendered, not by the means of fiscal operation, so that society is not arbitrarily deprived of a valuable service.

The record further indicated that the presence of the day school as planned would enhance rather than decrease property values in the area. The 2j4-story frame building is in a dilapidated, rat-infested condition, according to the testimony of the objectors. Plaintiff has planned at least $5,000 worth of renovations to bring the building up to state standards. Compliance with state licensing requirements, plus local fire and health regulations, to which plaintiff is committed not only by its own volition but by the mandate of state and local laws, ensures valuable improvement to the neighborhood as against what there is now on the premises. Eurther, the presence of the nursery would tend to attract younger family units, particularly those with working mothers. The plans to reverse the existing dilapidation can do none other than increase the value of this particular property and improve the appearance of the surrounding properties. There is no reason to believe that property values will be decreased in any degree by the substitution of one school for another.

Taking the three reasons stated for denial, and weighing them against the benefits to the neighborhood in the form of pre-school educational opportunities for children and assistance to working mothers by providing a state-approved facility for organized and adequate day care, the court concludes that the evidence offered by the applicant is sufficient to support a finding that the “special reasons” required by statute have been shown.

As to the requirement of a showing of no substantial detriment to the public good, the school, as the record indicates, not only would not be a detriment to the public good but rather would make a contribution to the common weal. “It is fair to say that any community has a strongly presumptive need for elementary schools, whether public or parochial.” Trinity Evangelical Lutheran Church v. Board of Adjustment, Morris Plains, 72 N. J. Super. 425, 430 (App. Div. 1962); St. Cassian’s Catholic Church v. Allen, supra, 77 N. J. Super, at 118. The need for pre-school facilities today is well recognized. Such facilities should not be proscribed because of doubtful economic considerations. A special report in the Newark Star-Ledger on December 10, 1971, at page 17, indicates that 30% of mothers with children under six are working. Government-funded centers are almost exclusively restricted to children from poverty-level families, private early childhood programs are available only to the financially well-off, but people in the middle income range have almost no facilities whatsoever. Id., col. 4. We take judicial notice that the neighborhood involved hero is within that range. The proposed nursery would tend to fill that very gap for at least some of the people in that neighborhood. A statistical report from the State Department of Education reveals that in the period between 1966 and 1971 the number of approved child day care centers has doubled; the number of children enrolled has increased threefold during the same span. Early Education, State Dept, of Educ., Division of Eesearch, Planning and Devt., vol. 3, No. 1 (Nov. 1971).

Our Legislature, in its preamble to the Nonpublic Elementary and Secondary Education Act, L. 1971, c. 336 {N. J. 8. A. 18A:58-59 to N. J. 8. A. 18A:58-67), voices its strong policy in favor of nonpublie facilities which have invaluably assisted the State in dealing with its educational and welfare financial crises. Parents who send their children to private schools are recognized as contributing to the public welfare; I find that for parents to use a private preschool facility as here proposed likewise eases the State’s burden in allocating limited funds for education. Equally significant is the relief provided to a city severely strapped for funds. I specifically hold, as a matter of law in light of public policy and settled interpretations of the zoning statute, that the proposed privately operated day nursery would provide children with an organized program in accordance with the State Department of Education requirements and constitutes a “special reason” adequate to meet that requirement of N. J. 8. A. 40:55 — 39 (d) without in any way serving as a detriment to the public welfare or frustrating the original purpose of the zoning plan.

Plaintiff’s contention that it is entitled to zoning approval for its proposed use by virtue of the variance under which the former owner was operating, on the basis that the prior variance runs with the land, is untenable. Only a nonconforming use is protected by the continuance theory. Kirsch Holding Co. v. Borough of Manasquan, 111 N. J. Super. 359 (Law Div. 1970), rev’d on other grounds 59 N. J. 241 (1971).

Eor the reasons stated herein the action of the board of adjustment denying the application for a variance is reversed. Judgment will be entered in this action in favor of plaintiff.


source: Caselaw Access Project

author: Milmed, J. S. C.

license: Public Domain

text:
    KINCAR FRANCHISE INC., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. ESTATE OF THE LATE HAROLD CAREY, JACOB COHEN AND LOUIS DREZIN, EXECUTORS OF THE ESTATE OF THE LATE HAROLD CAREY, MILDRED CAREY, CAREY CHEVROLET, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND CAREY SYSTEMS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 28, 1972.

      Mr. 8. M. Chris Franzblau and Mr. Cary L. Falhin appeared for plaintiff (Messrs. Bech&rman, Franzblau and Cohen, attorneys).

      Mr. Edward J. Abromson, appeared for defendant Mildred Carey (Messrs. Abromson & Gummis, attorneys).
   Milmed, J. S. C.

Cross-motions are before tbe court in this action, one by defendant Mildred Carey seeking to enjoin plaintiff from proceeding with arbitration of the dispute which is the subject of the litigation, and the other by plaintiff seeking to stay this action pending completion of the arbitration proceedings.

The facts are not in dispute. By its complaint filed May 7, 1971 plaintiff Kincar Franchise Inc., a New York corporation, successor to Kinney Car Corporation (Kinney), also a New York corporation, sought to recover from defendants the sum of $64,745.83 allegedly due for charges in connection with motor vehicles leased under a “License Agreement” of April 16, 1963 between Kinney and defendant Carey Chevrolet, with interest, costs and legal fees. The agreement, among other things, provided for Carey Chevrolet to be a licensee of Kinney in regard to the leasing of motor vehicles in an area of Hudson County designated in the agreement, the motor vehicles to be leased by Kinney to Carey Chevrolet at fixed monthly rentals.

The agreement, which by its terms is to be construed “in accordance with the Laws of the State of New York,” sets forth in paragraph 31 the following:

Any controversy or dispute between the parties arising out of this Agreement or related thereto or to the breach or alleged breach thereof which cannot be settled amicably, shall be settled by arbitration in New York under the rules then obtaining of the American Arbitration x\ssoeiation, and such judgment shall be binding upon the parties hereto. Judgment may be entered upon the award made in such arbitration in any court of the State of New York having jurisdiction. The costs of such arbitration shall be borne equally by the parties.

By separate instruments designated “Guaranty,” also dated April 16, 1963, defendant Mildred Carey and the late Harold Carey each guaranteed to Kinney punctual payment by Carey Chevrolet of all sums due to Kinney under the license agreement and undertook to pay Kinney on demand any sum as to which Carey Chevrolet might be in default to Kinney under the terms of the license agreement, without requiring Kinney to first proceed against Carey Chevrolet or against any security Kinney might hold for the payment of such indebtedness. In and by the same respective instruments, each, as guarantor, further agreed that if Carey Chevrolet “shall at any time default in the performance of any terms or conditions contained in such Agreement, Guarantor will well and truly perform same, or pay any or all damages that may arise in consequence of the non-performance thereof, without requiring any proceedings to be taken against” Carey Chevrolet.

Defendants, other than Mildred Carey, have answered the complaint asserting, among other things, as a separate defense, that plaintiff is limited to arbitration in accordance with the terms of the agreement. Defendant Mildred Carey has not answered the complaint but applied for and obtained an order requiring plaintiff to furnish her with a more definite statement of its claim set forth in the complaint. Plaintiff, in partial response to the order, furnished defendant Mildred Carey with a statement of an accounting relating back to Eebruary 1, 1969 and has also filed in the cause a certificate by one of its former officers, in part indicating that records of Kinney Car Corp. have been misplaced. Plaintiff thereafter filed its demand, dated September 1, 1971 and amended October 5, 1971, for arbitration of the dispute which is the subject matter of this litigation. Defendant Mildred Carey seeks to enjoin arbitration, contending that plaintiff has elected its remedy by instituting this action and accordingly has waived its right to proceed with arbitration; that in any event she, Mrs. Carey, as guarantor under a separate instrument, is not a party to the license agreement and is not bound by the arbitration requirement therein, and, referring to the provisions of N. J. 8. A. 2A:24^3, that she is entitled to a jury trial.

I find no merit in any of these contentions. The pertinent provisions of the New Jersey, New York and Federal Arbitration Acts are substantially similar. Cf. N. J. S. A. 2A:24-3 and 2A:24-4; New York Civil Practice Law and Rules (CPLE) § 7503 and the Practice Commentary thereunder in 7B McKinney’s Consolidated Laws of New York Annotated, Civil Practice Law and Rules, at 488; and 9 U. S. C. A. §§ 3 and 4; and see, Sonotone Corporation v. Hayes, 4 N. J. Super. 326 (App. Div. 1949), and Battle v. General Cellulose Co., 23 N. J. 538, 542-543 (1957).

N. J. 8. A. 2A:24-3, referred to by the defendant Mildred Carey, provides that

IV here a party is aggrieved by the failure, neglect or refusal of another to perform under a written agreement providing for arbitration, the superior court, or the county court of the county where either party resides, may in a summary action direct that the arbitration proceed in the manner provided for in the agreement. The party alleged to be in default may demand a jury trial as to the issue that there has been no agreement in writing for an arbitration or that there has been no failure to comply therewith. [Emphasis added].

The mere conclusion asserted on behalf of Mrs. Carey that she is not bound by the arbitration requirement of the license agreement — a conclusion which is diametrically opposed to her commitment set out in the guaranty she signed — cannot, standing alone, ripen into a jury question within the ambit of the statute.

In Finsilver, Still & Moss, Inc., v. Goldberg, Maas & Co., Inc., 253 N. Y. 382, 390, 171 N. E. 579, 581 (1930), Chief Judge Cardozo in his opinion for the Conrt of Appeals pointed out that Here, neither the making of the license agreement or the execution of the guaranty instrument nor the validity or effectiveness of either is in issue. Accordingly, there is in this case no issue to be submitted to a jury pursuant to N. J. S. A. 2A:2-U-3. Cf. Goldberg v. Mackay, 107 N. J. L. 412 (Sup. Ct. 1931), aff’d o. b. 109 N. J. L. 264 (E. & A. 1933).

Two classes of parties are covered by the statute, those who stay out of the arbitration, and those who go in. A party to a controversy, informed by liis adversary that there is to be a hearing by an arbitrator, may choose to stay out of the arbitration altogether. If he does, the statute is explicit in the protection of his rights. He may be heard by a court or judge in support of his contention that the arbitration is of no effect, in that he never bound himself to arbitrate, and may have the issues of fact, if any, submitted to a jury. [Emphasis added]

By the guaranty instrument of April 16, 1963 defendant Mildred Carey guaranteed, among other things and in precise terms, performance of the license agreement by Carey Chevrolet. This being so, the provisions of the license agreement, including its requirement for arbitration, are as much a part of the absolute guaranty instrument she signed as if they were set forth therein at length. Modern Brokerage Corp. v. Massachusetts Bonding & Ins. Co., 54 F. Supp. 939, 940 (D. C. S. D. N. Y., 1944), rearg. den., 56 F. Supp. 696 (D. C. S. D. N. Y., 1944). She is, accordingly, clearly bound by the requirement for arbitration.

It is well settled that arbitration is favored by tbe courts, that submission to arbitration is essentially a contract, that tbe parties are bound only to the extent of their contract and have a right to stand upon the precise terms thereof. [Public Utility Construction and Cas Appliance Workers, etc. v. Public Service Electric and Gas Co., 35 N. J. Super. 414, 419 (App. Div. 1955), certif. den. 19 N. J. 333 (1955)].

See also, Melvin P. Windsor, Inc., v. Mayflower S. & L. Ass’n, 115 N. J. Super. 219, 220 (App. Div. 1971), and 11 Williston on Contracts (3d ed. 1968), § 1420A.

As previously indicated, the respective answers filed by defendants other than Mildred Carey assert as a separate defense that plaintiff is limited to arbitration in accordance with the terms of the license agreement. And no prejudice is shown to have resulted to defendant Mildred Carey merely from the institution of this suit, and none is claimed. Under the circumstances plaintiff has not by the institution of this action waived its right to proceed with arbitration in accordance with the terms of the license agreement. See Shrib man v. Miller, 60 N. J. Super. 182, 195-197 (Ch. Div. 1960); Pyramid Electric Co. v. Staklinski, 61 N. J. Super. 278, 282 (App. Div. 1960), certif. den. 33 N. J. 317 (1960), and McKeeby v. Arthur, 7 N. J. 174, 182 (1951). Cf. Rosenthal v. Berman, 14 N. J. Super. 348 (App. Div. 1951), and Poray v. Royal Globe Ins. Co., 90 N. J. Super. 454 (Law Div. 1966).

In McKeeby v. Arthur, supra, Justice Case, writing for the court, noted that

When all parties to an agreement to arbitrate elect to prosecute their respective claims by actions at law, and institute and carry forward the course thus elected, the logical, indeed the necessary, result of that course is an abandonment of arbitration and a revocation of the agreement to pursue that form of adjudication. R. 8. 2:40-10 (now N. J. S. A. 2A:24 — 1, in revised form), taken bodily from the New York statute, provides that a written agreement to submit to arbitration shall be irrevocable except upon such grounds as exist at law or in equity for the revocation of a contract; however the word “irrevocable” as there used has been construed by the New York Court of Appeals to mean that the agreement eamnot he revoked at the will of one party to it, not that it cannot be revoked by the mutual consent of the parties. Zimmerman v. Cohen, 139 N. E. 764, 236 N. Y. 15 (1923). [7 N. J. at 182; emphasis added].

Plaintiff seeks a stay of this action pending completion of the arbitration proceedings and relies upon N. J. S. A. 2A:24r-4, which provides that

In an action brought in any court upon an issue arising out of an agreement providing for the arbitration thereof, the court, upon being satisfied that, the issue involved is referable to arbitration, shall stay the action, if the applicant for the stay is not in default iu proceeding with the arbitration, until an arbitration has been had in accordance with the terms of the agreement.

It is undisputed that the dispute which is the subject matter of this suit arises out of the license agreement which, in paragraph 33, provides for the arbitration thereof. No suggestion is made that the issue is not arbitrable. And plaintiff has not been shown to be “in default in proceeding with the arbitration.” Its demand for arbitration was, in the undisputed factual setting of this case, timely. In Pyramid Electric Co. v. Staklinski, supra, Judge Haneman (later Associate Justice of the State Supreme Court) in his opinion for the Appellate Division, made it clear that

* * * Where the parties incorporate an arbitration clause in their agreement the courts will enforce a timely request by either party that the other be compelled to have the arbitrable question in dispute adjudicated by the arbitration process agreed upon, and refrain from substituting the judicial forum for the arbitrator as the adjudicator of such issues. To accomplish this result the contract need do no more than provide, in substance, that disputes arising thereunder shall be arbitrated. Special language of “condition precedent” is not necessary. But an arbitration clause does not operate to deprive the court of jurisdiction to render such ancillary, provisional, or protective relief (short of adjudication of the arbitrable issues) as is mentioned in the Shribman and Rosenthal cases, supra, unless the parties so expressly stipulate in the agreement. [61 N. J. Super, at 282]

Defendant Mildred Carey suggests that plaintiff is now seeking arbitration of the dispute rather than adjudication of it in this action particularly because of the requirement in section 30 of the Commercial Arbitration Rules of the American Arbitration Association that

The Arbitrator shall be the judge of the relevancy and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary.

Neither the Arbitration Act nor the license agreement provides otherwise. Paragraph 31 of the license agreement requires settlement of the dispute by arbitration "under the rules then obtaining of the American Arbitration Association.”

Unless otherwise provided by the submission or by statute, the arbitrators are not required to follow the legal rules of evidence but have plenary power as to the admissibility, competency, and weight of evidence. [6 Willision on Contracts, (rev. ed 1938), § 1929 at 5397].

See also, Local Union 560, I. B. T., v. Eazor Express, Inc., 95 N. J. Super. 219, 227 (App. Div. 1967).

An order denying the motion to enjoin plaintiff from proceeding with arbitration and allowing the stay of this action pending completion of the arbitration proceedings will be entered.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JEROLD L. KAUFMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued February 28, 1972
    Decided March 10, 1972.

      Before Judges Contobd, Matthews and Fritz.

      Mr. Stephen Schmtzer argued the cause for appellant (Messrs. Kasen, Schmtzer & Kraemer, attorneys).

      Mr. Michael O. Willner, Assistant Prosecutor, argued the cause for respondent (Mr. Donald G. Collester, Jr., Morris County Prosecutor, attorney).
   Per Curiam.

Defendant was indicted bjr a Morris County grand jury in a two-count indictment charging him with (1) threatening the life of another (N. J. S. A. 2A:113-8), and (2) carrying a firearm in his possession without first having obtained a permit to carry same (N. J. S. A. 2A:151-41 (a)). Both offenses occurred in the Township of Parsippany-Troy Hills. He was convicted of the first count after a jury trial, and of the second count by the county judge sitting without a jury, the judge having determined that the second count involved only a question of statutory interpretation and not one of fact.

On this appeal, with respect to the conviction under N. J. S. A. 2A.113-8, defendant contends that to commit the crime of threatening to kill, the State must establish that the victim actually feared or was under apprehension that he was going to be killed. Defendant argues that this principle was established in State v. Schultheis, 113 N. J. Super. 11, 17 (App. Div. 1971). The failure of the trial judge to so charge the jury is claimed to warrant reversal. We disagree. While certain of the language of Schultheis seems to indicate the result claimed by defendant here — “[i]t is necessary only that the threats impart the expectation of bodily harm or death, thereby inducing fear and apprehension in the person threatened” (at 17); emphasis added — we are satisfied what was meant to be conveyed was that the existence of fear and apprehension in a victim made it irrelevant that the threat was conditional.

Schultheis relied upon State v. Cashman, 217 A. 2d 28 (Me. Sup. Jud. Ct. 1966), and State v. Lizotte, 256 A. 2d 439 (Me. Sup. Jud. Ct. 1969), which construed a Maine statute essentially similar to N. J. 8. A. 2A:113-8. Those decisions make it abundantly clear that the gravamen of the offense- involves the communication of a threat to kill in such terms as would in the attendant circumstances convey to an ordinary individual that the language seriousfy threatened death. Thus, in Lizotte it is stated:

The essence of an oral threat is that it is a verbal act and if that act is of such a nature as to convey the menace to an ordinary hearer, the statute is violated. No more does it matter whether or to what degree the threat engenders fear or intimidation in the intended victim. Some men are braver than others and less easily intimidated. We do not ask whether or not this defendant succeeded in frightening a xsolice officer. We ask only whether or not he used words which would under the circumstances then existing be heard by an ordinary person as being spoken not in jest but as carrying the serious promise of death, [at 443]

Defendant also argues that the trial judge mistakenly exercised discretion in excluding proffered testimony as to defendant being active in certain Black organizations, and also in permitting Magistrate Bock to testify. We see no mistaken exercise of the trial judge’s discretion in either ruling. As to the latter ruling, the record amply demonstrates that defendant opened the question of his reputation in the community, thus entitling the State to rebut it by producing testimony as to the specific traits of character involved in the offense charged.

Finally, we do not agree with defendant’s argument that once he has a permit for a firearm, he can thereafter acquire as many others as he chooses without registering those after-acquired firearms. We disagree with his reading of N. J. 8. A. 2A :151-41-44 which provides, in part, that “[o]ne permit shall be sufficient for such revolvers, pistols or other firearms as the applicant may possess.” We are satisfied the meaning of this provision is that one permit may cover all of the firearms that an individual possesses at the time that the permit is issued, once they have been described to the appropriate issuing authority; in short, he does not have to obtain a separate permit for each particular firearm which he owns. A firearm acquired after the issuance of a permit (as was the case here) requires separate registration so as to be included within the terms of an existing permit. To hold otherwise would, in our judgment, negate the statutory requirement contained in N. J. 8. A. 2A :151-44, that the police officer from whom a permit is sought “* * * shall also inquire into and determine the name and address of the manufacturer of the weapon, any and all manufacturer’s identification numbers, letters and marks, and a complete description of the kind and type of revolver or pistol which the applicant intends to carry.”

Defendant has also argued that the imposition of a one-month custodial sentence by the trial judge was manifestly excessive and should be set aside. We see no merit to this argument and will not disturb the sentence imposed.

The judgments of conviction are affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. L. RUSSELL McMASTER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 17, 1972
    Decided March 10, 1972.

      Before Judges Coneorb, Matthews and Eritz.

      Mr. John P. Goceljak, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).

      Mr. Arthur J. Lesemann argued the cause for respondent (Messrs. Mazer & Lesemann, attorneys).
   Per Curiam.

Defendant is charged with a violation of V. J. 8. A. 39:4r-50(a) (driving while under the influence of intoxicating liquor). While the complaint was pending the County Court suppressed the results of a blood alcohol test, ruling that it was not, as a matter of law, “medically acceptable” because the testing procedure was performed by a biochemist. The county judge concluded that “the law in the State of New Jersey is that no one, whether he is the finest technician, whether he is the most capable biologist, no one who is not a doctor or a registered nurse acting under the supervision of a doctor, has the right to invade the human envelope.” We granted leave to appeal on motion by the State. B. 2:2-4. We reverse.

Defendant’s position is that the holdings of the United States Supreme Court in Schmerber v. California, 384 U. S. 757, 86 S. Gt. 1826, 16 L. Ed. 2d 908 (1966), and our Supreme Court in State v. Macuk, 57 N. J. 1 (1970), prohibit the use of the results of a blood test as evidence unless the test is performed either by a licensed physician or at his direction. We do not read either of those opinions, or others cited in support of this argument, to so hold.

In this case the blood sample of defendant (who himself is a licensed physician of this State) was obtained and analyzed by Harry Clark, the licensed director of the Pompton Medical Laboratory, Pompton Plains, which in turn is also licensed by the New Jersey State Board of Medical Examiners. The blood was extracted by Clark from Dr. McMaster in the emergency room of the Chilton Memorial Hospital, Pequannock Township, at the request of police officer Romanelli. There is no dispute that the blood was taken in a medically accepted environment, and defendant concedes that Clark was completely qualified to carry out the testing procedures — except for the fact that he was not asked to carry out the test by a licensed physician.

The concern of the United States Supreme Court and our own Supreme Court with respect to such testing procedures is that they be carried out under such circumstances as to protect the life and health of the individual tested. As was stated by the United States Supreme Court in Schmerber, above:

Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain. [384 U. S. at 771-772, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920; emphasis added]

Compare Rochin v. California, 342 U. S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), where the conviction was set aside because the use of a stomach pump to remove narcotics swallowed by defendant in order to prevent their seizure by the police was found to bo conduct which “shocked the conscience” and was so “brutal and offensive” that it did not comport with traditional ideas of fair play and decency.

Defendant also argues that the provisions of N. J. S. A. 45:9-42.1 et seq., governing the activities of bio-analytical laboratories and laboratory directors, render the results of the test involved here medically unacceptable because the test performed was not performed at the request of a licensed physician. We fail to see any relationship between the provisions of the statute cited and the concept of “medically acceptable” as used by the court in such cases as Schmerber and Macule, above. Without belaboring this point, we observe that under the provisions of N. J. S. A. 45:9-42.19 blood tests are authorized to be made by bio-analytical laboratories at the request of local boards of health. Those boards usually include a majority of nonmedical members.

Defendant also seeks to sustain the order of suppression below by claiming that the blood test involved here was not performed as an incident of a lawful arrest. The argument is frivolous in view of the decision of the Supreme Court in Schmerber, above. See 384 U. S. at 770, 86 S. Ct. at 1835, 16 L. Ed. 2d at 919. It is elementary that the alcoholic content of human blood begins to diminish after drinking stops. The officer was obviously confronted with an emergency.

The decision of the County Court is reversed and the order of suppression vacated. The case is remanded to the Municipal Court of West Milford Township for trial.


text:
    EDWARD B. MC KEE AND BARBARA MC KEE, PLAINTIFFS-RESPONDENTS, v. HARRIS-SEYBOLD COMPANY, DIVISION OF HARRIS-INTERTYPE CORP., SEYBOLD MACHINE CO., CARL W. HAGMAN, DEFENDANTS, MIEHLE-GOSS-DEXTER, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 23, 1972
    Decided March 8, 1972.
    Before Judges Lewis, Halpern and Lora.

      Mr. Norman S. Gostanm argued the cause for appellant, Miehle-Goss-Dexter, Inc.

      Mr. Joseph J. MacDonald argued the cause for respondents, Edward B. McKee and Barbara McKee (Messrs. Harrison, Hartman and MacDonald, attorneys).
   Per Curiam.

The trial judge’s rulings from which defendant appeals not having been shown to be prejudicial and a review of the record disclosing neither prejudice nor error as alleged by appellant in the court’s comments during trial, the judgment in favor of plaintiffs is affirmed.

Plaintiffs also urge that under the recently adopted R. 4:42-ll(b) (effective January 31, 1912) interest should be allowed on the amounts of the judgment from February o, 1969, the date of the institution of the action. We hold this rule does not apply retroactively to judgments entered prior to its effective date.


text:
    MABEL WILLIAMS, PETITIONER-APPELLANT, v. REMCO INDUSTRIES, RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued March 7, 1972
    Decided March 14, 1972.

      Before Judges Lewis, Haleern and Lora.

      Mr. Samuel E. Bass argued the cause for appellant (Messrs. Freeman <& Bass, attorneys).

      Mr. Boland Vreeland argued the cause for respondent (Messrs. Connolly, Vreeland & Connolly, attorneys).
   Per Curiam.

Petitioner, an employee of respondent Remco at its Harrison, New Jersey, plant, was injured while on a Public Service bus returning from work to her home in Newark. Her petition for workmen’s compensation was denied by the Division of Workmen’s Compensation and the County Court, essentially because it was not within any of the exceptions carved out of the “going and coming” rule which was still viable in New Jersey. We agree that the rule is still in force in New Jersey, but conclude that the rule is inapplicable to the particular facts in this case.

The record discloses the following facts which are not in substantial dispute:

(1) For many years, respondent operated a large industrial complex in Newark where it employed many persons who, for the most part, were unskilled help used on an assembly line operation, and who lived in the low-cost housing areas of Newark.

(2) About 1963 it relocated its plant and operations to Harrison, New Jersey.

(3) In order to retain the employees needed for its operation, and to get that type of help from Newark, arrangements were made with Public Service to pick up Remco’s employees at several designated assembly areas in Newark and bring them, nonstop, to its plant in Harrison. At the end of the workday, Public Service picked up the employees at the plant and returned them, nonstop, to the same assembly areas in Newark. Presumably no one but Kemeo employees were transported in these special buses during such trips.

(4) The employees were required to pay 25 cents per ride. For a short period during 1965 and 1969 when Kemeo encountered difficulties in obtaining a sufficient number of employees, it arranged with Public Service to establish auxiliary bus routes and guaranteed Public Service the sum of $40 per bus, per round trip.

(5) Approximately 1,200 Kemeo employees utilized these busses on a daily basis, and they constituted about 45% of Kemeo’s entire working force.

(6) Seven or eight Public Service buses were used daily, and each bus had a printed sign on the front windshield with the word “Remco.” Public Service and Remco were in touch with each other as to the timo and number of buses needed because of work schedules, holidays and layoffs.

(7) Public Service had obtained approval from the New Jersey Department of Public Utilities to operate its buses directly to Remco’s plant.

(8) Petitioner commenced work for Remco about two years prior to the accident in question. When hired she was told about the transportation arrangements with Public Service and instructed that her assembly point was at Lafayette and Broad Streets, in Newark. She used this mode of transportation during the entire time of her employment.

It is not open to dispute that if Remco paid petitioner’s bus fare, or furnished its own bus, petitioner’s injuries would have been compensable. Rubeo v. Arthur McMullen Co., 117 N. J. L. 574, 579 (E. & A. 1937); Filson v. Bell Telephone Laboratories, Inc., 82 N. J. Super. 185 (App. Div. 1964). Having in mind the liberal interpretation to be accorded the Workmen’s Compensation Act, we see no reason, in logic or law, for a different result because petitioner paid for the ride. In view of Remco’s need for employees of petitioner’s type, and its need to transport them between Newark and Harrison, we find that petitioner was serving an incidental and beneficial interest of Remco at the time of her injury, so that it can be said such injury arose out of and in the course of her employment. The transportation arrangement, under the existing circumstances, inured to their joint benefit making petitioner’s injuries compensable. Bergman v. Parnes Brothers, Inc., 58 N. J. 559, 566 (1971); Hammond v. Great Atlantic and Pacific Tea Co., 56 N. J. 7 (1970); O’Brien v. First Camden National Bank & Trust Co., 37 N. J. 158, 163 (1962); see 1 Larson, Workmen’s Compensation Law § 16.30.

The judgment is reversed and the matter is remanded to the Workmen’s Compensation Division for a determination of the amount of compensation to which petitioner is entitled.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN BEIER THEURER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued February 28, 1972
    Decided March 20, 1972.

      Before Judges Coneobd, Matthews and Eeitz.

      Mr. Maurice M. Krivit argued the cause for appellant (Messrs. Krivit, Levitov, Miller, Galdieri & LeLuca, attorneys; Mr. Spencer N. Miller, on the brief).

      Mr. Kenneth P. Zauber, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Michael B. Perle, Deputy Attorney General, on the brief).
   Per Curiam.

Defendant was indicted for using his influence as Republican County Chairman of Hudson County to protect certain gambling operations. He first pleaded not guilty. Thereafter plea bargaining was engaged in by counsel for the defendant, for the State and the County Court judge scheduled to try the case. Defendant sought a noncustodial sentence on grounds of age and advanced ill-health, in return for which he offered to plead guilty. Otherwise he proposed to go to trial.

On May 4, 1971, the date set for trial, the essence of an agreement between the court and counsel was read into the record by the judge as follows, in pertinent part:

I, therefore, have indicated that if these men are willing to accept the suggestion, the suggestion of the Court is that if the appeal [sie] for a plea of guilty to the charge in this indictment still exists, I would receive it with the acknowledgement that if, after I have a full, complete, accurate presentence report as to the defendant Theurer, and all matters proper for consideration at the time of sentencing as relates to him, I feel that I cannot favorably entertain the conclusion of a sentence non-custodial in nature, I would advise defense counsel in advance of that sentencing date in sufficient time to afford him on behalf of his client and his client, the opportunity to withdraw the plea of guilty to the charge in this indictment and to enter a plea of not guilty, and to stand trial at an early, convenient date, convenient to both defense counsel as well as state's counsel.

Eollowing this recital defendant pleaded guilty, the court calling upon him to say, as customary, whether he was doing so without any promise, threat, inducement, etc. He so averred. Sentencing was scheduled for June 27, 1971. The State never took any affirmative position as to the nature of the sentence to he imposed.

On June 2, 1971 counsel for defendant sent the judge a physician’s report concerning defendant’s condition, dated April 28, 1971, and said a supplemental report would be submitted shortly. On June 7, 1971 the judge wrote counsel for defendant confirming a phone call to counsel’s associate that he “had not received material as would support your position with respect to Mr. Theurer. * * * I am advised you intend to review the presentence report on your arrival in Mount Holly” (location of judge’s chambers). On June 16, 1971 counsel sent the judge another doctor’s report purporting to show defendant to be, in counsel’s words, “a very sick person.” The letter said:

I feel confident that you will peruse Dr. Reilly's report very carefully and of course, my desire is to confer with you with respect to this report and the reports heretofore filed prior to taking the bench on Monday, or during- a court recess.

A meeting was held in chambers before sentencing on June 22, 1971, attended by counsel for defendant and for the State and the trial judge. Counsel for defendant has filed an affidavit stating that at the conference he mentioned the plea agreement and asked the judge what the nature of the sentence would be, but that the judge refused to say. The State concedes the latter fact is true (as, in effect, did the trial judge in the course of colloquy on the motion to withdraw the plea of guilty), but it says the judge told counsel the second medical report contained nothing new, thereby implying a custodial sentence would be imposed. Thereupon the matter proceeded to sentence and the court sentenced defendant to 364 days in the county jail and a $1,000 fine (as against a statutory maximum for the crime of three years’ imprisonment and $1,000 fine).

Immediately upon hearing the sentence counsel for defendant addressed the judge and moved to retract the plea of guilty, citing the plea agreement aforedeseribed. The court responded by saying that defense counsel had been informed prior to sentencing by the judge “very directly” that the presentence report “necessitated a custodial sentence,” and that he had written counsel to that effect and “suggested he be guided accordingly.” Consequently, he denied the motion. What is before us does not support the judge’s position that prior to or on the sentencing date he had finally determined and unequivocally informed the defense that a custodial sentence would necessarily be imposed — and that defense counsel should so have understood. In any case, experienced counsel for defendant could have been freed of the quandary in which he was obviously placed had the judge answered counsel’s specific inquiry in chambers as to the nature of the sentence to be imposed. While ordinarily such an expression of intent prior to hearing the defendant and his counsel in open court on sentence would be improper, yet, in the context of the understanding between court and defendant arrived at on May 4, defendant was, in our view, entitled to be informed unequivocally, on request prior to sentence, concerning the custodial feature of the prospective sentence or, failing that, to the right forthwith to withdraw the guilty plea upon hearing the judge pronounce a custodial sentence. Defendant had expressly stipulated for either a trial of the charge or a plea of guilty in return for a noncustodial sentence. The court had concurred in those alternatives on May 4. Sound judicial administration as well as elementary principles of fairness required that the agreement be honored. Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); A.B.A. Standards Relating to Pleas of Guilty, §§ 2.1(a) (ii) (5); 3.3(b); see also, State v. Pent, 51 N. J. 428, 438 (1968); State v. Rhein, 117 N. J. Super. 112, 119 (App. Div. 1971); State v. Poli, 112 N. J. Super. 374 (App. Div. 1970).

It should bo noted that the plea negotiations which transpired here were not conducted in accordance with a memorandum of the Administrative Director of the Courts, dated December 28, 1970, expressing the general policy of the Supreme Court as to plea procedures. Here the judge apparently did participate directly in the plea discussions. Moreover, the prosecutor did not reach an agreement with defendant. However, the spirit of the memorandum supports the justice of permitting this defendant under the particular circumstances here obtaining to withdraw his plea of guilty because the plea was tendered and accepted by the judge in accordance with the understanding between him and the defense that if the ultimate decision was to impose a custodial sentence, defendant would be afforded an opportunity to withdraw his plea.

The State urges it is now prejudiced because an important witness has died since June 21. But this is not defendant’s fault. The State would he in the same position if the court had granted defendant’s immediate motion for a retraction, as it should have.

The order denying the motion to withdraw the plea of guilty is reversed, the plea is set aside, and the matter remanded for trial.

      In pertinent part, the memorandum reads:
      1. The prosecutor and defense counsel may engage in discussions relating to pleas and sentences, but the judge shall take no part in such discussions.
      2. Where the prosecutor and defense counsel reach an agreement as to the offense or offenses to which a defendant will plead on condition that other charges pending against the defendant will be dismissed, such agreement shall be placed on the record in open court at the time the plea is entered. If the plea is accepted by the judge in accordance with such agreement and subsequently the jndge before whom a motion for dismissal of other charges is made pursuant to JR. 3 :25 in his discretion determines that the interest of justice would not he served by accepting such agreement, then and in that event the defendant shall be permitted to withdraw his plea.
      3. Where the prosecutor and defense counsel reach an agreement as to the sentence which the prosecutor will recommend, such agreement shall be placed on the record in open court at the time the plea is entered. If the plea is accepted by the judge and subsequently at the time of sentencing in accordance with R. 3 :21 the sentencing judge in his discretion determines that the interest of justice would not be served by accepting the prosecutor’s recommendation made pursuant to such agreement, then and in that event the defendant shall be permitted to withdraw his plea.


author: Lowengrub, J. D. C.

text:
    E. PLAINTIFF, v. F. DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 8, 1972.

      Mr. Lawrence P. Urban for plaintiff (Messrs. Schusted and Urban, attorneys).

      Mr. George Warren guardian ad litem, for defendant.
   Lowengrub, J. D. C.

(temporarily assigned). An amended complaint was filed in this matter on September 29, 1971 alleging as the ground for divorce from the bond of matrimony defendant’s institutionalization in the Camden County Psychiatric Hospital for Mental Illness (hereinafter called Lakeland), for 24 consecutive months after the date of the marriage and next preceding the filing of that complaint.

The parties were married on September 21, 1963.

On May 24, 1968 defendant was committed to Lakeland on a temporary commitment, and on June 14, 1968 he was transferred to a regular commitment. Defendant’s medical diagnosis on admission was paranoid schizophrenia.

Defendant was, as of the date of the trial in this matter, March 1, 1972, an active patient at Lakeland under a program of rehabilitation.

Between June 20 and September 29, 1971 he was permitted to leave the hospital on 15 separate weekend visits with his mother. The weekend visitations continue to date. There have not been other visitation periods permitted him.

Plaintiff testified that she has not seen defendant since his commitment and, further, that there was no cohabitation between her and defendant since his admission to Lakeland.

Defendant does not deny that he has suffered from mental illness since at least his commitment on May 24, 1968, but he argues that he was not institutionalized for a period of at least 24 consecutive months next preceding the filing of the complaint because he was permitted to leave the hospital on weekends for a period of about three months before the filing date of the amended complaint.

Defendant also argues that the real meaning of the statute is that plaintiff must prove that he was mentally incompetent ior the statutory period. He alleges that plaintiff has failed in that burden since no evidence was introduced by her of a determination that he was a mental incompetent.

The hospital records show that defendant was, from the date of his temporary commitment to the trial date, a patient committed to the hospital without benefit of discharge. He was given permission to leave the hospital after application for weekend visits had been made by his mother and approved by the hospital staff member in charge of his ease.

Defendant could not leave Lakeland without permission, and although he was away for the weekend, he was subject to the rules and regulations of the hospital.

Since there is no New Jersey case authority to shed light on the meaning of that portion of N. J. S. A. 2A:34-2(f) requiring institutionalization fox “24 or more consecutive months,” it would be well to look to the comment to the proposed statute in the final report to the Governor and the Legislature published by the Divorce Law Study Commission, dated May 11, 1970:

The premise is that dead marriages should be terminated at the option of cither party. It follows that fault is immaterial. A divorce should not be granted as a reward for virtue or imposed as a punishment for marital sin. The public interest is concerned with the stability of functioning and meaningful marriages. From the standpoint of the non-institutionalized spouse, he or she needs and is entitled to a partner in the household and a surrogate parent for children, if any. It is the absence of the other party from the home, for whatever cause, that constitutes a deprivation.
Moreover, if the family relationship has so far deteriorated that the plaintiff seeks a divorce, there is no social good to be achieved by withholding that remedy. If the marriage remains viable the noninslitutionalized spouse will not petition for divorce.

It is apparent, then, that the gravamen of the cause of action is the inability of the institutionalized spouse to be a working partner in the marriage. A patient who is confined in a mental hospital, and who will not be discharged unless approval is given by the medical staff, is not the spouse in a viable marriage whether he have weekend visitation privileges outside of the hospital or not. In any event, the weekend privileges are not as a matter of right, but are only granted if they are deemed warranted by medical authority.

The continuity of the status of his commitment as a patient in Lakeland was not interrupted by weekend leaves from the hospital. They were and at best are part of a program of rehabilitation with a view to discharge at a subsequent time when the condition of the patient permits.

As to defendant’s argument that plaintiff must prove that he was mentally incompetent during the 24-month period, we must first look to the language of the statute for its interpretation. That language is clear and unambiguous. The statute must therefore speak for itself and be construed according to its own terms. Bass v. Allen Home Improvement Co., 8 N. J. 219 (1951); Rosenthal v. State Employees’, etc., System of N. J., 30 N. J. Super. 136 (App. Div. 1954).

Courts are to interpret the statute as an expression of the legislative will as it is written, and not according to some supposed or unexpressed intention. A court must not presume that the Legislature intended anything more in a statute than that which it actually wrote as to the law. Dacunzo v. Edgye, 19 N. J. 443 (1955); Hoffman v. Hock, 8 N. J. 397 (1952).

A person who is declared to be mentally incompetent is one who by age, disease or affliction has become incapable of managing his own affairs. Warker v. Warker, 106 N. J. Eq. 499 (Ch. 1930); Perrine’s Case, 41 N. J. Eq. 409 (Ch. 1886).

Illness has been defined as poor health or sickness; loss of health; affliction or disability; an unhealthy condition of the body or mind. Roget’s Thesaurus (1969 ed.) 386; Webster’s New Collegiate Dictionary (7th ed. 1967) 415.

In another statute our Legislature has defined mental illness as a mental disease of such an extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others or the community. See N. J. 8. A. 30:7B-2(f).

Paranoid schizophrenia clearly comes within the definition of mental illness since mental illness encompasses a general malady of the mind, whereas a mental incompetent is a person who has been declared to be incapable of managing his own affairs. A person may be mentally ill but capable of managing his own affairs. The two conditions are not synonymous.

Plaintiff has established by uncontroverted evidence that defendant was a patient in the Camden County Psychiatric Hospital for a period of at least 24 consecutive months subsequent to the marriage and that the time period next preceded the filing of the complaint. His confinement was a result of his mental illness. A judgment of divorce from bed and board will be granted.

The issue of visitation by defendant of the child of the marriage will be determined at a subsequent hearing.


author: Gerofsky, A. J. S. C.

text:
    GEORGE HARMS EXCAVATING CO., A NEW JERSEY CORPORATION, ANSELMI & DE CICCO, INC., A NEW JERSEY CORPORATION, LA FERA CONTRACTING CO., A NEW JERSEY CORPORATION, UFHEIL CONSTRUCTION COMPANY, INC., A NEW JERSEY CORPORATION AND THE UTILITY CONTRACTORS ASSOCIATION OF NEW JERSEY, INC., A NON-PROFIT CORPORATION, PLAINTIFFS v. MONROE TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A PUBLIC BODY CORPORATE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided — March 7, 1972.

      Mr. Richard K. Rosenberg for plaintiffs (Messrs. Heller & Laihs, attorneys).

      Mr. William G. Moran, Jr. for defendant (Messrs. Huff & Moran, attorneys).
   Gerofsky, A. J. S. C.

This is the return day of an order to show cause why judgment should not be entered, pursuant to R. 4:67, declaring defendant utilities authority subject to the Local Public Contracts Law, N. J. 8. A. 40A :11-1 et seq.

Plaintiffs are four contractors and an association of contractors. Defendant is a municipal utilities authority created pursuant to N. J. 8. A. 40:14B-1 et seq. On February 9, 1972, defendant by resolution authorized the advertisement for bids on two contracts known as W-3 and W-4 for the installation of a water distribution system and storage facility in the Township of Monroe, Middlesex County. Among the specifications and bidding requirements for the contracts are two requirements which form the basis of this suit. The first is a requirement that no bid may be withdrawn within 120 days after receipt of bids and the second is that each bid be accompanied by a cashier’s check, certified check or bid bond in the amount of at least 10% of the amount bid without limit. Plaintiffs argue that these requirements violate the applicable provisions of the Local Public Contracts Law, N. J. 8. A. 40A:11-1 el seq., which became effective July 1, 1971. Defendants admit that the cited bidding requirements are not in compliance with the statute but claim that municipal utilities authorities are not subject to the provisions of the Local Public Contracts Law.-

N. J. 8. A. 40A:11-2(1) (d) defines a “contracting unit” subject to the provisions of the act to be:

Any board, commission or agency, which is not a State board, commission or agency, and which has administrative jurisdiction over any district, project, or facility, included or operating in whole or in part, within the territorial boundaries of any county or municipality which exercises functions which are appropriate for the exercise by one or more units of local government, and which has power to make purchases and enter into contracts or agreements for the performance of any work or the furnishing or hiring of any materials or supplies usually required, the cost or contract price of which is to be paid with or out of public funds.

Defendant first argues that since the word “authority” is not found within the defining language, a municipal utilities authority is not covered by the Local Public Contracts Law.

In evaluating defendant’s argument the following rules of statutory construction should be kept in mind:

A thing which is within the object, spirit and meaning of the statute is as much within the statute as if it were within the letter. Conversely, a thing which is not within the intent and spirit of a statute is not within the statute, though within the letter * * * The statute itself furnishes the best means of its own exposition; and the legislative purpose here is evident when the whole of the provision is related to the obvious policy and purpose. The intent is the essence and life of the law. [Glick v. Trustees of Free Public Library, 2 N. J. 579, 584-5 (1949)]

It is clear that the Local Public Contracts Law was meant to have broad applicability. It was designed to expand and enlarge the jurisdictional applicability of the former bidding law, N. J. S. A. 40 :50-l et seq. It does not appear to have been the intent of the Legislature in enacting the Local Public Contracts Law to exclude utilities authorities from the operation of the act. Certainly, any distinction between an “agency” and an “authority” is too tenuous to be maintained. See N. J. 8. A. 40:14B — 2(1). Furthermore, as counsel know, the Local Public Contract Guidelines drawn up by the Division of Local Government Services of the N"ew Jersey Department of Community Affairs state flatly that local authorities come within the scope of the act. Thus, it would appear that a municipal utilities authority is a “contracting unit” under the Local Public Contracts Law.

Defendant’s main argument, however, is that N. J. 8. A. 40:14B-68 was intended to exempt municipal utilities authorities from the operation of the Local Public Contracts Law. N. J. 8. A. 40:14B-68 declares:

This act shall be construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized, and a municipal authority shall not be subject to, or constitute a municipality or agency or component of a municipality subject to, the provisions of chapter 50 or any other provisions of Title 40 of the Revised Statutes, or be subject to regulation as to its service charges by any officer, board, agency, commission or other office of the State.

This statute should also be construed in terms of the intent of the Legislature. The first exemption is that “a municipal authority shall not be subject to, or constitute a municipality or agency or component of a municipality subject to the provisions of chapter 50.” The relevant provisions of chapter 50, however, were expressly repealed by N. J. 8. A. 40A:ll-38. Since this court has already held that N. J. S. A. 40A:11~1 et seq. expanded the scope of the bidding law to include municipal utility authorities, it would follow that the exemption of a utilities authority from the bidding law would no longer apply.

The second exemption is that “a municipal authority shall not be subject to, or constitute a municipality or agency or component of a municipality subject to * * * any other provision of Title 40 * * *.” This exemption, however, is not relevant to the bidding law. Eo provision of Title 40, other than the amended version of chapter 50, deals with public contracts. While, technically, N. J. 8. A. 40A:11-1 et seq. may be said to be “any other provision of Title 40,” the intent of the Legislature was clearly not to exempt utilities authorities from the Local Public Contracts Law.

Even prior to the passage of the act it was made clear that utilities authorities were not exempt from all provisions of Title 40. See Broadway Nat'l Bank of Bayonne v. Parking Authority, Bayonne, 40 N. J. 227 (1963). And as plaintiffs point out in their brief, the intent of N. J. S. A. 40:14B-68 is to exempt authorities from “economic restrictions” inherent in the normal municipal scheme — not to exempt them from statutes such as the Local Public Contracts Law.

Eor these reasons this court holds that defendant is subject to the Local Public Contracts Law and that any provisions of the plans, specifications, invitation to bidder, or other contract documents incidental to the contracts known as W-3 and W-4 in conflict with the aforesaid act are invalid.

Eo costs.


text:
    WALTER C. BLASI, ESSEX COUNTY SUPERVISOR, PLAINTIFF-APPELLANT, v. JOSEPH N. EHRET, DIRECTOR OF THE DIVISION OF LOCAL GOVERNMENT SERVICES OF THE STATE DEPARTMENT OF COMMUNITY AFFAIRS, AND ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, A BODY POLITIC OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 20, 1972
    Decided March 20, 1972.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Myron W. Kronisch argued the cause for appellant (Messrs. Kronisch & Felzenberg, attorneys).

      Mr. Francis Patricio McQuade, Essex County Counsel, argued the cause for respondent Essex County Board of Chosen Freeholders.

      Mr. Richard L. Kadish, Deputy Attorney General, argued the cause for respondent Joseph FT. Ehret, Director of the Division of Local Government Services of the State Department of Community Affairs (Mr. Anthony F. LaBue, Deputy Attorney General, on the brief; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Per Curiam.

We question whether or not the issue posed by appellant is properly before us on this appeal. However, in view of the emergent situation presented, we will decide the issue using such original jurisdiction as is necessary. R. 2:10-5.

We conclude that the county supervisor does not have veto power over the approval and adoption of the county budget by the board of freeholders. The statute on which he relies, 40A:9-40, giving him the power to veto “eveiy resolution or ordinance” adopted by a board of freeholders is general legislation relating to county government. On the other hand, the Local Budget Law, N. J. 8. A. 40A:4^1 et 'seq., is specific legislation dealing only with local budgets. The statute sets forth in detail the contents, the procedure for adoption and time schedule for a budget. It makes no mention of a county supervisor and does not confer on him any power or control over a budget. It specifies that a budget shall be introduced, approved, amended and adopted by resolution passed by not less than a majority of the governing body, here the board of freeholders. Only the State Director of the Division of Local Finance, to whom a county budget must be submitted, is given power to review and approve or disapprove a county budget.

Accordingly, we conclude that the two statutes cannot readily be harmonized. For example, the Local Budget Law requires introduction, approval, amendment and adoption of a county budget only by a majority of the full membership of the governing body. By contrast, the veto provision of the county supervisor legislation requires a two-thirds majority to override a supervisor’s objections. When there is a conflict between a general and a specific act on the same subject matter, the latter shall prevail. W. Kingsley v. Wes Outdoor Advertising Co., 55 N. J. 336, 339 (1970). See also, Cuprowski v. Jersey City, 101 N. J. Super. 15, 28 (Law. Div. 1968); aff’d 103 N. J. Super. 217 (App. Div. 1968).

Affirmed.