author: Kolovsky, J. A. D. Carton, J. A. D. Gomarann, S. J. A. D.

text:
    JOSEPHINE DIGIOVANNI, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. DR. J. F. PESSEL, a/k/a JOHANNES PESSEL, AND DR. JOSEPH C. BORRUS, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND CARRIER CLINIC, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 30, 1968
    Decided February 26, 1969.
    Kolovsky, J. A. D., dissented in part.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Charles E. Stein argued the cause for Josephine Di Giovanni.

      Mr. Robert M. Graham argued the cause for Dr. J. F. Pessel (Messrs. Champí and Graham, attorneys; Mr. Frank Yurasko, on the brief).

      Mr. Raymond M. Tierney, Jr. argued the cause for Dr. Joseph C. Borrus (Messrs. Shanley & Fisher, attorneys; Mr. John F. Lynch, Jr., on the brief).

      Mr. Charles W. Hutchinson argued the cause for Carrier Clinic (Messrs. Lamb, Blake, Hutchinson & Dunne, attorneju; Mr. John I. Lisowski, of counsel).
   Kolovsky, J. A. D.

All members of the court agree that the judgment of dismissal in favor of Carrier Clinic should be affirmed and that the judgment in plaintiff’s favor against Dr. Borrus should be reversed. However, I would also reverse the judgment recovered by plaintiff against Dr. Pessel while my confreres are of the view that that judgment should be reduced from $5,500 to $5,000 but otherwise affirmed. I embody herein my reasons for agreeing with the unanimous decisions reached as to Carrier Clinic and Dr. Borrus and my reasons for dissenting from the majority’s ruling with respect to the judgment against Dr. Pessel.

Pursuant to an order of temporary commitment (see N. J. S. A. 30:4^-37) dated August 17, 1965 entered by the municipal magistrate of Franklin Township, plaintiff Josephine Di Giovanni, then 73 years of age, was committed on August 18, 1965 to the mental hospital operated by defendant Carrier Clinic (Carrier). The order was entered on the verified application of plaintiff’s husband Frank, to which were attached certificates of insanity executed, purportedly under oath, by defendants Dr. Pessel and Dr. Borrus. Plaintiff remained at the hospital until September 16, 1965, having on September 8 executed a “voluntary application’’ for treatment.

In this action for damages against Carrier and the two doctors, plaintiff charged each of them with negligence and false imprisonment. The case was tried to a jury.

At the close of all the evidence, the trial judge (1) granted Carrier’s motion for judgment; (2) dismissed the negligence (malpractice) claims asserted against the two doctors, and (3) ruled that the proofs established as a matter of law (a) that “the conduct of the doctors * * * constituted false imprisonment” because “plaintiff was in fact placed in the Carrier Clinic virtue of a procedure that was defective”; (b) that plaintiff “was of unsound mind and * * * needed psychiatric help”, so that she was not entitled to compensatory damages, and (c) that the jury was to be asked to decide but one question, the amount of punitive damages to be awarded plaintiff.

The conduct of Dr. Borrus which the trial court referred to in its ruling that Borrus had committed the tort of false imprisonment was that he had signed the affidavit at the foot of his certificate in the absence of a notary, verifying his signature the next day in a telephone conversation with the notary public who had then completed the jurat. *3

Dr. Pessel, too, did not sign the affidavit of his certificate of insanity in the presence of a notary. According to the doctor, the notary who thereafter completed the jurat on his affidavit was an employee of a hospital who was familiar with his signature. In addition, and more significant, was the fact that although Dr. Pessel’s certificate stated that he had made a personal examination of plaintiff at New Brunswick on August 13, 1965, the truth was that he had last seen her on March 27, 1965.

The jury’s verdict as first announced by the foreman was

“We have a judgment against Dr. Borrus, $500, eleven and one vote.
We have a judgment against Dr. Pessel $500 and $5,000, or $5,500.00.”

Extensive colloquy then followed between counsel and the court as to the purport of the jury’s verdict with respect to Dr. Pessel, during the course of which the jury was asked to retire. Questioning of the jury after it was called back established that the verdicts all represented punitive damages, that the jury “equate [d] the acts of the doctors with respect to the oath as punishable by * * * $500,” and that the jury’s verdict against Dr. Pessel “was intended to be one verdict against Dr. Pessel in the amount of $5,500.00, $500 by reason of the failure with respect to the oath and $5,000 with respect to the non-examination.”

The matter is before us on separate appeals filed by plaintiff and by defendants Pessel and Borrus.

The record reveals no genuine dispute as to the essential and controlling facts.

That plaintiff was in dire need of the hospitalization and treatment which she received and that the treatment benefited her stands uncontradicted. Plaintiff called no medical witnesses other than the two defendant doctors and Dr. Shoemaker of Carrier Clinic. Nor was there any contradictory testimony by lay witnesses. Plaintiff’s attorney acknowledged at oral argument that he had been retained by both plaintiff and her husband to prosecute this action, yet he chose not to call the husband or any of the plaintiff’s seven children as witnesses. Two of plaintiff’s daughter’s did testify, under subpoenae by defendants. Their moving description of their mother’s unfortunate condition and conduct prior to her commitment confirms the judgment of the certifying physicians that plaintiff’s condition was “such that [s]he should be placed under immediate restraint in an institution,” N. J. S. A. 30:4-37. Nothing in plaintiff’s own brief testimony is to the contrary.

When the application for commitment was submitted to the municipal magistrate by the husband’s attorney, Harold SHarew, it and the attached certificates were complete and in proper form.

The appointment for plaintiff’s examination by Dr. Borrus, an experienced psychiatrist and a diplómate of the American Board of Neurology and Psychiatry, had been made by Ann Di Giovanni, plaintiff’s eldest daughter. Miss Di Giovanni testified that it was Mr. SHarew, her father’s attorney, “who recommended Dr. Borrus to examine [her] mother for commitment purposes.” Dr. Borrus examined plaintiff on August 15, 1965 and completed and signed his certificate on the same day.

Dr. Pessel is an internist with offices in Trenton. He saw plaintiff for the first time on May 29, 1964. After examining her, ho made suggestions for the easing of her various complaints, both physical and mental. Among the 13 suggestions listed in Dr. Pessel’s letter of June 29, 1964 to the doctor who had referred plaintiff to him were:

“10. More vacations away from the tension and anxiety of her home.
* * # jje 12. Brandy or wine on retiring to be used as a ‘sleeping potion.’ ”

Plaintiff then visited Dr. Pessel three times in June 1964, once in each of the months of August, September, October, November and December 1964, and January, February and March 1965. The last time that Dr. Pessel saw plaintiff was on March 27, 1965.

There is no contradiction of the doctor’s testimony that during those visits he learned from members of her family, and in part from plaintiff herself of her worsening nervous condition, including, among other things, her inability to sleep, her accusations of infidelity against her ailing 75-year-old husband, her violent behavior and threats of suicide. Tranquilizers were prescribed but, as reported to the doctor by plaintiff’s family, her behavior became even worse after March 1965. Some time in July 1965 the doctor suggested that plaintiff be hospitalized in a state hospital to receive the psychiatric help which she needed “very badly.” The family decided that they preferred to have the commitment to a private hospital. According to the doctor, he yielded to the importunities of plaintiff’s daughter and signed the certificate on August 13, 1965 because of the difficulty the family was having in arranging for plaintiff’s examination by local psychiatrists, but did so on condition that a psychiatrist confirm his diagnosis.

The order of temporary commitment, complaint and certificates were filed with Carrier at the time of plaintiff’s admission. Ity letter of August 19, 1965, Carrier forwarded certified copies thereof to the county adjuster of Somerset County with the request that he “process the enclosed temporary order through to the Court for final commitment.” The order of August 17 had designated September 2, 1965 as the date for final hearing, but by letter of September 3, 1965 the county adjuster forwarded to Carrier’s medical director a notice of final hearing to be held on September 10, 1965, with a request that it be served on plaintiff. (Similar notices were enclosed for service on other patients.)

On September 8, 1965 plaintiff was persuaded by her husband and daughter to sign a “voluntary application.” By letter of that date, Carrier notified the county adjuster that it therefore would “not be necessary to process the order through for final commitment.” The application for commitment was thereafter dismissed by order of the Somerset County Court dated October 8, 1965 after reciting, inter alia, the original application, the designation of September 10, 1965 as the date for final hearing, and plaintiff’s removal from commitment status at Carrier on September 8, 1965.

Plaintiff was discharged from Carrier Clinic on September 15, 1965.

With this factual background, I now consider the propriety of the several rulings of the trial court involved in the respective appeals.

A. The dismissal of the malpractice and false imprisonment claims against Carrier Clinic

On appeal, plaintiff does not challenge the dismissal of the malpractice claim against Carrier. The dismissal was proper. There was no proof of negligence, nothing to show that Carrier deviated from accepted and recognized standards in its hospitalization and treatment of plaintiff.

Plaintiff concedes, with respect to the false imprisonment count against Carrier, that the municipal magistrate’s order of August 17, 1965 authorized her confinement for the 20 days beginning with August 18. She argues however that the 20 days expired at 12:01 a. at. on September 7, 1965, so that her confinement from that time until at least the time when the voluntary commitment form was signed on September 8, 1965 was without legal warrant. Further, she contends that her execution of the voluntary commitment form on September 8, 1965 did not justify her continued confinement because her action in signing it was not voluntary and she was induced to sign it by a misrepresentation that she could sign herself out on 72 hours’ notice.

We agree with the trial court that both contentions lack merit. The evidence furnishes no support for plaintiff’s attempt to repudiate the voluntary commitment signed by her on September 8, 19'65. Uor is there any validity to plaintiff’s charge that her confinement for the one-day period from September 7 to September 8 was without legal warrant.

While N. J. 8. A. 30 :4-37 provides that the order of temporary commitment shall authorize the detention of the patient for 20 days, that period may be extended if there is a continuance of the date for final hearing. See N. J. 8. A. 30:4r-42 which provides:

“A continuance of the final hearing, when endorsed on the complaint, or certified copy thereof, shall be sufficient warrant and authority for the detention of the patient for such period. The aggregate period of continuances shall not exceed three months from the date originally fixed for final hearing. The county adjuster in all class “B” and class “C” cases shall forthwith notify the chief executive officer of the institution in which the patient is confined, of a continuance.”

Plaintiff concedes that the authorized period oi; a patient’s detention is extended by a continuance of the date of the fmal hearing but argues that it has not been shown that the continuance beyond September 2, 1965, the date of final hearing recited in the magistrate’s order of August 17, 1965, was “endorsed on the complaint or certified copy thereof” as required by N. J. 8. A. 30 :4-42.

We perceive no reason to disturb the trial court’s findings, which are supported by the proofs, that the records of the Somerset County Adjuster and of the Somerset County Court established not only that the date of final hearing had been duly continued until September 10, 1965 but also that other requirements of N. J. 8. A. 30 M—42 had been complied with so as to authorize plaintiff’s detention under the original order until the continued date of final hearing.

Here, as directed by N. J. S. A. 30 :L-37, the original order for plaintiff’s temporary commitment, the application a.nd the certificates were filed with Carrier’s medical director, who sent a certified copy thereof to the county adjuster. The county adjuster, whose duty it is “to present forthwith such certified copies to the court of [his] county,” N. J. 8. A. 30 :4-37, and to cause to be served “written notice of the time and place of final hearing,” N. J. 8. A. 30:4-41, prepared and sent to Carrier, for service on plaintiff, the notice reciting that the final hearing was to be held on September 10, 1965. It is undisputed that the continuance in the date of final hearing was made necessary because the County Court was not in session on September 2, 1965, the date originally set for final hearing by the magistrate’s order.

Carrier’s motion for judgment on both counts was properly granted.

B. The dismissal of the malpractice claims against Dr. Borrus and Dr. Pessel.

The relationship between a physician and the person whom he.examines and certifies as insane in support of an ex parle application for an order of commitment may not have all the attributes of the usual physician-patient relationship. Nevertheless, I am satisfied that the physician owes the person he is so examining the duty of reasonable care. Miller v. West, 165 Md. 245, 167 A. 696, 697 (Ct. App. 1933); Annotation, “Malpractice — mental disease,” 99 A. L. R. 2d 599, 617 (1965); 70 C. J. S. Physicians and Surgeons § 49, p. 972; cf. Beadling v. Sirotta, 41 N. J. 555, 561 (1964), holding that a duty of reasonable care is owed by a physician to a person whom he examines at the request of the latter’s employer.

I agree with the Maryland court that such “physicians, although they are not employed by the patient, and make no report to him, are under a legal duty to him which will support an action, if the duty is violated, and if as a consequence a person who should not be confined is confined.” Miller v. West, supra, at 167 A., at pp. 697-698.

However, as the Maryland court also noted:

“But the action, if it lies, can be resorted to only for redress of injury from the physicians’ having contributed to bring about confinement of one who should not have been confined. If the patient was in fact insane, and in need of the confinement, there would be no actionable injury from wrongful procedure in confining him.” (167A., at p. 698).

Here, the basis for the court’s dismissal of the malpractice counts was its ruling that there was no proof of a standard of medical practice to which defendant doctors allegedly failed to adhere. See Sanzari v. Rosenfeld, 34 N. J. 128, 135 (1961).

Plaintiff argues that the record contains such proof even though she called n@ medical experts of her own. There is no substance to the claim as far as Dr. Borrus is concerned.

However, the proofs did establish a deviation by Dr. Pessel from a controlling standard of practice or conduct. N. J. 8. A. 30 :4r-30 mandates that a physician who certifies as to a person’s insanity for the purpose of commitment' do so only on the basis of a personal examination within ten days of the commitment. The statute sets the standard of conduct to be observed, as Dr. Pessel himself recognized by falsely certifying that he had in fact examined plaintiff within the required period. Proof of Dr. Pessel’s deviation from the statutory standard of conduct constituted proof of his negligence. Evers v. Davis, 86 N. J. L. 196, 204 (E & A. 1914).

Nevertheless, the dismissal of the malpractice claim against Dr. Pessel was proper. There was no proof of injury, the evidence being uncontradicted that plaintiff was in need of the hospitalization and treatment she received. Miller v. West, supra; cf. Ochs v. Public Service Railway Co., 81 N. J. L. 661, 662 (E. & A. 1911); Rosenau v. City of New Brunswick, 51 N. J. 130, 137 (1968).

O. The ruling that the proofs established as a matter of lato a cause of action for false imprisonment against defendant doctors.

Two deficiencies are relied upon by plaintiff in support of her claim that the proceedings before the magistrate were void ab initio, so that his order of commitment is not a bar to the prosecution of the action for false imprisonment.

The first — applicable to both Dr. Borrus and Dr. Pessel — is that the doctors’ affidavits were signed in the absence of a notary. In my view, that deficiency did not have the effect for which plaintiff contends and does not afford any basis for recovery against either of the doctors.

Plaintiff’s confinement in Carrier Clinic was pursuant fo an order of the magistrate of the municipal court of Franklin Township, a court of competent jurisdiction (see N. J. S. A. 30:4-37). That court did not lose or lack jurisdiction, nor was its order of commitment rendered void because the affidavits verifying the doctors’ certificates, which when presented to the magistrate were regular on their face, had in fact been signed by the affiants in the absence of a notary, with the jurats being completed later. State v. Bigley Bros., Inc., 53 N. J. Super. 264, 268-269 (App. Div. 1958). Plainfiff’s reliance on State v. Mershon, 39 N. J. Super. 599, 603 (Cty. Ct. 1956), in support of her contention that the order of commitment was void ab initio because of the defective notarizations of the doctors’ affidavits is misplaced. Mershon has been expressly disapproved by this court. State v. Bigley Bros., Inc., supra, 53 N. J. Super., at p. 268.

The second deficiency — applicable only to Dr. Pessel — is the false statement in his certification that he had examined plaintiff on August 13, 1965.

My brethren are of the opinion that plaintiff established a cause of action for false imprisonment against Pessel by showing the falsity of his statement that he had examined her on August 13, 1965 when in truth he had last seen her on March 27, 1965. They deem irrelevant the fact that plaintiff’s commitment and detention were pursuant to the magistrate’s order of August 17, 1965.

I do not agree that the proofs established a cause of action for false imprisonment against Dr. Pessel. In my view, the majority’s decision disregards the essential difference between an action for malicious prosecution and one for false imprisonment, two separate and distinct torts. Earl v. Winne, 14 N. J. 119, 128 (1953); Genito v. Rabinowitz, 93 N. J. Super. 225, 228 (App. Div. 1966); Prosser on Torts (3d ed. 1964), § 12, p. 62. To conclude as the majority does is to reject the settled rule that an arrest, detention or commitment, pursuant to a warrant or order regular on its face and issued by a court of competent jurisdiction, is legal authority for .such detention and does not give the person detained a cause of action for false imprisonment either against the person who detained him or against the person executing the affidavit on the basis of which the warrant or order issued, and this even if the affidavit was false and the person executing it acted maliciously. Genito v. Rabinowitz, supra; Apgar v. Woolston, 43 N. J. L. 57, 58 (Sup. Ct. 1881); 32 Am. Jur. 2d, False Imprisonment, § 66, p. 127; Prosser on Torts (3d ed 1964), § 12, p. 62; § 113, p. 853; see also Annotation, 145 A. L. R. 728 et seq.; cf. Mezullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356, 359 (Sup. Jud. Ct. 1954).

Prosser on Torts, supra, at p. 62, points out that:

“The distinction between * * [false imprisonment and malicious prosecution] lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. Ho is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.”

And so in Genito v. Rabinowitz, supra, this court recently ruled:

“The malicious filing of a false complaint which causes the issuance of a warrant upon which one is arrested does not give rise to a cause of action for false imprisonment. The action must be one for malicious prosecution.” (93 N. J. Super., at p. 228).

Here, the magistrate had legal authority to issue the order of commitment and the order was regular and legal in form. It therefore was “legal justification” for plaintiff’s commitment and detention in the Carrier Clinic, so that plaintiff may not maintain an action for false imprisonment because of the commitment and detention pursuant thereto. See also, 32 Am. Jur. 2d, False Imprisonment, § 66, p. 127.

Nor is the validity of that “legal justification” affected by the fact that the order was issued by the magistrate in reliance on Dr. Pessel’s affidavit which falsely stated that he had examined plaintiff within ten days of the application for the order. That falsehood is relevant to the malpractice claim and it would be relevant if this were an action for malicious prosecution. It does not however render void the order issued on the basis of the affidavit.

As was said many years ago in Apgar v. Woolston, supra:

“If the court had jurisdiction, and the process was regular, trespass [for false imprisonment] will not lie, however malicious the conduct of the defendant may have been in setting the prosecution on foot; and the only sustainable action, under such circumstances, is ease for the malicious motive and want of probable cause in promoting the prosecution.” (43 N. J. L., at p. 58)

Judge Carton also finds a basis for holding Dr. Pessel liable for false imprisonment because in his opinion,

“The proofs fall far short of demonstrating that plaintiff’s condition was such, as a matter of lam, as to require restraint for her own protection or the safety of others —• especially where, as here, there was no hearing before the commitment. It is beside the point that plaintiff may have needed certain treatment and may have benefited from the particular treatment she received and which was administered without her consent. Such circumstances may be relevant to the issue of compensatory damages, but the fundamental inquiry remains whether the treatment she received required, of necessity, confinement and involuntary restraint.”

If Judge Carton is correct in his analysis, then there was, in my view, no reason to deny plaintiff compensatory damages for the alleged false imprisonment and no justification for dismissing her malpractice claims against either Pessel, Borrus or Carrier. Por then there would be at least a jury issue as to whether all three defendants were not negligent in confining a person whose confinement was not called for. Purther, if confinement was not necessary, then plaintiff suffered injury by reason of the negligence of all three defendants.

However, as I have indicated, even if Judge Carton’s evaluation of the proofs were correct, they would not give rise to a cause of action for false imprisonment.

Moreover, in my opinion, the record in no wise supports Judge Carton’s evaluation of the proofs. No one testified that plaintiff was not in need of the hospital confinement and treatment which she received. All the evidence in the case is to the contrary. That plaintiff’s condition was such that she required immediate restraint in an institution for appropriate treatment was not only the opinion expressed in the certificates of defendant doctors, it was the opinion expressed by every physician who examined her either immediately prior to or immediately after she entered the Carrier Clinic. That was the opinion of Dr. Borras, the certifying psychiatrist, of Dr. Shoemaker of Carrier Clinic who testified at the trial, and of Dr. Wood who also examined her at Carrier and whose report is in evidence. Also in evidence is the fact that the staff psychiatrist committee of Carrier, after reviewing the reports of Drs. Shoemaker and Wood, concurred in their opinions.

The uncontradicted opinions of the psychiatrists are supported by the uncontradicted testimony of the lay witnesses in the case. Plaintiff’s two daughters vividly described the fears of the family for plaintiff’s safety as well as plaintiff’s erratic and uncontrolled behavior. That behavior included hitting her head against the wall, ranting and raving, sitting in the corner and staring into space, screaming, tearing and pulling her hair and sometimes that of the daughters, and her violent tantrums. They told, too, of the several occasions during the early morning hours when they were called by their father to come to the parents’ home to attempt to calm their mother. The testimony of the daughters was not challenged by anyone; not even by the husband who, plaintiff’s attorney tells us, joined in retaining him to prosecute the present action.

While a person suffering injury by reason of his commitment to a mental institution pursuant to a court order entered on the basis of a physician’s affidavit which contains false siatements may not prosecute an action for false imprisonment, he is not without a remedy to recover damages that he may have sustained. As noted above, he may maintain an action against the doctor for malpractice. Further, if the physician acted maliciously and without probable cause, he as well as the prosecutor of the proceedings with whom he conspired is subject to a suit for malicious prosecution. Annotation, “Malicious prosecution — lunacy proceeding,” 145 A. L. R. 711, 712 (1943); Hough v. Ogden, 4 N. J. Misc. 455, 133 A. 73 (Sup. Ct. 1926); Sheean v. Holman, 6 N. J. Misc. 346, 141 A. 170 (Sup. Ct. 1928); but cf. Mezullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356, 358 (Sup. Jud. Ct. 1954); Bailey v. McGill, 247 N. E. 286, 100 S. E. 2d 860, 866 (Sup. Ct. 1957).

However, here plaintiff has neither pleaded nor proved a cause of action for malicious prosecution and she has failed, for the reasons detailed above, to establish the asserted malpractice claim.

I would not only affirm the judgment in favor of Carrier Clinic and reverse the judgment against Dr. Borrus but also would reverse the judgment against Dr. Pessel.

Carton, J. A. D.

I agree that the judgment dismissing plaintiff’s action against Carrier Clinic was proper and that the judgment against defendant Dr. Borrus should be reversed. However, in my view the jury was justified in awarding plaintiff the verdict of $5,000 against defendant Dr. Pessel, representing punitive damages for falsely certifying as to his examination of plaintiff.

On August 15, 1965, notwithstanding the fact that he had not seen or treated plaintiff since the previous March, Dr. Pessel certified that on that day he made a personal examination of plaintiff and that in his opinion it was necessary to restrain and confine plaintiff for her own safety and that of her relatives. In an effort to give color or validity to that conclusion, he stated further that she had “threatened suicide and homicide [and was] violent at times and dangerous;” that she was “highly excited and excitable” and was unwilling to cooperate in any direction; and that she was violent in her attacks on her docile husband and often kept him awake all night. Dr. Pessel assigned arteriosclerosis, coronary disease and diabetes as the supposed causes of plaintiff’s condition. He then certified, not only that plaintiff was insane, but also that restraint and confinement were necessary.

This certificate and that of Dr. Borrus were required to be made, under oath, in accordance with N. J. 8. A. 30:4-29. The statute also mandates that “Every certificate shall set forth the date of the making of the personal examination of the subject of the action, which must be made in every case by the physician signing the certificate not more than ten days prior to the admission of such person to the institution.” N. J. 8. A. SO -A-30.

This certification was required as a prerequisite for the proposed Glass “B” detention or commitment of plaintiff. Glass “B” detentions include:

“all cases where the condition of the patient, in the judgment of the certifying physician, is such that he should he placed under immediate restraint in an institution, and where an order of temporary commitment can be obtained prior to his admission into such institution.” N. J. 8. A. 30:4-37 (emphasis added)

That section, in pertinent part, further provides:

“In all such cases a statement of such condition of the patient must appear in the certificates of the physicians certifying to the insanity of the patient. * * * The order of temporary commitment, complaint and certificates shall be filed with the chief executive officer of the institution before or at the time of the admission of the patient to such institution and shall he the warrant and authority for the admission and detention of the patient for a temporary period not exceeding 20 days from the date thereof. * * *” (Emphasis added)

On the basis of both Dr. PessePs certification of insanity and the need of restraint and confinement, and Dr. Borrus’ accompanying certificate, plaintiff was committed to Carrier Clinic.

The information contained in Dr. Borras’ certification differs considerably from that contained in the certification by Dr. Pessel. Dr. Borras gave as the supposed cause of her commitment “her psychosis, her cerebral arteriosclerosis and paranoid features.” He reported that her appearance and manner were uncooperative, suspicious and illogical, and that she revealed “ideas and delusions of a persecution nature and infidelity directed toward husband.” Unlike Dr. Pessel, a general practitioner who unabashedly proclaimed that restraint and confinement were necessary for “the safety of patient and relatives,” Dr. Borras, a psychiatrist, merely opined that this was necessary “for her welfare, observation and treatment.”

Dr. Shoemaker, the assistant clinical director at Carrier, whose responsibility at that time was to admit new patients, examined the commitment papers and also made a mental examination of plaintiff before she was actually admitted to that institution. His examination revealed that she was cooperative but angry; that she thought she was tricked into the hospital and neither felt sick nor saw the need to be there; that although she had delusions regarding her husband’s fidelity, her stream of mental activity was coherent and relevant; that there was no evidence of hallucination at the time of her examination, and that she was oriented in all her spheres.

When Dr. Shoemaker informed plaintiff that she must remain in the hospital, she became very angry and excited and wanted to leave. Thereupon he ordered medication in the form of an injection of sodium amytol and confinement of plaintiff in a “seclusion room.” The witness described this “seclusion room” as measuring 7' x 7', with a single window and a little door with a tiny peek-hole in it for the purpose of permitting undetected observation from the outside, and devoid of any furniture except for a mattress on the floor. Before being placed there she was stripped. The patient was later released from the “seclusion room” and given an injection of a muscle relaxant and anesthetic known as sodium penthothal. (She was confined to that room on one other occasion.) She was also administered electric shock treatment — a procedure consisting of the placing of electrodes on her temple which transmitted 150 volts of electricity through the nervous system. She received such electric shock treatments on eight different occasions during her stay at the institution.

I agree with the conclusion of my colleagues that the proofs establish a deviation by defendant Dr. Pessel from the controlling standard of practice or conduct and that the trial court erred in ruling there was no proof of his negligence. I have some reservations, however, as to whether the proofs may not also have established that some injury resulted from that malpractice. But since the proofs fully establish a cause of action for false imprisonment, and since recovery on that ground may fairly be deemed to include any such injury arising therefrom, it is unnecessary to pursue the malpractice charge further.

Let us consider those proofs and the nature of an action for false imprisonment. False imprisonment was one of the earliest known torts at common law. Like assault and battery, it was regarded as a trespass to the person. See 1 Harper & James, Law of Torts, § 36 (1956). The authors comment further: “The law of false imprisonment protects that interest in personalty described as the interest in freedom from confinement.”

Restatement, Torts 2d, § 35 (1965), sets forth the elements of false imprisonment in this fashion:

“An actor is subject to liability (o another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.”

It can scarcely be denied that the essential elements of this tort thus defined in the Restatement have been established in the ease of Dr. Pessel. But recovery may still be defeated by a showing of the existence of legal justification. See Cannon v. Krakowitch, 54 N. J. Super. 93, 98 (App. Div 1959); Jorgensen v. Pennsylvania R. R. Co., 38 N. J. Super. 317, 349 (App. Div. 1955). And see Earl v. Winne, 14 N. J. 119, 128 (1952), where the court pointed out that the essential element of the tort is the constraint of the person without legal justification.

It is not contended that Dr. Pessel acted malevolently or vindictively. Nevertheless, contrary to the express command and salutary purpose of the statute in requiring a fresh examination before a person may be committed to an institution, this defendant knowingly certified falsely that he had made the required examination within ten days prior to admission, when, in fact, he had not treated plaintiff for a period of some five months. This alone would suffice to show that defendant’s conduct was legally indefensible and, absent any privilege which might confer immunity upon him, justified the jury in assessing punitive damages against him.

The circumstances of this case provide an even more substantial basis for a finding that no legal justification existed for plaintiff’s confinement. Before a person may be temporarily committed to an institution under the statute, the physician must certify the condition of such patient is such that “he should be placed under immediate restraint in an institution.” N. J. S. A. 30 :4-37. The general test as to the nature of the insanity warranting immediate involuntary restraint is whether there is a danger that the patient may injure herself or some other member of the public. In re Heukelekian, 24 N. J. Super. 407 (App. Div. 1953). As Harper and James state the rule,

“Either an officer or a citizen may take in custody an insane person when it is reasonably necessary to prevent threat of harm to himself and others. But mere insanity of a harmless character does not create the privilege, and the actor must show the peril if he would have immunity.” 1 Harper & James, Law of Torts, § 318, p. 283 (1956).

The proofs fall far short of demonstrating that plaintiff’s condition was such, as a matter of law, as to require restraint for her own protection or the safety of others — especially where, as here, there was no hearing before the commitment. It is beside the point that plaintiff may have needed certain treatment and may have benefited from the particular treatment she received and which was administered without her consent. Such circumstances may be relevant to the issue of compensatory damages, but the fundamental inquiry remains whether the treatment she received required, of necessity, confinement and involuntary restraint.

Here, Dr. Pessel’s statement that plaintiff had threatened suicide and homicide and was violent and dangerous is hardly borne out by the proofs — let alone demonstrated to the extent that the issue should not have been submitted to the jury. lie conceded that since he had not treated plaintiff during the live-month period preceding the date of his statement, he had no actual knowledge of her condition on the latter date. His information was based entirely upon statements made to him months earlier by one of plaintiff’s relatives who was desirous of having her confined. Dr. Borras also conferred with one of plaintiff’s relatives before he examined her, but his certification did not set forth any emergency conditions which would even colorably require immediate restraint or confinement.

What is of controlling significance is that the hospital records show that during her confinement there was never any attempt at suicide, let alone attack on others. It does appear that on one occasion, after plaintiff had been confined for some two weeks, and after she had received her fourth electrical shock treatment, she wished to go home and when permission was denied began to pack her bag, yell and kick the door and allegedly said, “She won’t let me go home. I will suicide myself.” Thereupon, she was placed in solitary confinement in the seclusion room. Without her prior consent, of course, plaintiff could not have been subjected to solitary confinement as part of the treatment administered to her. Nor could she have been obliged to undergo the rigors of the numerous electrical shock treatments which she received without her consent.

Dr. Shoemaker, who examined plaintiff upon her admission, described the hospital practice in dealing with potential suicide patients: “If we find a patient is suicidal we put them on suicide order. The doctor will order it.” That there was no real danger is evident from this physician’s testimony that, although he found her depressed, he did not find her actively suicidal, and that for this reason she was not placed on “suicide precaution.”

The only remaining inquiry is whether there existed any privilege which might relieve Dr. Pessel, as a certifying physician, from responsibility because the false imprisonment comprised an element of a legal proceeding. The conclusion is inescapable that there is no basis in justice or precedent which dictates that such a privilege should be extended to this defendant in this case.

The vagueness and confusion found in the authorities as to the nature of the defense of privilege in suits for false imprisonment may often be attributable to the fact that such actions are sometimes inappropriately labeled as actions for false arrest. Additionally, claims for false imprisonment are often joined with claims for malicious prosecution, assault and battery or defamation — all of which may overlap to a certain extent. If a cause of action is found to exist on any one of the grounds asserted, there may appear no necessity for defining the precise basis for the relief granted since damages recoverable, whatever the basis, would be virtually the same. See Prosser, Torts (3d ed. 1964), § 12, p. 54; Price v. Phillips, 90 N. J. Super. 480, 484 (App. Div. 1966).

The theory is that where it appears a person has illegally instituted a criminal proceeding resulting in a confinement (and for present purposes, an action for commitment of an insane person may be considered in the same light), the elements of false imprisonment have been demon-strafed. However, since such confinement or imprisonment comprises a part of, or is an incident to, the larger offense of malicious prosecution, public policy decrees that the person instituting such action should be afforded the same rights as any other person accused of malicious prosecution, whether or not that proceeding culminates in an imprisonment. In such a case, therefore, it is said that there must be a showing of malice and lack of probable cause on the part of the person who institutes the action, a termination of the proceeding in favor of the accused, and resulting damage. See Heyman v. Stein, 96 N. J. Super. 586, 587, 589 (App. Div. 1967). See generally, Prosser, op. cit., § 113, pp. 868-870.

The foundation upon which this extraordinary privilege (i. e., immunity where the three elements just mentioned have been established) rests is that the private prosecution of public offenses is regarded as essential to the enforcement of tire criminal law (and by analogy, commitment of dangerously insane persons), and that it is necessary to grant immunity to the one who initiates ox instigates the proceeding.

The source and basis of this privilege is clearly articulated in Restatement, Torts 2d, § 37 comment (b) (1965) :

“One who institutes criminal proceedings against another intends to cause an arrest which is the normal incident of such proceedings. In such ease, however, the actor is liable only if the confinement which the arrest involves is a part of the greater offense of instituting such proceedings without reasonable cause and for a purpose other than that for which the proceedings are provided. Therefore, unless the private prosecutor takes an active part in the service of a warrant issued in the criminal prosecution which he has instituted, his liability for the arrest is enforced only by the imposition of damages in aggravation of those recoverable for the malicious prosecution itself. This, in addition to the fact that the private prosecution of public offenses is regarded as essential to the enforcement of the criminal law and that therefore the private prosecutor is given the protection of an exceptionally favorable privilege, makes it necessary to state the rules which determine the liability for an arrest caused by the institution of criminal proceedings as part of the subject of malicious prosecution. See Chapter 29.” (Emphasis added)

This exposition of the basis for treating the two separate offenses of false imprisonment and malicious prosecution in the same manner where both claims may exist explains the following further comment which appears in section 45 (a) of the Restatement and similar comments in Prosser, op. cit., § 12, p. 62:

“One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment. One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution, as stated in Chapter 29, or for abuse of process, as stated in Chapter 31, but he is not liable for false imprisonment since no false imprisonment has oeeurred. * * *” (Emphasis added)

The privilege (immunity) is thus extended to the person who institutes or instigates the action. Privileged also are the judicial officer who signs the order relying on the commitment papers furnished him, and persons who rely upon the judicial process in bringing about the imprisonment, such as the individuals serving process and the officials of the institution or public agency where the confinement takes place. See Prosser, op. cit., 1 Harper & James, op. cit., § 3.21; Genito v. Rabinowitz, 93 N. J. Super. 225 (App. Div. 1966); Cooke v. J. J. Newberry & Co., 96 N. J. Super. 9, 12 (App. Div. 1967).

But there is no public policy which would warrant extending this extraordinary privilege to the action of a physician whose unlawful conduct in making a knowingly false affidavit results in restraint or confinement. He cannot be said to fall within the category of one who instituted the action or one who instigated it. Nor could the issuance of the order of arrest serve to insulate him from responsibility for his acts. Unlike the process servers and the officials at Carrier Clinic, he did not rely upon the apparent validity of the court order. He knew of its fatal defect, for he himself had caused it. In this connection, it is significant that the Legislature has in precise terms specified that “the order of temporary commitment, complaint and certificates * * * shall bo the warrant and authority for the admission and detention of the patient * * N. J. S. A. 30:4-37 (emphasis added).

The public policy which ordains that protection be given to a private prosecutor as an instrument of the law enforcement process is not furthered by protecting one who flouted the law and whose forbidden action was a contributing cause of the false imprisonment.

Since the judgment in favor of plaintiff against defendant Dr. Pessel must be affirmed as modified, it is unnecessary to determine whether plaintiff might also have established the elements of a cause of action for malicious prosecution. Plaintiff made no claim of this nature against this defendant. Furthermore, as already noted, it does not appear that Dr. Pessel, although a contributing cause to the ultimate imprisonment, either initiated or instigated the proceeding or that he conspired to bring about any such result. It is therefore at least doubtful whether such an action would lie in any event. Certainly, immunity may not be extended to this defendant and recovery denied to this plaintiff merely because another more dubious remedy might be available had she formulated her claim on such a theory.

Judgment in the amount of $5,000, with costs, should be entered against defendant Dr. Pessel.

Gomarann, S. J. A. D.

(concurring in part). I agree wi th Judge Carton that the proofs fully established a cause of action for false imprisonment. What Dr. Pessel did was a proximate cause of plaintiff’s confinement; but for his affidavit and that of Dr. Borrus, both apparently regular on their face, there would have been no order of temporary commitment entered by the municipal magistrate on August 17, 1965. That order should not insulate Dr. Pessel from responding in damages for false imprisonment.

In view of my conclusion, I find it unnecessary to consider whether the proofs established that plaintiff’s condition was such, as a matter of law, as to require restraint for her own protection.

Accordingly, I join with my colleagues in concluding that the judgment in favor of defendant Carrier should be affirmed and the judgment in favor of plaintiff against defendant Dr. Borras reversed. However, I agree with Judge Carton that the judgment against defendant Dr. Pessel should not be reversed. The judgment against him should be modified by eliminating the $500 awarded by reason of the defective notarization and, as so modified, affirmed with costs.

       The requirement that the physician’s certificate be under oath was eliminated by the amendment to N. J. S. A. 30:4-29, accomplished by L. 1965, c. 59, approved May 27, 1965. However, chapter 59 was not to become effective until 90 days after its enactment, so that the statutory requirement that the certificate be under oath was still in effect on August 15, 1965 when Borrus signed the certificate.

       Although not of controlling significance, the record discloses the following sequence of events between that date and February 24, 1966 when the complaint in this action was filed.
      On September 27, 1965 the president of Carrier sent to plaintiff’s husband, in response to his telephoned request, “an itemized statement of charges for This] wife’s hospitalization, together with a breakdown of all drug charges” and advised him that a copy of the medical record had been sent to the “referring physician.”
      By letter dated November 22, 1965 the husband’s attorney Harold Sklarew, wrote Carrier’s president as follows:
      “My client, Frank DiGiovanni, has consulted me about a statement which he has received from the Carrier Clinic. He has, on several occasions, requested an explanation of the treatment given to his wife and the .iustification and necessity therefor.
      Mr. DiGiovanni has been informed that his wife was locked in solitary confinement in a dark room and received double strength shock treatment and was confined to grossly substandard quarters for 15 days.
      I would appreciate your personal attention to this matter so that Mr. DiGiovanni can receive proper explanation of the same.”
      In the first week of December 1965 plaintiff’s husband visited Carrier in the company of a friend, Murray Greengarten (called as a witness by plaintiff), and complained of the treatment his wife bad received and of his not having been allowed to see his wife during the first two weeks of her stay.
      Similar complaints were contained in a letter dated October IS, 1965 written by the husband to the Attorney General, a copy of which, with a request for an explanation, was sent on December 10, 1965, to Carrier by the State Division of Mental Health to which the husband’s letter had been forwarded on December 1, 1965.
      In December 1965, pursuant to written authorization from plaintiff, a copy of her medical records was delivered to her husband. In February 1966 Carrier forwarded an abstract of its records to Charles E. Stein, plaintiff’s present attorney, after receiving written authorization from both plaintiff and her husband.

       Class “A” cases are those where the condition of the patient “in the judgment of the certifying physician, is such that immediate temporary admission to an institution pending a judicial hearing and final order of commitment is not necessary.” N. J. 8. A. 80 :4—36. Class “0” eases are those where the condition of the patient, “in the judgment of the certifying physician, is such that the patient should be placed under immediate restraint and confinement in an institution, and where it is impossible to obtain a temporary commitment from a municipal court or court of record. * * *” N. J. 8. A. 40 :it-38.


source: Caselaw Access Project

author: Collester, J. A. D. Gaulkih, S. J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARMELO VELAZQUEZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 3, 1969
    Decided February 27, 1969.
    Gaulkin, S. J. A. D., dissented in part.

      Before Judges Caultíin, Collester and Labrecque.

      21 r. Gaetano J. Alaimo argued the cause for appellant.

      21 r. Alan J. Vo gar shy, Assistant County Prosecutor argued the cause for respondent (Mr. Robert H. Doherty, Jr., attorney) .
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant was found guilty on 12 counts of an indictment which charged him with working for a lottery business in violation of N. J. 8. 2A:121-3(a). He was sentenced to a prison term of 1-2 years on the first count and the same sentence was imposed on the remaining 11 counts to run concurrently. He appeals.

The State’s evidence showed that on 12 days between January 9 and February 23, 1967 Raymond Peldherr, a member of the New Jersey State Police, placed lottery bets with the defendant at his grocery store, known as Panny’s Market, which is located in Jackson Township. On March 6, 1967 police officers, armed with a search warrant, raided the market and seized a lottery slip containing two numbers bets which was found on a shelf behind a counter. The defendant was not present and his wife Epifania was in charge of the store. Velazquez admitted that Peldherr had been in his store about once a week between January 6 and March 6, but denied he had ever accepted lottery bets from the officer.

Defendant’s first point is that the court erred in denying his motion for an acquittal at the close of the State’s case on the ground of entrapment and, in the alternative, by failing to charge the jury on the law of entrapment. The record clearly indicates that there was no evidence of entrapment by the police. Mere solicitations by officers posing as private citizens and resulting in the acceptance of bets have repeatedly been held not to give rise to any entrapment issues. State v. Dennis, 43 N. J. 418, 425 (1964). Regarding the court’s failure to instruct the jury on the law of entrapment the short answer is that no request to so charge was submitted and no objection was made to the court’s failure to do so. We find no plain error. Ibid., at pp. 424-425.

We find no merit in the contention that the verdict was the result of mistake and contrary to the weight of the evidence. There was ample evidence to support the jury’s finding that the defendant was engaged in the lottery business in violation of the statute.

Defendant also claims that the court erred in failing to instruct the jury that if it found defendant’s testimony not to be credible, the State still had the burden of proving his guilt beyond a reasonable doubt. Our examination of the charge indicates that the court adequately instructed the jury on the subject of credibility of the witnesses and the State’s burden of proof. We find no error.

It is also argued that the verdict of the jury was defective because it appeared to be the result of a compromise. We find no support for this contention in the record.

Defendant’s final argument is that the sentencing judge (one other than the trial judge) indicated that he had not considered mitigating factors when he sentenced the defendant because he said he was “a little nearsighted as far as our gambling statutes are concerned.” We do not construe this remark to imply that the sentencing judge did not properly exercise his discretion in determining the sentence to be imposed.

Affirmed.

Gaulkih, S. J. A. D.

(dissenting in part). I agree with the majority, except that it seems to me that the sentence was too severe.

I am well aware of the considerations involved in sentencing in gambling cases, stated in State v. De Stasio, 49 N. J. 247 (1967), and State v. Ivan, 33 N. J. 197 (1960), and I agree to their importance. However, I find nothing in either opinion that says everyone convicted of a gambling violation, who does not reveal his employers and accomplices, must go to prison. It seems to me that defendant here was sentenced to 1-2 years in State Prison only because he would not implicate others, in spite of the fact that everything about him and his family cried out for probation and a fine or, at most, with a brief jail sentence.

Be Stasio conceded that only the Legislature can make a prison sentence mandatory in every case, and the majority opinion said:

“Defendant urges a number of constitutional challenges, all based upon a hypothesis the directive [that only one judge sentence in all gambling eases] does not contain, i. e., that the sentencing judge is required to send to State prison everyone convicted of a gambling crime unless the defendant cooperates with the State by giving evidence against his superior in the criminal hierarchy. There is no such order to the sentencing judge, and in fact the record of sentencing in Essex County shows that each sentencing judge has differentiated among offenders or classes of offenders.” (at p. 255)

DeSiasio stressed that the purpose of the directive was to achieve “uniformity of treatment” of offenders, but that was to be achieved not by imposing the same sentence upon every defendant but rather by having only one judge exercise the discretion upon what sentences to impose. Naturally, there is less diversity in differentiation among offenders when only one judge sentences than when many do. That, I believe, was the reason for the directive.

In Be Stasio the Supreme Court stated that the sentencing judge still may exercise “his own discretion”; that it had “not dictated a course for the sentencing judge”; and that all it did was to express a hope, but had given no order, that “the sentencing judge would see the judiciary’s responsibility as we see it.”

The sentencing judge is adjured, in Be Stasio and in Ivan, to consider the gravity of organized gambling, but nowhere is it said that the individual defendant is not to be given the same consideration that he would receive if he were charged with another crime. As Justice Jacobs said in Be Siasio, for himself and Justices Schettino and Haneman:

“* * * No defendant, even in gambling eases, is just tbe same as every other defendant. He is an individual human being with his own background and future and is entitled to be dealt with as such. His sentence, though it may appropriately be severe, should nonetheless be a just one imposed by the trial judge, as in all other eases under the prevailing system, after he has carefully considered and duly weighed all of the circumstances and all of the societal and individual interests involved. * * (at p. 262)

In Ivan the court said that in a gambling case a sentencing judge “would be myopic if he saw no more than the defendant before him.” But I submit that he is equally myopic when he does not see the gambling defendant and his circumstances as clearly as if he had been found guilty of any other crime. There probably was such myopia here, for the judge said:

“As tlie attorneys know, who appear before me, a judge who only sees you in a gambling ease, you as a defendant, is a little nearsighted as far as our gambling statutes are concerned. Gambling is wide-spread, participated in by a segment of our population, and your children and your reputation and your friends, those things should have been in your mind before you embarked on (his activity.”

The presentence report should mean as much in a gambling case as it does in any other case. Here the presentence report showed that defendant was 39 years old, married and the father of six children, 10 to 11 years of age, all of whom were attending school. He arrived here from Puerto Eico in 1948 and has been steadily employed since that time. He had no prior criminal record. A short time after he arrived in this country he became a part-owner of a grocery store in Jersey City, where he resided for 12 years. He then sold his interest in the Jersey City store and opened a similar store in Jackson Township. The presentenee report states that defendant helps support his mother, who resides in Jersey City, and pays her rent, and adds:

“* * * It appears that Velazquez and his wife are happily married. The defendant characterized his marriage as being quite stable. Six children have been born of this union * * ®. All of the children are presently enrolled in school and the defendant states that he has never had any problems with them. Subject’s wife, Epifanía, age 40, does not. appear to be too well educated. She speaks and understands very little English. Epifanía does not work outside of the home although she sometimes helps her husband run his store.”

The presentence report points out that defendant has been struggling to keep up the mortgage payments on his home and “is still paying back taxes * * * he owes money in two banks and also is behind payments on a loan from a loan company * * He was vice-president of a Spanish-American political club and active in church affairs. The judge acknowledged that he had received many letters vouching for defendant.

But the report said:

“Mr. Velazquez states that the Ocean County Prosecutor’s Office has asked him to testify against other people involved in this type of operation. The defendant states that he will not do this because he is afraid of what might happen to himself as well as his family.”

and concluded:

“It seems apparent that this man became involved in this type of operation because of his financial difficulties. This officer believes that Velazquez is only a small person in an organized gambling organization. His unwillingness to testify against other parties would also indicate this. It is respectfully suggested that the Court take this into consideration when sentencing.”

It seems to me that the sentence of 1-2 years in State Prison has not given sufficient weight to the defendant’s good record, the circumstances of his involvement or, most important, the impact on him, his wife and his family. This man has struggled against odds to make a life for himself and his family in a new land. He has succeeded in supporting them for many years, and in maintaining his children in school. If placed on probation he doubtless will continue to do so. What will be the effect on this man’s family if he is sent to prison? The wife is unable to speak English and has no trade or occupation. The family has no assets. Hot only the store but the home will be lost. Yery likely the older children will be forced to leave school. Probably the whole family will have to seek relief. And what of the effect on defendant of a stay in State Prison while his home and business disappears and his family suffers ? It is not pretended that defendant needs rehabilitation or that he will come out of State Prison a better man. The miracle will be if he does not come out a much worse one, embittered by what must appear to him to be a savage sentence. And to what end? The blow to this man and his family, including his innocent children, is faT more devastating than the problematical incidental damage it may do to organized gambling.

If this man is not entitled to probation, I do not know who could be. I would set aside the present sentence and direct the imposition of a sentence of probation and a fine.


author: Loba, J. S. C.

text:
    J. ALBERT WOLL AND VIRGINIA WOLL, EXECUTRIX OF THE ESTATE OF WILLARD WOLL, DECEASED, PLAINTIFFS, v. MATTHEW DUGAS, AN INFANT, BY HIS GUARDIAN AD LITEM JOHN D. MORRISON, GRAHAM C. DUGAS, JR., JANE DUGAS FROJEN, AMERICAN CANCER SOCIETY, CITIZENS FIRST NATIONAL BANK OF RIDGEWOOD, NEW JERSEY, AS EXECUTOR AND TRUSTEE OF THE WILL OF CELEONOR E. WOLL, (KNOWN ALSO AS ELEANOR WOLL), DECEASED, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 6, 1969.

      Mr. Walter H. Jones, attorney for plaintiffs.

      Mr. John D. Morrison, pro se, guardian ad litem for infant defendant Matthew Dugas.

      Mr. Harry Schaffer, attorney for defendants Graham C. Dugas, Jr. and Jane Ero jen.

      Mr. Roger Hinds, attorney for defendant American Cancer Society.

      Mr. Milton T. Lasher, attorney for defendant Citizens First National Bank of Ridgewood.
   Loba, J. S. C.

This is an action for specific performance of an agreement allegedly made on November 4, 1949 between Matthew Woll and his wife, Celeonor Woll, both deceased, to execute identical, mutual, reciprocal and irrevocable wills. Plaintiffs J. Albert Woll and Virginia Woll, executrix of the estate of Willard Woll, deceased, contend that pursuant to said agreement Matthew and Celeonor Woll were to leave to the survivor of them his or her estate, and upon the death of the survivor the entire estate would pass to Albert and Willard Woll, the sons of Matthew and the stepsons of Celeonor Woll.

Plaintiffs further seek to impress a trust for their benefit upon the assets of the estate of Celeonor Woll now in the hands of defendant Citizens Eirst National Bank of Eidgewood, the executor of her estate. Additionally, plaintiffs seek an accounting of the assets of the estate from defendant bank and their appointment as executors of the estate of Celeonor Woll.

[The court reviewed the proofs and found that the agreement to execute mutual and irrevocable wills was established by clear and convincing evidence.]

There was adduced at the trial certain testimony from plaintiff J. Albert Woll, the admissibility of which was objected to by all defendants.

Evidence Buie 63(32), entitled “Trustworthy Statements Made in Good Eaith by Declarants Unavailable Because of Death,” provides:

“Subject to Rule 64, in a civil proceeding, a statement made by a person unavailable as a witness because of his death is admissible if the statement was made in good faith, upon the personal knowledge of the declarant, and there is a probability from the circumstances that the statement is trustworthy.”

While this court is not aware of any New Jersey case construing the rule, there is some sentiment to be found in the eases decided prior to its adoption favoring less rigid rules of evidence.

By way of dictum, Rule 503 of the Model Code of Evidence, which is more liberal than Evidence Rule 63(32), was discussed with approval by Judge Clapp in In re Spiegelglass, 48 N. J. Super. 265, 273 (App. Div. 1958). In re Petagno, 24 N. J. Misc. 279, 286, 48 A. 2d 909 (Ch. 1946), urged the adoption by our courts of Buie 503, but since no objection was made to the evidence in question, such evidence was held admissible without the aid of that rule.

The late Chief Justice Vanderbilt, in Ms concurring opinion in Robertson v. Hackensack Trust Co., 1 N. J. 304, 315, at p. 320 (1949), wrote favorably of Rule 503. His persuasive opinion, wherein he suggested that declarations of decedents should generally be admissible, was referred to in a later ease but rejected as not being the law of the then controlling decisions and of the Robertson majority on the evidential question there presented. See Allen v. Gidney, 18 N. J. Super. 63, 65 (App. Div. 1952).

The most prophetic statement found is that made by the Chief Justice in Robertson (at p. 319) : “At the very least, we may safely adopt the Massachusetts rule, encompassing as it does all necessary safeguards required for the reception of evidence of this type.”

It is this court’s considered opinion that Evidence Rule 63 (32) should be applied literally. The rule is not so broad as it might appear to be in that the “safeguards” of the Massachusetts statute of which Chief Justice Vanderbilt spoke are even stronger here. And a comparison with Rule 503 of the Model Code reveals the greater breadth of that provision. See also Sullivan v. Dumaine, 106 N. H. 102, 205 A. 2d 848 (Sup. Ct. 1964), where the Vanderbilt opinion in Robertson and Evidence Rule 63(32) are favorably cited. The only criteria for admissibility under Evidence Rule 63 (32) are the unavailability of the witness because of death, the good faith of the statement, personal knowledge of the declarant, and a probability from the circumstances that the statement is trustworthy.

Albert Woll testified that in the early 1950s, while at Miami Beach, his father told him that he had made a will in which he had left everything to Pat (Ms wife Celeonor’s nickname) but that he did not want Albert or Willard to think that he had done this because of any lack of love or affection for them; rather, he had done so because he had received a promise from Pat, and they had agreed, that if he made a will leaving everything to her, she would make a will leaving everything to “the boys,” meaning Albert and Willard, and further, that ultimately they would be carrying out his wish of having the property. Albert further testified that on that occasion his father told him that pursuant to the agreement he had reached with Pat, he had made a will and Pat had made a will; that in his will he left everything to Pat and in her will she left everything to him; that if he preceded Pat in death all his property was to go to them under Pat’s will, and if Pat predeceased him the property was to go to the boys under his will — in other words, if he died his property would go to the boys under Pat’s will and if Pat died the property would go to them under the father’s will.

I find that this statement regarding the agreement for the wills was made by Matthew Woll to his son Albert in good faith and upon his personal knowledge. And the circumstances, that is, a father’s explanation to his son of the apparent disinheritance, attests to its trustworthiness and meets the probability requirement set forth in Evidence Buie 63(32).

Parenthetically, the court also notes that at the trial some objection was raised as to certain statements testified to by the attorney Markewich as having been made to him by decedent Matthew Woll over the telephone on November 3, 1949, which was the day before the Wolls went to Markewich’s office to discuss and execute the wills. Specifically, the basic objection was to the attorney’s testimony that during the telephone conversation Woll advised him that he and his wife had made an agreement to dispose of their estates and the manner in which they had agreed to do so. But Evidence Rule 63(32) and Ervesun v. Bank of New York, etc., 99 N. J. Super. 162 (App. Div. 1968), certification denied 51 N. J. 394 (1968), are dispositive of this objection, the necessary criteria being present and there being no privilege. Additionally, the statements aforesaid conceivably would be admissible under Evidence Buie 63(12), which provides, in pertinent part, that:

“A statement is admissible if it was made in good faith and it (a) described tile declarant’s then existing state of mind, emotion, or physical sensation, including statements of intent, plan, motive, design, mental feeling, pain and bodily health, but not including memory or belief, to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant * *

See the comments in the Report of the New Jersey Supreme Court Committee on Evidence (March 1963), page 173, regarding the admissibility of a statement of intention on the part of a testator as to a future testamentary disposition.

However, it might be argued Evidence Rule 63(32) does not permit the admission of a statement made by a decedent as to what a third person told him unless within the comprehension of Evidence Rule 66, “Included Hearsay.” It would follow that Albert Woll’s testimony set forth above would, to some extent, constitute a violation of the hearsay rule despite Evidence Rules 63(32) and 66, at least insofar as Celeonor’s reported statements regarding the agreement are concerned, because of the double hearsay involved. The implication of Evidence Rule 66 is to this effect, since the inherently inelnded statement of Celeonor itself does not appear to meet tire requirements of an exception to Evidence Rule 63. In any event, I do not find it necessary to consider, this testimony in reaching my conclusions.

Be that as it may, I find that some two or three weeks before Matthew Woll died and while he was at the New York Hospital, Matthew Woll stated to Albert in the joint presence of Albert and his wife Celeonor Woll that “while I have told you this before, I want you to hear it again while Pat is here; Pat and I have agreed that upon our deaths you and Willard should have all the property we own and pursuant to that agreement I have made a will leaving everything to Pat and she has made a will leaving everything to me.” Matthew Woll then turned to his wife Pat and asked her if what he had just told Albert was correct, and Pat stated that it was and she so reiterated during the said hospital visit. Furthermore, I find that on that occasion Celeonor turned to Albert and told him that she had agreed with her husband, when he made the will leaving everything to her, that she would leave everything to Willard and Albert. She went on to say that they had made mutual wills to carry out their agreement.

Predicated upon the findings of fact made above, it is the court’s conclusion that Matthew Woll and Celeonor, his wife, made an irrevocable compact to dispose of their combined estates and that the terms of this agreement found expression in their mutual wills. The court further finds that the aforesaid agreement has been established b}^ evidence that is cogent, clear and convincing, and which has left no doubt in the court’s mind as to the parties actually having entered into such an agreement. Gromek v. Gidzela, 36 N. J. Super. 212, 217-218 (App. Div. 1955); Tooker v. Vreeland, 92 N. J. Eq. 340 (Ch. 1921), affirmed o.b. Tooker v. Maple, 93 N. J. Eq. 224 (E. & A. 1921). As was stated in Tooher, “the agreement between the parties was founded upon a valid consideration, certain and defined, equal and fair, and sufficiently proven.”

Defendants further contend that the wills having been executed in the State of New York and the parties having been residents therein at that time, New York law governs the alleged agreement with respect to its nature, validity, obligation and interpretation. The question for decision is whether New Jersey or New York law applies in this case. This issue must be resolved by the application of the conflict of laws rules of New Jersey, the forum state. In re Damato, 86 N. J. Super. 107, 115 (App. Div. 1965).

Defendants argue that since the essential validity of a contract made in New York is here in question, New York law must apply. See e. g., Staedler v. Staedler, 6 N. J. 380 (1953); Avery v. Sielcken-Schwarz, 5 N. J. Super. 195, 199 (App. Div. 1949).

Recent cases cast doubt, however, on the strict applicability of lex loci in all situations. In Kievit v. Loyal Protect. Life Ins. Co., 34 N. J. 475 (1961), plaintiff, a New Jersey resident, brought an action in New Jersey to recover on an accident policy written by a Massachusetts insurance company. While the. question of whether New Jersey or Massachusetts iaw applied was presented to the court, Justice Jacobs found it unnecessary to decide the question, finding that under the law of either state plaintiff would recover. The Appellate Division of the Superior Court had previously reversed judgment for plaintiff, basing its decision on applicability of Massachusetts law. Commenting on this, Justice Jacobs stated:

“Fnder the circumstances it may not, realistically or fairly be said that the local insured and the company both contracted with the Massachusetts law in mind and it would be not only unjust to the local insured hut also contrary to the true interests of our State to deny to him the benefits of the favorable local law. In recent years there has been increased awareness of the unwisdom of rigid application of the traditional conflict of laws doctrines in the field of contracts and steps have been taken towards giving greater recognition to the local law of the state with which the contract had its most, significant relationship.” (at p. 492)

Kievit was cited in a later insurance case, Mt. Vernon Fire Ins. Co. v. Gillian, 95 N. J. Super. 279, 281 (App. Div. 1967), in connection with a discussion of the “most significant contacts” or “center of gravity test” doctrine of conflict of laws. While, as pointed out in Gillian, these theories have not as yet been expressly adopted in New Jersey by an appellate court with respect to contract actions, the above cases which discussed the test with approval in a contract situation indicate a definite trend in that direction.

Our courts have expressly adopted these conflicts theories in cases involving tort actions. In Mellk v. Sarahson, 49 N. J. 226 (1967), it was stated:

“* * where a foreign state has no real interest in having its law applied to a particular right or liability of parties to an event which occurred within its borders, a mechanical application of a disability or immunity imposed by the lece loci delicti may work an unjust result having no relation to the purposes and policies behind the foreign law.” (at p. 229)

See also Franco v. Davis, 51 N. J. 237, 239 (1968); Maffatone v. Woodson, 99 N. J. Super. 559, 561—562 (App. Div. 1968).

The present case demonstrates the wisdom of the warnings of Kievit and Mettle concerning the rigid application of the traditional concepts of conflict of laws. Here defendants contend the alleged agreement between Matthew and Celeonor Woll was entered into in New York in 1949. It cannot be said, however, that there is any clear indication that the couple contemplated the application of New York law, fox-in 1949, while they maintained an apartment in New York City, they were also residing and entertaining in a recently completed fine home in Upper Saddle River, New Jersey. The only significant contact with the State of New York was the drafting of the wills by a New York lawyer, the recital of New York residence therein, and the signing of the wills in New York. The testimony does not reveal where the agreement was conceived or actually made, and there are many other contacts with New Jersey. When Matthew Woll died in 1956, Celeonor became a permanent resident of New Jersey, occupying the Upper Saddle River home until her death in 1967, a period of more than ten years. Celeonor, in New Jersey, referred to and reaffirmed her agreexnent with Matthew after his death. She died a resident of New Jersey and her last will and testament was admitted to probate in New Jersey. Furthermore, not one party to the present proceeding is a resident of New York.

Defendants further contend that xxnder New York law the agreement between Matthew and Celeonor Woll is absolutely void by virtue of the Personal Property Law, McKinney’s Consol. Laws, c. 41, § 31, subsec. 7, which provides:

“Agreements required to he in tvriting. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking; :
7. Is a contract to bequeath property or make a testamentary provision of any kind; * *

Whether such a statute oí frauds is applicable is often predicated upon whether it is deemed procedural or substantive. See 4 Williston, Contracts (3d ed., Jaeger, 1961), § 599 p. 261 et seq. In Rubin v. Irving Trust Co., 305 N. Y. 288, 113 N. E. 2d 424 (Ct. App. 1953), the court, commenting on the above-quoted statute, did not decide that it was solely procedural or substantive, saying that “the statute may even be regarded as having a dual nature — both substantive and procedural.” 113 N. E. 2d, at p. 427. That case involved the making of a contract to make testamentary dispositions by two Yew York domiciliarles while in Florida where such contracts were valid. The Yew York court applied its own statute.

Rubin does provide an insight into the nature of the statute in question:

“[W]e need not decide whether the statute is substantive or procedural. * * * If it be the former, we must conclude that it is expressive of a deeply rooted, policy of the forum with respect to the bequeathing of property or making testamentary provisions by its domiciliaries to which the ordinary rules of choice of law and comity must give way.” (at p. 427; emphasis supplied)

The Yew York court quoted at length from the opinion of Justice Holmes in Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57 (Sup. Jud. Ct. 1895), where a similar contract was made in Maine by residents of that state who later moved to Massachusetts. Under Maine law the contract was valid, while under Massachusetts law it was not. Justice Holmes applied the Massachusetts law, stating:

“If the policy of Massachusetts makes void an oral contract of this sort made within the state, the same policy forbids that Massachusetts testators should be sued here upon such contract without written evidence, wherever it is made.
* * * [T]he final domicile is more concerned in the policy to be insisted on than any other jurisdiction, and justifies it in framing its rules accordingly.” (39 N. E., at p. 1027)

Judge Conway, in his opinion in Rubin went on to say:

“There is yet another approach to the problem which tends to dictate the same result as all the foregoing: the ‘center of gravity’ theory of conflicts of laws, discussed by the majority below. Under that theory the law of the state which has the most significant contacts with the matter in dispute will be applied. * * * It would seem that that approach was used to some extent by Justice Holmes in the Emery case, supra.”

' The Rubin and Emery eases involved the opposite situation from the present one, in that in those cases the contracts were valid where made but invalid where sued upon. Here, the contract is not invalid where sued upon, but is alleged by defendants to be invalid where made. This is a distinction without a difference since the policy of statutes such as New York’s are clearly designed to protect domiciliaries of the state having such statute. The facts clearly demonstrate that New York has no interest whatsoever in the estate of Oeleonor Woll or the parties to this litigation.

Mellk v. Sarahson, supra, involved an automobile negligence action in New Jersey between residents of New Jersey, the accident occurring in Ohio, and our Supreme Court refused to apply the Ohio host-guest statute, stating that the policies of the statute were not involved in a suit between New Jersey residents in the courts of New Jersey. See also Babcock v. Jackson, 12 N. Y. 2d 473, 240 N. Y. S. 2d 743, 191 N. E. 2d 279, 95 A. L. R. 2d 1 (Ct. App. 1963). Similarly, in the present case the policies underlying the New York statute are in no way involved here. On the other hand, New Jersey itself has a strong policy interest in any suit involving the estate of its domiciliaries. Cf. Trustees of Princeton University v. Trust Co. of N. J., 22 N. J. 587 (1956).

It is the conclusion of this court that New Jersey lawv is applicable to the agreement between Matthew and Celeonor Woll for three reasons: (1) the substantial contacts are in New Jersey; (2) New Jersey has a strong policy where the estates of its domiciliarles are involved, and (3) New York has no interest in this matter.

The law is well settled in New Jersey that one who has established the making by two others of an irrevocable agreement or compact to dispose of their estates or combined estates by mutual and reciprocal wills to his benefit, has a good cause of action in equity which will not interfere with the probate of a later will in violation’ of the agreement, but will enforce the contract against the estate of the survivor by impressing a trust upon the assets. In re Hand’s Will, 95 N. J. Super. 182 (App. Div. 1967) ; Zabotinsky v. Conklin, 90 N. J. Super. 530 (Ch. Div. 1966) ; Tooker v. Vreeland, 92 N. J. Eq. 340, 342 (Ch. 1921), affirmed sub. nom. Tooker v. Maple, 93 N. J. Eq. 224 (E. & A. 1921); Minogue v. Lipman, 25 N. J. Super. 376, 389 (Ch. Div. 1953), affirmed 28 N. J. Super. 330 (App. Div. 1953); Gromek v. Gidzela, 36 N. J. Super. 212, 217 (App. Div. 1955); In re Kortvellessy Estates, 102 N. J. Super. 226 (App. Div 1968). Where the first party to the agreement does not revoke his will, and the surviving party accepts the benefits of the testamentary gift of the other, he becomes legally bound to carry out the obligation of the contract between them and his revocation is deemed a fraud against which equity will afford relief. Tooker v. Vreeland, supra, at page 346; Minogue v. Lipman, supra, at page 392.

The performance of the first decedent’s portion of the agreement, i. e., bequeathing certain property to and the acceptance thereof by the second party, is deemed both sufficient consideration required to support such an agreement and sufficient part performance to take the contract out of the statute of frauds. Minogue v. Lipman, supra, at page 397. True, the consideration must be "certain and defined, equal and fair, and sufficiently proven,” Tooker v. Vreeland, supra, at page 342, but

“* * * [t]he consideration of the contract we readily find in the inducement held out by the one to the other to mutually testate, in the reciprocal gifts * * * and the execution of the contract * * * by his unrevoked will at the time of his death. And in the acceptance and the actual enjoyment of the gift * * * we also find that part performance which takes the oral contract out of the statute of frauds.” Tooker, at page 345.

The Tooker court went on to say, however, that where mutual life estates are willed, regardless of any disparity in the property interests between husband and wife, a valid contract may be found, stating that “[e] quality of consideration is not essential to a binding obligation” (at page 345).

It is not necessary that there be a written agreement for the execution of mutual wills or that the mutual wills on their face purport to be contractual. While

“* *■ * reciprocal provisions indicate that they were the result of an understanding, * * * an understanding does not necessarily spell contract. The vital question is, was it agreed by them that the wills should remain irrevocable after the death of either? For the solution of this we must look to the extraneous testimony, keeping in mind that, to establish an agreement, the proofs must be clear and convincing. The contract may be found in an express promise, or inferred, as a conclusion of fact, from the circumstances surrounding the parties.” Tooker, supra, at page 343.

Minogue, supra, 25 N. J. Super., at page 390. Likewise, it has been held the absence of direct proof of an express agreement to so testate is not fatal to the irrevocability of such a compact. Minogue, supra, 28 N. J. Super., at p. 339.

In Gromek v. Gidzela, supra, Judge Goldmann commented on the quantum of proof required to establish an oral agreement to make wills that should remain irrevocable:

“An irrevocable contract is sometimes found in the express oral promises made between husband and wife. It is sometimes erected on the basis of an implied promise, inferred as a conclusion of fact from the surrounding circumstances. In any case, a parol agreement to execute irrevocable mutual wills is subject to close scrutiny. Such an agreement is permitted to stand only when established by evidence that is cogent, clear and convincing, leaving no doubt in the court’s mind as to the parties actually having entered into such an agreement.” (36 N. J. Super., at p. 218)

Applying the aforesaid standard of proof to the facts as I have found them to be, I conclude plaintiffs’ proofs do “possess that quality” and clearly, cogently and convincingly establish that a testamentary arrangement, irrevocable in nature, was, in fact, made by the Wolls.

Were this court to apply New York law to the case, as urged by defendants, it is my conclusion the result would be the same as that already reached through the applicable New Jersey law. Defendants have cited numerous New York cases in which alleged contracts to make testamentary dispositions have been barred by the New York statute of frauds (17B McKinney’s Consol. Laws of N. Y., Estates, Powers and Trusts Law, c. 17-b (E. P. T. L.), 13-2.1). E. g., Albin’s Estate, 35 Misc. 2d 322, 230 N. Y. S. 2d 750 (Surr. Ct. 1962); Hunt v. Hunt, 55 App. Div. 430; 66 N. Y. S. 957 (App. Div. 1900), affirmed 171 N. Y. 396, 64 N. E. 159, 59 L. R. A. 306 (Ct. App. 1902); In re Ditson’s Estate, 177 Misc. 648, 31 N. Y. S. 2d 468 (Surr. Ct. 1941), and cases therein cited.

Defendants have apparently failed to recognize, however, that the New York corrrts, like our own, have developed a theory of constructive trust which is applicable to this class of cases. In Oursler v. Armstrong, 10 N. Y. 2d 385, 223 N. Y. S. 2d 477, 179 N. E. 2d 489 (Ct. App. 1961), a husband and wife made mutual reciprocal wills. The husband liad two children by this wife and two by a previous marriage. The wife’s will provided that if she survived her husband, all property coming to her from her husband would go to all four children. After the husband’s death the wife made a new will, later admitted to probate, which left all of her property to her two children alone. The other two children brought an action to impress a constructive trust on that portion of the wife’s estate bequeathed to her by her husband.

The court, in a 4-3 decision, did not find sufficient evidence of an agreement either in writing or orally not to revoke the mutual wills to sustain a constructive trust, stating:

“The law does not view the renunciation of the right to alter or revoke a will as a casual matter * * * and, regardless of whether the Statute of Frauds * * * controls this ease, as quite possibly it does not, * * * the spirit of it as well as the decisional law requires clear evidence of the existence of a promise of this nature. * * *” (223 N. Y. S. 2d, at p. 479, 179 N. E. 2d, at p. 490)
“The existence of a promise, express or implied, is a vital necessity; * * * She had the legal right to dispose of her property by will as she chose, unless she obtained her deceased husband’s estate on the strength of a promise that she would bequeath it equally among his four children, in which event only could a constructive trust come into being covering what she inherited from him. * * * Such a promise is not established by the mere confidentiality of the relationship between the persons involved.” (Ibid., at p. 492)

Two weaknesses in the plaintiffs’ evidence were stressed by the New York court. First, witnesses were able to testify only to general conversations which had no tendency to establish a promise by the wife. Secondly, the court stated:

“If the intention had been that Mrs. Grace Oursler was renouncing her power to alter or revoke her 1951 will, as regards the property which she stood to inherit from her husband, it is remarkable that it was not put in writing or even mentioned orally in joint consultation by so experienced and competent a lawyer as Mr. Ernst.” (Hid., at p. 492; emphasis supplied)

In the present case neither weakness in the evidence mentioned in Oursler is present. Witnesses testified to conversations with Celeonor Woll which were not of a general nature, but rather in which she referred specifically to her promise to Matthew and her agreement with him to leave everything to his sons, Albert and Willard. Furthermore, Markewich, the attorney who drew the reciprocal wills, testified clearly and convincingly, and the court finds as a fact, that in joint consultation Celeonor did unequivocally and irrevocably promise to her husband Matthew that she would leave their combined estates to his sons should Matthew predecease her.

Subsequent to the decision in Oursler, the New York courts have clearly distinguished an action for breach of contract requiring part performance referable to and consequent upon the contract alone, from an action to impress a constructive trust.

In Reoux v. First National Bank of Glens Falls, 229 N. Y. S. 2d 940 (App. Div. 1962), plaintiff brought an action against his mother’s administrator alleging that his parents had made an agreement that the survivor of them would bequeath one-half of his estate to the son in consideration of the sons remaining and practicing law in their home town and helping his parents in the management of their business and properties. The theory of the action was two-fold. First, plaintiff alleged breach of oral contract; secondly, ho alleged that the agreement gave rise to a constructive trust in his favor on one-half of his surviving mother’s estate.

The complaint was dismissed by the trial court. The Appellate Division affirmed the dismissal as to the first ground of the complaint, stating that no “uequivocally referable” act to the alleged agreement could be shown as required as against the statute of frauds. However, the appellate court reversed as to the claim for a constructive trust, holding that it was possible to spell out an equitable cause of action to impress a trust upon one-half of such part of testatrix’ estate as came to her under the will of her husband, executed by him in reliance upon their relation of confidence and upon their joint agreement with plaintiff and, by implication at least, with each other, equitable intervention being necessary to prevent her unjust enrichment by the retention of property obtained by her breach of trust. (Here Celeonor had in her own right only “a little money and some paintings,” and no testimony was adduced to the contrary. Hence, we can assume that for all practical purposes her estate came to her from Matthew Woll.)

The Beoux case, decided subsequent to and citing Oursler, makes it clear that an action to impress a constructive trust pursuant to a promise to make an irrevocable will or make a testamentary disposition is distinguishable and aside from the statute of frauds which applies to actions for breach of contract.

Additional force is given to the Reoux view by In re Buehler’s Estate, 186 Misc. 306, 59 N. Y. S. 2d 766 (Surr. Ct. 1945), affirmed 272 App. Div. 757, 70 N. Y. S. 2d 139 (App. Div. 1947), where it is stated:

“The Statute of Frauds does not prevent the recognition of a constructive or secret trust. * * In such a situation tlie result is attained not through the exercise of the dispensing power of a court of equity but because of an exception which has wrought, itself by construction into the body of the statute.
The principle is firmly established in our jurisprudence that where one obtains a bequest or devise of property upon his representation that he would devote it to the use of one who would otherwise be an object of the testator’s bounty and he thereafter refuses to put it to the use promised, a court of equity will enforce the obligation by impressing a trust upon the property in favor of the intended beneficiary.” (59 N. Y. S. 2d, at pp. 772-773; emphasis added)

It is clear to this court that under the facts of the instant case, even if New York law were applicable, a constructive trust would be impressed on the assets of the estate of Celeonor Woll in favor of Albert Woll and the estate of Willard Woll.

In view of all the foregoing, it is the court’s conclusion that judgment be entered providing that the assets of decedent Celeonor Woll’s estate, both real and personal, after the payment of debts, taxes and allowances, are impressed with a trust in favor of plaintiffs J. Albert Woll and Virginia Woll, executrix of the estate of Willard Woll, deceased, by way of specific performance of the contract entered into by Celeonor and Matthew Woll. Defendant Citizens First National Bank of Ridgewood will continue to serve as executor of the estate of Celeonor Woll and will render its accounting in due course in the Bergen County Court, under whose jurisdiction the Celeonor Woll estate is being administered. See Sellyei v. Lecso, 28 N. J. Super. 593, 603-604 (Ch. Div. 1953).