author: Wick, J. S. C.

text:
    VIRGINIA HOTCHKIN, PLAINTIFF, v. ROBERT FRANCIS HOTCHKIN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 5, 1969.

      Mr. Louis B. Le Due for plaintiff.

      Mr. Martin L. Haines for defendant (Messrs. Dimon, Haines and Bunting, attorneys).
   Wick, J. S. C.

Plaintiff Virginia Hotehkin, the former wife of Robert Francis Hotehkin, institutes this suit for the partition of various securities which are presently held in the joint names of plaintiff and her ex-husband. Based on the testimony and exhibits presented at trial, I find the pertinent facts to be as follows:

Robert and Virginia Hotehkin were married in Urbana, Illinois, in 1938. Mr. Hotehkin is a certified public accountant and is presently an officer and investor in a rapidly growing corporate complex in the field of induction heating appliances of which Induetotherm Corp. is the parent corporation. Apparently Mrs. Hotehkin was not employed during the couple’s marriage nor is she presently employed. The Hotchkins have two children who are now emancipated and financially independent.

Eor several years prior to August 1966 Mr. and Mrs. Hotehkin experienced marital discord and unhappiness. In August 1966, when their separation was imminent, Mr. Hotehkin advised his wife that he was going to establish a "family trust” fox the benefit of her and the two Hotehkin children and that she was to select securities with a total value of $60,000 which were to constitute the assets of that trust. He also advised Mrs. Hotehkin to choose the best income-producing securities and made recommendations in this regard. The selection was to be made from a list (Exhibit P-7 in evidence) of all the stocks held in the joint names of Mr. and Mrs. Hotehkin. According to the valuations set forth in the above exhibit, the total value of the jointly held securities was $194,100 as of June 30, 1966. All the stocks included were public stock exchange securities except the Induetotherm Corp. stock, which is a closed corporation issue.

Pursuant to Mr. Hotchkin’s proposal an inter vivos trust agreement dated August 12, 1966 was drafted by Mr. Hotchkin (apparently from a form book) wherein he irrevocably assigned the selected stock to his wife and her sister as co-trustees. The terms of the trust (as amended at the request of Mrs. Hotchkin’s attorney) provided that Mrs. Hotehkin would receive all the income for her life with the limited power to invade the corpus, and after her death the remaining trust corpus should be divided equally between the two Hotehkin children. On the basis of the values submitted on plaintiff’s exhibit P-7, I find the value of the stocks selected by Mrs. Hotchkin for the trust was $60,050 as of June 30, 1966. The remainder of the jointly held stocks were valued at $34,050, excluding the Induetotherm stock and $134,050 including the Induetotherm stock. All these stocks have been left in joint name and are the basis of this suit. (Meaning stocks not selected by Mrs. Hotchkin.)

On January 17, 1967 the parties completely discontinued cohabitation at their Riverside, New Jersey, home and Mrs. Hotchkin established a temporary residence in an apartment in Collingswood, New Jersey. It was during this time period that Mrs. Hotchkin employed the services of an attorney to advise her with regard to her marital difficulties and the attendant problems. It should be pointed out that at no time prior to the actual trial of this case did Mr. Hotchkin utilize legal counsel to advise him.

Through the negotiating and drafting efforts of Mr. Hotchkin, Mrs. Hotchkin and her attorney, a final separation agreement was executed February 16, 1967. This agreement set forth provisions relating to distribution of property which referred to and were supplementary to the terms of the August 1966 trust agreement. The pertinent provisions of the separation agreement are: paragraph (2), which states that Mr. Hotchkin will pay his wife a monthly support allowance of $600 during the balance of her life or until she remarries; paragraph (3), by which he agrees to execute a new will in which he will provide that one-half of his net estate at his death would be held in trust under the trust agreement of August 1966, and by which he agreed that in the event he made any inter vivos gifts, one-half the amount thereof should be designated for the welfare of his wife; and finally, paragraph (6), wherein the parties agreed as follows:

“* * * jointly owned stocks and securities shall be returned to joint custody providing each party with access at all times. Any sale or trade shall be made by mutual consent with both parties’ signatures, the cash from a sale to he divided equally and new stocks purchased in trade to be registered in the same names as the original stocks * *

All the provisions of the separation agreement which related to support payments, property distribution and the restriction on the jointly held securities were incorporated in a judgment of final divorce which was obtained by Mrs. Hotchkin on December 5, 1967 in the State o£ Nevada.

In March 1968, several months after the judgment of divorce was entered, Mrs. Hotchkin instituted this suit for partition of real estate and the jointly held stock. Subsequently Mr. Hotchkin paid his former wife $14,000 for her interest in the Riverside home, which had been held as tenants by the entireties; therefore the claim with respect to real estate was dismissed.

The evidence adduced at trial shows that in addition to the $600 monthly support payment which Mrs. Hotchkin receives pursuant to the separation agreement, she has the following income-producing assets: stocks from the inheritance from her mother (approximate value $53,000), and a mutual fund investment valued at approximately $57,000. She also receives one-half of the dividends from the jointly held stock in dispute. Mr. Hotchkin derives his income from his salary (approximately $30,066 in 1966), the dividends of stock held in his own name, and dividends from stock held jointly; he also lias non-income producing assets such as his home, retirement trusts and life insurance.

As previously indicated, the total value of the jointly held securities to which Mrs. Hotchkin asserts her right to partition was $34,050 on June 30, 1966, excluding the Inductotherm stock. The total value of the Inductotherm stock was estimated to be $100,000 as af the same date, but because of the special restrictions on that stock it appears that the parties considered it apart from the rest of the jointly held stock when the trust agreement was executed. (These restrictions are set forth in an agreement signed by Mr. and Mrs. Hotchkin which gives Inductotherm the option to repurchase the stock if the owner is not employed by Inductotherm).

Although the equitable jurisdiction for partition of personal property is not traceable with certainty, the jurisdiction itself is unquestioned; and where a literal partition of the property is impractical, a court of equity may order a sale of the property and divide the proceeds. Martin v. Martin, 106 N. J. Eq. 258, 260 (Ch. 1930); 4 Pomeroy’s Equity Jurisprudence (5th ed.), § 1391, p. 1019; 40 Am. Jur., Partition, § 104, p. 86; 68 C. J. S. Partition § 24, p. 39. Generally, the availability of the judicial remedy of partition is a right which is incidental to the property interest of the co-tenant, notwithstanding the inconvenience or hardship it might cause one of the other co-tenants. Wujciak v. Wujciak, 140 N. J. Eq. 487 (Ch. 1947), 68 C. J. S. Partition § 21, p. 33. On the other hand, it is clear that courts of equity may place limitations on the right to partition, particularly in a case where personal property is involved, because the remedy is conceived in equity, not pursuant to a statute such as N. J. S. A. 2A :56-1 et seq., which governs partition of real property. Martin v. Martin, supra, where the court denied partition of a fund of $10,000 held by a bank under a trust agreement for the benefit of two co-tenants, on the grounds that the co-tenants had no vested possessory rights to the corpus and the objects of the trust had not been accomplished; Baird v. Moore, 50 N. J. Super. 156 (App. Div. 1958), where the court reduced a co-tenant’s share of the partitioned property to the extent that the other co-tenant had made expenditures for taxes, interest on a mortgage, and necessary repairs to the property.

In the instant case plaintiff takes the position that the issue is simply whether one of two co-tenants has a right to partition certain securities held in the joint names of plaintiff and her co-tenant. Furthermore, she argues that based on this right she is entitled to one-half of these securities. However, the operative facts previously summarized require that this court view the issue from another perspective. More specifically, where a divorced wife applies for a judicial partition of various securities held in the joint names of plaintiff and her former husband, and where those parties have previously entered into written agreements a fleeting their rights and obligations with respect to the same property, I am convinced that this court should review the legal effect of those agreements and be guided by equitable principles in seeking a fair and just determination of the property rights of the respective parties. The written agreements referred to here are the August 1966 trust agreement and the February 1967 separation agreement, both of which contain provisions fixing the property rights of Mr. and Mrs. Hotchkin.

Insofar as this case involves property settlement contracts between a husband and wife, they should be enforced in equity only to the extent that they are equitable and fair. Hudson v. Hudson, 36 N. J. 549 (1962); Raymond v. Raymond, 39 N. J. Super. 24 (Ch. Div. 1956) ; MacFadden v. MacFadden, 49 N. J. Super. 356 (App. Div. 1958). As previously indicated Mrs. Hotchkin selected securities amounting in value to approximately $60,000 for a trust fund from which she receives the income for life and a limited power to invade the corpus. The stocks selected represented approximately 64% of all the stocks jointly held at the time excepting the Induetotherm stock; it represented approximately 31% if the Induetotherm stock were included. If at the time of the foregoing transaction the joint stocks had been divided so that value of the stock assigned by Mr. Hotchkin to the trust was one-half the total value of all the stocks jointly held by these parties, then I believe there would have been a fair, just and voluntary partition by the parties which would estop either of the parties from obtaining a judicial partition at a subsequent date. 68 C. J. S. Partition § 19(b), p. 31, § 47, pp. 73 and 74.

Applying this reasoning an equitable solution to this case is as follows (see 40 Am. Jur., Partition, §§ 52, 83 and 84 regarding powers of equity court to equalize shares of respective parties in a partition suit) : With respect to the jointly held stock other than the Induetotherm shares, Mr. Hotchkin should be credited $26,000, which represents the difference in value between the stock distributed to the trust ($60,050) and the value of stock which remained in joint names (§34,050). This credit should be offset against the total value of the Inductotherm stock ($100,000). The remainder ($74,000) should be divided in half so that Mrs. Hotchkin should receive outright the amount of $37,000 in cash or in shares of Inductotherm (if the latter, the shares would still be subject to the restrictions placed thereon by the corporation). Mrs. Hotchkin is estopped from asserting a right to partition with respect to the stocks other than the Inductotherm stock inasmuch as she has received the benefit of more than one-half her share. As indicated below, this conclusion does not affect her right to receive dividends on those stocks. To allow plaintiff her right to partition all of the stock held in joint names at this time would accomplish an unfair division of the property. Clearly, the equitable maxim that he who seeks equity must do equity applies here. Forbes v. Forbes, 137 N. J. Eq. 520 (Ch. 1946).

An alternative reason for denying Mrs. Hotehkin’s claim to partition of the jointly held securities is that Mr. and Mrs. Hotchkin by the terms of paragraph 6 of their separation agreement impliedly agreed not to partition the securities in question. The principle of law which allows this conclusion is set forth in 40 Am. Jur., Partition § 5, p. 5, as follows:

“The general principle of law that tiie right to partition is absolute must be confined in its application to tenancies where the right to partition is left to result as an ordinary legal incident thereof; it was never intended to interfere with contracts’ between the tenants modifying or limiting this otherwise incidental right; nor to render it incompetent for parties to make such contracts, either at the time of the tenancy or afterwards.”

See also Yglesias v. Dewey, 60 N. J. Eq. 62 (Ch. 1900), 132 A. L. R. 666 (1941). Moreover, agreements which are implied, as well as those which are expressed, may operate to limit or modify the right to partition. Michalski v. Michalski, 50 N. J. Super. 454, 462 (App. Div. 1958); 68 C. J. S., Partition §44, p. 67. Unlike the Michalslci case, there have been no changes in circumstances since the agreement that would make it inequitable not to allow partition. Indeed, to allow the plaintiff’s demands in this case would be inequitable.

In order for an agreement not to partition to be enforceable it must be in writing and for a reasonable period of time. Ibid; Wujciak v. Wujciak, 140 N. J. Eq. 487 (Ch. 1947). A reasonable construction of paragraph 6 of the separation agreement indicates that the intention of the parties was to retain the stocks in joint custody for the joint lives unless both parties consented to a sale or trade. The parties reaffirmed this intention by incorporating the separation agreement in the divorce decree. To say that paragraph 6 does not require the parties to refrain from a suit to partition would be to consider the provision a nullity. I do not believe this is an unreasonable restraint on alienation since either the mutual consent of the parties or the death of either of them could occur anytime.

Based on the foregoing findings of fact and conclusions, a judgment should be entered under which Mrs. Hotchkin is entitled to cash or stock, as set forth above. However, the stock which remains in the joint names of Mr. and Mrs. Hotchkin retains the incidents of joint ownership (i. e., co-owner entitled to one-half the dividend, right of survivor-ship), as limited or modified by the separation agreement.


source: Caselaw Access Project

author: Hoes, J. S. 0.

license: Public Domain

text:
    DAVID F. SNOW AND BEATRICE SNOW, HIS WIFE, ROBERT BUSWELL AND HAZEL BUSWELL, HIS WIFE, JERRY F. CROWLEY AND FRANCES M. CROWLEY, HIS WIFE, JOHN S. ULLMAN AND JESSIE L. ULLMAN, HIS WIFE, ALBERT B. LETH, ROBERT LEMKE AND JEAN M. LEMKE, HIS WIFE, AND JOHN T. MLADJEN, FOR THEMSELVES AND FOR ALL OTHER RESIDENTS, TAXPAYERS AND ELECTORS OF THE BOROUGH OF AVALON SIMILARLY SITUATED, PLAINTIFFS, v. EDGAR V. H. BELL, AS A COMMISSIONER OF THE BOROUGH OF AVALON, W. DANIEL KEEN, AS A COMMISSIONER OF THE BOROUGH OF AVALON, ELLSWORTH ARMACOST, AS A COMMISSION OF THE BOROUGH OF AVALON, VIRGINIA OLER, AS BOROUGH CLERK OF THE BOROUGH OF AVALON, AND THE BOROUGH OF AVALON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided May 8, 1969.

      Mr. Morton I. Greenberg for plaintiffs.

      Mr. George H. Hohweiler for defendants Edgar V. H. Bell, W. Daniel Keen, Ellsworth Armacost and Virginia Oler {Messrs. Orlando & Cummins, attorneys).

      Mr. James A. O’Neill for defendant The Borough of Avalon.
   Hoes, J. S. 0.

Plaintiffs, consisting of taxpayers, voters and The Avalon Home and Land Owners Association, all of the Borough of Avalon, primarily seek by this action to enjoin the borough and its officials from enforcing the provisions of ordinance No. 395. Following answers made by defendants, plaintiffs moved for a summary judgment, relying on defendants’ admissions and the pleadings on file.

At the oral argument of the motion, counsel agreed that since the facts, as disclosed by said admissions and pleadings, were not controverted, the matter should be considered as if all parties moved for summary judgment and that a determination should be made on the basis of the pleadings, admissions and affidavits.

The facts leading to these proceedings disclose that the borough is governed by a three-man commission form of government as provided in N. J. S. A. 40:70-l et seq., the Walsh Act or “Commission Eorm of Government Law.” Grogan v. DeSapio, 11 N. J. 308 (1953). Por a number of years the borough had supplied its inhabitants with water drawn from wells through a system of underground conduits, charging therefor flat rates based on the size of the lateral service conductors to each property. On August 2, 1967 the New Jersey State Department of Health made a routine inspection which resulted in a report of certain defects and inadequacies in the public water system. The report, recommending action to remove the substandard conditions, suggested that the borough obtain an additional source of water. Engineering studies were made. Application was made to the Division of Water Policy and Supply (N. J. S. A. 58 :4A-14) to permit it to drill a new well and to divert water from the subterranean source. Authorizations were granted upon certain specified conditions, including a requirement that all services to consumers should be metered and bills submitted to them quarterly at metered rates.

In March 1968 the municipality adopted ordinance No. 388, entitled “Bond Ordinance Providing for Improvement of the Water Supply and Distribution System * * It described the improvements to be made in the water supply and distribution system, provided for issuance of $468,000 bonds to finance the improvement, and appropriated this sum therefor. The ordinance also contained provisions calculated to comply with thé Local Bond Law, N. J. S. 40A :2—1 et seq. In November 1968, by ordinance No. 388-1, the authorized amount of bonds to be issued and the appropriation were increased to $584,000.

On December 18, 1968 the borough adopted ordinance No. 395, the operative effect of which plaintiffs seek to enjoin. It regulates the use of water, fixes metered rates and sets out rules and regulations with respect to the supply and distribution.

On December 27, 1968 a petition was filed with the borough, signed by more than 15% in number of the electors of the entire vote cast at the last general municipal election. The petition requested that defendants suspend operation of the ordinance. When, on January 6, 1969, the governing body rejected the petition by a formal resolution, this action was instituted.

Plaintiffs contend that the provisions of R. S. 40:74-5, by virtue of the terms of which the petition was filed, mandate the suspension of the operation of the ordinance, so that the borough commissioners are obliged either to repeal the ordinance or submit it to the voters by means of a referendum. Defendants are of the view that the filing of the petition is without effect upon the ordinance.

Since plaintiffs never sought a referendum with respect to ordinances 388 or 388-1, it is obvious (and they admit) that their real objective is to secure a decrease in the metered water rates prescribed by ordinance No. 395. They agree that the improvement in the water system is needed for reasons of public health, safety and welfare. Thus, in effect they seek to have the electorate determine the ultimate rates to be charged by securing or requiring referenda until the governing body reduces the rates to meet their approval.

N. J. S. A. 40:74-5, on which plaintiffs rely, provides:

“If within ten days after the final passage of an ordinance, except ordinances authorizing an improvement or the incurring of an indcbiedness, other than for current expenses, where other requirements are made by law, a petition signed by electors of the municipality equal in number to at least fifteen per cent of the entire vote cast at the last preceding general municipal election protesting against the passage of such ordinance, be presented to the board, it shall thereupon be suspended from going into operation and the board of commissioners shall reconsider the ordinance. If the ordinance is not entirely repealed, the board shall submit it, in the manner provided in paragraph ‘b’ of section 40:74r-14 and sections 40:74—15 to 40:74-18 of this title, to the vote of the electors of the municipality, either at the general election or at a special municipal election to be called for that purpose, and such ordinance shall not become operative unless a majority of the qualified electors voting on the ordinance shall vote in favor thereof.”

N. J. S. A. 40 :74—8 provides:

“No petition or submission to the vote of the electors shall be necessary to authorize the undertaking or completion of any work, the purchase or construction of any public utility or improvement, which any municipality may be authorized by law to undertake, purchase or construct, or to authorize the borrowing of money and the issuance of bonds or other obligations for any purpose for which any municipality may be authorized by law to issue bonds or other obligations.”

In 1917 the Home Rule Act was adopted. L. 1917, c. 152, p. 319, as amended, N. J. S. A. 40 :42-1 et seq. That part of the Home Rule Act granting powers to municipalities with respect to municipally-owned water systems, N. J. S. A. 40 :62-54, provides:

“No resolution or ordinance of any board or body of any municipality not previously supplying its inhabitants with water from waterworks owned by it, providing for the acquisition by such municipality of any existing waterworks or supply as provided in paragraph ‘d’ of section 40:62-49 of this Title shall be operative or effective until after the expiration of thirty days from its adoption or passage and after publication thereof in a newspaper circulating in the municipality. If before the expiration of such period there shall be filed with the municipal clerk a petition requesting that a referendum vote be taken on the proposed action, signed by not less than ten per centum of the legal voters who voted at the next preceding general election in the municipality, then the resolution or ordinance shall remain inoperative until the result of the referendum be determined.
Except where inconsistent herewith, the procedure in sections 40:49-9 to 40:49-ll of this Title shall apply to this section.”

Defendants first urge that N. J. S. A. 40:74—5 is inapplicable and does not require a referendum because of the provisions of N. J. S. A. 40:74-8, and that the Legislature intended that the provisions of the Home Rule Act governing municipally-owned public utilities, N. J. S. A. 40:62-1 et seq., should be exclusive and controlling. Second, that even if N. J. S. A. 40:62-1 et seq. was not intended to be exclusively controlling in the field, the statutory purposes as evidenced by these laws require a holding that the objectives of ordinance No. 395 are an integral part of the overall improvement to be effected by ordinance 388 and 388—1 so that since there was no remonstrating petition filed as to these initial ordinances, none can be effective as against No. 395.

N. J. S. A. 40:49—9, also a part of the Home Rule Act, in part provides:

“Any ordinance authorizing any improvement shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against making the improvement shall be filed in the office of the municipal clerk signed by taxpayers representing ten per cent in amount of the assessed valuation of such municipality, * * * in which case the ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, by a majority of the qualified voters of the municipality voting on the proposition. * * *”

It has already been decided that that portion of N. J. S. A. 40:74-5 relating to the operation, suspension and referendum to the voters of ordinances authorizing any improvement, was suspended or repealed by N. J. S. A. 40:49-9. Weiner v. Board of Com’rs of City of Perth Amboy, 106 N. J. L. 276 (Sup. Ct. 1930); Perry v. Borough of Deal, 103 N. J. L. 310 (Sup. Ct. 1926), affirmed 104 N. J. L. 182 (E. & A. 1927); Whetling v. Board of Com’rs of City of Orange, 94 N. J. L. 36 (Sup. Ct. 1919).

I agree with the argument of defendants that N. J. S. A. 40 :62—1 et seq. was intended to deal exclusively with municipally-owned utilities. The Legislature appears to have carved out a complete statutory scheme with respect to these. This chapter deals with all authorized municipally-owned utilities, including abbatoirs (N. J. S. A. 40:62-7), airports (N. J. S. A. 40:62-8), coal, wood and ice depots (N. J. 8. A. 40:62-10), power, heat and light plants (N. J. S. A. 40:62-12), radio stations (N. J. S. A. 40:62-26), transportation (N. J. S. A. 40:62-35) and water supply (N. J. S. A. 40: 62-47). A referendum may be requested as to certain of these, i. e., power, heat and light (N. J. S. A. 40:62-15), transportation (N. J. S. A. 40:62-36) and water supply, if not previously furnished by the municipality (N. J. S. A. 40 :62-54). Certainly as to those utilities where referenda may be required, the scheme of the Home Rule Act appears to be that the built-in referenda provisions in N. J. S. A. 40:62 are exclusive and that those provided in other statutes would not be applicable.

The entire scheme of municipally created, owned and operated water systems is incorporated in N. J. S. A. 40: 62-47 to 40:62-105. Among these are provisions to enlarge the system or components of it (N. J. S. A. 40:62-59) and to adopt ordinances and resolutions necessary and proper for the protection and operation of the system. These include the installation and protection of water meters and also for fixing and collecting the water rents or prices for water. N. J. S. A. 40:62—77.

As already observed, the provisions of N. J. S. A. 40 :74-5, with respect to improvement referenda, had been superseded by N. J. S. A. 40 :49-9. Additionally, N. J. S. A. 40:74-8 deleted the right to a referendum under section 5 with respect to the undertaking or completion of any work, or the purchase or construction of any public utility or improvement.

N. J. S. A. 40:62-54 covers the same subject as N. J. S. A. 40:49-9 insofar as municipal water utility improvements are concerned, except that it excludes an involuntary referendum if the municipality previously supplied its inhabitants with water from waterworks owned by it. This is the situation here. The two statutory provisions conflict if it is interpreted that N. J. S. A. 40 :49—9 requires a referendum and N. J. S. A. 40 :62-54 does not. This conflict points up the view that N. J. 8. A. 40 :62-54 was intended to be exclusively controlling. It will also be observed that the last paragraph of N. J. S. A. 40:62-54 provides that except when inconsistent with this section, the procedure in sections 40:49-9 to 40:49-11 shall apply.

Plaintiffs argue, however, that even if the two statutes cover the same subject, it was not intended that N. J. S. A. 40:62-54 should supersede N. J. S. A. 40 :49-9 because under N. J. S. A. 40 :49-9 a referendum may be initiated by taxpayers representing 10% in amount of the assessed valuation, but under N. J. S. A. 40 :62-54 the petition is required to be signed by not less than 30% of the legal voters who voted at the next preceding general election.

I do not believe that this contention is valid. It seems hardly likely that the Legislature intended to require a referendum under N. J. S. A. 40 :49-9 and not under N. J. S. A. 40 :62-54, without some additional language in N. J. S. A. 40:62-54 or some other section of that chapter to clarify the apparent conflict. Additionally, in cases where municipalities have not previously supplied its inhabitants with water, it seems unlikely that it was intended that referenda could be initiated under both or either of the statutes N. J. S. A. 40 :49—9 and 40:62-54. Weiner v. Perth Amboy, Perry v. Deal and, Wethling v. Orange, all supra, make it clear that the fact that N. J. S. A. 40 :74-5 required the remonstrating petition to be signed by electors equal in number to at least 15% of the entire vote cast at the last preceding general municipal election, and that N. J. S. A. 40:49—9 required such petition to be signed by taxpayers representing 10% in amount of the assessed valuation of such municipality, was no obstacle to holding that the latter statute partially superseded the former.

I believe that the provisions of ordinance No. 395 are part and parcel of the general improvement theretofore ordained. The rules and regulations which were promulgated by the ordinance under attack, as well as the metered rates fixed for Service to consumers, are provisions implementing the basic improvement.

This is a pragmatic approach as well. In view of the fact that the increased supply of water may not be utilized unless meaningful rates are required to be paid by consumers, it seems hardly likely that the Legislature intended the possible frustration of the sound purposes of the improvement ordinance by permitting the effective transfer of the rate-fixing power from the governing body to the electorate, especially in a situation where the electorate had no right to a referendum initially.

Accordingly, plaintiffs are not entitled to an injunction since the petition filed with the borough was ineffective to suspend the operation of Ordinance No. 395. Of course, if the rates conflict with constitutional prohibitions, relief may be had in an appropriate proceeding. Oradell Village v. Wayne Tp., 98 N. J. Super. 8 (Ch. Div. 1967), affirmed per curiam 101 N. J. Super. 403 (App. Div. 1968), affirmed 53 N. J. 496 (1969); P. J. Ritter Co. v. Mayor of City of Bridgeton, 135 N. J. L. 22 (Sup. Ct. 1946), affirmed 137 N. J. L. 279 (E. & A. 1948); Woodruff v. Mayor, etc., of City of East Orange, 71 N. J. Eq. 419 (Ch. 1906).

Judgment will be entered dismissing the complaint. No costs.


author: Milmbd, J. C. C.

text:
    STATE OF NEW JERSEY, v. EVERETT LeROI JONES, DEFENDANT.
    Essex County Court Law Division—-Criminal
    Decided April 21, 1969.

      Mr. Martin G. Molieran, Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Essex County Prosecutor).

      Mr. Baymond A. Brown and Mr. Irvin B. Booleer, attorneys for defendant.
   Milmbd, J. C. C.

(orally). Defendant, along with Charles McCray and Barry Wynn, was tried and convicted in the Essex County Court for unlawful possession of weapons (N. J. S. 2A :151-41). On appeal to the Appellate Division of the Superior Court, these convictions were reversed. A new trial in the matter is pending. State v. Jones, 104 N. J. Super. 57 (App. Div. 1968).

On November 6, 1967, upon the jury’s retiring from the courtroom after rendering its verdict in that case, the trial judge adjudged defendant Everett LeRoi Jones guilty of “criminal contempt” and sentenced him to a term of 30 days in the Essex County Penitentiary. The certificate of the trial judge in the matter charges contempt in two respects: (1) that on October 17, 1967, in the course of a motion to suppress evidence, the defendant “did utter in an audible and disrespectful manner his disapproval of * * * [a] ruling by the Court by an epithet descriptive of excrement * * and (2) that on October 24, 1967, during the trial of the case against defendant and his two co-defendants the following occurred:

“MR. BOOKER: Your Honor, regarding a request by Mr. Jones out of my presence while I was in the County Clerk’s Office, I was led to believe the request was made to address the Court and it was indicated to Mr. Jones that he would have the opportunity to speak to the Court out of the presence of the jury when I returned.

THE COURT: No. I said he could speak through you.

MR. BOOKER: 1 am prepared now to address the Court then on behalf of Mr. Jones.

THE COURT: I will hear you at side bar.

DEFENDANT JONES: Why can’t I make a statement?

THE COURT: Mr. Jones, I told you that you have an attorney and he may speak for you.

DEITENDANT JONES: This is something I want to say.

THE COURT: Just a minute. You are in a Court of justice and —

DEFENDANT JONES : This isn’t a Court of justice.

THE COURT: Just a minute, sir.

DEFENDANT JONES: You’re disqualified to conduct this case. I read your decision last night. You quoted this man and you quoted that. I’ll not be judged by a hundred white people in this Court. They are not my peers. They are my oppressors.

I’ll not be held by you or anybody like you.

THE COURT: Hold him there. Retain him.

DEFENDANT JONES: I’m going out of here.

THE COURT: You take him into custody.

DEFENDANT JONES: Take me into custody for what? Because I won’t be judged by this kangeroo court?

What are you pushing me for?”

On appeal to the Appellate Division, this conviction for contempt and the sentence were set aside and the case remanded to the trial court for further proceedings consistent with the Opinion of the Appellate Division, which held that

(1) “if the defendant did do and say what he was charged with doing and saying, it constituted contempt”; (2) defendant “should have been advised of the contempt charge and been given an opportunity to be heard before the judge found him guilty and sentenced him,” and (3) defendant “and his attorney should have been given the opportunity to deny the charges, or to advance any arguments they wished to make in explanation or mitigation of the offenses, and as to the punishment.”

The trial judge having disqualified himself following the remand, the case was assigned to this court for hearing and disposition.

As pointed out by Chief Justice Weintraub in his opinion for our Supreme Court in In re Buehrer, 50 N. J. 501 (1967).

“* * * (1) a contempt, in the court’s discretion, may be prosecuted summarily, i. e., without indictment and without trial by jury as provided in R. R. 4:87-1 to 4, or as a crime under N. J. S. A. 2A :85-1; (2) in a summary prosecution for contempt the punishment may not exceed six months’ imprisonment or a fine of $1,000 or both, subject to the provisions for probation in N. J. S. A. 2A:168-1 et seq.\ and (3) a summary conviction for contempt does not constitute a conviction within the meaning of statutes imposing disability or disqualification or otherwise discrediting an individual because of a prior conviction for ‘crime.’ ” (at p. 522)

In such a summary prosecution the “presumption of innocence * * * obtains, and the burden of the prosecution is to prove guilt beyond a reasonable doubt. Thus the defendant is afforded all the rights of one charged with crime except the right to indictment and to trial by jury.” Ibid., at p. 516. See also New Jersey Dept. of Health v. Roselle, 34 N. J. 331, 338-339 (1961). He cannot be compelled to testify against himself and his “guilt must be proved by judicial evidence, i. e., by testimony to which the ordinary rules of evidence are applied * * *” Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 307 (E. & A. 1914). And see In re Verdon, 91 N. J. L. 491, 496 (Sup. Ct. 1918). One of the substantial rights of the accused “is that the incriminating testimony shall be given by witnesses subject to cross-examination and impeachment under the ordinary rules of evidence.” Dorrian v. Davis, 105 N. J. Eq. 147, 151 (Ch. 1929).

In light of the disqualification of the trial judge, his certificate constitutes the pleading which defendant is called upon to answer. See In re McIntosh, McIntosh v. United States, 73 F. 2d 908, 910 (9 Cir. 1934). This he did by a plea of not guilty to the charges.

Appearing on behalf of the State in this prosecution were court officers, Kuta, Elynn, and Collan, Assistant Prosecutor Zazzali and the trial judge, each of whom testified that they heard defendant in court, on October 17, 1967, during the hearing of the motion to suppress, utter the word descriptive ox excrement. The State does not contend that the utterance of the word in any way disrupted or obstructed the pretrial proceeding then in progress, and the evidence submitted on behalf of the State shows that that proceeding continued uninterrupted and without incident immediately following the utterance. The prosecution witnesses also testified regarding the October 24, 1967 incident cited in the certificate of the trial judge. That incident took place at the Morris County Courthouse during the trial of defendant and his two co-defendants on a charge of unlawful possession of weapons, a change of venue from Essex to Morris County having been granted. Each of the witnesses who appeared on behalf of the prosecution testified to defendant’s attempt to leave the courtroom and to his reference to a “kangaroo court.” The trial judge testified that at the time in question defendant attempted to make a statement to the court; that he informed defendant that he would have to speak through his attorney, and that he made the statements above quoted, attributed to him in the certificate citing him for contempt.

Defendant testified in his own behalf. He denies that he uttered the word descriptive of excrement as charged; he says that at the courthouse in Morristown on October 24, 1967, when he said “Why can’t I make a statement?” and “This isn’t a Court of justice,” he was addressing his counsel, Booker; that when he told the trial judge that he was disqualified to conduct the case, he had reference to the judge’s opinion of October 19, 1967, which he saw for the first time on October 23, 1967, denying the motion to suppress the evidence seized; that he wanted to tell the trial judge that he was prejudiced; that his reference to a “kangaroo court” was made to people around him as he was facing the rear of the court in his attempt to leave; that one of the court officers seized him and that he fell to one knee, and that his papers and briefcase were thrown out of his hand as he was taken into custody. His trial counsel at the time, Irvin B. Booker, testified on behalf of defendant that he represented defendant at the motion to suppress and at the trial in Morristown; that defendant did not utter the word descriptive of excrement as charged in the certificate ; that at the point where it is alleged defendant uttered the word, there was no disruption of the proceeding; that in regard to the incident of October 24, 1967, he wanted to address the court to challenge the array and to request the trial judge to disqualify himself; that no written challenge to the array (see R. R. 3:7-2 (b)) or formal motion for disqualification (see R. R. 1:25B(b)) had been made; that he was not given an opportunity to address the court in regard to these matters, and that when defendant said that he had something he wanted to say, he was addressing him (Booker).

Clifton Carter testified on behalf of defendant that he was present in court on October 17, 1967 during the hearing of the motion to suppress, seated about 18 feet from defendant; that during the hearing defendant was at one point reading a book; that at that point he heard from defendant a sound, which he thought was a sigh of emotion; that defendant did not utter any word descriptive of excrement; that there was no interruption of the proceeding in progress, and that while he was present in court he heard groans from spectators.

Nettie Rogers also testified on behalf of the defendant. She stated that she was present in Court at the hearing of the motion to suppress on October 17; that she was about 18 feet away from defendant; that she did not hear defendant say anything; that there was no utterance from him; that there was no interruption of the proceeding; and that there were moans and sounds from the spectators.

Both of defendant’s codefendants at the motion to suppress and trial testified on behalf of defendant at this proceeding. Charles McCray, one of the co-defendants, testified that he was sitting right next to defendant at the October 17 session of the court, and that defendant did not say anything. He further testified that on October 24, at the trial in Morris-town, defendant was addressing his attorney Booker when he said that there was something ho wanted to say and when he said “This isn’t a Court of justice”; that one of the court officers, Black, tackled defendant, knocking him down, and that he heard the defendant refer to a “kangaroo court” while defendant was facing Black.

Barry Wynn, the other codefendant, also testified on behalf of defendant in this proceeding. He said he was sitting next to defendant in court on October 17; that the defendant did not utter the word descriptive of excrement attributed to him; that he heard some of the spectators making sounds, and that defendant did not say anything; that in regard to the October 24 incident, defendant was trying to approach Booker when he said to Booker, “Why can’t I make a statement?” He further testified that defendant mentioned to the trial judge that he had read his decision the night before and that he would not be judged by people who were not his peers, and he started to leave the courtroom, and that court officer Black knocked defendant off his feet and defendant’s briefcase fell to the floor.

Horace Brown and Theodore Pinckney both testified on behalf of defendant, attesting to his good character in the community.

Joseph Brown testified on behalf of the defendant that he was in Court on October 17th and that he did not hear the defendant say the word descriptive of excrement.

Charles Black, a court officer appearing on behalf of the State in rebuttal, testified that he was in attendance in Morristown on October 24, 1967; that he heard defendant refer to a “kangaroo court”; that he (Black) had his back to the judge at the time, and that defendant at the time was facing him and the bench.

“The word ‘contempt’ signifies a public offense. It refers to a contempt of government * * New Jersey Dept, of Health v. Roselle, 34 N. J. 331, 337 (1961). “The contempt, i. e., the public wrong, consists of a defiance of governmental authority.” Ibid. “The contempt power is essential to the maintenance of respect for the courts and such orders as may be rendered by them.” In re Newark Teachers’ Ass’n, 95 N. J. Super. 117, 120 (App. Div. 1967).

“A contempt of court has been defined as a disobedience to the court by acting in opposition to its authority, justice and dignity. Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrepute or disregard, interferes with or prejudices parties during litigation, or otherwise tends to impede, embarrass, or obstruct the court in the discharge of its duties is guilty of contempt.” In re Bozorth, 38 N. J. Super. 184, 188 (Ch. Div. 1955).

The term also includes the interruption of proceedings of a judicial body “by disorderly behavior or insolent language either in its presence or so near thereto as to disturb its proceedings or impair due respect for its authority.” 3 Wharton’s Criminal Law and Procedure § 1329, p. 700 (1957). See also 4 Blackstone, Commentaries (Lewis ed., 1922) 284-285, at p. 1674. And see N. J. S. 24:10-1 (a) and (c) and N. J. S. 24 :10-7.

The rationale of the legal offense of criminal contempt is conduct tending to obstruct the administration of justice. See Sarner v. Sarner, 28 N. J. 519, 524 (1959), certiorari denied, 359 U. S. 533, 79 S. Ct. 1137, 3 L. Ed. 2d 1028 (1959), rehearing denied, 360 U. S. 940, 79 S. Ct. 1446, 3 L. Ed. 2d 1552 (1959), rehearing denied 361 U. S. 941, 80 S. Ct. 364, 4 L. Ed. 2d 361 (1960). Onr New Jersey cases uniformly hold that any act or conduct which obstructs or tends to obstruct the administration of justice constitutes a contempt of court. In re Caruba, 139 N. J. Eg. 404, 411 (Ch. 1947), affirmed 140 N. J. Eg. 563 (E. & A. 1947), petition denied, 142 N. J. Eq. 358 (Ch. 1948), certiorari denied 335 U. 8. 846, 69 8. Ct. 69, 93 L. Ed. 396 (1948); and State v. Zarafu, 35 N. J. Super. 177, 180 (App. Div. 1955). As pointed out in In re Caruba, supra, 139 N. J. Eq., at p. 411, “ 'The essence of contempt is that it obstructs or tends to obstruct the administration of justice.’ Fox, The History of Contempt of Court 216.”

Accordingly, our inquiry here is to determine from the evidence whether any act or conduct of defendant on October 17 or October 24, 1967 while in the presence of the court obstructed or tended to obstruct the course of justice.

Erom all of the evidence in the case I find that it has been established beyond a reasonable doubt that on October 17, .1967, at the hearing on the motion to suppress evidence, the defendant uttered a word defined as “excrement” and usually considered a vulgar word, and also defined as a slang word meaning “nonsense” or “foolishness.” See Webster’s Third New International Dictionary (unabridged, 1965). In regard to the apparent inconsistency between the witnesses for the prosecution, who testified affirmatively on the subject, i. e., that they heard defendant utter the word, and the testimony of the witnesses, who testified on behalf of defendant, that they did not hear it, 4 Jones on Evidence (5th ed. 1958), § 985, pp. 1856-1857, points out:

“Testimony is affirmative or positive if it consists of statements as to what witness has heard or seen; it is negative if the witness states that he did not hear or did not see the phenomenon in question. This being the distinction between testimony which is affirmative and testimony which is negative, it is an established rule that, where the one form of statement is opposed to the other, the affirmative testimony must be deemed to outweigh that which is merely negative.
In other words, ‘the testimony of a credible witness, that he saw or heard a particular thing at a particular time and place is more reliable than that of an equally credible witness who, with the same opportunities, testifies that he did not hear or see the same thing at the same time and place.’ The reason for this rule is that the witness who testifies to a negative may have forgotten what actually occurred while it is impossible to remember what never existed.
Where two witnesses directly contradict each other, and the veracity of- neither is impeached, the presumption of truth is in favor of the witness who swears affirmatively. * * ®"

See also Rapp v. Public Service Coord. Transport, Inc., 15 N. J. Super. 305, 311 (App. Div. 1951), affirmed 9 N. J. 11 (1952).

It is undisputed that the utterance of this word did not disrupt the judicial proceeding then in progress. Here the sum total of the positive testimony of the witnesses who appeared on behalf of the prosecution, including the trial judge, was that there was no reaction or response by the court to the utterance, the trial judge stating that the court reporter raised an eyebrow when the word was uttered. While there is no reasonable doubt that the word was uttered by defendant, there is considerable doubt, particularly in light of the testimony of the witnesses for the prosecution on the subject, as to whether in the circumstances it was contumacious or obstructed or tended to obstruct the administration of justice. It is undisputed that it created no disturbance or disorder in the courtroom, and that the proceeding then in progress continued uninterrupted. As pointed out by Judge (now Justice) Haneman in In re Bozorth, supra, 38 N. J. Super., at p. 195, * * since courts in criminal contempt proceedings are sitting, to all intents and purposes, on their own function, the power to punish should be used only in flagrant cases and with the utmost forbearance. * * *” See also State v. Gussman, 34 N. J. Super. 408, 412 (App. Div. 1955) ; and see also In re Mattera, 34 N. J. 259, 272 (1961), wherein Chief Justice Weintraub points out that "The summary contempt power is indeed awesome. * * * It is a power which can be justified by necessity alone.”

Accordingly, in regard to the first charge set forth in the certification, I find defendant not guilty of contempt as charged.

In regard to the second charge set forth in the certification, I find from all of the evidence in the case that it has been established beyond a reasonable doubt that on October 24, 1967, during the trial of the case in Morristown, defendant did contumaciously and in willful disregard of the court’s directives impede and obstruct the court in the discharge of its duties, did willfully misbehave in the actual presence of the court, and by insolent language in the court’s presence did willfully disturb its proceedings then in progress, and that the contemptuous conduct of the defendant consisted of (1) his insistence that he speak to the court after having been directed by the court that he could do so only through his attorney; (2) his statements in the presence! of the court as set forth in the certification, and (3) his attempt to leave the courtroom and thereby interrupt the trial then in progress.

The phrase “kangaroo court” used by defendant is defined in part in Webster’s Third New International Dictionary, supra, as “a mock court in which the principles of law and justice are disregarded or perverted * * * a court * * * characterized by irresponsible, unauthorized, or irregular status or procedures * *

In explanation and mitigation of his conduct defendant testified that he was attempting to inform the trial judge of his disqualification to conduct the case, in light of his opinion denying the motion to suppress evidence, and that when he was not permitted to make a statement, he attempted to leave the courtroom but was detained by an order oí the court that he be taken into custody. It is here noted that on defendant’s appeal to the Appellate Division from his conviction and sentence for the unlawful possession of weapons, the Appellate Division found “that the motion to suppress the evidence seized was properly denied, for the reasons stated in the opinion of the trial judge.” State v. Jones, supra, 104 N. J. Super., at p. 66. Moreover, the proper procedure for applying to a judge for his disqualification is specifically set forth in R. R. 1:25B(b) as follows:

“Any party, on motion stating the reason or reasons therefor, may apply to a judge for his disqualification, which motion shall be made before trial or argument.”

This procedure provided by our rules was not followed. Beyond this, if defendant felt aggrieved by any action of the court, his remedy was by appeal to the Appellate Division (a remedy which, ultimately, he successfully pursued from the conviction for unlawful possession of weapons and from the conviction for contempt), and not by a contemptuous outburst such as is demonstrated by the evidence. In In re Megill, 114 N. J. Eq. 604 (Ch. 1933), it is pointed out that:

“The requirements of good government demand that judicial error be corrected in the orderly manner prescribed by law, rather than by venomous complaint * * * Our government is a government of laws, not of men; and, if orderly government survives, law must remain supreme * * * if confidence in the judicial branch of the government is destroyed we must inevitably return to trial by battle.” (at p. 609)

Accordingly, I find that it has been established beyond a reasonable doubt that defendant is guilty of the second charge of contempt of court as set forth in the certificate.

       Following sentencing procedure, a fine of $200 was imposed upon the defendant on this' conviction.


author: Lewis, J. A. D.

text:
    MARGARET SILAGY, PETITIONER-APPELLANT, v. STATE OF NEW JERSEY AND COUNTY OF MERCER, RESPONDENTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 14, 1969
    Decided May 12, 1969.

      Before Judges Sullivan, Eoley and Lewis.

      Mr. Charles J. Casale, Jr. argued the cause for appellant (Messrs. PelleUieri and Babstein, attorneys).

      Mr. Franlclin D. BenTcof, Deputy Attorney General, argued the cause for respondent State of New Jersey (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Deputy Attorney General, of counsel).

      Mr. Philip A. Levy argued the cause for respondent County of Mercer (Messrs. Levy, Levy, Albert & Marcus, attorneys).
   The opinion of the court was delivered by

Lewis, J. A. D.

By concordant determinations the Division of Workmen’s Compensation and the Mercer County Court denied Margaret Silagy’s petitions for workmen’s compensation benefits. She appeals.

The facts are undisputed, and the legal issue is one of first impression in this State.

Petitioner is a clerk employed by the State of New Jersey, Department of Labor and Industry. When leaving the Mercer County Court House after performing the duties of a juror she tripped over a rubber mat and sustained injuries to her right foot and ankle. Petitions for workmen’s compensation benefits were filed against the State of New Jersey and the County of Mercer; the petitions were dismissed on the ground that the injuries did not arise out of and in the course of an employment by either respondent.

There are decisions in our sister states which have rejected a juror’s compensation claim against a county on the theory that “his position as a juryman is not the result of a contract.” Board of Com’rs of Eagle County v. Evans, 99 Colo. 83, 60 P. 2d 225, 227 (Sup. Ct. 1936); Seward v. Bernallilo County, 61 N. M. 52, 294 P. 2d 625 (Sup. Ct. 1956); Jochen v. Saginaw County, 363 Mich. 648, 110 N. W. 2d 780 (Sup. Ct. 1961); Hicks v. Guilford County, 267 N. C. 364, 148 S. E. 2d 240 (Sup. Ct. 1966). See also comments and citations in 1A Larson, Workmen’s Compensation Law, § 56.35, pp. 1021-1023 (1967).

Petitioner argues that even if we find no liability as to the county, she should then be entitled to recover compensation as a state employee who had been temporarily released by her employer for jury duty.

In Industrial Commission v. Rogers, 122 Ohio St. 134, 171 N. E. 35, 70 A. L. R. 1244 (Sup. Ct. 1930), it was enunciated that the General Code, § 1465-61 “definitely extends” the benefits of the Ohio Workmen’s Compensation Act to all persons in the service of the state or a county “under any appointment or contract of hire, * * * except any official of the state, or of any county.” In that case claimant, after serving jury duty and while descending the courthouse steps, fell and fractured her hip. The court held that she was not an officer of the state or county within the statutory exception, and that, while exercising the function of a juror, she was an employee under an appointment of hire and was entitled to compensation.

There is no such broad coverage under the provisions of the Workmen’s Compensation Act of this State which embraces compensation for personal injuries to, or death of, an employee “by accident arising out of or in the course of his employment.” N. J. S. A. 34:15-7. An “employee,” by statutory definition, includes one

“who perform [s] service for an employer for financial consideration, exclusive of casual employments, which shall he defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring * * N. J. S. A. 34:15-36.

We are mindful of the decisional law in this State declaring that “Our act is construed to bring as many cases as possible within its coverage,” and that a broad interpretation is consistent with the general judicial policy of construing the act liberally in order to implement its beneficent purposes. See e. g., Hannigan v. Goldfarb, 53 N. J. Super. 190, 195 (App. Div. 1958); O’Brien v. First Camden Nat’l Bank & Trust Co., 37 N. J. 158, 162-163 (1962).

We also recognize plausible merit to the contention that compensation coverage should be extended to state employees while serving on jury duty. However, we are constrained to conclude that the arguments advanced by petitioner are beyond the plain language of our act and should be addressed, in the first instance, to the Legislature. As an intermediate appellate court we adhere to the existing law of the State and, in the absence of appropriate amendatory legislation, “any departure from it should be undertaken by the court of last resort, and not by the Appellate Division.” Casale v. Housing Authority, Newark, 42 N. J. Super. 52, 62 (App. Div. 1956); In re Hartung, 52 N. J. Super. 508, 511 (App. Div. 1958); State v. Moffa, 79 N. J. Super. 425, 432-433 (App. Div. 1963), reversed on other grounds 42 N. J. 258 (1964).

The judgment of the County Court is affirmed. Ho costs.


author: Per Curiam.

text:
    SILCO AUTOMATIC VENDING CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. NELLIE HOWELLS AND ROSE & HARRY JAMES, INC., A NEW JERSEY CORPORATION, AND AL’S COZY INN, INC., ALSO KNOWN AS AL’S COZY INN CORP., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued April 28, 1969
    Decided May 14, 1969.

      Before Judges Golbmann, Kolovsky and Carton.

      Mr. Bichará Jon Oontant argued the cause for appellant (Messrs. Oontant and Contant, attorneys).

      Mr. Paul Colvin argued the cause for respondents Nellie Howells and APs Cozy Inn, Inc. (Mr. Barry L. Gardner, on the brief).
    No appearance for respondent Rose & Harry James, Inc.
   Per Curiam.

After a trial in the Chancery Division, the court, for the reasons set forth in its reported opinion, entered judgment in favor of all the defendants. Plaintiff appeals.

Our examination of the evidence in the case satisfies us that the record fully supports the trial court’s findings and conclusion that the two space leasing agreements between plaintiff and APs Cozy Inn. Inc. (Al’s Inn), and plaintiff’s right thereunder, terminated upon the sale of the latter’s tavern business to Rose & Harry James, Inc. (James Inc.). We affirm that conclusion essentially for the reasons stated by Judge Matthews.

That determination is dispositive not only of the claim asserted by plaintiff against Al’s Inn bnt also of its claim against the other defendants and results in an affirmance of the judgment as to all defendants.

We therefore deem it unnecessary to deal with the questions involving the bulk sale provisions of the Uniform Commercial Code (N. J. S. 12A :6-101, et seq.) discussed in the opinion below except to make the following observations.

1. Plaintiff’s complaint was that following the sale of the tavern by Al’s Inn to James Inc., Al’s Inn “failed or refused to provide space for plaintiff’s music [and cigarette vending] machine [s] at the location [s] set forth in its agreement [s] with plaintiff, or any other location as a result of which plaintiff has suffered damages.” Since the claims thus asserted are based on events occurring after the transfer, plaintiff’s status is not that of a “creditor” entitled to the benefits of the bulk sale provisions of the Code. See N. J. S. 12A:6-109(1).

2. The holder of a plenary retail consumption license is not only authorized to sell alcoholic beverages for consumption on the licensed premises but also to sell any alcoholic beverages in original containers for consumption off the premises. N. J. S. A. 33:1-12. Whether or not a sale of a particular tavern business is subject to the bulk sale provisions of the Code will depend on whether its “principal business” is the sale of packaged beverages for off-premises consumption. See N. J. S. 12A:6-102(3) :

“The enterprises subject to this Chapter are all those whose principal business is the sale of merchandise from stock, including those who manufacture what they sell.”

The judgment is affirmed.


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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JAMES KRESS, ROBERT TROY AND JOHN JORDAN, DEFENDANTS.
    Superior Court of New Jersey Law Division—Criminal
    Decided May 9, 1969.

      Mr. Martin J. Queman, Prosecutor for Burlington County, for State of New Jersey.

      Messrs. Lord and Doyle, Attorneys for defendant James Kress {Mr. Joseph F. Doyle appearing).

      Messrs. Hartman, Bchlesinger, Manual <& Schlosser, attorneys for defendant Robert Troy (Mr. Jan M. Bchlesinger, appearing).

      Mr. Stanley G. Van Ness, Public Defender, attorney for defendant John Jordan (Mr. Harold G. White, Deputy Public Defender, appearing).
   Martino, A. J. S. C.

Three defendants stand indicted for the crime of murder. The indictment is in the usual form and alleges that they jointly, on November 7, 1968 in the Township of Cinnaminson, did willfully, feloniously and of their malice aforethought kill and murder Douglas Tyler contrary to the provisions of N. J. S. 2A :113-1 and 2A: 113-2. They stand indicted in separate indictments of lesser offenses which include conspiracy to feloniously and forcibly take and steal from the persons of employees of the Garden State Bank (N. J. S. 2A :98-1); carrying certain firearms, to wit, pistols (N. J. S. 2A :151-41); stealing an automobile (N. J. S. 2A :139-1); and robbery (N. J. S. 2A :141-1 and 2 A :151—5).

The present application is directed to the murder indictment. Defendants move to quash it and seek an Order fixing bail.

They rely on answers supplied by the State to a demand for a bill of particulars, and the transcript of the testimony taken at an in camera hearing for the fixing of bail in the case of defendant Robert Troy.

The facts which resulted in the murder indictment were these:

On November 7, 1968, while the bank was open to business, three men, who appeared suspicious to a vice-president, looking through an outside window, entered the bank. Unknown to them, he “hit” the alarm button. As they entered they drew revolvers and ordered him away from his desk. Two of the defendants leaped over a counter and herded the tellers and officers into the back room. Meanwhile, police officer John Obuehowski was in the police station when the alarm sounded there. He proceeded to the bank, alone. Upon arriving there his attention was called to two armed men who were walking toward the front door. He took a position facing the front door and pointed his shotgun toward that door. He saw a man walk out the door carrying a bag and shouted “Halt !” the man turned and ran back into the bank. At this point a woman, apparently a customer, was approaching the bank and the officer waved her away. Then another policeman arrived and was told by Obuehowski to watch the drive-in window because from that spot he was an easy target for anyone within the bank. The front door opened again, a man in a white shirt came out, apparently saw the police officer and ran back although he had also been warned to halt. The front door opened again and a man was walking in bent over position in front of one of the defendants who had a drawn gun. Obuehowski shouted “Halt!” but the first man kept coming. The officer fired his weapon and struck the first man, but before ho could shoot the armed defendant the latter returned to the inside of the bank. Obuehowski identified the armed defendant as Robert Troy. The person who was shot and fatally wounded was Douglas Tyler, a bank official. His wrists were handcuffed behind his back and a coat had been thrown over his shoulders. Statements of witnesses whose names were furnished defendants in the bill of particulars definitely and unequivocally indicated that one of the defendants ordered decedent to go with him, and this command was given shortly before they heard the shotgun blast. After the killing and the arrival of more police, defendants meekly surrendered.

Defendants contend that since the death of the bank official was caused by a policeman’s bullet, a charge of murder against them has no basis in law. The State does not agree and argues that while our statutes on murder would mark this a first-degree case, even though the lethal weapon was fired by the police officer, another aspect of the case, namely, defendants’ use of decedent as a shield in attempting to escape, would justify a murder conviction.

Pennsylvania and California have had occasion in recent years to pass upon somewhat similar situations. Each has concluded that under its statutes covering murder it is necessary, in order to apply the felony murder doctrine, to show that the conduct causing death was in the furtherance of the design to commit a felony, and death must be a consequence of the felony and not merely coincidental. Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (Pa Sup. Ct. 1958). In People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 402 P. 2d 130 (1965), the California Supreme Court held that for a defendant to be guilty of murder under the felony murder rule, the act of killing must be committed by defendant or his accomplice acting in furtherance of their common design.

Both of the cited cases arose out of a killing of a co-felon by a victim of the robbery. The present case involves the killing of an innocent person by a police officer who was called to the scene to apprehend the felons who were in the course of perpetrating a robbery.

While California has a statute defining first degree murder which is similar to ours, their definition of murder is dissimilar. California’s murder statute, Penal Code, § 187, as it read when Washington, supra, was decided, stated:

“Murder is the unlawful killing of a human being, with malice aforethought.”

Pennsylvania has no statutory definition of murder; murder is founded upon the common law and includes the felony-murder concept. United States ex rel. Almeida v. Rundle, 383 F. 2d 421 (3 Cir. 1967).

The common law did not recognize degrees of murder. Murder in either of the statutory degrees in our State was murder at common law. State v. Brown, 22 N. J. 405 (1956). Where a statute has varied the whole subject of the common law in regards to a particular crime and has changed the character of the offense or the nature or degree of punishment, the statute must be regarded as a virtual repeal of the common law because such must be presumed to have been the intention of the Legislature. But unless such intent is manifest, repeal by implication cannot be inferred. State v. Norton, 23 N. J. L. 33 (Sup. Ct. 1850); State v. Western Union, 12 N. J. 468 (1953).

New Jersey defines murder and degrees of murder. N. J. S. 2A :113-1 provides as follows:

“If any person in committing or attempting to commit * * * robbery, * * * or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so hilling is guilty of murder.” (Emphasis added)

N. J. S. 2A:113—2 defines the degrees of murder:

“Murder which is * * * committed in perpetrating or attempting to perpetrate * * * robbery * * * is murder in the first degree.”

New Jersey’s definition of murder as distinguished from its definition of the degrees of murder is novel, as an examination of the various statutes throughout the nation will reveal. Many states have used the common law definition as a basis for the offense of felony-murder. See Morris, “The Felon’s Responsibility for the Lethal Acts of Others,” 105 U. of Pa. L. Rev. 50, 51 (1956).

The classifications of homicide at common law are (1) justifiable, (2) excusable and (3) felonious homicide. The first has no share of guilt at all, the second very little, but the third is the highest crime against the law of nature that man is capable of committing. 4 Blackstone’s Commentaries 178; Commonwealth v. Redline, supra.

The clause, "or if the death of anyone ensues from the committing or attempting to commit any such crime or act;” in N. J. S. 2A :113—1, requires interpretation. This clause is .closed by a semicolon. Then follows another clause which relates to a different subject and which ends with the phrase, “such person so hilling” is guilty of murder. If the expression, “such person so hilling,” is to be related to the clause in question, then a construction of the statute would require the course taken by Bedline and Washington in that the factual situation, which is conceded, would not be classified as murder as far as these defendants are concerned since the fatal shots were not fired by any one of them.

Ordinarily the word “or” in a statute is to be considered a disjunctive particle indicating an alternative. Murphy v. Zink, 136 N. J. L. 235 (Sup. Ct. 1947), affirmed 136 N. J. L. 635 (E. & A. 1948).

“The purpose of judicial interpretation is the discovery of ‘the true sense of the form of words which are used * * * taking all its parts into consideration, and, if fairly possible, giving them all effect.’ ” State v. Murzda, 116 N. J. L. 219 (E. & A. 1936).

Yearly all cases emphasize the controlling factor of legislative intent, not only as to the meaning of particular words and phrases but also the general spirit of the act in question.

The history of the legislation is also an important aid. By history, the courts mean the prior statutes on the same subject. Murphy v. Zink, supra; Lloyd v. Vermeulen, 22 N. J. 200 (1956).

The expression, “or if the death of anyone shall ensue from the committing or attempting to commit any such crime or act,” was a part of the murder definition early in Yew Jersey legal history. “An Act for the Punishment of Crimes,” § LXYI, Patterson, Laws of New Jersey 208, at p. 220 (1800).

In 1829 the murder statute was reenacted; again the expression was repeated and it has been carried to the present day. L. 1829, § 66, p. 240; N. J. S. 2A-.113-1. This same language has appeared in all the supplements and amendments to the murder statute, from the earliest times.

What was the intention of the Legislature in including this clause when its absence would clearly indicate that murder could only be charged against the felon who actually fired the bullet that killed an innocent victim? If the clause is surplusage and has no separate meaning, why has it been carried through all the early legislative history of the statute ? Would not the expression be redundant when taken into consideration with all ihe provisions of the statute were it not intended to mean what it appears to say?

The State also predicates its right to charge defendants with murder on another ground. The facts as stipulated for the purpose of this motion indicate an inference that the decedent was being used as a “shield” when he was fatally shot. A shield is a felon’s use of an innocent person by force as a potential protection against retaliation.

There are so-called “shield cases” which have been decided in other states. The case which comes close to the instant one is Wilson v. State, 188 Ark. 846, 68 S. W. 2d 100 (Sup. Ct. 1934). There a group of bank robbers forced a teller to accompany them outside, where he was shot and killed by a law officer. The court acknowledged the philosophy in Washington, supra and which is referred to herein, that in felony-murder under the Arkansas statute the act of killing must be committed by defendant or by his accomplice acting in furtherance of a common design. Parenthetically, it should be observed that the Arkansas definition of murder is not similar to ours and resembles the California definition. The Arkansas Supreme Court approved the felony-murder doctrine as enunciated by Washington but held that principle was not involved in the case before it for decision. The court went on to say:

“Here the robbers compelled Guthrie [decedent], over his objections and against his will, to accompany them from a place of safety, so far as outsiders were concerned, to a place known by them to be a place of danger from those on the outside. They knew they had been discovered and apprehended danger from the outside, else they would not have taken Guthrie with them. They wished to use him as a breastwork, as it were, or they thought perhaps the outsiders would not shoot at them for fear of killing Guthrie. In doing this they committed another crime, kidnapping, and caused Guthrie’s death.”

They went on to say that appellants’ action in forcing Guthrie to a place which was known to be perilous was just as much the cause of death as if the felon had fired the fatal shot. They affirmed the first degree conviction. Also see Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W. 961 (Tex. Gr. App. 1900); Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125 (Tex. Cr. App. 1900).

It should be noted here that N. J. S. 2A :118-1, our kidnapping statute, would justify the conclusion that the act of one of the co-felons in forcing decedent at gun point to lead the way, resulted in the death of the victim during an attempt to kidnap. It is the fact, not the distance of forcible removal, which constitutes kidnapping. See People v. Chessman, 38 Cal. 2d 166, 238 P. 2d 1001 (Sup. Ct. 1951), where a California kidnapping statute quite similar to ours was interpreted. Also see State v. Dunlap, 61 N. J. Super. 582 (App. Div. 1960), certiorari denied 368 U. S. 903, 7 L. Ed. 2d 97, 82 S. Ct. 181 (1961).

The Bedline, supra, majority recognized the distinction of the above shield cases and saw no conflict between those decisions and the conclusions it reached. It is interesting to note that a concurring opinion in Bedline which urged the court to go further than it did, referred (in note 1 on page 501) to the philosophy that “One 'commits’ a homicide if he deliberately places another in a position of deadly peril from an independent force or agency and death thereby results.”

Defendants rely on decisions from several states for the position that the offense does not fit the category of a felony-murder.

People v. Wood, 8 N. Y. 2d 48, 201 N. Y. S. 2d 328 (Ct. App. 1960), cited by defendants, took note of the peculiar language of the New York statute which read at that time as follows:

“The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed.
* * * * * * *
2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise; or * * (Emphasis added)

Also see McKinney’s Consolidated Laws of N. Y. c. 40, Penal Lato (Ann. Rev.) § 125.25, effective September 1, 1967.

In People v. Austin, 370 Mich. 12, 120 N. W. 2d 766 (Sup. Ct. 1963), a felon was killed by the intended victim and the co-felons were charged with murder. The majority opinion called attention to the Michigan Penal Code which provided:

“All murder which shall be * * * committed in the perpetration, or attempt to perpetrate any * * * robbery * * * shall be murder of the first degree * * (Emphasis added)

Reference was made in the opinion to the argument that the statute referred to “all murder,” not homicide. Significantly, this was one argument made by the majority in Washington where the court said that the word “murder” in the California statute would have to be expanded beyond common understanding. Not so in the New Jersey statute, N. J. S. 2 A :113—1.

Commonwealth v. Balliro, 349 Mass. 505, 209 N. E. 2d 308, 14 A. L. R. 3d 640 (Sup. Jud. Ct. 1965), while it adopts the theory of Washington and Redline in that under the felony murder doctrine a felon cannot be held responsible for the death of any person killed by someone resisting the commission of a felony, followed Commonwealth v. Campbell, 89 Mass. 541 (Sup. Jud. Ct. 1863), which has been the rule in that State for over 100 years. Significantly, the court noted a difference in the so-called “shield” cases in which persons engaged in the commission of a felony compel the victim of the homicide to occupy a position of danger in order to aid the felons in perpetrating the felony or in making their escape, citing Wilson v. State and Keaton v. State, supra.

While it might be argued that the facts presented in the present case would not justify a murder indictment under the felony murder doctrine, our statute would seem to justify such a charge.

The interpretation to be given N. J. S. 2A :113—1, and particularly the provision that has heretofore been referred to, in my opinion justifies the charge of murder.

Eor the reasons herein set forth the motion to quash the indictment charging murder is denied and bail, on the principles defined in State v. Obstein, 52 N. J. 516 (1968), will not be granted.


author: Mountain, J. S. C.

text:
    ARNOLD RICCIARDI, GUARDIAN AD LITEM OF GARY RICCIARDI, INFANT, ET AL., PLAINTIFFS, v. JAMES J. BERNASCONI, ET AL., DEFENDANTS. JOSEPH BERNASCONI, GUARDIAN AD LITEM OF JAMES J. BERNASCONI, AN INFANT, THIRD-PARTY PLAINTIFF, v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, AND THE HARTFORD INSURANCE GROUP, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 15, 1969.

      Mr. Kenneth 8. Stein for defendant James J. Bernasconi and third-party plaintiff (Messrs. Hunziher and Hunziher, attorneys).

      Mr. James H. Sanderson for third-party defendant American Hardware Mutual Insurance Company (Messrs. Sander-son and Cullen, attorneys).

      Mr. Gordon L. Kent for third-party defendant Hartford Insurance Group (Messrs. Budd, Lamer, Kent and Gross, attorneys).
   Mountain, J. S. C.

Plaintiff in this suit is also defendant in a negligence action wherein a judgment is sought against him for injuries arising from an automobile accident in which he was the driver of one of the cars involved. Here he seeks a judgment against defendant carriers declaring that they are obligated to indemnify him for any liability arising out of the negligence action and that they are also required to provide him with a defense in that suit. The issues are the same with respect to each carrier. The first issue has already been decided against plaintiff, the court having concluded that he was not operating the car with the permission of its owner and hence did not qualify as an additional insured under the omnibus clauses in each of the policies. How before the court is the .question as to whether either carrier must supply a defense.

Plaintiff argues that he is entitled to be reimbursed for the costs of defending the negligence action incurred prior to the time this' court determined that he was not an insured. He points out that the complaint in the negligence feuit alleged that he had the necessary permission, and argues that whether or not an insurer must provide a defense in any particular litigation is to be determined by comparing the allegations in the complaint with the provisions of the policy. In support of this position he cites Danek v. Hom mar, 28 N. J. Super. 68 (App. Div. 1953), affirmed 15 N. J. 573 (1954). There the opinion of the Appellate Division stated that

‘•[1]¡ability of the insured to the plaintiff is not the criterion; it is the allegation in the complaint of a cause of action which, if sustained, will impose a liability covered by the policy.
So in the resolution of the problem, the complaint should be laid alongside the policy and a determination made as to whether, if the allegations are sustained, the insurer will be required to pay the resulting judgment, and in reaching a conclusion, doubts should be resolved in favor of the insured.” (at p. 77)

In that case, and in the many others like it, the carrier, in providing a defense, is simply responding to an obligation arising from the terms of the policy itself, namely that it will provide the insured with a defense even if the damage claim against him is groundless, false or fraudulent, where the allegations in the complaint portend a liability to the insured for which the policy affords protection. It should be clearly recognized that providing a defense under such circumstances is merely the performance by the insurer of a contractual obligation for which the insured bargained and for which he paid a consideration. The present case is very different. Here the court his reached a determination that the plaintiff is not an insured. There is seemingly no basis upon which his claim for benefits can be said to rest.

Nonetheless, as mentioned above, he urges that he is entitled to reimbursement for expenses entailed in defending the liability suit, at least to the extent of expenses incurred prior to this court’s holding of noncoverage. Reliance is placed upon West v. MacDonald, 103 N. J. Super. 201, 212, 213 (App. Div. 1968) affirmed 52 N. J. 536 (1968), and Travelers Ins. co. v. Tymkow, 91 N. J. Super. 184 (App. Div. 1966), modifying 87 N. J. Super. 107 (Ch. Div. 1965.

West v. McDonald is not dispositive of the present issue. There, as in DaneK v. Hommer, supra, the party seeking a defense from the carrier was clearly an insured under the policy and the cause of action against which a defense was sought was one which, as stated in the underlying complaint, constituted a risk covered by the policy.

Travelers Ins. Co. v. Tymkow is also distinguishable for at least two reasons. In the first place, and unlike the situation before this court, prior to the consideration of the issue as to whether a defense should be provided there had been no determination that defendant in the liability action was not an insured. The opinion below assumed that this decision would ultimately be reached in the damage suit then pending in the federal court, but as the opinion of the Appellate Division points out, there was no positive assurance that this would occur. In the second place, in Tymhow the factual and legal issue which would determine liability in the damage suit — whether the driver of the accident car was defendant’s agent — was exactly the same as the factual and legal issue which would determine whether that defendant was an insured. Thus in defending the damage suit on the issue of agency the insurer was doing no more that it would be required to do in a declaratory judgment action seeking a declaration as to whether defendant in the damage suit was or was not an insured. Not so here. Not only has there been an adjudication that plaintiff is not an insured, but also the issues for decision in the damage suit do not embrace the single issue projected before this court, namely, whether the driver of the car was operating the vehicle with permission of the owner.

In support of the conclusion that a carrier owes no duty to defend one who cannot qualify as an insured there should be noted the authorities cited by the trial court in Tymhow, supra, and especially Butler v. Maryland Casualty Co., 147 F. Supp. 391 (E. D. La. 1956), and Southern Underwriters v. Dunn, 96 F. 2d 224 (5 Cir. 1938).

Judgment will be entered upon all issues in favor of the defendant carriers, but without costs.