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

text:
    THE STATE OF NEW JERSEY, IN THE INTEREST OF E. K.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969
    Decided February 4, 1970.
    Before Judges Kilkenny, Labeecqub and Leonaed.

      Mr. John M. Carmel, Assistant Deputy Public Defender, argued the cause for appellant, E. K. (Mr. Stanley C. Van
      Ness, Public Defender, attorney, Mrs. Miriam N. Span, Assistant Deputy Public Defender, on the brief).

      Mr. George A. Cluff, Asisstant Prosecutor, argued the cause for respondent, The State of New Jersey (Mr. John G. Thevos, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

E. K. appeals from an order, dated May 21, 1969, denying his petition for post-conviction relief.

By his petition of April 28, 1969 he sought to have set aside two adjudications of juvenile delinquency made by the Passaic County Juvenile and Domestic Relations Court in 1953, and re-adjudications of the juvenile delinquencies as the result of rehearings in 1954 and 1955. E. K.’s sole claim for post-conviction relief is the assertion in his affidavit that, at the aforementioned hearings, he was not represented by legal counsel. In his words, “At no time prior to any of these aforementioned hearings was I informed of my right to have counsel appointed to represent me.”

On this appeal, E. K. relies solely on his argument that “under the authority of In re Gault [387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)] the adjudication of delinquency made in the absence of counsel must be set aside.” In other words, he contends that In re Gault is necessarily retroactive and applicable to invalidate these adjudications of juvenile delinquency extending back to 1953, 1954 and 1955.

In denying the petition for post-conviction relief the trial court concluded that the proceedings before it in 1953, 1954 and 1955 relating to petitioner “were regular considering the time at which those proceedings were conducted and that the petitioner’s present confinement is not the result of any proceedings complained of in the present petition.” The reference to “present confinement” relates to the fact that E. K. is now in our State Prison serving a 2-5 year term for robbery, a crime unrelated to the old juvenile delinquency adjudications. There are also two outstanding concurrent sentences for embezzlement and uttering forged cheeks. Pie is now more than 21 years old.

We find In re Gault inapplicable under the totality of the circumstances herein. We need not decide herein the correctness of the decision in State in the Interest of J. M., 103 N. J. Super. 88 (1968), in which the IJnion County Juvenile and Domestic Eelations Court ruled that In re Gault was retroactive. That case is factually distinguishable from the instant one. There the juvenile offender was actually in confinement at Bordentown Beformatory as a result of an earlier adjudication of juvenile delinquency, following a hearing at which he had not been advised as to his right to counsel. The petitioner in this case is not in confinement by reason of an adjudication of juvenile delinquency. He is in State Prison on the aforementioned sentences by reason of his conviction of these adult crimes.

To allow E. PL to challenge now the validity of the 1953, 1954 and 1955 adjudications of juvenile delinquency on the technical ground asserted and based upon a decision made more than 14 years later, would open the floodgates and deluge our courts potentially with challenges by thousands of convicted juvenile offenders no longer in confinement, who were adjudicated juvenile delinquents under established procedures recognized as proper at the time. We are not concerned here with a person now confined by reason of a juvenile offense.

We can anticipate that if E. K. can cause the old convictions of juvenile delinquency to be set aside, his next step would be to question the propriety of his sentence for his adult crimes on the premise that, perhaps, the presentence report in the latter case made reference to the earlier juvenile delinquency record and possibly influenced the quantum of sentence imposed, thus mandating a remand for resentencing. Others in State Prison, who had an old record of juvenile delinquency, would be prompted to follow suit. The adverse impact upon our over-burdened judicial system is obvious and incalculable. (Our Juvenile and Domestic Relations Courts are presently disposing of approximately 3000 current cases per month, according to the Administrative Director’s October 1969 report.)

It is noteworthy that in reported eases of other jurisdictions, where In re Gault has been applied retroactively on the single ground that the petitioner had been confined as a result of an adjudication of delinquency in the absence of counsel or advice as to his right thereto, the juveniles were still confined for their delinquency when the appeal was heard. Each juvenile was released pending a new hearing. See Application of Billie, 103 Ariz. 16, 436 P. 2d 130 (Sup. Ct. 1968); Marsden v. Commonwealth, 227 N. E. 2d 1 (Mass. Sup. Jud. Ct. 1967); State ex rel. La Follette v. Circuit Court of Brown County, 37 Wis. 2d 329, 155 N. W. 2d 141 (Sup. Ct. 1967).

On the question of the retroactive application of judicial decisions, the Supreme Court set down the criteria in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), as follows:

The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

It cannot be disputed that, prior to In re Gault, our juvenile courts relied upon the old standards. The disruptive effect on the administration of justice of a retroactive application of the new standards in cases such as the one before us is self-apparent.

Maryland, Yirginia and Florida have held that In re Gault did not apply retroactively where the issue to be decided was representation by counsel at a waiver hearing. See State v. Hance, 2 Md. App. 162, 233 A. 2d 326 (Ct. Spec. App. 1967), holding that retroactive application would “have a disruptive effect on the administration of ¡justice”; Cradle v. Peyton, 208 Va. 243, 156 S. E. 2d 874 (Sup. Ct. App. 1967), applying the criteria of Stovall v. Denno, supra; State v. Steinhauer, 216 So. 2d 214 (Fla. Sup. Ct. 1968), noting that juvenile proceedings are not criminal proceedings and no stigma attached to the juvenile growing out of a juvenile proceeding would justify reaching back of his release and vitiating the adjudication in the juvenile courts.

To apply In re Gault retroactively to all cases where juveniles were adjudicated delinquents, whether ever confined or not, whether presently confined or not, would really open a “Pandora’s Box” and overwhelm our court system. The insignificant good to E. K., if any there be in view of his criminal record and present long-term confinement, would not warrant such action. Ho could not at this late date be effectively tried or punished for his juvenile delinquencies, if found guilty.

The order under review, denying E. K.’s petition foT post-conviction relief, is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    FEDERAL INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. ALFRED HAUSLER, SR. AND GIZELLA HAUSLER, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969—
    Supplemental Material November 19, 1969—
    Decided January 29, 1970.

      Before Judges Gotidmann, Lewis and Matthews.

      Mr. Edward A. Olson argued the cause for appellant (Messrs. Winne and Banta, attorneys; Mr. Barry G. Evertz, on the brief).

      Mr. James B. Emory argued the cause for respondents (Mr. Joseph T-eich, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiff Federal Insurance Company appeals from a Law Division order granting summary judgment in defendants’ favor and dismissing the action. Although the grounds of defendants’ motion to dismiss were that (1) the complaint failed to state a claim upon which relief could be granted, and (2) the action was barred by the six-year statute of limitations, the motion was granted on the latter ground only.

Plaintiff had insured Joseph Walker and Sons (Walker), a member of the New York and American Stock Exchanges, under a so-called “wrongful retention bond” against loss due to the wrongful retention of securities. On or about February 10, 1961 defendant Mrs. Gizella Hausler and her son Alfred opened an account with Walker in the names of Mrs. Hausler and her husband, Alfred, Sr. The initial order was to buy 100 shares of Public Service Electric & Gas 1.40 preference common stock at 29-1/4 or better. The stock was bought at 29-1/8 and Mrs. Hausler paid Walker $2,946.06, representing the purchase price and brokerage commission. Walker sent her a confirmation of the transaction dated February 17, 1961, indicating on its face that it represented a purcha.se of 100 shares of the 1.40 preference common stock. On or about March 9, 1961 Walker sent defendants, in error, 100 shares of Public Service Electric & Gas common stock, then selling at 47.

The error was not discovered by Walker until December 1961. However, the audit made at that time did not point to the particular account involved. It was not until November 30, 1962 that an audit found the error to be in defendants’ account. On that date Frank H. Hand, the Walker representative through whom the transaction had been handled, wrote defendants advising of the error and that they had received $380 in dividends instead of the $245 which they would have received on the preference common stock. He explained that the error was clerical and attributable to the volume of business during the early part of 1961 and inexperienced help. Eland asked for defendants’ cooperation. It was not forthcoming, so that on January 4, 1963 a representative of plaintiff, which had in the meantime made good under its wrongful retention bond, met with defendants. They refused, and continued to refuse, to turn back the common stock and accept the 1.40 preference common.

Being subrogated to Walker’s rights against defendants, plaintiff brought suit to recover the loss. The complaint, filed on July 2, 1968, demanded judgment of $4,207.81, together with interest and costs. Defendants’ motion and the order here under appeal followed. In holding that plaintiff was barred by the statute of limitations, the trial judge refused to apply the so-called “discovery rule” urged by plaintiff, namely, that a cause of action accrues only when the person injured knows or should reasonably know of his injury. See Fernandi v. Strully, 35 N. J. 434 (1961); Rosenau v. New Brunswick, 51 N. J. 130 (1968); New Market Poultry Farms, Inc. v. Fellows, 51 N. J. 419 (1968), and Diamond v. N. J. Bell Telephone Co., 51 N. J. 594 (1968). Although accepting as true all the proofs offered in a light most favorable to plaintiff, together with all inferences that might reasonably be drawn therefrom, the judge said:

* * * It would seem to me from my analysis of the case, even though I accept as true the plaintiff’s contentions that it * * * did know it was damaged but didn’t know who did the damage, that this is not a good case in which to apply the discovery rule, and therefore I don’t think it is for this court to break new ground on the subject. I think it is for an appellate court. * * * I should be bound by the law as it now is, rather than say that the Supreme Court is laying groundwork for saying that there may be other situations arising and we will deal with that when it comes. * * *

The trial judge also turned' aside plaintiff’s argument that defendants were estopped from asserting the statute of limitations because they received something they were not entitled to receive and therefore should legally and morally return that which did not belong to them. In his view, estoppel was “not in the case,” as a matter of law.

N. J. S. A. 2A:14-1 requires that an action at law for taking, detaining or converting personal property be commenced within six years after such action shall have accrued. Plaintiff contends here, as it did below, that the recently evolved “discovery rule” is pertinent in any consideration of the present ease. As it views the matter, the rule would indicate that the cause of action accrued upon the date of its discovery of the identity of defendants in November 1962 as the persons who had received the common stock in error, and hence the action instituted on July 2, 1968 should not be barred.

The “discovery rule,” first enunciated by Justice Jacobs in Fernandi, above, 35 N. J.. at 450, was followed in the cases cited above. In discussing the rule in Diamond, Justice Schettino, writing for an unanimous court, noted that

In New Jersey, the discovery rule has, to date, been applied only in certain limited circumstances — in a foreign object malpractice case (Fernandi v. Strully, supra) and in the case of a negligent land survey (New Market Poultry Farms, Inc. v. Fellows, supra). We have recognized, however, that other situations may well be appropriate for extension of the same salutary rule. See Fernandi v. Strully, supra, 35 N. J., at p. 439. For reasons to be expressed, we are of the opinion that the case before us presents one such appropriate instance. [51 N. J., at 597]

Defendants contend that since Walker admittedly “discovered” the error in December 1961, the six-year limitation should run from that date and therefore the action brought in July 1968 is barred. Although they cite no decisional or statutory law in support of their position, they distinguish the discovery cases by pointing out that the rule has been applied only in cases where (1) the cause of action was discovered after the statute of limitations had run, and (2) where defendant, by his negligence or willfulness, created the condition which caused injury to plaintiff. Since Walker’s discovery of the injury occurred well before the expiration of the period of limitations, and since the conditions resulting in the loss were created by it, defendants contend that the action is barred.

That the injury and defendants’ identity were discovered before the expiration of six years from the date of the loss is irrelevant, for the Legislature has declared that a plaintiff has six years to institute suit. The critical question is the determination of the date from which the statute begins to run. The available dates are: (1) March 10, 1961, the date defendants received the stock issued in error the day preceding; (2) December 1961, when Walker discovered the error, and (3) November 30, 1962, when Walker discovered the identity of defendants. The discovery rule eases would indicate that the March 1961 date is inappropriate for commencing the running of the statute. Before discovering the error in December 1961, Walker could not have any reason for knowing that a cause of action' existed or that it had suffered injury. This leaves the December 1961 and November 1962 dates as possible marking points for the running of the statute.

The trial judge, as noted, felt that it was not for him to “break new ground” with respect to application of the discovery rule. We see no reason why the present situation is not one appropriate for a further extension of the rule. This is especially so in view of the fact that defendants, by the confirmation of sale sent them by Walker, knew the transaction covered the purchase of 100 shares of Public Service Electric & Gas 1.40 preference common stock then selling at 29-1/8 but had received the common selling at 47. They had also received in cash some seven checks representing dividends declared on the common stock, which were greater amounts than they would have received as dividends on the preference common.

Summary judgment was an inappropriate remedy in the circumstances. The matter should have been fully tried to determine (1) whether Walker knew or reasonably should have known of the error and defendants’ identity in Decernbr 1961 and, if not, whether the discovery of defendants’ identity in November 1962 was within a reasonable time; and (2) whether defendants knew of the mistake from the very beginning and therefore fraudulently concealed their windfall.

As was observed in the New Market Poultry Farms case, above, 51 N. J., at 425, there is little danger of a fraudulent, speculative or uncertain claim by reason of the passage of time, ox that defendants’ proof would be made more difficult. All persons involved in the transaction are available for a trial on the merits and plaintiff’s proofs, documentary and otherwise, are intact. See also, Fernandi v. Strully, above, 35 N. J., at 450-451.

Accordingly, the summary judgment is reversed and the matter remanded for a full trial.


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

text:
    SILCO AUTOMATIC VENDING COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. FRANK A. PUMA, LICENSE INSPECTOR, CENTRAL LICENSE BUREAU, CITY OF ELIZABETH AND THE MAYOR & CITY COUNCIL OF THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS. DIERICKX MUSIC, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. FRANK A. PUMA, LICENSE INSPECTOR OF THE CITY OF ELIZABETH AND THE MAYOR & CITY COUNCIL OF THE CITY OF ELIZABETH, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 24, 1969

    Decided February 5, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. James D. DemetraMs argued the cause for appellant Silco Automatic Vending Company (Mr. Albert 8. Gross, of counsel; Messrs. Gross & Gross, attorneys).

      Mr. Joseph A. Hayden argued the cause for appellant Dierickx Music, Inc.

      Mr. John B. Weigel argued the cause for respondents (Mr. Edivard W. McGrath, City Attorney of City of Elizabeth, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

These consolidated appeals are from a judgment of the Superior Court, Law Division, upholding the validity of ordinance No. 260 of the City of Elizabeth purporting to license and regulate pool and billiard tables, bowling allej’s, music machines (juke boxes) and other amusements and entertainment devices, and fixing the license fees to be paid.

Plaintiffs Dierickx Music, Inc. and Silco Automatic Vending Co. are New Jersey corporations engaged in the business of supplying coin-operated music machines and other amusement and entertainment devices. Both plaintiffs applied to defendant municipality for licenses under the ordinance to operate music machines. When licenses were not issued, the instant suits were filed seeking an adjudication that plaintiffs are entitled to licenses and also challenging the validity of the ordinance and particular sections thereof.

The facts are stipulated and are set forth in detail in the trial court’s opinion reported at 105 N. J. Super. 72 (Law Div. 1969). They need not be repeated here.

Ordinance No. 260, which supplants an earlier licensing ordinance, provides that the license for the operation and maintenance of a music machine shall be issued in the name of the owner thereof. The ordinance appears to require two separate licenses, namely an operator’s license as well as a license for each machine. Pertinent provisions of the ordinance are as follows:

Before a license is issued for any of the coin operated devices covered by this ordinance, the applicant for such license shall first apply for and obtain an operator’s license, the fee for which shall be (a) in the case of music machines, the sum of Two Hundred ($200.00) Dollars per year for an operator licensing and operating more than one (1) music machine, and a fee of One Hundred ($100.00) Dollars for an operator licensing and operating only one (1) music machine * * *.
A fee of $10.00 for the operation of one music machine plus a fee of $5.00 for each of such machines in excess of one in the ownership of one licensed operator * * * shall be charged to operators for the issuance of a license for each such machine or coin operated device.
The number of music machines in the City of Elizabeth and all other amusement devices in which coins are inserted, shall be limited as follows: (a) in the case of music machines, licenses shall be issued for no more than two hundred fifty (250) machines * * *.

The ordinance provides that before issuing a license the license inspector shall “determine” from an investigative report prepared by the chief of police as to “the character, moral turpitude and fitness of the applicant.” The ordinance contains no regulatory provisions affecting music machines except to prohibit the placement, operation and use of a machine within 250 feet of a church or school.

We agree with the trial court that a municipality may regulate the placement and operation of music machines under its police power, N. J. S. A. 40 :48-l and 2. Indeed, it is undisputed that the operation of juke boxes is widely regulated at the municipal level. See Annotation, “Validity, construction and application of statutory or municipal regulation of ‘juke boxes’ or other mechanical musical devices,” 151 A. L. R. 1178 (1944). 7 McQuillin, Municipal Corporations (3d ed. 1968, rev. vol.), § 24.215.

We also agree that the license fees set out in the ordinance have not been shown to be unreasonable, confiscatory, or exorbitant. A municipality may derive some revenue from a licensing ordinance even though the purpose of the ordinance is to regulate under the police power. Salomon v. Jersey City, 12 N. J. 379 (1953).

The difficulty we have with the particular ordinance is fourfold. First, the only requirement for licensing involves the investigation as to good character, moral turpitude, etc., of the owner of the machine. Since most of these machines are placed in locations on a rental or franchise basis, it would seem that the only purpose of the ordinance is to exclude suppliers having criminal backgrounds or associations. The right of the municipality to legislate in this area is questionable in the absence of some indication that the public health, welfare and morals are affected thereby. Belleville Chamber of Commerce v. Belleville, 51 N. J. 153, 157, 158 (1968). However, see Ragan v. Seattle, 58 Wash. 2d 779, 364 P. 2d 916 (Wash. Sup. Ct. 1961).

Second, the ordinance contains no standards for the license inspector to determine what persons are eligible for, or disqualified from obtaining, a license. Sueti deficiency makes the ordinance violative of the Federal and State Constitutions. Hoboken v. Bauer, 137 N. J. L. 327 (Sup. Ct. 1948).

Third, the ordinance limits the number of licenses for music machines in the municipality to 250. There is no doubt that a municipality may, in the proper exercise of its police power and in the interest of public welfare, limit the number of licenses that may issue for certain activities, such as taverns, bars, junk yards, used car lots, etc. We recognize that some control may be exercised over the number of juke boxes permitted in a municipality in the interests of protecting the public from unnecessary and unwanted noise and commotion.

Howiever, without some affirmative showing that the numerical limitation set by the ordinance bears a rational relationship to those or other aspects of the public health, welfare and morals, it would appear to be arbitrary. Messina v. Mayor, etc. of Lodi, 18 N. J. Super. 503, 510 (App. Div. 1952). It is significant that there were 272 juke boxes in Elizabeth licensed under the old ordinance, which did not limit the number of licenses to be issued.

' [6] Our fourth and most basic difficulty with the ordinance is that, save for prohibiting the placing of a machine within 250 feet of a church or school, it contains no provisions whatever for the regulation and control of the placement and location of the machines, method and hours of operation, type of entertainment presented, and the like. Such matters fall within the traditional municipal police power and have been generally upheld. Miller v. Memphis, 181 Tenn. 15, 178 S. W. 2d 382, 151 A. L. R. 1172 (Tenn. Sup. Ct. 1944). McQuillin, supra. See 1 Mmlo Model Ordinance Service (1960), c. 6, “Amusements and Recreaaiion.” Cf Moyant v. Paramus, 30 N. J. 528 (1959). However, this ordinance regulates nothing and is therefore fundamentally deficient.

For the reasons expressed, we conclude that the ordinance as enacted is an invalid exercise of municipal power and must be declared void.

We therefore reverse and remand for entry of judgment declaring the ordinance to be illegal. However, we direct that entry of judgment be withheld for a period of 90 days to afford the municipality the opportunity to pass a new ordinance which conforms to the views herein expressed. Ho costs on these appeals.


text:
    PATERSON TAVERN & GRILL OWNERS ASS’N, INC., A NONPROFIT CORPORATION OF NEW JERSEY ET AL., PLAINTIFFS-APPELLANTS, v. THE BOROUGH OF HAWTHORNE, A MUNICIPAL CORPORATION ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1969
    Decided February 6, 1970.

      Before Judges Kilkenny, Labkeoque and Leonakd.

      Mr. William J. Ros Bribery argued the cause for appellants (Mr. Georqe L. Harrison and Mr. Harold Goldman on the brief).

      Mr. Douglas 0. Bor chard, Jr., argued the cause for respondents (Messrs. Evans, Hand, Allahough & Amoresano, attornejrs).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Plaintiff appeals from the “whole” of the final judgment entered in the Law Division on June 24, 1969, whereby it was adjudged that ordinance No. 1137 of the Borough of Hawthorne is valid, with the exception of the word “improper” in section 1 thereof, which word was held to be vague and invalid.

But for that single-word exception, plaintiff’s motion for summary judgment was denied and defendants’ cross-motion for summary judgment was granted. There is no cross-appeal by defendants.

Ordinance No. 1137 was adopted on November 6, 1968. It is entitled: “An ordinance concerning employment of females on alcoholic beverage licensed premises, and further concerning indecent performances on such premises.” It contains ten sections, but our concern is with only the first six which proscribe specified activities and conduct in or on licensed premises. Section 7 fixes the penalty for each day’s violation at not more than $200. Section 8 provides for severability so that a declaration of invalidity of any provision shall not affect the remaining separable provisions. Section 9 repeals inconsistent provisions in other ordinances to the extent of their inconsistency. Section 10 provides that the ordinance shall take effect immediately upon final passage and publication according to law.

The legal standing of Paterson Tavern & Grill Owners’ Association, a nonprofit corporation of New Jersey, to challenge the validity of this Hawthorne ordinance has not been raised on this appeal by defendants. We refrain from raising that issue, sua sponte, because eoplaintiff Harry Shortway, trading as Shortway’s Barn, is a licensed tavern owner conducting his place of business in Plawthorne. He therefore is affected by its provisions and has standing.

I

Section 1 of the ordinance prohibits the employment of any person “to perform dancing or other entertainment in or upon the licensed premises * * * in a lewd, licentious, lascivious or improper manner.” With the vague word “improper” correctly stricken therefrom by the trial court, we agree that the remainder of the prohibition is valid.

Plaintiffs argue that the words “lewd, licentious, lascivious” are too vague and “catch-all,” thus failing to comport with due process because they do not sufficiently establish adequate guidelines for one to follow in determining what he may or may not do.

Our Supreme Court found no infirmity in the use of the word “lewd,” without any further definition of the term in N. J. S. A. 2A:115-1; nor with “lascivious” in N. J. 8. A. 2A:115-4. See Adams Newark Theatre Co. v. City of Newark, 22 N. J. 472 (1956). That case is dispositive of plaintiffs’ contention as to this aspect, so far as this subordinate appellate tribunal is concerned. As to the word “licentious,” the rule of sui generis controls its meaning, appearing as it does between “lewd” and ‘lascivious” in the phraseology employed.

II

Section 2 prohibits a licensee from allowing any person to appear upon the licensed premises “in any act, scene, sketch, or other form of entertainment including dancing for the benefit of patrons with either or both breasts or the lower part of the torso uncovered or so thinly covered or draped so as to appear uncovered.”

Here again, plaintiffs make the argument of “vagueness.” The use of the disjunctive “either or both breasts * * * uncovered” has reference undoubtedly to the female breast. That portion of the female anatomy needs no further description. It is recognizable by infants, and tavern owners are presumably well aware of the legislative intent. The ordinance seeks to ban from Hawthorne’s taverns and other licensed premises the “topless” and “bottomless” entertainer or dances. The community has a right to protect itself against this kind of an immoral atmosphere which exists elsewhere in the United States. Such so-called “entertainment” is nothing more or less than an appeal to the prurient interest. It is bait to bring customers to the bar and hold them there, for the obvious purpose of increasing the sale of alcoholic beverages. It may be validly curbed, as Hawthorne provides in its ordinance.

Nor do we find sufficient vagueness in the ban of the specified part of the human body “so thinly covered or draped so as to appear uncovered.” The use of thin, transparent coverings can be practically as much of an exposure as when one is totally exposed. The evil is the same. Any tavern owner can readily avoid risk of violating this portion of the section by requiring entertainers to cover the specified parts with sufficient material of fully opaque quality. It is so accomplished in T.Y. performances. The giving of an “illusion of nudeness” was deemed sufficiently precise and clear in Adams Newark Theatre Co., supra, 22 N. J., at 479.

The reference to the need of adequately covering “the lower part of the torso” is sufficient without a more elaborate definition of the portion of human anatomy comprehended. Courts have taken judicial notice of the extent of the human “torso,” and even of its average and maximum length. See Hunter v. N. Y. Ont. and, Western R. R. Co., 116 N. Y. 615, 621, 23 N. E. 9, 6 L. R. A. 246 (Ct. App. 1884). The torso is the trunk of the human body, usually measured from the end of the spine without relation to the extremities. While more blunt descriptive language might have been used, there is no mistaking the legislative intent, especially in the light of the title of this ordinance, concerned as it is with “indecent performances” on licensed premises.

III

Section 3 bans waitresses and other employees who come in contact with patrons “to appear in the presence of such patrons with either or both breasts or the lower part of the torso uncovered or so thinly covered or draped so as to appear uncovered.” In brief, the “topless” or “bottomless” waitress or employee is restricted in the same manner and to the same degree as is the tavern entertainer. We find this section valid for the same reasons expressed above in our discussion of Section 2. “They were promulgated to prevent moral contamination which the municipality feared was imminent. In substance, they contribute to the general moral welfare of its citizens and should not be declared invalid.” That statement from Adams Newark Theatre Co., supra, 22 N. J., at 480, is equally applicable herein.

IV

Section 4 provides: “No licensee shall engage, employ, allow, permit or use entertainers under the age of twenty-one (21) years.” This limitation is apparently based upon the legal prohibition in our State against the sale of alcoholic beverages to persons under the age of 21 years. But drinking alcoholic beverages and working as an entertainer in licensed premises are not necessarily related.

We take judicial notice of the fact that many nationally famous entertainers are under the age of 21 years. Banning them from earning a living in their chosen field, merely because of their age, while subjecting those over 18 to service in the armed forces, appears to be patently unreasonable. This section of the ordinance is deemed to be invalid in that it unreasonably denies persons the opportunity to earn a livelihood, prohibits licensees from engaging their services for entertainment purposes only fosters no obvious good and curbs no threatened evil. Other provisions of the ordinance already preclude lewd performances by them, and our labor laws and Á. B. C. regulations also further limit and regulate their engagements and performances.

Y

Section 5 prohibits licensees from permitting or suffering "any female person to perform for hire, and for the entertainment of patrons, any dances, ballet, aorobatics or public performances of any hind, in which body movement constitutes the principal or integral part of such performance.” (Emphasis added). Excepted from the prohibition is “playing musical instruments as a member of a band.” We need not consider this exception. We address ourselves solely to the italicized portion of the section.

The challenged portion of this section is too broad in scope. It would ban “any female person” to perform for hire and for the entertainment of patrons the most innocent “anniversary waltz” at a golden wedding celebration. Ballet, a very popular form of entertainment, would be prohibited, as would be time-honored acrobatics, Indian club juggling, or any hind of public performance which involves principally “body movement.” There is no similar prohibition as to male entertainers and no valid reason exists for the distinction under this section. We may guess at a legitimate intent and purpose in banning “body movement” by “female entertainers,” but the excessively comprehensive language employed would expose to the penalties of the ordinance the most innocent conduct. We hold this provision in section 5 to be invalid.

VI

Section VI prohibits a licensee from employing “any female bartender.” Expressly exempted from the prohibition are (a) any female licensee from tending her own bar and (b) any individual male licensee from employing his wife as bartender.

Plaintiffs claim that this section is repugnant to existing laws, giving females the right to equal opportunities of employment. Reference is made to 42 U. S. C. A. § 2000e-2 (a) and N. J. S. A. 10:1-1. We are mindful of the recent decision by our courts in Gallagher v. Bayonne, 106 N. J. Super. 401 (App. Div. 1969), affirming 102 N. J. Super. 77 (Ch. Div. 1968), and affirmed 55 N. J. 159 (1969), declaring invalid a municipal ordinance which prohibited the serving of liquor in the city’s taverns to women “at the bar.” In brief, plaintiffs maintain that a prohibition against employing “female bartenders,” with the two exceptions noted, unlawfully discriminates against women, denies them equal protection under the Jaw and violates their rights under federal and state laws.

Plaintiffs concede that “there may be areas of employment in which one might prefer not to have women employed.” There may be a legitimate discrimination in the employment field where there is a reasonable and rational basis for the discrimination. Thus, the refusal to employ women in an all-male Turkish bath establishment is justifiable because of the overriding public policy of safeguarding decency and morality. Individual rights must yield to the police powers, properly exercised in the interest of the public health, morals, safety and general welfare.

Equal protection of the law does not foreclose classification, so long as there is a reasonable basis in relation to the specific objective of the legislation. hTor is it enough to demonstrate that the legislative object might have been more fully achieved by another, more expansive classification, as for example, in the instant case, not making exception where one is a female owner or wife of an individual owner. N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295 (1957). The Legislature may recognize degrees of harm and hit the evil where it is most felt. Id., at 300.

Our Supreme Court was faced with this specific issue •—■ the legal sufficiency of a municipal ordinance prohibiting, with certain exceptions, female bartenders — in Guill v. Mayor, etc. of Hoboken, 21 N. J. 574 (1956). It held that the ordinance did not contain an inherently arbitrary or unreal classification, did not constitute an unlawful exercise of police power, and did not deny equal protection of the laws. Unless and until our Supreme Court decides otherwise, that decision is binding upon us. Eor the reasons expressed therein, we find section 6 valid. See, too, Goesaert v. Cleary, 335 U. S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948), upon which our Supreme Court relied in Quill, in which the same conclusion was reached, despite the “vast changes in the social and legal position of women.”

The judgment under review, except as modified herein, is affirmed. No costs.


author: Carton, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH MARNIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1970
    Decided February 10, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Kenneth 8. Javerbaum, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mrs. Miriam N. Span, Assistant Deputy Public Defender, on the brief).

      Mr. Charles D. Sapienza, Assistant Prosecutor, argued the cause for respondent (Mr. James A. Tumulty, Jr., Prosecutor of Hudson County, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

In 1953 defendant was convicted on indictments charging assault with a dangerous weapon, assault with intent to rob, robbery, and robbery while armed. He was sentenced to consecutive terms totalling 22 to 29 years in prison (receiving 12 to 15 years on the robbery and robbery while armed charge).

In a 1965 post-conviction relief proceeding the trial court set aside the 12 — 15-year sentence as illegal because it “lumped together” counts charging robbery and robbery while armed, thereby rendering the propriety of the minimum and maximum sentences for each uncertain. In resentencing defendant the court imposed a 10 ■— 15-year sentence on the robbery charge and a 3 — 5-year sentence on the robbery while armed count, these sentences to run concurrently with those imposed on the other indictments. Since defendant had already served 2 years, 8 months and 15 days in excess of the imprisonment which the new concurrent sentencing had allocated, he was released from prison.

In 1968, in an unrelated case, defendant was found guilty on two charges of robbery while armed and was sentenced to a prison term of 8 to 11 years. In this post-conviction relief proceeding he seeks to credit the excess time he served in prison on the 1953 conviction against the sentence he is presently serving on his 1968 conviction. We agree with the trial court's conclusion that he is not entitled to such credit.

Where an illegal sentence has been set aside and a valid one later imposed for the same offense, fair dealing as well as due process seem to dictate that credit be given for time already spent in prison. See 5 Wharton, Criminal Procedure § 2216 (Supp. 1969). But time spent in custody is required to be credited only against the sentence on the charge which brought about that custody. Cf. State ex rel. Kincaid v. State Parole Bd., 53 N. J. Super. 526 (App. Div. 1959); Lipschitz v. State, 43 N. J. Super. 522 (App. Div. 1957); State v. Van Dorn, 43 N. J. Super. 406 (App. Div. 1957); Bauers v. Yeager, 261 F. Supp. 420 (D. N. J. 1966).

However, due process does not mandate that time spent in custody must be credited against a sentence resulting from another conviction for an unrelated offense. Bauers v. Yeager, supra; United States ex rel. Smith v. Rundle, 285 F. Supp. 965 (E. D. Penn. 1968); State v. Barbato, 89 N. J. Super. 400 (Cty. Ct. 1965).

The court in Bauers v. Yeager pointed out the incongruous result which might accrue if such a contention were accepted:

* * •:< if [dUe process required such crediting] * * * that would mean that the situation could be created wherein a person might have several years of prison time to apply to a sentence for a crime that he has not yet committed or, for which he has not yet been prosecuted. [261 F. Supp., at 424]

Nor do wo believe it would be in the interest of the administration of justice to accept as a principle that time already served must be applied to any subsequent sentence. Even though that custody may have been the product of an invalid sentence, unlike money on deposit in the bank or a credit card, it may not be drawn on or credited against penalties imposed for later criminal activities. The granting of such a credit is at best discretionary, based upon the general equities of the situation, and is not a matter of due process. These requirements are certainly satisfied when an individual in defendant’s postion is afforded an opportunity to inform the court, on the sentencing for the later conviction, of his prior illegal incarceration so that it might be taken into consideration. See Bauers v. Yeager, supra; United States ex rel. Jackson v. Myers, 374 F. 2d 707 (3 Cir. 1967). This was done in the present case.

Affirmed.


text:
    IN THE MATTER OF THE ESTATE OF LENA BAYLES, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1969
    Decided February 13, 1970.

      Before Judges Sullivan, Oakton and Halpekn.

      Mr. Roger G. Ward argued the cause for appellants (Messrs. Pitney, Hardin <& Kipp, attorneys; Mr. Gordon A. Millspaugh, Jr. on the brief).

      Mr. Sam Denstman argued the cause for respondent (Messrs. Simon, Denstman & Noonan, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

The residuary legatees of the estate of Lena Bayles filed exception to plaintiff-executor’s account by which they sought to surcharge him as executor for failure to dispose of her common stock in a life insurance company which comprised slightly over 60% of the total value of the assets of the estate at the time of her death. The trial court allowed the account and overruled the exception. As a result of that determination there were no assets available for distribution to these legatees, all charitable institutions. They appeal.

Decedent died April 1, 1965. Plaintiff, the attorney who drafted the will and codicil, was named executor. On April 13, 1965 he qualified as executor. He retained his firm as counsel for the estate and he himself performed most of the legal services relating to it.

The will and codicil (which contained no trusts) provided for the payment of debts and funeral expenses, and thereafter for 26 general bequests totaling $85,500, including a $5,000 gift to plaintiff personalty. The residuary estate was bequeathed to the three charitable institutions in equal shares.

The will further provided for payment of taxes out of the residue, abatement of the general bequests in the event that the estate’s value as of decedent’s death was insufficient to pay debts, satisfaction of taxes and bequests in full, and for distribution of the bequests in kind or in money, or partly in each at the discretion of the executor.

The estate consisted of assets, valued in the account as of the date of death as follows:

Shares of common stock of American

Telephone & Telegraph Company and

Public Service Electric & Gas Company $29,226.00

3,273 shares of common stock of North American

Life Insurance Company of Chicago,

valued at 29-5/8 and aggregating 96,962.25

Bonds of St. Louis-San Francisco Railroad

and Morris-Essex Railroad, having a total value of 4,635.00

Money on deposit, mostly in bank savings

accounts, and proceeds of a small insurance policy 22,630.45

Miscellaneous furniture and chattels 278.50

Total Gross Estate $153,732.20

I11 addition, plaintiff-executor received incidental corpus items of $425.06 after decedent’s death, and income in the amount of $3,415 which was transferred to corpus and used to pay corpus obligations. Plaintiff never sold any of the 1ST.A.L. stock. Just prior to the filing of the account in February 1967 he sold the other securities at a loss of $4,783.73. Exceptions filed as to the failure to sell these secui’ities were also overruled by the trial court, but no appeal has been taken as to that part of its ruling.

In plaintiff’s account, covering the period of administration from April 1, 19G5 to February 24, 1967, he sought allowance from corpus for administration and funeral expenses and claims of creditors in the amount of $18,917.45. The major items were funeral expenses $3,792.45, Hew Jersey transfer inheritance taxes $11,395, and federal estate taxes $2,966.59.

The account discloses that during April 1966 plaintiff distributed cash bequests in the aggregate amount of $42,750 to the general legatees. This distribution represented payment of one-half of each of the individual legacies. The account also reveals that plaintiff personally advanced the sum of $14,600 between May 19, 1965 and July 5, 1966 to provide funds for the estate to pay certain obligations and to make the partial distribution just referred to. These sums advanced were later repaid by the estate to plaintiff.

At the close of the accounting period plaintiff had only the 3607 shares of N.A.L. stock (then having a market value of $12 share), along with $66.77 in cash, available to meet the balance of the general bequests, commissions, counsel fees and residuary bequests. The court, in its opinion dated August 2, 1968 approving plaintiff’s account, also approved allowance to him of $5,000 of $7,910 requested commissions and $2500 of $9,000 requested attorneys’ fees. The court also found that the executor was entitled to repayment of the $5200 balance remaining on his $14,600 loan to the estate. However, because the executor had already preferred himself by a $9400 repayment of that loan from the cash assets of the estate, the court directed that all monies allowed to him and his law firm should be satisfied in N.A.L. stock at its market price (then 16-7/16). As a result of the order of distribution ultimately entered, the 26 general legatees received payment in full, but there remained nothing for distribution to the residuary charitable beneficiaries.

The trial judge ruled that, notwithstanding “the tragic consequences” of the retention of the stock so far as the residuary legatees were concerned, the executor should not be surcharged because he had acted in good faith and his conduct was not such that he should be held personally liable. In arriving at this conclusion, he referred to the “history and spectacular performance of life insurance stock generally, with their ups and downs, generally out-stepping the overall economy.” He reviewed the price range fluctuations of the stock between 1962 and 1965 and during the period of accounting, and commented upon the executor’s awareness of the changing market and his efforts to obtain information from various sources as to market price quotations and the financial condition of the company. The residuary beneficiaries challenge the court’s ruling, maintaining that the executor should have sold the N.A.L. stock promptly after qualifying as executor and that, as a result of his failure to do so, they have sustained a substantial loss for which he should be surcharged. According to our estimation, had the stock been sold at or about the inventory price of $29-5/8 per share, an additional $60,000 would have been available to the estate, most of which would have been distributable to the residuary beneficiaries.

Eesolution of the issue involved requires a brief statement of the pertinent legal principles. It is elementary that an executor’s duties require him to reduce the decedent’s personal assets to possession, to pay her debts and those of the estate, and distribute the balance to those entitled to it under the will. See In re Armour’s Will, 33 N. J. 517, 524, 85 A. L. R. 2d 529 (1960); 1 Restatement, Trusts 2d, § 6(b), at 19 (1959).

The duties of an executor and trustee, although frequently interwoven, are distinct from a legal standpoint. Those of the executor are “limited to winding up the estate of the deceased and are temporary in their character.” 1 Scott, Trusts (2d ed. 1956), § 6, at 56-57; 1 Restatement, Trusts 2d, supra. As the court said in In re Kohler’s Estate, 348 Pa. 55, 57, 33 A. 2d 920, 921 (1943), “[t]he duty of the executor generally is not to retain and invest, but to liquidate and terminate.” Unlike an executor, a trustee’s “common duty * * * is not liquidation or distribution, but management.” 6 N. J. Practice (Clapp, Wills and Administration), § 1021, at 564 (1962). Where there are several creditors, legatees, next-of-kin, wards, cestuis que trust, the fiduciary acting on their behalf must deal impartially with them. See In re Koretzky, 8 N. J. 506, 530 (1951); 1 Restatement, Trusts 2d, § 183, at 393 (1959).

In performing these duties which the executor assumes, he must generally act with the care and skill which a man of ordinary prudence would exercise under the circumstances. See In re Koretzky, supra, 8 N. J., at 524. With respect to assets coming into his charge, the additional burden is cast upon him as fiduciary to act more cautiously than he would be required to act in the management of his own property. The following quotation from 6 N. J. Practice (Clapp, Wills and Administration), § 987, at 467 (1962), is apposite:

* # « where the opportunity for gain more than compensates for the risk of loss, an ordinary prudent man will speculate with his property; but a fiduciary may not speculate with the property in his charge. He must in that regard act more cautiously than a man of ordinary prudence; for, unlike the ordinary man, his concern is not with increasing an estate, but with preserving the principal and providing for a regular income. Moreover, if a fiduciary, such as a corporate fiduciary, is possessed of a greater skill or more facilities than those of the ordinary prudent man, he is bound to exercise the skill he has and the facilities available to him. * * *'

In the application of these general standards an executor is not ordinarily beld responsible for the mere depreciation of assets, nor for a loss due to a decline in the market merely because he does not make an immediate sale even though the nature of the security mandates that a sale eventually be made. As a corollary to this proposition, however, he may be held liable for loss if he retains stock or other securities beyond a reasonable time for sale. See Peoples Nat’l Bank & Trust Co. of Pemberton v. Bichler, 115 N. J. Eq. 617, 620 (E. & A. 1934); and see Annotation, “Liability of executor or administrator for loss by depreciation in value of securities, through retaining or deferring sale thereof,” 92 A. L. R. 436 (1934).

What constitutes a reasonable period of time within which securities should be disposed of, and whether an executor should be held responsible for loss as a result of the failure to sell them, therefore depends upon the circumstances of the particular case. It thus becomes necessary to examine the situation which confronted the executor here to ascertain whether, in failing to sell the securities, he acted with the skill and prudence required of him under the circumstances and properly exercised the discretion vested in him by the decedent.

[The court here reviewed the background facts and reached the following conclusions:]

Considering all of the circumstances, we are satisfied that plaintiff-executor did not exercise the degree of care required of him as executor to dispose of the N.A.L. stock within a reasonable time after his qualification. The estate was a relatively simple one. It contained no trusts. Its assets were made up entirely of personal property consisting for the most part of a relatively few securities. The obligations of the estate were similarly limited in number.

The executor was an attorney experienced in handling estates. Erom the very inception of the assumption of his duties as executor he was fully cognizant of the fact that the stock in question comprised over three-fifths of the estate. He was mindful that the price at which it was sold would have a vital impact on the amount the residuary beneficiaries would receive. As attorney for decedent for many years during her lifetime, and because of the fact that he himself was an investor in N.A.L. stock, he was thoroughly familiar with its speculative character and the volatile changes in its market value. Its value from an income-producing standpoint was insignificant since cash dividends amounted to only slightly over 1% of its inventoried value. Although N.A.L. was not listed in any of the exchanges, a market was made for it by some 20 brokers who dealt in this stock, and bid and ask quotations appeared regularly in the Wall Street Journal. Fluctuation was not a characteristic which developed suddenly or without warning after the executor came into possession. For example, in 1961 the market price ranged between 14-7/8 and 33-3/8; in 196.2 between 20-3/8 and 35-1/2, in 1963 between 28-1/4 and 35-1/4, and in 1964 between 31-1/4 and 40-1/8. See Moody’s Bank and Financial Manual 1641 (1965).

All of these considerations, in our estimation, mandated that the executor take reasonably prompt steps to liquidate the stock and to remove the hazard of substantial loss to the estate’s beneficiaries.

The executor’s explanation of his failure to sell any of the stock over a period of two years notwithstanding his familarity with its history and his appreciation of the fluctuation in its market value, suggests a misconception of the duties of an executor. True, he was interested in and made independent inquiries as to its “intrinsic value.” He investigated the financial condition of the company, ascertained its progress and evaluated its possibilities of price appreciation.

It was, of course, entirely appropriate for the executor to make inquiries along these lines in order to evaluate the securities and to determine when they should be disposed of. But, as our brief review of his testimony reveals, in eliciting this information the executor’s attention seems to have been focused in large measure on the market performance of the stock and oriented towards essentially investment considerations, looking to its indefinite retention rather than its disposition.

His inquiries involved' considerations which were of only peripheral concern to an executor whose duties required him to liquidate and terminate with reasonable promptness. If he was satisfied that he had no immediate need for the proceeds of the sale and that the administration of the estate might continue over an extended period, prudence dictated that such securities be liquidated and the proceeds invested in a form that eliminated, as far as possible, the risk of loss to the principal. Acting as executor, he was not privileged to seek the opportunity for gain nor to accept the risk of loss inherent in the retention of speculative securities. This is so notwithstanding his confidence that this stock “would regain its high market price, just as it had done in the years.” That he was motivated by no personal interest and acted in good faith did not justify his taking the same risks he might have taken had the stock been his own property.

No rigid or arbitrary standard has been established as to the time during which an executor must dispose of securities of a speculative character. No duty is imposed on an executor to dispose of such securities immediately without regard to the market for them or the possibility of an advance in value. Certainly, assets ought not be hastily sacrificed any more than they should be improvidently held. Each case must rest upon its own facts. Consequently, a review of the decided cases in this and other jurisdictions would serve little useful purpose. See 92 A. L. R., supra,, at 441-449 where the cases are collected.

We do not accede to the proposition now advanced by the residuary beneficiaries that the executor was obliged to sell the N.A.L. stock within 45 days of probate and that he should be surcharged on that basis. On the other hand, we do not agree that the executor had the absolute right indefinitely to postpone its disposition.

Nor does N. J. S. A. 3A:15-11 confer any such unrestricted power. It merely protects him from liability for loss by reason of the continuation, in the exercise of good faith and reasonable discretion, of investments received from the testator. The statute must be viewed in the context of an executor’s primary obligations. Eeasonable discretion still required Mm, within a reasonable time, to dispose of assets which harbored an undue risk of loss to the beneficiaries.

Nor can N. J. S. A. 3A :25-l, requiring executors or administrators “to pay and satisfy legacies” within 18 months after probate, be interpreted to relieve plaintiff of the obligation to liquidate speculative securities known to be subject to wide and frequent fluctuations. That provision establishes a period during which the executor or administrator (absent special circumstances) must take certain action with respect to the legacies. In no respect is it inconsistent with his obligation to exercise reasonable care. Compare N. J. S. A. 3A:12-5, which prohibits actions against executors and administrators (absent special leave by the court) within six months after letters testamentary have been granted, and N. J. S. A. 3A:9-2, which relieves an executor or administrator, during the year following his appointment, of his duty to account, except for special cause shown.

Similarly, the executor is not entitled to be relieved of the responsibility of exercising such reasonable care simply because the will contains an authorization to distribute in kind. That duty continued as long as the assets remained in his control. In this connection, we note the executor did not, in fact, ever exercise the discretion conferred upon him to distribute in kind and the record points to the conclusion he never intended to do so. Indeed, he recognized at an early date the necessity of selling the N.A.L. stock in order to pay the amounts bequeathed to the 26 general legatees (many of which were in amounts of $500 and $1,000). That he intended ultimately to liquidate the stock also appears from his letter of May 20, 1965 to the insurance company inquiring whether there was any present market price for these shares. We note also the executor’s remark that the legatees were clamoring for payment and Marguerite Bachelder’s insistence that her $15,000 legacy be paid in cash.

Under the particular circumstances of this case, we conclude that one year from the date of his qualification should fix the outer limit of the period during which the executor, in the exercise of reasonable prudence, should have sold the N.A.L. stock. By that time little remained, or should have ordinarily remained, for the executor to perform except duties relating to the winding up of the estate. It is true that he had considerable opportunity to sell the stock at its inventoried value on various occasions during that period. However, since the executor’s conduct was not characterized by bad faith, we deem he should not be surcharged for not selling the stock at its highest price during that one year period, but only for loss resulting from failure to sell at the market price at the end thereof. At that time the price was slightly over $20 per share.

In view of the quantity of stock involved we are of the opinion that the executor should be entitled to an allowance of one dollar per share representing any “blockage factor.” In this connection, we note that the executor owned only 3,607 shares of a total of 1,300,000 outstanding. It also appears that between 10,000 and 27,800 shares changed hands each month during 1965, and between 7,300 and 31,000 monthly in 1966. The expert witnesses seem to be in agreement that these circumstances resulted in a relatively “thin” market on this stock, and that if the executor’s holdings were sold in small blocks, a period of at least several months would be required to dispose of the entire amount to avoid an appreciable adverse effect on the market price. It was also agreed that some price concession would have to be made to the broker to protect him from loss in a changing market if the stock were sold in a single block. We arrive at the conclusion that such a blockage factor should be allowed notwithstanding the fact that the Transfer Inheritance Tax Department, in accepting the executor’s original appraisal value of 29-5/8, refused to make a similar allowance.

While we have concluded that the executor should be surcharged, we are of the opinion that under the circumstances of this ease the award of commissions and counsel fees was proper inasmuch as the services he and his firm rendered were necessary to the proper administration of the estate.

The matter is remanded to the trial court for computation of the exact amount for which the executor shall be surcharged on the basis set forth herein and the entry of an appropriate order. Interest on the amount of the surcharge shall run only from the date of original order of distribution.

       See 92 A. L. R., supra, at 442-443, indicating the variety of results reached in determining the outer limits of the proper date of disposition. E. g., In re Gray, 91 N. Y. 502 (Ct. App. 1883) (18-month period exempting executor from duty to account considered a convenient guide absent modifying facts) ; In re Douglas, 60 App.

        Div. 64, 69 N. Y. S. 687 (App. Div. 1901) (one year considered reasonable period for disposition where executor retained bonds he was not authorized to invest in with estate funds) ; In re Borell’s Estate, 256 Pa. 523, 100 A. 953 (Sup. Ct. 1917) (duty to convert personalty of estate within one year of the grant of letters testamentary disregarded by the Supreme Court and lower court) ; Grayburn v. Clarkson, L. R. 3 Ch. (Eng.) 605 (1868) (one year period triggers a prima facie rule requiring- executors to explain why they did not convert within that period) ; Hiddingh v. Denyssen, L. R. 12 App. Cas. (Eng.) 624 P. C. (1887) (six months held reasonable period for executor to sell stock).