text:
    SHOP-RITE OF HUNTERDON COUNTY, INC., PLAINTIFF-APPELLANT, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF RARITAN, COUNTY OF HUNTERDON, NEW JERSEY, AND ROBERT A. YARD, DEFENDANTS-RESPONDENTS. SHOP-RITE OF HUNTERDON COUNTY, INC., PLAINTIFF-RESPONDENT, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF RARITAN, COUNTY OF HUNTERDON, NEW JERSEY, AND ROBERT A. YARD, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 18, 1974 —
    Decided December 9, 1974.

      Before Judges Leonard, Seidman and Bisohoee.

      Mr. Lee B. Roth argued the cause for plaintiff Shop-Rite of Hunterdon County, Inc. (Mr. Daniel E. Knee on the brief).

      Mr. Richard G. Jefferson argued the cause for defendant Township Committee of the Township of Raritan, County of Hunterdon, New Jersey (Messrs. Jefferson, Jefferson & Vaida, attorneys).

      Mr. Edmund H. Bernhard argued the cause for defendant Robert A. Yard (Messrs. Herr & Fisher, attorneys).

      Mr. William F. Hyland, Attorney General of New Jersey,, filed a statement in lieu of brief on behalf of Division of Alcoholic Beverage Control (Mr. David S. Piltzer, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Bischoff, J. A. D.

These two consolidated appeals present procedural questions arising out of plaintiff Shop Rite’s unsuccessful application for a plenary retail distribution license.

Defendant Township of Raritan, Hunterdon County (hereafter township), by ordinance passed June 26, 1972, authorized the issuance of one plenary retail distribution license. Approximately 20 applications were received for this one license, including applications from plaintiff and defendant Yard. The license was issued to Yard and plaintiff filed an appeal to the Director of the Division of Alcoholic Beverage Control (hereafter Director). Counsel for defendants township and Yard on that appeal moved to dismiss on the ground that the appeal was filed out of time. After argument the hearing officer recommended that the appeal be dismissed and the action of the township affirmed. The Director concurred and ordered the appeal dismissed. Plaintiff appeals from that order.

While the appeal was pending before the Director plaintiff filed a complaint in lieu of prerogative writs (1) seeking a review of the denial of its application for a license and the award of the license to it, (2) attacking as illegal the fundamental procedure followed by the governing body in the consideration of all applications, and (3) challenging the validity of a condition imposed by the township that a licensee retain its license for a period of five years. The wording of this complaint is identical to the wording of a petition filed with the notice of appeal to the Director.

Defendants in the in lien proceeding (who are the same as in the appeal pending before the Director) moved to dismiss the complaint for lack of jurisdiction, and plaintiff moved for summary judgment. Both motions were denied. We granted defendants leave to appeal from that order, and both appeals were consolidated.

Turning first to the appeal from the order of the Director, we note that the notice of appeal to the Director was dated May 16, 1913. The basis of the dismissal of plaintiff’s appeal was that it had not been filed within 30 days after issuance of the license to Yard. This issue was raised prior to the start of the hearing on motion and the decision on it terminated the appeal without any hearing on the merits. The statute establishing the time period within which an appeal should bo taken is N. J. 8. A. 33 :l-22 and provides in applicable part as follows:

If the other issuing authority shall refuse to issue any license * * * the applicant shall be notified forthwith of such refusal by a notice served personally upon the applicant, or sent to him by registered mail addressed to him at the address stated in the application. Such applicant may within 30 days after the date of service or of mailing of such notice * * * appeal to the director from the action of the issuing authority.
If the other issuing authority shall issue a license * * * any taxpayer or other aggrieved person opposing the issuance of such license may, within 30 days after the issuance * * * appeal to the director from the action of the issuing authority * r *.

The license was awarded to Yard at a meeting of the township council on March 26, 1973. It is undisputed that plaintiff was never formally notified in person or by registered mail of the award to Yard. However, the Director found it significant that plaintiff was notified by certified mail that the license would be awarded to one of the applicants on March 26; that plaintiff attended the meeting and was aware of the award, and that plaintiff’s deposit of $2,000, which accompanied its application for the license, was returned April 11, 1973.

The Director found that these facts constituted “functional performance” with the notice provision of the statute, depriving him of jurisdiction to hear the appeal, and he entered the order of dismissal. i

Defendant makes the ingenious argument that since there was only one license to grant, its award to Yard does not constitute a refusal to issue a license to plaintiff; that there was an inability on the part of the township to grant plaintiff’s application, and that plaintiff accordingly became simply “a taxpayer or other aggrieved person opposing the issuance of the license” to Yard and the 30-day appeal time started to run against plaintiff on March 26, 1973, without formal notification. Defendant relies on the case of Hess Oil & Chemical Crop. v. Doremus Sports Club, 80 N. J. Super. 393 (App. Div. 1963), as authority for this argument.

Plaintiff here occupied a dual status. It was an applicant for the one available license and at the same time was naturally opposed to its issuance to any other applicant, even though it did not voice any objections to the issuance of the license to Yard or any other applicant other than to advance its own position.

The Legislature never envisioned this exact situation and the statute is vague and imprecise in its application to it. The statute does, in mandatory terms, require a notice of refusal to issue a license to be served either personally on an applicant or by registered mail. Unquestionably, neither alternative was followed here. We feel that plaintiff’s status is such that the issuance of the one available license to Yard can be equated with a refusal to issue a license to plaintiff.

We conclude that plaintiff’s notice of appeal was not out of time. We recognize that the effect of our holding is to permit a challenge to the issuance of a license more than 30 days thereafter. This result is compelled by the statute’s inherent ambiguity when applied to this unique fact pattern. The entire matter is accordingly remanded to the Director for the conduct of a de novo hearing. The Director is to make the necessary factual and legal determination on the record and to determine whether the exercise of judgment by the township in awarding the license was reasonable. Fanwood v. Rocco, 33 N. J. 404, 414 (1960).

While plaintiff in its appeal to the ABC sought an order directing the township to issue the license to it, it conceded at oral argument that this relief was not available. We agree, for if plaintiff is successful in its appeal to the ABC, the only relief available under the circumstances of this ease will be a remand to the township for further proceedings.

Plaintiff’s action in lieu of prerogative writs charged the township with improper procedure in consideration of the applications in the following respects:

1) The sessions in which the applications were considered by the township council were not open to the public but were conducted in secret;

2) Township council did not follow the procedures for consideration of the applications which it had established, published and stated it would follow;

3) The voting procedures used by the council were improper ;

4) An impermissible conflict of interest existed between council members and some of the applicants, and

5) There was a violation of the “Right to Know Law,” N. J. 8. A. 10:4^1 et seq.

Defendants moved to dismiss the complaint and plaintiff moved for summary judgment on the complaint. Both motions were heard at the same time and the trial judge denied both. Defendants, on this appeal, contend that the trial judge was in error, that plaintiff’s sole recourse from the action of the township was by way of appeal to the Director pursuant to N. J. 8. A. 33:1 — 22 and N. J. 8. A. 33: 1-38, and that the complaint should be dismissed.

The appeal to the Director provided by the statutes cited is the exclusive remedy available to plaintiff under the circumstances of this case. The Director has the statutory duty to hear and conduct all appeals provided for by the Alcoholic Beverage Law, and to render written decisions, stating conclusions and reasons therefor upon each matter so appealed. N. J. 8. A. 33 :l-38.

Plaintiff, having this statutory right of appeal, may not maintain a separate action in lieu of prerogative writs on the same facts seeking the same relief. R. 2:2-3(a). R. 4:69-1. Cf. Pfleger v. N. J. State Highway Dep’t, 104 N. J. Super. 289 (App. Div. 1968); DeNike v. Bd. of Trustees, State Emp. Retirement System, 62 N. J. Super. 280 (App. Div. 1960), aff’d 34 N. J. 430 (1961); Colon v. Tedesco, 125 N. J. Super. 446 (Law Div. 1973); Marranca v. Harbo, 76 N. J. Super. 429 (Law Div. 1962), mod. 41 N. J. 569 (1964).

Nor do we find merit in plaintiff’s contention that the provision oí N. J. S. A. 10:4r-5 confers a right to be heard in the first instance in the Superior Court. That section of the “Right to Know Law” provides:

Official action taken in violation of the requirements of this act shall be voidable in a proceeding in the Superior Court.

We do not read that statute as creating an exclusive remedy in the Superior Court for any violation of it, or as depriving the Director of the power to consider an alleged violation of it in his determination of an appeal from the action of a township. Plaintiff has a right to a review by way of appeal in the Superior Court, Appellate Division. B. 2:2-3(a).

For the foregoing reasons we hold that the action of the Director in the case of Shop-Rite of Hunterdon County, Inc., v. Township Committee of the Township of Raritan, County of Hunterdon, New Jersey, and Robert A. Yard, Docket A-959-73, is reversed and the matter is remanded for further proceedings consistent herewith. We further hold that the action of the trial judge in the case of Shop-Rite of Hunterdon County, Inc., v. Township Committee of the Township of Raritan, County of Hunterdon, New Jersey, and Robert A. Yard, Docket A—2084—73, in denying defendant’s motion to dismiss plaintiff’s complaint is reversed and judgment is entered dismissing the complaint.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. STANLEY PERWIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 25, 1974 —
    Decided December 13, 1974.

      Before Judges Leonard, Seidman and Bischoee.

      Mr. Stanley Perwin, appellant pro se.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Michael A. Noto, Assistant Prosecutor, on the brief).
   Per Curiam.

Defendant appeals pro se from an order denying his motion to compel the prosecutor to return a fine of $4000 imposed following his conviction and $130 appellate costs assessed against him, both of which he paid.

He was convicted in the Superior Court of this State on a charge of conspiracy to obtain money under false pretenses and on three charges of obtaining money under false pretenses. He was sentenced on all counts to serve a two-year prison term and to pay a fine in the amount previously noted. We affirmed, State v. Perwin, 117 N. J. Super. 315 (App. Div. 1971), and certification was denied, 60 N. J. 138 (1972), 64 N. J. 156 (1973). The United States Supreme Court denied certiorari, 409 U. S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972) .

Thereafter, defendant filed a petition with the United States District Court for a writ of habeas corpus. His petition was granted on the grounds that he had been placed in double jeopardy and had been denied his Fifth Amendment rights because the doctrine of collateral estoppel had been violated. However, the court directed that execution of the writ be stayed for 45 days pending a decision by the county prosecutor to either appeal the order or retry defendant or both. The prosecutor did neither. Although the order made no 'reference to the fine, the opinion of the federal magistrate, upon which the order was based, specifically indicated that relief from the payment of the fine was not available in the habeas corpus proceeding.

Defendant moved, in the criminal proceedings, to compel the county prosecutor to return to him the fine and costs. N. J. S. A. 2A:166-13, upon which defendant relies, provides that if the circumstances set forth therein occur (discussed infra), “the board of chosen freeholders of the county wherein the trial was had shall return * * * the amount of the fine so paid.” It is our opinion that the instant proceeding has been instituted in the wrong court and without the joinder of the board of chosen freeholders, a necessary party. However, rather than disposing of this matter by reason of these deficiencies, we shall consider the substantive issues involved.

Defendant contends that the issuance of the writ of ha-beas corpus by the United States District Court (1) is binding on the state courts, (2) voided the judgment of conviction pursuant to which he paid the fine and appellate costs, and (3) mandates that the board of chosen freeholders return to him the fine as provided for by N. J. 8. A. 2A: 166-13. All of these contentions lack merit.

In Smith v. Spina, 477 F. 2d 1140 (3 Cir. 1973), the court said:

Although this court has ordered that a writ of habeas corpus issue, such action is not the equivalent of a reversal of a state conviction. Only the Supreme Court has power, on direct appeal, to reverse a state judgment of conviction. * * The jurisprudential effect of the granting of a federal writ is to release relator from custody. It does not have the force and effect of voiding a conviction, [at 1147]

Likewise, in Schectman v. Foster, 172 F. 2d 339, 341 (2 Cir. 1949), the court stated, “It must he remembered that upon habeas corpus a federal court does not in any sense review the decision in the state courts.”

“In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy, for both sets of courts are governed by the same reviewing authority of the Supreme Court.” State v. Coleman, 46 N. J. 16, 36 (1965). In such situations the federal courts exercise no appellate jurisdiction over state tribunals and decisions of the former are not conclusive on the latter. United States ex rel. Lawrence v. Woods, 432 F. 2d 1072 (7 Cir. 1970).

Even though the instant federal writ is binding upon the state courts, insofar as it mandates defendant’s release from custody, State v. Coleman, supra 46 N. J. at 36, the writ has no other power and it does not revise the judgment of conviction in the state courts. Fay v. Noia, 372 U. S. 391, 430-431, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

Purthermore, N. J. S. A. 2A:166-13 does not mandate a return of the fine defendant paid. It applies solely to the situation where a defendant, upon being found guilty, fchas taken an appeal and obtained a decision in his favor terminating the case of the state against him.” A habeas corpus proceeding in the federal courts is not an appeal from a judgment of conviction in a state court within the purview of this statute. Reese v. Caldwell, 410 F. 2d 1125 (6 Cir. 1969); United States ex rel. Rush v. Ziegele, 335 F. Supp. 434, 436 (D. N. J. 1971), aff’d 474 F. 2d 1356 (3 Cir. 1973).

Affirmed.


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

text:
    CLIFFORD N. HERBSTMAN, PLAINTIFF-APPELLANT, v. EASTMAN KODAK COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 30, 1974 —
    Decided December 18, 1974.

      Before Judges Carton, Crane and Kolb.

      Mr. Clifford N. Herbstman, appellant, pro se.

      Messrs. Large, Scammell & Danziger, attorneys for respondent.
   The opinion of the court was delivered by

Carton, P. J. A. D.

Plaintiff brought this action against defendant manufacturer for breach of a warrant of merchantability of a new camera which he had purchased and claimed to be defective. The trial judge, after a trial in which the salient facts were substantially undisputed, dismissed the complaint on condition that defendant make the necessary repairs or replace the camera with a new one. He ordered that on failure to comply with' this condition judgment should be entered in favor of plaintiff for the cost of the camera. Plaintiff appeals, contending that he was not hound to accept as his sole remedy the repair of the camera. Defendant has expressed a willingness to make necessary repairs.

Plaintiff purchased a Kodak Pocket Instamatic No. 40 camera at a retail store in preparation for a proposed trip to Israel. Although he owned several more expensive cameras than this one, he maintained that he chose the Kodak because of its reliability and simplicity of operation, as expressed in defendant’s advertising literature.

Before departing on the trip plaintiff inserted film in the camera. The camera performed satisfactorily. However, after arriving at his destination the camera failed to function properly after six photographs were taken. It appeared that the film advance mechanism had jammed, preventing further use of the camera. Plaintiff also claimed that he took the camera to three separate camera stores, which reported they were unable to repair it.

When he arrived home from his trip plaintiff purchased a second camera of the same description and at the same cost as the original. He then requested defendant to refund the monies paid for the defective camera. Defendant refused to do so, relying upon the exculpatory clause contained in the instruction booklet inside the package in which the camera was delivered.

The true issue presented is not, as both parties seem to argue, whether plaintiff is protected by an implied warranty of merchantability. More properly, the inquiry is whether he is bound by defendant’s attempt to limit the remedies available to him for breach of warranty.

The confusion arises because of the tendency on the part of both parties to blur the distinction between warranties and remedies set forth in the Uniform Commercial Code. Exclusions and modifications of warranties and limitations of remedies are separately treated in the statute. See N. J. S. A. 12A:2-316 and N .J. S. A. 12A:2-719, discussed hereinafter.

The warranty provision in this case is couched in language of the available remedy, i. e., free repairs. It appears under the heading “warranty” on the back page of the booklet and reads, in pertinent part:

We will repair your camera at no charge within one year after purchase, except for damage caused by accident or abuse. This warranty applies only to the camera itself, and Kodak cannot be responsible for other losses or damages of any kind resulting from equipment failure.
* ~-'r *
Except as mentioned above, no other warranty, express or implied, applies to this camera.

Thus we interpret defendant’s warranty, apart from the question of disclaimer, to mean that the camera will be free of mechanical defects which result in the failure of the' camera to perform in the manner it was intended and designed to operate.

So interpreted, defendant gave an express warranty against mechanical defects of the kind experienced by plaintiff. Indeed, this seems to be conceded by defendant’s willingness ' to make necessary repairs. Thus, whether there also exists an implied warranty in plaintiff’s favor under N. J. S. A. 12A :2-314(2), defining “merchantable goods,” is inconsequential. That provision affords plaintiff no greater protection against defects than that which is implicit in defendant’s agreement. We turn, then, to the question whether defendant effectively limited plaintiff’s remedy to repair of the camera. The answer hinges on whether the printed notice complied with the requirements of the statute governing the contractual modification or limitation of remedies.

Such contractual modification or limitation of remedies is controlled by N. J. 8. A. 12A:2-719. That section provides :

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Chapter and may limit or alter the measure of damages recoverable under this Chapter, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressl/y agreed to he exclusive, in which case it is the sole remedy.
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.
(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. (Emphasis added).

Plaintiff argues that his remedy for breach of warranty was not limited to free repair of defects because the printed notice of limitation fails to meet the requirements of N. J. 8. A. 12A:2-719(1) (a) that such limitation be part of an “agreement” between the parties. More specifically, the thesis is that the agreement requirement is not satisfied by language “unilaterally inserted by the seller in the last page of an instruction booklet concealed in a package and not disclosed to the purchaser prior to actual purchase of the product.” The trial judge did not reach this issue in specific terms. Instead, in arriving at this conclusion he relied upon trade usage, pursuant to N. J. 8. A. 12A:2-316(3) (c), which provides that “an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.”

The judge held that the implied warranty had been excluded by operation of trade usage. The court’s reliance upon that provision was misplaced. N. J. 8. A. 12A:2-316, in its entirety, concerns the subject of exclusion or modification of warranties. It has no concern at all with remedies which are governed by a different provision of the statute.

Limitations of remedies are governed by N. J. S. A. 12A:2-719. That section makes no reference to limitations arising from trade usage. We deem it highly significant that the Legislature, in adopting the Ilniform Commercial Code, saw fit to make an express distinction between acceptable methods of limitation or modification as between warranties and remedies. The design of the statute is to allow the seller less liberality in limiting remedies than in limiting or modifying warranties.

Thus, the issue to be decided narrows down to whether the seller in this case properly limited the remedjr available to the purchaser. The answer to this question depends on whether there was an agreement between the parties as required in the limitation provision of the Code (N. J. 8. A. 12A:2-719(1) (a)) to limit available remedies exclusively to that of free repair.

An “agreement” is defined under the Code as

the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance * * *. (N. -J. S. A. 12A :1-201(3)).

No agreement as to remedy limitation can be distilled from the language of the “warranty” itself. That provision is ambiguous and imprecise. Indeed, as we have already noted, it seems more appropriate to a statement of available remedy than a warranty. Further, the language of limitation contained in the clause refers specifically to consequential damages and to other express or implied warranties. It contains no explicit limitation ox modification of remedies as required by statute. For example, it does not specify that the remedy provided is exclusive (see N. J. 8. A. 12A:2-719(1) (b)). Whatever explicitness can be derived from the language of the clause in question is produced by the device of treating the terms “warranty” and “remedy” as synonymous. The statutory provisions are a demonstration that there is no basis for such construction. In any event, it is axiomatic in the construction of a contract that its language is-to be construed against the party who prepared it when there is fair doubt as to its meaning. Buscaglia v. Owens-Corning Fiberglas, 68 N. J. Super. 508, 519-520 (App. Div. 1961), aff’d 36 N. J. 532 (1962).

Defendant’s further contention that the offered remedy of free repairs operated to exclude all other remedies cannot be sustained. N. J. 8. A. 12A:2-719(l) (b) provides:

[K]esort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which ease it is the sole remedy. [Emphasis added ]

Here defendant’s “warranty” announces the availability of free repairs. There is no language to suggest that the thus limited offer is intended to exclude all other remedies. Therefore it cannot be said that the parties expressly agreed to limit available remedies to repairs. This is so whether the term “expressly agreed” is interpreted to mean an agreement of sale in the form of a document or other communication in which the buyer specifically assents to the limitation, or whether it also includes such an agreement implied in fact from the conduct of the parties. In the present case it must be concluded that there never was any such agreement because that question was not raised at all. Plaintiff is therefore entitled to the alternate remedy of returning the defective camera for a cash refund.

Defendant appears to suggest that the trade usage policy of free repairs is a circumstance from which an agreement between the parties can be implied. A policy of free repairs, even if ordinary trade usage in the camera industry, is itself a neutral fact. For the free repair policy to serve as a bar to other remedies it would have to be accompanied by an express exclusion of those remedies. And even if such a practice were shown to exist it would not be determinative here. The record is devoid of proof that plaintiff is in the trade. Consequently it cannot be argued that such a practice became engrafted in the purchase agreement and thus binding on plaintiff as a customer.

This conclusion makes unnecessary an inquiry into whether defendant’s notice of “warranty,” even if properly drafted, would provide notice to a purchaser sufficient to imply an agreement limiting remedies available to the purchaser. However, some discussion of this question is appropriate. The notice of “warranty” appeared on the, last page of an instructional booklet contained in the sealed camera box. Our researches reveal no discussion of the adequacy of such notice as it pertains to limitations of remedy but the standards applicable to exclusions or limitations of warranties are suggestive. The Code (N. J. S. A. 12A:2-316(2) requires that a written disclaimer of warranty be in conspicuous form. See also, Fablok Mills v. Cocker Machine, etc., Co., 125 N. J. Super. 251, 259 (App. Div. 1973). The requirement that warranty disclaimers be conspicuous also exists in our case law. Henningsen v. Bloomfield Motors, 32 N. J. 358 (1960). Por further illustration of what constitutes conspicuousness, see cases collected at 17 A. L. R. 3d 1010, at 1078. Thus it is quite clear that defendant’s notice was so placed as to fail to satisfy any reasonable standard of eonspicuousness.

It should be further noted that here again the seller is held to a lesser standard in disclaiming warranties. “Conspicuous” is defined in the Code at N. J. S. A. 12A: 1-201(10) as follows:

A term or clause is conspicuous when it is so written that' a reasonable person against whom it is to operate ought to have noticed it. sjc :js

This is a standard of constructive notice, allowing courts to imply a purchaser’s knowledge and consent as a matter of law. The standard is significantly higher in limitation of remedy situations, where an express agreement must be found. Such agreement may be implied from the facts but there is no provision for- constructive notice to permit an agreement to be implied as a matter of law.

Conceivably a trade usage could be established that it is customary in the sale of cameras and other small mechanical appliances to place '.conspicuous notices of limitation of remedies inside the package and that the purchaser normally anticipates that any warranty and limitation of remedy may be found upon opening it. We need not decide whether, in the case of an adequately drafted notice, such trade usage, coupled with the purchaser’s failure to reject in a reasonable time, would be a factual basis for implying the express agreement required by the statute.

In this ease defendant has satisfied neither standard. The notice given would not appear to be sufficiently conspicuous to constitute constructive notice. More significantly, there is nothing in the record to indicate that plaintiff was, in fact, aware of the notice before the completion of the sales transaction. There is no basis for implying an agreement to limit remedies.

Eeversed.


author: Rosenberg, J. S. C.

text:
    MARY G. BACON AND ROBERT H. BACON, PARTNERS TRADING UNDER THE NAME OF BACON & GRAHAM, PLAINTIFFS, v. THE AMERICAN INSURANCE COMPANY, A CALIFORNIA CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Supplemental Opinion — November 10, 1974.
    Decided September 13, 1974.

      Mr. Robert H. Altshuler for plaintiffs.

      Mr. Richard D. Catenacci for defendant (Messrs. McElroy, Connell, Foley & Geiser, attorneys).
   Rosenberg, J. S. C.

This matter comes before the court on cross-motions for summary judgment. Argument was heard on June 28, 1974 and supplemental argument on September 13, 1974, at which time the court rendered its opinion from the bench, granting the motion as to defendant and denying it as to plaintiffs. Notice of appeal was served on November 6, 1974. This supplemental opinion is filed in response to that notice pursuant to R. 2:5 — 1(b) to aid the appellate court in its determinations.

There is no controversy as to the material facts involved, thus making the matter ripe for summary disposition. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 74 (1954). Plaintiffs arc in the industrial paper business as distributors. Defendant is a California corporation authorized to transact an insurance business in New Jersey. On June 11, 1972 defendant issued to plaintiffs a comprehensive liability insurance policy. Such policy was in force on September 28, 1973 when Union Textile Co., a textile printing concern and customer of plaintiffs, suffered property damage allegedly caused by defects in steaming paper sold and delivered by plaintiff's. This paper was used by Union in a steaming process whereby printed color is locked in fast on the textile fabric. Apparently the paper sold to Union contained spots which were transferred to the material during the steaming process, thus making the cloth valueless. As a result of its loss Union asserted a claim against plaintiffs which was settled by Union withholding $16,755.80 from amounts which it owed plaintiffs, such an offset being reflected in a letter dated November 30, 1973 from Union’s president to plaintiffs, and in a letter accompanying a check sent to plaintiffs by Union on January 16, 1974. Plaintiffs sought to recover this amount under its liability policy but defendant, after investigation, denied liability on the claim in ■ a letter to plaintiffs dated December 14, 1973. It is this denial of liability and refusal to pay the claim that prompted plaintiffs to institute suit.

The legal arguments advanced by both parties are straightforward. Plaintiffs contend that they became legally obligated to Union at the time that the cloth was damaged; that defendant therefore became liable to plaintiffs at that time by the terms of the liability policy, and that by denying liability under the policy defendant is barred by waiver and estoppel from setting up terms of that policy as a defense to plaintiff’s claim. Plaintiffs also attack parts of defendant’s answer as defective under B. 4:5-4 and 4:5-8(b). Defendant argues that plaintiffs did not become legally obligated to pay damages to Union and that defendant, therefore, was not liable under the policy; that plaintiffs have not complied with the conditions of the policy and are barred from commencing action against the insurer, and that defendant has not waived any defenses under the policy and is not estopped from denying liability and raising terms of the policy in defense. The arguments of both parties go to their respective responsibilities under the liability contract, and thus involve issues of the insurer’s obligation to make the insured whole, and the insured’s duty to comply with terms and conditions of the policy.

Plaintiff’s attack on the sufficiency of defendant’s answer can be readily dealt with. Under B. 4:5-4 affirmative defenses must be pleaded “specifically and separately”; under B. 4:5-8(b) denial of performance of conditions precedent must be made “specifically and with particularity.” Plaintiffs assert that defendant’s third, fourth, fifth and sixth separate defenses are not sufficiently precise under these rules and therefore should be stricken. The purpose in B. 4:5-4 of requiring that certain defenses be pleaded affirmatively is to avoid surprise. Faul v. Dennis, 118 N. J. Super. 338, 342 (Law Div. 1972). This same rationale would seem applicable to the requirement of specificity in the pleadings, particularly in view of the expression in 110—112 Van Wagenen Ave. Co. v. Julian, 101 N. J. Super. 230, 239 (App. Div. 1968), that the “intent and spirit of the rules” is to put adverse parties on notice of claims to be met. It cannot be said that the third, fourth, fifth and sixth separate defenses as asserted in the answer caused plaintiffs unfair surprise or failed to apprise them of the claims asserted by defendant. To strike pleadings in view of this would be to give effect to technical niceties of pleading over the spirit and purpose of the rules, thereby obfuscating the intent of the rules themselves. This being the case, the objection raised by plaintiffs must be rejected.

In its sale of steaming paper to Union plaintiffs made implied warranties of merchantability and fitness of purpose to the buyer pursuant to N. J. 8. A. 12A:2-314 and 2-315. Plaintiffs also contend that the goods were sold under an express warranty. N. J. S. A. !2A:2-313, but as no proof is offered of such a warranty it is not before the court for consideration. Exclusion (a) of the policy expressly provides that losses occasioned by breach of a warranty of fitness or quality of the insured’s products is within the coverage of the policy. However, although the harm suffered may be within the coverage liability for payment by the insurer under the coverage is controlled by other provisions of the insurance contract, notably Part I: “The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * Coverage B. property damage.” (Emphasis supplied). On the facts of this case plaintiffs contend that as a result of Union’s loss they became legally obligated to Union for damages under N. J. 8. A. 12A :2-714 and 2-715; that pursuant to N. J. 8. A. 12A :2-717 and in light of this obligation Union properly withheld payment as an offset for the damage suffered, and that therefore defendant was required under Coverage B to pay such damages. This theory of liability necessarily rests upon the degree to which the above-cited statutes establish plaintiffs’ legal obligation to pay Union.

N. J. S. A. 12A:2-714, 2-715 and 2-717 are provisions of the Uniform Commercial Code dealing with buyer’s remedies for breach of contract by seller after the buyer has accepted the subject goods. These sections are applicable insofar as seller (plaintiffs) did breach their implied warranties to buyer (Union). Both N. J. S. A. 12A:2 — 714 and 2 — 715 deal with buyer’s measure of damages. N. J. S. A. 12A :2-717 provides the buyer with an alternative means of recovery through recoupment. To assert its remedies under N. J. S. A. 12A :2~ 714 and 2-715 the buyer must notify the seller within a reasonable time after he discovers, or should have discovered, the breach. N. J. S. A. 12A:2-607(3) (a); Buff v. Giglio, 124 N. J. Super. 94, 98 (App. Div. 1973). Here it appears that Union notified plaintiffs of the damage to its fabric, and thus of the defect in the steaming paper, as soon as the damage was observed. Although no proof is offered as to the nature of the handling and use of such paper to indicate whether this was, in fact, a reasonable time for such notification, it seems that this substantially complied with N. J. S. A. 12A:2-607(3) (a) and therefore entitled Union to damages as provided in N. J. S. A. 12A:2 — 714 and 2 — 715. Union could also deduct these damages from money owed on the same contract under N. J. S. A. 12A :2-717, providing the seller was properly noticed. The November 30 letter from Mr. Pink, presidéht of Union, to plaintiff, and the earlier conversations between them which occurred concerning Union’s loss, appears to suffice as to the notice requirement. However, no proof is offered that the amount withheld was from the contract price for the shipment of the defective paper, a prerequisite for applicability of N. J. 8. A. 12A:2-717. Absent sueli proof, it is impossible for the court to conclude whether Union rightly recouped its loss under N. J. S. A. 12A:2-717. This evidentiary defect could be significant if plaintiffs’ argument was viable that such recoupment satisfied a legal obligation, but as the following discussion indicates, it is the court’s view that application of N. J. 8. A. 32A:2-714, 2-715 and 2-717 does not establish that plaintiffs were “legally obligated” for damages as that term is used in the policy.

While the term “legally obligated” is undefined in the policy or by our courts, courts in other jurisdictions have defined the term as used in liability policies to signify existence of a legal liability. Liberty Bldg. Co. v. Royal Indemn. Co., 177 Cal. App. 2d 583, 2 Cal. Rptr. 329 (D. Ct. App (1960); Stubblefield v. St. Paul Fire & Marine Ins. Co., 98 Or. Adv. Sh. 345, 517 P. 2d 262 (Or. Sup. Ct. 1973). Our courts have alluded to this definition. In Nakonieczny v. Commonwealth Cas. Co., 111 N. J. L. 137 (Sup. Ct. 1933), the court, in distinguishing between liability and indemnity contracts, said (at J40) : “But, where the policy is a contract for protection against liability, the insured may turn to it for relief as soon as his liability has become legally fixed and established, although he has not suffered actual loss, as by being required to discharge such liability.” (Emphasis supplied). The import of this language is that the term “legally obligated” as used in Part I connotes an establishment of legal liability for payment of damages. Accord, Viddish v. Hartford Acc. & Indem. Co., 41 N. J. Super. 221, 226 App. Div. 1956). The test of this liability is not the existence of a remedy in the buyer against the seller under tile relevant Code sections, but a determination of rsponsibility for satisfying such a remedy. There is a clear implication in the language of Part I that payment by the insurer was predicated upon an adjudication of the insured’s liability to pay “damages.” The fact that Union opted for recoupment under N. J. S. A. 12A :2-717 does not suffice in determining plaintiffs’ liability for the loss, nor does it vitiate the need under the policy for such a determination. Absent the presentation of proofs in a court of competent jurisdiction and a finding by the court or jury of liability, it cannot be said that the seller is “legally obligated” to pay damages. Annotation, “Insurance against injuring property or person of third person as liability or indemnity insurance,” 37 A. L. R. 644 (1925). The language in Part I is clear and unambiguous and is not conditioned upon the procedural context within which the injured party asserts its remedy against the insured. Under such circumstances it is not for the court to alter the contract of the parties, but rather to give that contract effect. Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N. J. 511, 525 (1963); Kampf v. Franklin Life Ins. Co., 33 N. J. 36, 43 (1960). While adjudication of liability in a recoupment situation involves a different procedure than the more usual circumstance where the injured party simply sues the insured, it does not make adjudication impossible. As defendant suggests, in such a situation it may be appropriate for the buyer to commence action against the seller for monies withheld, thus providing a forum within which issues of liability can be decided. In this way all other relevant parties, notably in this case the manufacturer of the defective paper, could be joined to arrive at a final establishment of liabiilty. As it is> this case has not reached a point at which it can be said that planitiffs are “legally obligated” to pay damages to Union and that defendant is, therefore, liable to plaintiffs to cover them for such a payment. In view of this, it is the court’s conclusion that defendant is not liable to pay plaintiffs under the terms of the instant comprehensive liability policy.

Quite apart from any issues of liability is the question of the timeliness of plaintiffs’ action against its insurer. The crux of defendant’s argument in support of its motion for summary judgment is that plaintiffs are barred by Condition No. 5 of the policy from commencing suit against the insurer. Condition No. 5 reads .in relevant part:

5. Action Against Company. Na action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the Company.

The language of this so-called “no action” clause is express and ambiguous, clearly setting out conditions precedent to the insured’s right of action against its carrier. Thus, the court’s inquiry is limited to a determination of the validity and applicability of Condition No. 5 in the instant case and its effect thereto.

It is well-settled that in the absence of waiver or estoppel the insurer may assert substantial nonperformance of any condition as a defense to any proceeding against it on the policy. Miller v. Zurich Gen. Acc. & Liab. Ins. Co., 36 N. J. Super. 288, 294 (App. Div. 1955); United Natl. Indem. Co. v. Sangiuliano, 38 N. J. Super. 400, 402-3 (Law Div. 1955); Bass v. Allstate Ins. Co., 77 N. J. Super. 491, 195 (App. Div. 1962). Substantively our courts have previously dealt with “no action" clauses. In Condenser Service, etc., Co. v. American etc. Ins. Co., 45 N. J. Super. 31 (App. Div. 1957) the court said in describing a “no action” clause virtually identical to the one in the instant policy:

The basic purposes of this language are (1) to avoid joinder of the insurance company by the injured person in the damage action against the insured, and (2) to prevent suit against the carrier by the insured person or the insured until the damages have been fimed by final judgment after trial of that action or by proper agreement, [at 44; emphasis supplied]

Thus it emerges that prior to suing its carrier the insured must have in hand a final judgment of damages or a settlement agreement of “proper” form, that is, one involving the insurer as well as the claimant. In the event that the insured does not have either judgment or settlement and nonetheless commences suit against the insurer, the carrier can set up the failure to comply with the condition as a defense.

Applying these principles to the facts of this ease it is clear that plaintiffs’ action is barred by Condition No. 5 of the policy. To date there has been no judgment returned against insured nor, according to the proofs submitted, has there been any settlement involving the insured, the insurer and the claimant. Absent such proceedings, Condition No. 5 is not complied with, and without such compliance action against defendant by plaintiffs is barred.

As noted previously, the one caveat to the raising of conditions precedent as defenses is that there be no waiver or estoppel. Plaintiffs here contend that defendant is subject to such a bar because of its disavowal of liability under the policy. A review of the facts of the ease and the authorities for the caveat undermine this contention. In order for a denial of liability to constitute a waiver of the right to raise a condition of the policy, such denial must be wrongful and unequivocal. State Ins. Co. v. Maackens, 38 N. J. L. 564 (E. & A. 1876); Evans v. Farmers' Reliance Ins. Co., 110 N. J. L. 159 (E. & A. 1933); Capece v. Allstate Ins. Co. v. State Farm, etc., Ins. Co., 86 N. J. Super. 462 (Law Div. 1965); N. J. Mfrs. Ind. Ins. Co. v. U. S. Cas. Co., 91 N J. Super. 404 (App. Div. 1966). In the instant case the insurer did not wrongfully and unequivocally deny liability. Rather, it stated that as to the specific claim asserted bjr Union, it had no liability'-, a statement which was accurate under the terms of Part I of the policy. As to the question of an estoppel, plaintiffs have failed to show facts upon which such an argument would rely, namely, a misleading or inaccurate repreesntation of material facts with an intent to induce reliance upon which plaintiffs did, in fact, rely to their detriment. Musconetcong Iron Works v. D. L. & W. Ry., 78 N. J. L. 717 (E. & A. 1910); Feldman v. Urban Commercial Inc., 70 N. J. Super. 463 (Ch. Div. 1961). There is no basis upon which defendant insurer should be forestalled from raising Condition No. 5 as a defense to plaintiffs’ action. Since Condition No. 5 of the policy is applicable and plaintiff has failed to comply with its terms, it constitutes an absolute defense to plaintiffs’ suit at this time. Such being the case, judgment is entered in favor of defendant American Insurance Co. and against plaintiffs.


author: Monaghan, J. D. C.,

text:
    LEON J. KIRYLAK AND LUCY KIRYLAK, HIS WIFE, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE BOROUGH OF EDGEWATER, DEFENDANTS. THOMAS BRADLEY, PLAINTIFF, v. BOROUGH OF EDGEWATER, DEFENDANT.
    Superior Court of New Jersey Law Division
    November 20, 1974.

      Messrs. Wittman, Anzalone, Bernstein & Dunn, attorneys for plaintiffs Kirylak.

      Mr. William C. Meehan, attorney for defendants.

      Messrs. Fierro, Fierro & Mariniello, attorneys for plaintiff Bradley.
   Monaghan, J. D. C.,

Temporarily Assigned. There are two actions involved here which have been consolidated. One was instituted by plaintiff Thomas Bradley to compel the Borough of Edgewater to enforce the provisions of N. J. 8. A. 39 :4-136, which will be discussed hereinafter. As a result of action taken by the council in passing an ordinance regulating parking, this complaint actually becomes moot.

The second suit is brought by homeowners, husband and wife, in which they basically seek to set aside an ordinance of the Borough of Edgewater, viz. Ordinance No. 548-73, which prohibits all parking on Leary Lane, where plaintiffs own a home.

The Kirylaks moved into Edgewater on September 15, 1962. Leary Lane is a dead-end street that runs for approxi-ately 220 feet and has a paved surface approximately 16 feet wide. There is only one point of ingress-egress from River Road. On August 15, 1973 the Kirylaks moved out of Edge-water although they retained ownership of that home and rented it. During their 11 years of residence on Leary Lane, the Kirylaks and all other homeowners were allowed to park legally on the north side of the street. The ordinance in question was passed in November 1973. The lot at 5 Leary Lane is residential, with a 40-foot frontage. There is no driveway or garage. This lot is approximately 4yí feet above street level.

While residing in Edgewater the Kirylaks and others had often complained to borough officials about parking problems on their street. Frequently the driveways and paths leading to these homes had been obstructed by parked cars. With the passage of time the problem worsened. A three-family home was built on Leary Lane in 1972 as a result of a court order overruling the determination of the board of adjustment. Finally, in November 1973, as a result of a petition by most of the property owners on Leary Lane, the Edgewater council passed the no-parking ordinance. All of the property lots on Leary Lane, except for the Kiry-laks, have off-street parking facilities.

On-street parking is available on certain sections of River Road, which is located at the beginning of Leary Lane, although all parties admit that this street is a busy and dangerous roadway. The problems posed by parking on Leary Lane are not confined to obstructing driveways. Although there have been no serious incidents, concern has been expressed by fire and police officials about the accessibility of Leary Lane to emergency vehicles if cars are parked on one si de.

The ordinance in question was first proposed at the Edge-water council meeting of October 2, 1973. The entire ordinance was not read, but simply the title. Subsequently the borough clerk sent a copy of the proposed ordinance to the Department of Transportation in Trenton for its approval. This department suggested that the proposed ordinance be changed to provide for lower violation penalties. The clerk made this change without a resolution or formal amendment by the council. The revised ordinance was then properly published naming November 8, 1973 as the date for a public hearing. On that day the Kirylaks appeared and entered their objection to the proposed ordinance. Thereafter the ordinance was given a final reading and adopted by the council. The Kirylaks’ tenants have been given parking tickets for parking their cars in violation of the ordinance in question. Pending the final disposition of this matter, the court has stayed the daily ticketing of cars found parked on the north side of Leary Lane.

The first issue concerns the validity of the adoption of the challenged ordinance. The crux of the problem is that the ordinance finally adopted is not the same as the ordinance originally introduced because of the change in the penalty clause by the clerk. The court feels that although a technical violation of IV. J. 8. A. 40:49-2 exists, there has been substantial compliance with the statute. Thus, the ordinance is valid. The purpose of this statute is to publicize proposed legislation and provide an opportunity to object. The Kirylaks had this opportunity here, for the ordinance published in the newspaper was the same as the one finally adopted. See McQuillin, Municipal Corporations, § 16.10, at 145, and Campbell v. Teaneck, 101 N. J. L. 461 (Sup. Ct. 1925). Cf. Stirling v. Plainfield, 136 N. J. L. 38 (E. & A. 1947), and Masnick v. Mayor, etc., Cedar Grove Tp., 99 N. J. Super. 436 (Law Div. 1968).

Plaintiffs also contend that the ordinance in question is not a valid regulation of parking, as permitted by N. J. 8. A. 39 :A-197, but instead is a prohibition of all parking. It is urged that this is a valid distinction. The court feels to the contrary. N. J. 8. A. 39 :A-136 prohibits parking when there is less than 15 feet of clear passage from the side of a parked vehicle. To allow parking on Leary Lane would violate this statute.

Plaintiffs further allege that the ordinance is invalid because it is unreasonable and places an undue burden on their property. It is not unreasonable because, as previously mentioned, the state statute prohibits parking where there is less than a clearance of 15 feet. Here, unquestionably, there is considerably less than this distance if parking is permitted on either side of the street. Moreover, this is not the only street in Edgewater where parking is prohibited on both sides of the street. On March 16, 1954 a parking ordinance was passed which prohibited parking on both sides of 13 streets.

Plaintiff’s argument that the ordinance places an undue burden on their property is more persuasive. A driveway could be constructed on their property. However, although there is a wide range in the testimony regarding cost of installation, the court finds that it would be substantial. Moreover, there would be a severe grade because of the difference in elevation between the property and the street. Aesthetically a driveway would be extremely detrimental.

Plaintiffs argue that there are alternative methods of solving the problem which would cause less hardship to them. Eor example, one proposal is to condemn certain property and widen the street in an area opposite plaintiffs’ property. However, the court cannot and will not substitute its discretion for that of municipal authorities on the choice of alternatives. Bruno v. Long Branch, 35 N. J. Super. 304 (App. Div. 1955); Travis v. Borough of Highlands, 136 N. J. L. 199 (Sup. Ct. 1947) and Peoples Rapid Transit v. Atlantic City, 105 N. J. L. 286 (Sup. Ct. 1928).

Plaintiffs place great stress on the ease of Giant Tiger Corp. v. Trenton Board of Commr’s, 11 N. J. Misc. 836 (Sup. Ct. 1933). In that case a commercial tenant brought an action against Trenton for adopting an ordinance that banned all parlring on the street leading to his business. The court found that ordinance unreasonable, as there appeared to be no justification for this parking ban. The court said (at 809) : “The burden is upon the prosecutors to show that an ordinance was unreasonable, and we think that they have carried that burden.” See also, Pivnick v. Newark, 14 N. J. Super. 134 (Law Div. 1951). This court agrees with that statement, but feels that in this case plaintiffs have not sustained the burden of proof necessary to void the questioned ordinance. Edgewater was faced with a serious problem, viz., parking of vehicles on a street that is too narrow. The residents on Leary Lane, including the Kirylaks while they lived there, have long been urging the Edgewater council to help with this problem. It is true that, as property owners, the Kirylaks have some interest in the use of the street in front of their home. However, this interest is clearly subordinate to the good of the general community. Morris v. Eisner, 96 N. J. Eq. 538 (Ch. 1924); Newark v. Local Government Board of N. J., 133 N. J. L. 513 (Sup. Ct. 1945). Cf. Haggenjos v. City of Chicago, 336 Ill. 573, 168 N. E. 661 (Sup. Ct. 1929), and Salomone v. City of Canton, 30 Ill. App. 2d 474, 175 N. E. 2d 663 (App. Ct. 1961). Moreover, the purchase price of this residence in 1962 had to reflect the neighborhood as well as the lack of parking facilities.

I find in favor of defendants. While I appreciate the predicament plaintiffs find themselves in, I do not believe they have proven unreasonableness to a degree that will overcome the presumption in favor of the validity of the ordinance. Rudderow v. Mt. Laurel Tp. Comm., 121 N. J. Super. 409 (App. Div. 1972); Gold v. Trenton, 121 N. J. Super. 137 (App. Div. 1972); Hourun v. Union Tp. Comm., 99 N. J. Super. 58 (App. Div. 1968).

The problem is one that plagues many older communities in-New Jersey which were developed long before the automobile and present-day planning concepts. There is no happy solution which does not cause severe inconvenience to property owners. Nevertheless, for the good of the community and in the interest of safety, the rights of the public as a whole must be paramount. Cf. DeLorenzo v. Hackensack, 9 N. J. 379 (1952).

Judgment for defendants in both actions.


text:
    TOWNSHIP OF MANALAPAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, IN THE COUNTY OF MONMOUTH, PLAINTIFF-RESPONDENT, v. GERALD K. LOEB, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 2, 1974 —
    Decided December 16, 1974.
    Before Judges Miguels, Morgan and Milmbb.

      Mr. William J. Hamilton, Jr., attorney for appellant.

      Mr. Marvin E. Schaefer, attorney for respondent.
   Per Curiam.

Judgment of the Chancery Division is affirmed substantially for the reasons set forth in the opinion of Judge Lane, 126 N. J. Super. 277.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALFRED COLE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 19, 1974 —
    Decided December 19, 1974.
    Before Judges Matthews, Fritz and Botter.

      Mr. Stanley Marcus, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Richard W. Berg, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Pee Cubiam.

Defendant appeals his conviction of attempted larceny, after trial by jury, on the sole ground that the trial judge improperly refused defendant’s request to have a polygraph examination ordered as “the prosecutor arbitrarily refused to agree.” The apparent (but not real) and engaging simplicity of such a ground camouflages the overtones which both complicate the determination of the issue and mandate an affirmance of the judgment below.

Defendant is not unaware of New Jersey’s historic rejection of polygraph evidence. State v. Walker, 37 N. J. 208 (1962), cert. den. 371 U. S. 850, 83 S. Ct. 89, 9 L. Ed. 2d 86 (1962); State v. Driver, 38 N. J. 255 (1962); State v. Peetros, 45 N. J. 540 (1965); State v. Kavanaugh, et al., 52 N. J. 7 (1968), cert. den. sub nom. Matzner v. State, 393 U. S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968); State v. Royster, 57 N. J. 472 (1971), cert. den. 404 U. S. 910, 92 S. Ct. 235, 30 L. Ed. 2d 182 (1971). He seeks nevertheless to widen the small aperture of State v. McDavitt, 62 N. J. 36 (1972). At trial, defense counsel, conceding his inability to offer the authority of any New Jersey case for his motion to compel the prosecutor “to allow my client to submit himself to a polygraph examination,” candidly advised the court, “What I am seeking essentially is an extension of State v. McDavitt."

At the outset it is notable that this effort was launched (a) without accompaniment by any tender of proof respecting the reliability of the polygraph, and (b) in the face of the assertion by the prosecutor that since his investigation indicated defendant had been drinking, he could not in any event agree to the likelihood of reliability of the polygraph in the circumstances here present. Defendant sought an “evi-dentiary hearing” on reliability (presumably both absolutely and in the context of the fact of the drinking here present), but did so on a “let’s find out” basis. We are not confronted with a situation where the trial judge improperly refused an offer of proof. Properly he refused to let his courtroom become a classroom in which the defense and the prosecution might initially ascertain whether our knowledge of the reliability of polygraphy has increased since. State v. Walker, supra. This deficiency in the proposal of defendant is all the more remarkable because this was the second time the case was tried; the first trial resulted in a jury that was unable to agree.

We might well affirm on the easy ground that defendant failed to demonstrate, in the circumstances of this case, that the prosecutor was arbitrary in his refusal to agree to a polygraph examination, and that, therefore, the discretion of the trial judge was not mistakenly exercised. However, such a succinct statement might invite two erroneous conclusions : First, that McDavitt imposes upon law enforcement officials the obligation to consent to a polygraph examination unless nonconsent can be justified; and, second, that Mc-Davitt constitutes a judicial pronouncement of demonstrated reliability of the polygraph absent a stipulation by both parties as to its use. Neither of these postulates is sound.

In view of the exceptional circumstances of McDavitt and the consistency with which our Supreme Court has continued to reject polygraph testing as evidential, we conceive McDavitt to concern itself more with the effect of stipulations designed to reach the truth in the trial court than with polygraphs, and this despite expression therein taking judicial notice “of the fact that polygraph testing is used extensively by police and law enforcement agencies, government agencies and private industry for investigative purposes. * * * Its growing use as a scientific tool cannot be doubted.” In essence McDavitt holds that while polygraph testing has not yet been demonstrated to be sufficiently reliable to be used evidentially, its increased use justifies enforcement by the court of a freely made stipulation between the parties relating to that use.

Any other interpretation would, in effect, compel law enforcement authorities to accede to the use of the polygraph unless they could produce an objection better than that its reliability had not yet been proved. We do not think this far sweep was the intent of McDavitt.

With respect to polygraph testing, the record before us requires us to say, as was early said in State v. Walker, supra:

In the present case the defendant failed to offer any evidence indicating that there is at this time a general scientific acceptance of the reliability of a polygraph. * 9 *
•:= * s; [W]e do not have sufficient knowledge to say the polygraph has or has not attained that degree of accuracy to warrant our taking judicial notice that it is or is not a reliable aid in learning the truth. [37 N. J. at 216]

See also State v. Melvin, 65 N. J. 1, 20-21 (1974).

The law of some other states and that which has been written in some texts is a totally insufficient foundation to undergird our taking judicial notice of the reliability of polygraph testing, contrary to prior holdings by our Supreme Court, in the absence of proof.

Affirmed.


text:
    JOHN MELENDY AND CAROLYN MELENDY, PLAINTIFFS-RESPONDENTS, v. WOODBRIDGE GARDENS, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 26, 1974 —
    Decided December 19, 1974.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Harry R. Howard, attorney for appellant.
    Mr. John Melendy and Mrs. Carolyn Melendy, pro se.

   Per Curiam.

Appellant corporation, a landlord, was sued in the small claims division by respondent tenants for the return of balance of security deposit. The landlord had previously returned $120.60 of an original deposit of $315, having deducted and retained a sum equal to half a month’s rent plus a total of $100 for other items, including cost of repainting, which the landlord claimed the tenants were obligated to pay upon termination of the tenancy.

The trial judge directed that judgment be entered in favor of the tenants for the remaining balance of the deposit without allowing any deduction to the landlord. Although he made no findings of fact or conclusions of law other than as are implied in his directions for judgment, it is apparent that he disallowed the items for repainting and the like on the ground that the lease did not impose such termination expenses on the tenants. The landlord does not appeal from this finding. The sole ground for appeal is that the trial judge did not permit the landlord’s set-off or deduction for the one half month’s rent.

Although it is apparent that there was basis for dispute as to whether the landlord was entitled to such deduction on the facts, the trial judge did not pass upon the merits. He simply took the position that the matter was not properly before him, stating to the landlord’s attorney, “There is a remedy for that, isn’t there, which is outside the security for deposit.” The landlord claims that the trial judge erred in declining to pass upon the propriety of the deduction. We agree and reverse.

Although R. 6:3-4 provides that summary actions between landlord and tenant for the recovery of premises and forcible entry and detainer actions shall not be joined with any other cause of action and that a defendant may not file a counterclaim or third-party complaint in such proceedings, it is clear that there is no similar restriction on an action in the small claims division for recovery of a security deposit. The statutes contemplate that all disputes relating to such deposit shall be resolved in the one proceeding.

, By L. 1970, c. 188, the statutes relating to jurisdiction of the small claims division were amended to specifically vest jurisdiction in that division, coextensive with the jurisdiction of the county district court, of matters relating to security deposits. N. J. 8. A. 2A :6-43 was amended to provide that, in addition to actions in contract and actions for property damages resulting from negligence in a motor vehicle accident where the matter in dispute does not exceed $200, the small claims division should also have jurisdiction of “actions between landlord and tenant where the matter in dispute is the return of all or part of a security deposit * * * where * * * the matter in dispute does not exceed * * * $500.00 * * N. J. 8. A. 2A :6-44 was amended to provide, among other things, that “[t]he plaintiff in a complaint or the defendant in the counterclaim or third-party complaint may waive the excess over * * * $500.00 in the matter oí a security deposit in order to bring the respective claim within the jurisdiction of the division of small claims * *

These statutes by their express terms not only envisage that the entire dispute involving the determination of the ultimate amount to be returned to a tenant on a security deposit may be resolved in one action in the small claims division but also provides that such action may be asserted in a counterclaim or third-party complaint and thus he heard with other matters.

The same clearly appears from the statutes dealing specifically with security deposits. These statutes were revised and amended in 1971 (L. 1971, c. 223). N. J. 8. A. 46:8-19 and 46:8-20 recognize that deposits are permitted as security for the full performance of all of the terms of a lease including provisions for payment of rent. N. J. 8. A. 46 :8-21.1, dealing with returns of deposits, provides:

Within 30 days after the expiration of the term of the tenant’s lease or licensee’s agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant's portion of the interest earned thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement. Any such deductions shall be itemized and the tenant or licensee notified thereof by registered or certified mail. In any action by a tenant or licensee for the return of moneys due under this section, the court upon finding for the tenant or licensee shall award recovery of double the amount of said moneys, together with full costs of any action.

The broad scope of these statutes makes it clear that the Legislature intended to vest in the small claims division and in the connty district court jurisdiction to dispose in one action of all disputes relating to the amount to he returned to tenants on security deposits including, if involved in the particular case, the determination of the propriety of a deduction made by the landlord for unpaid rent at the termination of the lease or for damages for failure of the tenant to comply with the terms of the lease or tenancy. See Berzito v. Gambino, 63 N. J. 460, 469 (1973); Watson v. Jaffe, 121 N. J. Super. 213 (App. Div. 1972); Tanella v. Rettagliata, 120 N. J. Super. 400, 410-413 (Cty. D. Ct. 1972); Burstein v. Liberty Bell Village, Inc., 120 N. J. Super. 54 (Cty. D. Ct. 1972); Brownstone Arms v. Asher, 121 N. J. Super. 401 (Cty. D. Ct. 1972).

The landlord was therefore entitled to have his claim heard and disposed of on the merits. We reverse and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction.

       All the facts were not developed at the hearing below and the evidence was sparse. It is clear that the original lease ran for one year from June 1, 1972 to May 31, 1973. The tenants held over and presumably became month-to-month tenants. N. J. &. A. 46:8-10. They gave only three days notice that they were vacating on August 1, 1973. A new tenant was secured as of August 15, and the landlord claimed that, since the tenants were required to give 60 days’ notice of termination under the written lease (or one month’s notice as month-to-month tenants) they were required to pay an amount equal to one-half month’s rent as rent for as damages for premature termination. The tenants testified that they left because of unremedied problems with water bugs, cockroaches and mice, and this raised a question of their right to leave without notice because of constructive eviction. The factual questions were not resolved — and may be presented at a remand hearing.


author: Crane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HAROLD BRUCE HOUSMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 10, 1974 —
    Decided December 19, 1974.

      Before Judges Cauton, Ceaíte and Kona

      Mr. John DeNoia argued the causes for appellant (Messrs. Adams, DeNoia & Cassese, attorneys).

      Mr. Peter N. Gilbreth, Deputy Attorney General, argued the cause for respondent (Mr. William, P. Hyland, Attorney General of New Jersey, attorney; Mr. Robert H. Klausner, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

Defendant was convicted of the offense of driving while under the influence of alcohol, in violation of N. J. 8. A. 39:4-50(a). As a second offender he was sentenced, in the municipal court, to 90 days in jail, a 10-year revocation of driving privileges and a $15 fine plus costs of $15. On appeal to the Warren County Court defendant was again found guilty. The sentence imposed was a 90-day jail term, a 10-year revocation of driving privileges and costs of court amounting to $15.

Defendant contended before the County Court, as he does here, that he is a chronic alcoholic and that as such a person he is not responsible for his behavior when intoxicated and thus should be immune from criminal prosecution. He also argues that the mandatory imprisonment requirement of N. J. 8. A. 39:¿U50(a) for second offenders is discriminatory and constitutes cruel and unusual punishment, in violation of United States Constitution Amend. VIII N. J. Const. (1947), Art. I, par. 12, when applied to a chronic alcoholic.

Initially, we note that the validity of the mandatory imprisonment provisions of N. J. S. A. 39:4-50 (a) is not subject to doubt. State v. Johnson, 42 N. J. 146, 174-176 (1964). And suspension of the jail sentence out of concern for defendant’s status as an alcoholic would have been an abuse of discretion on the part of the trial judge. State v. Sheppard, 125 N. J. Super. 332 (App. Div. 1973), certif. den. 64 N. J. 318 (1973).

In this State we have continually adhered to the view that the voluntary ingestion of drugs or alcohol in itself is not a valid defense to criminal charges. State v. White, 27 N. J. 158, 165 (1958); State v. Wolak, 26 N. J. 464, 477 (1958). Although it could conceivably be held beyond the power of a State to impose penal sanctions for the mere status of being a chronic alcoholic, see Robinson v. California, 370 U. S. 660, 82 S. Ct. 1417, 8 L. Ed. 758 (1962), reh. den. 371 U. S. 905, 83 S. Ct. 202, 9 L. Ed. 2d 166 (1962), the imposition of sanctions for the doing of an act inimical to the public good while under the influence of alcohol does not constitute cruel and unusual punishment. Powell v. Texas, 392 U. S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968), reh. den. 393 U. S. 898, 89 S. Ct. 65, 21 L. Ed. 2d 185 (1968).

Whatever may be said by way of concern for alcoholism as a disease, and for the unfortunate plight of those who are afflicted, the danger presented to the public is the same whether the intoxicated operator of a motor vehicle is an occasional or a chronic drinker. The demand for public safety and security remains a paramount consideration. State v. Maik, 60 N. J. 203, 215 (1972).

The penalties prescribed in N. J. S. A. 39 :4-50(a) were designed to have a deterrent and preventative effect upon those whose continued disregard of the safety and welfare of other members of the public is manifested by a second conviction. State v. Sturn, 119 N. J. Super. 80, 82 (App. Div. 1972), certif. den. 61 N. J. 157 (1972). Those penalties are applicable to all persons who are found guilty of operating a motor vehicle under the influence of intoxicating liquors whether they are chronic alcoholics or occasional imbibers. We find no unconstitutional discrimination. Robson v. Rodriquez, 26 N. J. 517, 523 (1958), nor any violation of tin' constitutional proscriptions against cruel and inhuman punishments. Powell v. Texas, supra.

The judgment of conviction is affirmed.


text:
    TOWNSHIP OF CHERRY HILL, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, YOUTH CENTER, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND KEIM & KEIM, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS, v. NEW JERSEY RACING COMMISSION, NEW JERSEY SPORTS AND EXPOSITION AUTHORITY AND GARDEN STATE RACING ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1974 —
    Decided December 5, 1974.

      Before Judges Leonard, Seuiman and Bisghoee.

      Mr. Ralph J. Kmiec argued the cause for appellants.

      Mr. Clinton E. Cronin, Deputy Attorney General, argued the cause for respondent New Jersey Racing Commission (Mr. William F. Hyland, Jr., Attorney General, attorney).

      Mr. Andrew F. Zazzali, Jr. argued the cause for respondent New Jersey Sports and Exposition Authority (Messrs. Zazzali and Zazzali, attorneys).

      Mr. George H. Hohweiler argued the cause for respondent Garden State Racing Association (Messrs. Richman, Berry, Ferren, Hohweiler & Tyler, attorneys).
   Per Curiam.

This matter came before us on plaintiffs’ motion for a stay pending appeal. Following oral argument, by order dated November 18, 1974 we denied the stay but on our own motion pursuant to R. 2:9 — 2 accelerated the appeal and set limited time periods within which the parties might file supplemental letter briefs. Such briefs have been filed and we have considered them, as well as the original briefs filed on the motion and a transcript of the trial.

We affirm essentially for the reasons stated by the trial judge in his written opinion. We concur in his conclusion that there is no- legal impediment to the Sports and Exhibition Authority conducting a race meet at Garden State Race Track from November 25 through December 31, 1974. Further, his determination that the operation of that meet at Garden State on those dates would not amount to a public nuisance, as well as the factual findings upon which it is based, are reasonably supported by the credible evidence present in the record.

We note, moreover, the imposition of the two conditions by the trial judge which provide for an earlier termination of the daily meet and the reimbursement to the Township of Cherry Hill for all police salaries involved with respect to the handling of traffic. These conditions are not contested by defendants and will alleviate the rush hour traffic feared by plaintiffs.

Since we have affirmed the factual findings of the trial judge that the race meet would not amount to a public nuisance, we do not deem it necessary to consider his further statement that “Since horse racing at Garden State is an authorized legislative activity there cannot be an actionable public nuisance.”

Affirmed.