author: Lewis, J. A. D.

text:
    CARL E. RING, PLAINTIFF-APPELLANT, v. MAYOR AND COUNCIL OF THE BOROUGH OF RUTHERFORD, NEW JERSEY, BOARD OF ADJUSTMENT OF THE BOROUGH OF RUTHERFORD, NEW JERSEY, AND MARTIN KRAJAC, BUILDING INSPECTOR OF THE BOROUGH OF RUTHERFORD, NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 13, 1970
    Decided June 5, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. William V. Roveto argued the cause for appellant (Messrs. Moser, Roveto & McGough, attorneys; Mr. George P. Moser, Jr., on the brief).

      Mr. M. TIarry Muser argued the cause for respondents Mayor and Council of the Borough of Rutherford.

      Mr. James 8. Rly, Jr. argued the cause for respondents Board of Adjustment and Martin Krajac, Building Inspector of the Borough of Rutherford.
   The opinion of the court was delivered by

Lewis, J. A. D.

This is an appeal by plaintiff Carl Ring from a judgment of the Law Division, in an in lieu proceeding, wherein the court affirmed the denial of an application for a variance and sustained the constitutionality of the zoning ordinance of defendant Borough of Rutherford.

It is claimed on appeal that (1) the denial of plaintiff’s requested variance was arbitrary, capricious and unreasonable, and (2) the residential districts in the borough, as they now exist, are so riddled with nonconforming uses as both to render the denial of his application a deprivation of equal protection of the laws and to invalidate the underlying zoning ordinance.

Plaintiff is the owner of a 2j4-story, 12-room frame dwelling at 97 Ridge Road in Rutherford. It was constructed in 1904 or 1905 on a lot with a 100' frontage by a 130' depth. The property is situate in an R-l residential district which, under the borough zoning ordinance adopted in 1922, is zoned for one-family houses with a minimum lot size of 50' x 100'.

In October 1968 plaintiff presented to the building inspector plans for the conversion of his house into a two-family dwelling, which apparently could be physically accomplished with minimal interior changes. A building permit was denied, solely for the reason that the property was located in a .“Residence No. 1 District, zoned for one-family houses.” The next month plaintiff applied to the local board of adjustment for a variance recommendation under N. J. 8. A. 40:55-39(d) to permit such a conversion and use. Following a hearing thereon his request was denied by unanimous resolution.

The minutes of the board reveal that Ring was the only witness in support of his application. He produced a plot plan of the premises and testified with respect to his proposed changes. He explained the need for income from the property since it was in a state of disrepair and an economic burden, and he referred to .nonconforming-use properties in the immediate area. A letter from a nearby resident on Ridge Road, stating that he had no objections to the desired conversion, was received in evidence. Two neighboring property owners appeared in opposition to the application and testified in substance that the granting of such a variance would depreciate property values and would be a neighborhood detriment.

The factual findings of the board are embraced in its resolution of November 12, 1968 which can be summarized thusly: (a) plaintiff’s house is located in a prime residential area of the community; (b) the four present nonconforming two-family residences on Ridge Road existed prior to the zoning requirements; (c) to grant the requested variance would substantially impair the zone plan and depreciate property values; (d) no specific reasons for recommending the variance were shown except alleged economic hardship which was insufficient to support the application; (e) the relief requested could not he granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the borough zoning ordinance, and (f) a similar request was made by plaintiff in 1964 which was denied for the same reasons.

The Law Division, after reviewing the record of those proceedings, held that the board did not act unreasonably and that its findings and conclusions were “sufficient as a matter of law to support the denial of the variance.” We note that there was no evidence before the board in serious conflict with its findings.

It is well settled that an applicant is not entitled to a variance in order to effectuate the most profitable use of his property, at least so long as permissible uses are feasible. Kolsow v. Municipal Council of Wayne Tp., 52 N. J. 441, 452 (1968); Bern v. Fair Lawn, 65 N. J. Super. 435, 450 (App. Div. 1961). In order to maintain the fidelity of the general zoning scheme, a variant use is permitted only in an exceptional case where the justification is clear. See Grundlehner v. Dangler, 29 N. J. 256, 271 (1959). Accord, Sitgr eaves v. Board of Adjustment, Nutley, 136 N. J. L. 21 (Sup. Ct. 1947). Furthermore, it is fundamental that a determination of a zoning board is presumptively correct, and the property owner has the burden of proof in establishing a cause for relief. Masterson v. Christopher Diner, Inc., 85 N. J. Super. 267, 273 (App. Div. 1964), certif. den. 44 N. J. 406 (1965).

Here, from the evidence before the local agency, it cannot fairly be said that the board’s refusal to recommend a variance was unsupported by the record or that its action was in any way unreasonable, capricious or arbitrary. Accordingly, the affirmatory decision of the Law Division, as to this aspect of the case, should remain undisturbed. See Kramer v. Bd. of Adjust., Sea Girt, 45 N. J. 268, 296-297 (1965).

We turn now to the broader issue addressed to the constitutional efficacy of the zoning ordinance as presently applicable to plaintiff’s property. Preliminarily, we note that the trial judge properly ruled in favor of receiving evidence, aliunde the record before the board, bearing upon that issue. Plaintiff’s suit attacked not only the determination of the board, but also the constitutionality of the underlying zoning ordinance, an issue not raised before the board or within its jurisdiction to resolve. Dote generally, Dolan v. DeCapua, 16 N. J. 599, 612-613 (1954); Wilson v. Mountainside, 42 N. J. 426, 441-443 (1964).

The supplemental proofs adduced in the Law Division proceedings included a master plan of the borough approved by the planning board in 1966 which, at the time of the trial, had not been officially adopted by the mayor and borough council. This exhibit, however, was admitted in evidence, with its pertinent land-use maps, to show current physical “make-up” conditions in the community and “for statistical purposes only.”

Plaintiff then testified that he had read all of the minutes of the board for the past 20 years and had compiled a list of variances granted during that period. The relevant information thus obtained was incorporated in a “Request for Admission Pursuant to Rule 4:26-1 [now B. 4:22-1],” which, together with certain “Corrections” and the “Answer” of the municipal defendants, were accepted in evidence. These documents reveal that since 1948 over 60 variances had been granted to permit the conversion of single-family houses for two-family use.

Upon the foregoing premise plaintiff argues, in substance, that the division of the residential area of the municipality into one-family and two-family zoned districts, which have been permitted to become “more or less riddled substantially with one-family and two-family houses,” negated pro tanto the intended zoning scheme of the borough and thereby rendered the rejection of his application for a variance a denial of due process and equal protection of the law.

We are cited to Wilson v. Mountainside, supra, for the proposition that “It is the antithesis of the statutory requirement to impose blanket use restrictions without regard to the character of the district and use suitability and then generally and indiscriminately permit innumerable contrary uses by administrative action.” 42 N. J., at 443. Cf. Katobimar Realty Co. v. Webster, 20 N. J. 114, 123 (1955); RocKhill v. Chesterfield Tp., 23 N. J. 117, 126 (1957). In essence plaintiff maintains that there is no integrity left to the one-family zoning in the borough, and it is both unreasonable and unconstitutional to continue such a district, particularly in the location of his property.

While at first blush there appears to bo persuasive validity to plaintiff’s contentions, we find upon deeper analysis of the record that the alleged merits are overcome by countervailing facts of paramount significance. Throughout the proceedings Jdidge Road was characterized as a “wide thoroughfare.” Under cross-examination plaintiff was asked:

Q. How would you describe Ridge Road as an area, as a living area, in relation to the rest of the community?
A. Well, it’s a little older, the houses are bigger, there is more high trees than farther down the town. The street is a little wide, more buses on it. * * *
Q. Would you agree or disagree that it is one of the finest residential areas in Rutherford?
A. Yes, it is one of the finest in Rutherford.

Although apparently 60 residential conversion variances were allowed over a 20-year span, not a single variance was granted incident to a property on Ridge Road. It appears from one of the land-use map exhibits that this thoroughfare obliquely intersects Park Avenue and extends southward foT approximately seven blocks to State Highway Route 3. The subject property is on the east side of Ridge Road, between Highland Cross and Summit Cross, in the third block from the Park Avenue intersection.

The trial judge noted in his oral opinion that there are 14 houses fronting Ridge Road, east and west side, .between Highland Cross and Summit Cross, of which four are two-family dwellings existing as such prior to the municipal zoning. He then observed:

* * * — there are a number of blocks that are still intact as single-family dwellings. Just to point out one or two, Block 112 is entirely single-family dwellings. That is three blocks south and two blocks west of the block in question, Block 124.
If you go over to a block fronting on Orient Way, Block 140, we have a pure single family dwelling block.
Just two blocks south of the property in question, which is Block 122 fronting on Ridge Road, we have an entire block that is purely of single-family dwellings; and just to the south of that, Block 121, fronting on Ridge Road, we have a block that with the exception of one corner lot fronting on Sylvan Avenue [sic] and Yan Riper Avenue, that is, that corner of Sylvan and Van Riper, except for that one plot that entire Block 121 is a single-family dwelling block.

It is plain that in certain sections of the R-l district, particularly east of Ridge Road and the vicinity of Sylvan Street, a narrower street where all structures appear to be situated on 50' x 100' lots, the combination of preexisting uses and grants for two-family housing variances have virtually destroyed the integrity of the single-family zoned planning as to that area of the district. It does not follow, however, that the validity of the entire single-family concept of the zoning ordinance must be condemned in toto, or as regards plaintiff’s property located as it is on a prime residential artery leading directly to a single-family residential area virtually unintruded by two-family dwellings. Moreover, we note that the 1966 proposed master plan contemplates that Ridge Road remain in a single-family residence zone.

As this court stated in Birkfield Realty Co. v. Bd. Com’rs. of Orange, 12 N. J. Super. 192, 197 (App. Div.), certif. den. 8 N. J. 319 (1951) :

* * * The refusal by the governing body to permit still another encroachment to do violence to the existing zoning ordinance will not be viewed as arbitrary or capricious when, as here, grounded in a determination to adhere to and to further an approved and adopted zoning program essential to the larger plan for the physical development of the municipality and plainly designed and reasonably adapted to conserve and promote the public health, safety, morals and general ■welfare of the city.

The presumption of validity that attaches to a zoning ordinance is not overcome unless the proofs clearly show that the ordinance is arbitrary or unreasonable. Fanale v. Hasbrouck Heights, 26 N. J. 320, 327 (1958). See also 8 McQuillin, Municipal Corporations (3d ed. rev. 1965), § 25.60, at 149. Cf. Vickers v. Tp. Com. of Gloucester Tp., 37 N. J. 232, 242 (1962), appeal dismissed and cert. den. 371 U. 3. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963).

Wo agree with the findings and conclusion of the Law Division that the evidence proffered by plaintiff was insufficient to support his contention that the borough zoning ordinance was unconstitutional as to the whole residential district or as applied to his property.

Affirmed.


source: Caselaw Access Project

author: Kolovsky, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT, v. MONMOUTH HILLS, INC., DEFENDANT, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1970
    Decided June 11, 1970.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. Vincent J. Jennings argued the cause for appellant.

      Mr. Fred B. Qruen, Deputy Attorney General argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Sldllman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

So that it might construct a reverse jug handle turn on Eoute 36 in Middletown Township, plaintiff acquired bjr condemnation a portion of defendant’s lands abutting the southerly line of Eoute 36. At the trial of the appeal from an award made by condemnation commissioners, the jury found that $4500 was the compensation to be paid defendant for the land taken and the damage to the remainder of its lands by reason of the taking.

Defendant appeals from the judgment entered on the jury verdict, arguing that it was entitled to compensation beyond that encompassed in the verdict, which was limited to the value of the .577 acres taken and the damage to the remaining 2.206 acres of its tract. To evaluate that argument requires a brief resumé of the relevant facts.

The 2.783 acre tract owned by plaintiff prior to the taking constituted a green belt or buffer zone extending around a building development known as Monmouth Hills in which there exist approximately 36 individually owned homes and 12 building sites, the latter apparently owned by defendant. Access to and from Route 36 into the development was afforded by Monmouth Drive (sometimes referred to as Serpentine Drive), a street running southerly from the southerly line of Route 36, and a second street situate some 1100 feet to the east of Monmouth Drive. The westerly line of Monmouth Drive is 57 feet distant (measured along Route 36) from the easterly line of the land taken for the jug handle.

No part of either Monmouth Drive or of the other street leading into the development was taken by plaintiff. The taking itself involved no impairment of access. Access to and from Route 36 to the homes and sites in the Monmouth Hills development — through Monmouth Drive and the street 1100 feet to the east — remained the same after the taking as it was before the taking.

Defendant’s asserted claim to additional compensation is bottomed on the circumstance that the State proposed to close, contemporaneously with the construction of the jug handle, an opening in the median strip or center barrier of Route 36 located opposite the mouth of Monmouth Drive. That opening had permitted automobiles leaving Monmouth Drive to go west on Route 36 by driving through the opening and making a left-hand turn. Once the opening was closed, an automobile leaving Monmouth Drive and desiring to proceed west on Route 36 would be compelled to take a more circuitous route, to drive east along Route 36 to a street enabling it to accomplish a TJ-turn.

We iind no merit in the defendant’s claim to additional compensation — which here defendant would equate to the cost of installing ramps to obviate tbe necessity of using the more circuitous route — even if we accept arguendo its contention that it is entitled to assert the rights of the individual landowners in the Monmouth Hills development so that the consequential damages to be admeasured were not only those suffered by the remaining 2.206 acres of the buffer zone but also those, if anjq suffered by the entire Monmouth Hills building development. The latter suffered no compensable damage.

There has been no deprivation of access. The closing of the opening in the center barrier with the consequence that those leaving Monmouth Drive and desiring to proceed west will have to use a more circuitous route does not constitute a compensable taking of, or compensable damage to, property. Tubular Service Corp. v. Com’r. State Highway Dept., 40 N. J. 331, 332 (1963), aff’g 77 N. J. Super. 556 (App. Div. 1963); cf. Mueller v. N. J. Highway Authority, 59 N. J. Super. 583 (App. Div. 1960).

Nor does such closing of the opening in the center barrier give rise to a right of compensation because it is being done contemporaneously with the construction of a nearby jug handle turn on land which the State is acquiring by exercise of its power of eminent domain. Jacobson v. State, State Highway Commission, 244 A. 2d 419, 421-422 (Me. Sup. Jud. Ct. 1968); Painter v. State, Department of Roads, 177 Neb. 905, 131 N. W. 2d 587, 590-591 (Sup. Ct. 1964).

Apposite is what the Nebraska Supreme Court said in Painter v. State, Department of Roads, supra at 590-591:

“The right of access of an abutting property owner to a public road is not an unlimited one. He is entitled to reasonable access and the state in the exercise of its police power may limit access to abutting private property if reasonable access remains. * * * The leaving of three 30-foot curb cuts on the west side of plaintiffs’ property constituted a reasonable access thereto. It is not arguable that the regulation of ingress and egress under the situation here shown was an unreasonable exercise of the police power. The plaintiffs are entitled to the value of the land taken and any damages to the remaining land that result from such taking.
It is here contended that the construction of islands in the streets which prevented left turns onto plaintiffs’ property from the west constituted a compensable damage. The general rule is that an abutting landowner has no vested interest in the flow of traffic past his premises and that any damages sustained because of a diversion of traffic is not compensable. This rule applies where a road or street is relocated. * * * It likewise applies to the control of turns by double lines, islands, and median strips. * * Mere circuity of travel to and from real property, resulting from a lawful exercise of the police power in controlling traffic, docs not of itself constitute an impairment of the right of ingress and egress to and from such property where the resulting interference is but an inconvenience shared in common with the general public and is necessarily in the public interest in making highway travel safer and more efficient. If the owner has the same access to the general highway system as before, this injury is the same in kind as that suffered by the general public and is not compensable. * * * The fact that the construction of the islands in the instant case was concurrent with the construction of the widened street is not a material factor. The rule is the same as if the islands had been constructed without the taking of any property by eminent domain. * * *
The situation may be summed up as follows: Property owners abutting upon a public thoroughfare have a right to reasonable access thereto. This right of ingress and egress attaches to the land. It is a property right as complete as ownership of the land itself. Bur as to damages claimed by reason of a ehange in the flow of traffic by placing medians in the center of a street, they result from the exercise of the police power by the state and are noncompensable as being incidental to the doing of a lawful act. As such, they are wholly unrelated to the taking of the land for the purpose of widening the street and constitute no element of damage to the land remaining after the taking.”

To the foregoing may be added the comments of the Maine Supreme Court in Jacobson v. State, State Highway Commission, supra at 421-422, in approving the rule adopted by “the great majority of the courts”:

“The reasoning of these courts has been that the landowner has no vested property right in the continuation of the flow of traffic past his door and that changes of traffic patterns and routes result from the exercise of the police power of the State and are non-comp enrabie even when the traffic diversion is concurrent with a taking of land. Such landowner having had no properly rights in the traffic flow before the change in traffic pattern, lost no rights when the change was made. These decisions hold that while the abutting landowner has a property right in reasonable access to the public streets he has no right that such access and the opportunity for his guests to reach him shall be by the most direct or most convenient route. We are impressed by (.he reasoning of the courts stating this point of view * * * [citing cases].
Approval of this view is found in Nichols on Eminent Domain, Section 6.4443 (4) and Kaltenbaeh, Just Compensation, Section 2-5-2.”

The judgment is affirmed.


author: Goldman», P. J. A. D. Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MELVIN MORGULIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided June 15, 1970.

      Before Judges Goldman», Lewis and Matthews.

      Mr. William Wright, Jr., argued the cause for appellant.

      Mr. Arthur J. Timins, Assistant Prosecutor, argued the cause for respondent (Mr. Earl Asch, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldman», P. J. A. D.

Defendant appeals from County Court convictions of uttering loud and offensive language in public (N. J. 8. A. 2A:170-29(1)) and of disturbing a place of assembly (N. J. S. A. 2AA70-28). He received concurrent 30-day jail sentences.

On Pebruary 7, 1969 defendant • attended a high school basketball game, anticipating some form of confrontation between black students and the administration, and intent on obtaining pictures and tape recordings of the events. During the pre-game activities the mayor announced that if anyone should show disrespect for the flag by refusing to stand during the national anthem, spectators would be barred from future sports events. Defendant shouted that it was illegal and unconstitutional to force anyone to stand during the ceremonies. He admits that disputes immediately flared up between himself and nearby spectators. At this point a plainclothes detective mounted the bleachers and sat next to defendant. The detective testified that nearby fans had requested defendant to be quiet; they wanted to watch the game, and some of them began to move away and express displeasure with defendant’s mouthings. Defendant then gestured obscenely and loudly uttered a lewd chant: “-■, -, Gestapo, -,--patently indecent language which need not be reproduced here. The detective then arrested defendant and quietly led him out of the gymnasium.

Defendant was charged as a disorderly person for uttering loud and offensive language in public, N. J. 8. A. 2A :170~ 29(1), and for disturbing a place of assembly, N. J. 8. A. 2A:17Q-28. After conviction in the municipal court, the matter was appealed to the County Court where, after a trial, the judge found defendant guilty on both charges.

On appeal defendant contends that the conviction under N. J. 8. A. 2A¡170-28 was erroneous both because the factual context of the ease is not covered by that statute and because his conduct is protected by the “free speech” provisions of the First Amendment.

N. J. 8. A. 2A:170—28 defines a disorderly person as anyone who “'by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries and reading rooms * * The arresting officer testified that defendant was making obscene gestures, uttering obscene language, and visibly disturbing the nearby spectators. An accompanying officer testified that numerous persons moved away from defendant. Defendant denied creating a disturbance, but the trial judge found sufficient evidence to warrant a conviction.

Defendant first urges that the conviction violates his constitutional right to free speech. He argues that the offending conduct must have been his initial retort to the mayor and, relying on Garner v. Louisiana, 368 U. S. 157, 83 S. Ct. 348, 7 L. Ed. 2d 307 (1961), contends that the State may act to limit speech only in the narrowest of circumstances. We are not concerned with what he said then, but with his obscene language and gestures that followed after the game began — the real nub of the disorderly person charge.

While it must be conceded that the State may not unreasonably restrict personal freedoms ■— see, for example, State v. Caez, 81 N. J. Super. 315 (App. Div. 1963) — it is equally apparent that the State may protect its citizens, in the exercise of their right to peaceable assembly, from riotous or potentially dangerous disturbances. In any event, the long line of cases attempting to delineate the permissible limits of restriction are neither consistent in theory nor particularly reconcilable in practice. Moreover, it might here be noted that defendant’s reliance on Garner is misplaced, for the holding in that case, a conviction of sit-in demonstrators for “breach of the peace,” rested on the lack of adduced evidence that any “disturbance” had in fact occurred.

In State v. Smith, 46 N. J. 510 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 3d 71 (1966), the court, after distinguishing boisterous behavior at a public meeting from the southern sit-in cases, commented:

* * * Callender was not denied a chance to be heard. Rather he was denied a right he seemingly claimed to interfere with the right of others to hear and be heard. He was not ordered removed because he expressed views which displeased the presiding officer. He was ordered out because, in response to the president’s call for quiet, he threatened even greater disruption of this public meeting. Whether the forum be the courtroom or the chamber of the legislature itself or of a political subdivision of the State, there must be order. It is frivolous to suggest the First Amendment stands in the way of that imperative, [at 516-517]

While it is obviously less forceful to argue that “order” must be maintained at a basketball game, surely the municipality is entitled to exercise some degree of supervisory control over the more disruptive elements at an interscholastic event. We find that the State presented sufficient competent and credible evidence to indicate that the totality of defendant’s conduct in the bleachers was loud, offensive, disruptive and disturbing to the neighboring spectators. Certainly, the constitutional provisions guaranteeing freedom of speech do not extend to intemperate and intentional offensiveness which impinges on the rights of others. Moreover, defendant’s conviction under N. J. S. A. 2A:170-28 does not rest so much on what he said or on when he chose to say it, but rather on the allegedly abusive and disruptive character of his intentional outburst.

Alternatively, defendant argues that the general factual circumstances of the case — the physical setting — do not come within the ambit of the statute. To that end defendant argues that the character of the meeting —• a sporting event — was such that loud outbursts were to be expected and even encouraged. Therefore, it is urged, his outburst was neither disruptive nor unusual within the context of this “assembly.” Accordingly, defendant would restrict the application of the statute to situations where solemnity or parliamentary order was required.

The statute speaks of “any place of assembly, public or private.” It is established that the interpretation of what constitutes the “quiet and good order” of any gathering will depend on the character of the assembly. State v. Smith, above, 46 N. J., at 519. It is further apparent that government may impose a semblance of decorum, suitable to the given circumstances, in order to avert disorder. See United States v. Woodward, 376 F. 2d 136 (7 Cir. 1967), In any event, our Supreme Court has clearly stated that the application of the statute is not limited to the few examples listed in the enactment, but rather is to be applied generally to any assembly, although, as noted, the permissible limits of conduct will depend on the nature of the meeting. State v. Smith, above, 46 N. J. at 515, 519. Surely, it cannot be contended, merely because a basketball game is more noisy in nature than a legislative assembly, that spectators at the former may engage in unbridled behavior regardless of its effect on other persons in attendance. Thus, while the relative measure of “quiet or good order” is plainly to be tailored to the peculiar circumstances of the meeting, the statute, as noted, applies to “any place of assembly, public or private.” Moreover, sufficient evidence was adduced to demonstrate that defendant’s conduct was disruptive and disturbing to other persons attempting to view the game. Additionally, it might be observed that, unlike the case of a public hearing, defendant’s actions herein were wholly unrelated, and in fact contrary, to the intended activity — a sporting event — and his outbursts tended to interfere with other persons’ ability to watch the activities. See State v. Smith, above, at 515-516, 519. According^, the statute is patently intended to apply to the instant case, among others, and defendant’s “speech” was not herein protected from reasonable limitation.

Defendant next argues that his motion for judgment of acquittal at the end of the State’s case should have been granted as to both charges because no prima facie case had been proved. More particularly, as to the charge of disturbing an assembly, he urges that the lack of specificity as to the proofs and as to the potential and inherent “danger” of his conduct was fatal to the State’s case. Equally, as to the loud and offensive language charge, he argues that there was no proof that the utterance was “loud” — only that it was profane.

To satisfy the requisite elements of proof under N. J. S. A. 2A:170-28, it must be established that the accused's conduct was disruptive of an assembly of persons. See State v. Moore, 101 N. J. Super. 419 (App. Div. 1968). While no nearby spectators testified that they had been disturbed by defendant’s rantings, both police officers testified that defendant’s actions were causing a disturbance. Thus, the evidence was sufficient to show that defendant was disorderly and that his conduct, “foreign to the nature and purpose of tlxc assembly,” did disrupt the proceedings. See State v. Smith, above, at 516-517, 519. As to the relative weight to be accorded to the conflicting testimony, it is best left to the trier of fact to adjudge the credibility of the respective witnesses. State v. Taylor, 38 N. J. Super. 6, 13 (App. Div. 1955).

With regard to the loud and offensive language charge, N. J. S. A. 2A:170—29 (1), it is incumbent upon the State to establish that the offending utterance was both loud and indecent or offensive. See Mullen v. State, 67 N. J. L. 451 (Sup. Ct. 1902); State v. Griffin, 92 N. J. Super. 389 (App. Div. 1966). The language defendant uttered (“-•, -•, Gestapo,--, -”), with accompanying gestures, clearly breaches the common limits of decent speech, and the arresting officer testified that defendant uttered the mindless chant in a loud, if not shouting, voice. As to defendant’s free speech argument, it has been held that obscenity is not protected by the First Amendment and that the statute of prohibition is a valid exercise of the police power. State v. Bullis, 79 N. J. Super. 221, 232 (App. Div. 1963).

Affirmed.

Matthews, J. A. D.

(dissenting in part). I dissent from the majority opinion insofar as it sustains defendant’s conviction under N. J. S. A. 2A:170-28.

In State v. Smith, 46 N. J. 510 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966), the court noted:

The statute before us meets the constitutional demand. It speaks of “noisy or disorderly conduct” which “disturbs or interferes with the quiet or good order” of “any place of assembly, public or private.” Surely, a man of ordinary intelligence knows the council chamber at the time of a public hearing is a public “place of assembly.” So, too, such a man knows the “quiet or good order” of a place depends upon the nature and the purpose and the needs of the meeting. He also knows a legislative chamber from a barroom or a ball park and knows what kind of behavior comports with each. (46 N. J., at 519)

Defendant was convicted of uttering loud and offensive language in public under N. J. S. A. 2A:170-29(1), and the record, I am satisfied, supports that conviction. The same record, however, cannot support a finding that defendant’s conduct disturbed or interfered with the “quiet” or “good order” of a high school basketball game. There is no evidence, save the statements of the police that a few spectators moved from defendant’s immediate area, to show that defendant disturbed or interfered with anybody. He submitted to arrest quietly. Ho spectator was produced at trial to support the State’s claim of defendant’s disruptive conduct, except those who testified on defendant’s behalf contrary to the State’s contentions.

N. J.'S. A. 2A:170-28 does not embrace the disruption and disturbance of a few individuals among many at an assembly. It seeks to preserve the “quiet” or “good order” of a gathering, considering, as was held in Smith, above, the nature of such gathering. Defendant’s conduct fell far short, in my judgment, of violating the spirit and letter of the statute.


author: Per Curiam.

text:
    LORRAINE M. PRICE, AS GENERAL ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOSEPH R. PRICE, DECEASED, PLAINTIFF-APPELLANT, v. BUCKINGHAM MANUFACTURING COMPANY, INC., DEFENDANT, AND R. H. BUHRKE, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided June 15, 1970.

      Before Judges Coneord, Coleester and Kolovsky.

      Mr. James H. Smith argued the cause for appellant (Messrs. Beussille, Cornwell, Mausner & Carotenuto, attorneys).

      Mr. Phillip Auerbach argued the cause for respondent (Messrs. Drazin, Warshaw, Auerbach & Budnick, attorneys).
   Per Curiam.

Our disposition of the points of appeal argued is as follows:

1. The verdict was not against the weight of the evidence. In fact, plaintiff’s case for a defect in the safety belt was marginal at best.

2. There was no error in admitting into evidence specifications for safety belts adopted by other large users of such equipment such as the Bell System and the United States Government. See McComish v. DeSoi, 42 N. J. 274 (1964). That this was a strict liability case rather than a negligence case does not affect the matter. A “defect,” for strict liability purposes, exists where the article is not reasonably fit for the ordinary purposes for which such articles are sold and used. Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 66-67 (1965). Industry practices would seem as relevant in relation to that criterion as where the issue is negligence in manufacture.

3. There was no error in disallowing evidence as to modification of the belt-snap by Public Service after this accident. Subsequent remedial measures are not evidential in relation to the issue of negligence. Bule 51 of the Buies of Evidence. By the same rationale that underlay the conclusion stated in the preceding paragraph such evidence should be equally inadmissible where the basis of the action is strict liability on the theory of unsafe design in manufacture.

4. The refusal of the trial court to allow proof of the results of a simulated reenactment of the accident was not error. This lay in the sound discretion of the court, and we find no mistaken exercise of discretion.

5. We find no error in the court’s permitting the issue of contributory negligence to go to the jury nor in respect of the other assignments of error in relation to the court’s charge to the jury.

Judgment affirmed.


author: Pei? Curiam.

text:
    STATE IN THE INTEREST OF O. W. STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. O. W., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 8, 1970
    Decided June 15, 1970.

      Before Judges Goldmahn, Lewis and Matthews.

      Mr. Norman L. Kline, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. George A. Glujf, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph J). J. Gourley, Passaic County Prosecutor, attorney).
   Pei? Curiam.

This is an appeal from a Juvenile and Domestic Relations Court order adjudging O. W. a juvenile delinquent, placing him on probation, and ordering him to pay $4 a week for the support of the illegitimate child born of Dolores E., payable through the probation department. The order further directed that the matter be transferred to the adult division of the probation department when 0. W. became an adult.

The Public Defender advances two arguments on 0. W.’s behalf, boih alleged to constitute plain error. It is first claimed that the determination that 0. W. was the father of Dolores'” child was against the weight of the evidence, and secondly that the Juvenile and Domestic Relations Court has no authority to order a juvenile to contribute to the support of his child.

We pass over the argument that the appeal should have been brought in the County Court because it concerns an order of filiation rather than an adjudication of delinquency. Sec R. 2:2-3 (a) and 5 :5—9(c) ; N. J. S. A. 9:17-20. The complaint charged 0. W. with being a juvenile delinquent, and the court so found. The order of filiation and support was simply ancillary to that determination.

0. W. argues that the determination was against the weight of the evidence. We find otherwise. Although Dolores did not fix the precise dates when she had relations with 0. W., she testified to acts of sexual intercourse on seven, eight or more occasions at his home, beginning in the summer of 1966, and went on to say that she had never liad relations with anyone else. 0. W. produced his sister, who said she knew Dolores had a bad reputation for chastity in the community; she had heard that she had had intercourse with a lot of people. Defendant then testified and admitted that he had had intercourse with Dolores in June and July of 1967, but not during August, September, October or November of that year.. The judge was therefore called upon to assess credibility. We will not disturb his determination, for he could reasonably have found, on the basis of the testimonjq that O. W. fathered the child. State v. Johnson, 42 N. J. 146, 162 (1964).

Under the second point, 0. W. states that the Juvenile and Domestic Relations Court is a creature of the Legislature, with limited powers and jurisdiction. He argues that the scope of disposition available to it with respect to a juvenile offender is limited by N. J. S. A. 2A:A-37 (probation or commitment to some institution or to the State Board of Child Welfare), and by N. J. S. A. 2A:4-39, which provides that no adjudication upon the status of a child under 18 “shall operate to impose any of the civil disabilities ordinarily imposed by conviction * * Therefore, since neither statute mentions support payment by a juvenile, the order below was improper.

The argument is specious and reflects a very restricted view of the Juvenile and Domestic Relations Court’s jurisdiction. That court clearly has the power to award support in a bastardy proceeding, N. J. S. A. 9 :17-12, and the statutes in pari materia should be construed together as a “unitary and harmonious whole, in order that each may be fully effective.” City of Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 421 (1958). To deny the court the exercise of its inherent power would be to thwart the rehabilitative object of the juvenile process — “to make men out of errant boys.” State in the Interest of Carlo, 48 N. J. 224, 244 (1966) (Weintraub, C. J., concurring). Indeed, In re El, 26 N. J. Misc. 285, 290, 60 A. 2d 893 (Cty. Ct. 1948), held that the Juvenile and Domestic Relations Court has exclusive jurisdiction in a bastardy proceeding against a juvenile.

That the main purpose of filing the complaint against the juvenile was to adjudge him a juvenile delinquent should not preclude the State, acting as parens patriae, from awarding support pursuant to its bastardy jurisdiction. “Considerations of judicial economy and litigant convenience, as well as potential res judicata problems, indicate the desirability of unitary litigation of such related claims.” Ferger v. Local 483, 94 N. J. Super. 554, 565 (Ch. Div. 1967), aff'd o.b. 97 N. J. Super. 505 (App. Div. 1967), certif. den. 51 N. J. 181 (1968). Cf. State v. Monahan, 15 N. J. 34, 38 (1954).

Affirmed.


author: Mintz, J. S. C.

text:
    GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF, v. RICHARD ROMAIN, INDIVIDUALLY AND t/a EDUCATIONAL SERVICES CO., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 10, 1970.

      Mr. Douglas J. Harper, Deputy Attorney General, for plaintiff.

      Mr. Richard Romain, a member of the New York bar, attorney pro se, and Mr. Nathan N. Goldberg, for defendant.

      Mr. Jamas D. Qojjee, Director, New Jersey State Office of Legal Services, filed an amicus curiae brief (Mr. Carl R. Label on the brief).
   Mintz, J. S. C.

This proceeding is brought by the Attorney General pursuant to N. J. 8. A. 56 :8—1 et seq., hereinafter referred to as the “Consumer Protection Act.” He alleges defendant’s business operation to be violative of N. J. 8. A. 56 :8-2, which in part provides:

The act, use or employment by any person of any deception, fraud, false pretense, falso promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; * * *.

N. J. 8. A. 56:8-8 in part reads as follows:

Whenever it shall appear to the Attorney General that a person has engaged in, is engaging in or is about to engage in any practice declared to be unlawful by this act he may seek and obtain in an action in the Superior Court an injunction prohibiting such person from continuing such practices or engaging therein or doing any acts in furtherance thereof * * *. The court may make such orders or judgments as may be necessary to prevent the use or employment by a person of any prohibited practices, or which may bo necessary to restore to any person in interest any moneys or property, real or personal which may have been acquired by means of any practice herein declared to be unlawful.

Plaintiff seeks (1) injunctive relief pursuant to N. J. 8. A. 56 :8-8 as to the specific practices allegedly violative of N. J. S. A. 56:8-2; (2) a declaration that the price terms of the contracts in question are fraudulent per se and unconscionable, being violative of N. J. 8. A. 56:8-2 and N. J. 8. A. 12A:2-302; (3) restoration orders pursuant to N. J. 8. A. 56 :8-8 for the benefit of the purchasers who testified with respect to the allegedly fraudulent practices of defendant’s representatives; (4) rescission of all contracts between purchasers listed on the schedule attached to the complaint and defendant, notwithstanding some of these purchasers did not testify in these proceedings; (5) assessment of civil penalties against defendant, as provided for in N. J. 8. A. 56 :8-13, 14, and (6) an order enjoining defendant from doing-business in New Jersey until registration of his trade name is effected in accordance with N. J. 8. A. 56 :l-2.

Defendant Eomain, a member of the bar of the State of New York, operates a business principally in the States of New York and New Jersey known as Educational Services Co. The office of this company is in New York. The business consists of solicitation and sale of certain educational books and related materials effected through sales personnel selected and trained by defendant or his office manager in New York. The sales contracts used by these sales people refer to “a complete ten-year educational program.” Defendant commenced operation in New Jersey in January 1965. A “crew leader,” presumably a representative who has been with defendant for some period of time, transports a group of sales representatives by car to New Jersey. Defendant’s sales force fluctuates. He engages a greater number in the summer months, during which the sales force approximately 30 to 35 persons. The geographical area where sales are solicited is selected by the crew leader. Upon arrival at a designated point in New Jersey, the salesmen or women undertake to canvass the selected area by a house-to-house solicitation without any prior notice to the prospects. At the end of the day they meet at a designated spot for their return trip to New York. Actual sales solicitations are effected primarily in urban areas of this State and directed towards low income families.

The basic “Educational Package” offered by defendant consists of the following materials:

1. “Questions Children Ask” (1 vol.);

2. “Child Horizons” (4 vols.);

3. “New Achievement Library” (5 vols.);

4. “High School Subjects Self-Taught” (4 vols.);

5. “Science Library” (1 Vol.);

6. “Play-Way” French and Spanish records, and

7. Flash card set.

In many of the contracts there is also included a volume entitled “Negro History.” Additionally, certain bonus volumes are afforded the purchaser upon final payment. Ten annual supplementary volumes are integral parts of the sales package. The total cash sales price for the above stated package is $249.50, and the time sales price is $279.95. No one purchases for cash. The cost of the ten annual supplements is passed on directly to the purchaser via a $2.94 annual charge paid along with the submission of certain coupons. The time sales price includes a delivery charge of $17.99 and a credit service charge of $12.46. The contract calls for the down-payment of $9 with the balance of the time sales price payable in 24 equal monthly installments of $11.50.

There was some dispute with respect to the base cost of the entire package. Defendant testified that the cost to him of the basic package came to $38.35; that the average cost of the bonus item furnished the customer who paid in full was $8, and that the annual loss experience over a ten-year period in furnishing the annual supplements based upon a 40% exercise of this privilege came to $7, making a total base cost for the “package” of approximately $53.35. The figure is high, and considering all the testimony presented it would appear that a figure of perhaps $35 to $40 is more accurate.

Defendant pays its salesmen strictly on a commission basis. The amount of the commission paid on each sale ranges from $16.50 to $33.00, depending upon whether the following four points are satisfied: (1) securing of a down payment of $9.00; (2) securing a consumer’s home phone number; (3) securing a consumer who is not self-employed, and (4) securing a consumer who has been employed for iy2 years. In order to qualify for the full commission, the salesman must satisfy three of the four points. In the vast majority of cases the commission paid on each sale averaged about $16.50. The crew leader also works on a commission basis and additionally receives an over-ride commission of $5 on every approved order submitted by a member of his crew.

The proofs abundantly support the finding that deceptive and fraudulent practices prohibited by N. J. 8. A. 56 :8-2 have been perpetrated by the defendant's sales representatives upon each of the 24 consumers who testified. The cited statute specifically provides that a showing of damage is not a prerequisite for the finding of a violation. Consequently the fact that some consumers have not been damaged is of no moment.

I am mindful of the contrary testimony offered by the defendant and his witnesses. I simply did not believe them. I was particularly unimpressed by the testimony of Miss Elorence Yeoman, a lady who has taught school for many years and who categorically denied making any misrepresentations. She still is in the defendant's employ. She impressed me as a polished, suave, over-talkative lady who would not hesitate to misrepresent in order to induce the execution of a contract.

N. J. 8. A. 56:8-2 specifically applies to “any person” who utilizes the practices therein prohibited. N. J. S. A. 56:8-l(d). Defendant contends that he did not participate in any prohibited sales practices and that if any in fact occurred, they were committed by independent contractors. He argues that he cannot be responsible for their acts. Alternatively, defendant asserts that if the sales personnel were his agents, they were not authorized to misrepresent and therefore he cannot be held accountable.

I am satisfied that the sales representatives were defendant's agents. The contention that they were independent contractors is without merit. See Colegrove v. Behrle, 63 N. J. Super. 356 (App. Div. 1960). The sales people were employed by defendant for the sole purpose of representing him in transactions arising out of his business. They made no investment of capital incident to a separate business and assumed no financial business risks. An agency relationship must be determined in the light of the totality of the facts. The form contract used by defendant shows a recognition of defendant’s responsibility in that the name of defendant Educational Service Company, with its address and phone number, appears on its heading. The sales personnel sign the contracts as “representatives” of defendant. The absence of direct control over the sales representatives regarding the manner in which they solicit business is insignificant in the overall view of the circumstances. 2 C. J. S. Agency § 2, at 1027-1028 (1936); cf. Andryishyn v. Ballinger, 61 N. J. Super. 386, 391 (App. Div. 1960), certif. den. Andryishyn v. Bayonne Bloch Co., 33 N. J. 120 (1960); DeMonaco v. Benton, 18 N. J. 352, 357 (1955).

Defendant denies authorizing the sales personnel to engage in any fraudulent practices. A principal is accountable for the authorized acts of his agent and for any acts which he may have ratified. The testimony indicates that defendant was apprised of the misrepresentations committed by two of his key sales representatives, Miss Florence Yeoman and a Martin Gross. He took no affirmative action against them. Also, in some instances defendant personally applied pressure tactics in attempting to make collections after being informed of the consumers’ complaints. While I am mindful of the testimony that at no time did defendant instruct his representatives to misrepresent, I am satisfied that the vast number of complaints received from consumers and the resistance to his demands for payment (defendant initiated suit in approximately 70% of the contracts with Few Jersey consumers) made him fully aware of the repeated fraudulent practices.

Authority can be shown by express agreements between principal and agent. But it can also be inferred from the course of dealing between the two. All authority must be traced to the principal and may be found in his adoption of, or acquiescence in, similar acts done on other occasions by the agent. Restatement, Agency 2d, § 43, at 133-134 (1958). Authority is found in defendant’s knowledge of, and acquiescence in, repeated deceptions by his sales personnel. Alternatively, as to the vast majority of purchasers who have paid moneys to Eomain, I find that he has ratified those transactions and is responsible for them. Defendant cannot escape responsibility if he accepts and retains the “fruits” of the fraud. Tams v. Abrams, 120 N. J. Eq. 253, 257-258 (E. & A. 1936); Mechanics’ Trust Co. of New Jersey v. Reid, 117 N. J. Eq. 472, 473 (E. & A. 1934); Security Aluminum Window Mfg. Corporation v. Lehman Associates, Inc., 108 N. J. Super. 137, 146-147 (App. Div. 1970); 37 C. J. S. Fraud § 61, at 349, 350 (1943).

The Attorney General is entitled to injunctive relief pursuant to N. J. S. A. 56:8-8. Defendant will be enjoined from continuing or engaging in any fraud or deception in connection with. the execution of any contract and from acquiescing in or ratifying any fraud, deception or misrepresentation practiced by any of his sales representatives in connection with any transactions in his behalf.

Plaintiff further contends that the sales price charged by the defendant is unconscionable and fraudulent and, as such, violative of N. J. S. A. 56:8—2. As already noted, the standard form contract presently used by defendant calls for a cash sales price of $249.50 and a time sales price of $279.95 for the basic books and materials which cost him between $35 and $40, exclusive of salesmen’s commissions and overhead. While the sales price appears to be excessive, I cannot say that such exorbitance per se constitutes a fraud. Cf. Jones v. Star Credit Corp., 59 Misc. 2d 189, 298 N. Y. S. 2d 264, 266 (Sup. Ct. 1969). In the absence of any deceptive practice by the seller, the transaction cannot be vitiated under N. J. S. A. 56:8-2. Where the wording of a statute is clear and explicit, courts are not permitted to indulge in any interpretation other than that called for by the express words set forth. Dulce Power Co. v. Patten, 20 N. J. 42, 49 (1955).

The Attorney General requests a declaration that defendant’s standard form contract, which includes the alleged grossly excessive sales price, is unconscionable and unenforceable under the Uniform Commercial Code (N. J. S. A. 12A:2-302). This statute provides that the court may refuse to enforce an unconscionable contract or an unconscionable clause in a contract. It further provides that when it is claimed that the contract or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination. The Attorney General alleges that he is empowered to invoke N. J. 8. A. 12A:2-302 in behalf of all purchasers who have signed the standard form contract. This assertion is predicated upon N. J. 8. A. 52:17A-4(h), which vests power in the Attorney General to

Enforce the provisions of the Constitution and all ether laws of the. State, as well as perform all other duties conferred and imposed by law upon the Attorney-General.

Under this general grant our courts have recognized the right of the Attorney General to initiate or to intervene in law suits for the protection of the public interest. 19 Rutgers L. Rev. 187, 251, 252 (1964-65), and cases cited therein. However, the Attorney General is not a proper party to a private controversy. Trenton Saving Fund Society v. Wythman, 104 N. J. Eq. 271 (Ch. 1929), rev’d on other grounds 106 N. J. Eq. 93 (E. & A. 1930). The unconseionability of a contract or a clause in a contract within the purview of N. J. 8. A. 12A :2-302 is strictly a matter of private concern and cannot be asserted by the Attorney General.

In State of New York by Lefkowitz, Attorney General v. ITM, Inc., 52 Misc. 2d 39, 275 N. Y. S. 2d 303 (Sup. Ct. 1966) the court determined that defendants’ sales scheme involving excessively high prices was violative of the Executive Law, § 63, subdiv. 12, and was unenforceable. That statute, insofar as pertinent, reads:

Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney-general may apply * * * for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts * * * and the court may award the relief applied for or so much thereof as it may deem proper. The word “fraud” or “fraudulent” as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions. (Emphasis supplied)

It further upheld the Attorney General’s contention that the contracts in question were unconscionable within the meaning of the Uniform Commercial Code, § 2—302, and were unenforceable. Suffice it to say that State of New York by Lefkowitz, supra, is distinguishable from the instant case in that § 63, subdiv. 12 of the Executive Law of hTew York, under which the proceeding was instituted, specifically prohibits “unconscionable contractual provisions.” Since N. J. S. A. 56:8-2 does not presently include such a provision and the Attorney General may not invoke N. J. S. A. 12A :2-302, I cannot in this proceeding make the determination of price unconscionability asked for by plaintiff. Eurthermore, since I have concluded that in every instance in which a purchaser testified the transaction with him or her was in violation of N. J. S. A. 56:8-2, a determination of price unconscionability with respect to these transactions would appear to be unnecessary. Cf. Toker v. Perl, 103 N. J. Super. 500 (Law Div. 1968), aff’d 108 N. J. Super. 129 (App. Div. 1970).

As already noted, plaintiff requests that orders be entered pursuant to N. J. S. A. 56:8-8 restoring to the various consumers moneys paid to defendant on account of transae-' tions hereinbefore considered and determined to be violative of N. J. S. A. 56 :8-8. At the conclusion of the trial plaintiff abandoned his claim for restoration orders in behalf of consumers listed on the schedule annexed to the complaint who did not testify in this proceeding. We are here concerned with three categories of consumers, namely: (1) those who entered into contracts with defendant and through the services of a Legal Aid attorney effected a settlement with him; (2) consumers against whom default judgments have been entered and payments made as a result of garnishments, and (3) consumers who entered into contracts but suffered no loss as a result thereof.

As to the first category, there will be no restoration orders entered. Although this court has concluded that misrepresentations were made to these consumers in connection with the sale of the materials in question, they had the benefit of counsel and voluntarily effected settlement agreements. It is settled law that an executory settlement agreement between the parties, fairly arrived at to settle pending litigation, may be specifically enforced in that cause. Jannarone v. W. T. Co., 65 N. J. Super. 472 (App. Div. 1961), certif. den. Jannarone v. Calamoneri, 35 N. J. 61 (1961); De Caro v. De Caro, 13 N. J. 36 (1953). It necessarily follows that the fully performed voluntary settlement agreements with which we are here concerned, effectuated through counsel with full knowledge of the material facts, should not be disturbed.

As to the second category, in which default judgments have been entered against the purchasers, defendant argues that the validity of the contracts has been adjudicated and these matters are res judicata. A judgment of a court of competent jurisdiction is, so long as it stands unreversed, conclusive upon the parties and their privies, not only as to all matters which were actually litigated but also as to all matters which might have been properly raised in the prior suit. Reeves v. Jersey City, 30 N. J. Super. 392 (App. Div. 1954), aff’d o. b. 16 N. J. 529 (1954); Newark v. North Jersey District Water Supply Comm’n, 106 N. J. Super. 88 (Ch. Div. 1968), aff'd o. b. 54 N. J. 258 (1969). In any event, defendant contends that the Attorney General may not collaterally attack these judgments and that application for relief from any judgment must be made in the court which rendered the judgment. B. 4:50-1; B. 6:6-1. Yet it has also been held that this court has the power in a “proper case” to entertain an independent action to relieve a party from a judgment. Shammas v. Shammas, 9 N. J. 321 (1952); Newark v. North Jersey District Water Supply Commission, supra.

The Attorney General in this independent proceeding challenges the validity of the default judgments obtained by defendant against the various witnesses. The attack is a collateral attack because any attempt in a separate and independent proceeding to question the integrity and validity of any adjudication in another proceeding and challenge its existence as valid constitutes a collateral attack. Catabene v. Wallner, 16 N. J. Super. 597 (App. Div. 1951). But, as observed in that case, all collateral attacks on judgments are not barred.

There was presented in this case testimony respecting a regular systematic business pattern embodying practices violative of a legislative mandate for consumer fair treatment. In no instance did any of the purchasers who testified have his day in court. Perhaps this was due to sheer neglect. But whatever the reason, the question is whether the public policy of this state should be frustrated. The policy considerations precluding collateral attacks upon judgments are similar to those behind the doctrine of res judicata. In Desmond v. Kramer, 96 N. J. Super. 96, 107 (Cty. Ct. 1967) the court approvingly quoted the following excerpt from Coca-Cola v. Pepsi-Cola Co., 36 Del. 124, 172 A. 260 (Sup. Ct. 1934) :

“The doctrine of res judicata is primarily one of public policy and only secondarily of private benefit to individual litigants. It draws its strength not so much from the private advantage of the party seeking to invoke it, but its roots lie in the principle that public policy and welfare require a definite end to litigation when each of the parties has had a full, free and untrammelled opportunity of presenting all of the facts pertinent to the controversy. The primary object of res judicata (public policy) is based upon the maxim reipubUcae ut sit finis litium — it concerns the commonwealth that there be a limit to litigation. * * *”

Tiie principle of finality of judgments is not an absolute rule and must be weighed in the balance with the equally salutary principle that justice should be done in every case. Hodgson v. Applegate, 81 N. J. 29, 43 (1959). Cf. State ex rel. Hilgendorff v. American Can Co., 42 N. J. 32, 40 (1964), cert. den. 379 U. S. 826, 85 S. Ct. 53, 13 L. Ed. 2d 36 (1964); Cronheim v. Tennant, 30 N. J. 360, 371 (1959). The doctrine of res judicata and the rule prohibiting collateral attacks may be rendered inoperative by considerations of legislative policy. Kalb v. Feuerstein, 308 U. S. 433, 60 S. Ct. 343, 84 L. Ed. 370 (1940) ; Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 64 S. Ct. 268, 88 L. Ed. 376 (1943).

The Consumer Protection Act was apparently enacted for the purpose of thwarting itinerant operators from perpetrating deceptive business practices upon prospective innocent purchasers and authorizes the Attorney General to combat practices violative of N. J. S. A. 56 :8-2. Under the circumstances here presented, the legislative mandate authorizing the court to restore moneys to victimized consumers overrides the policy favoring the finality of default judgments. Accordingly, defendant will be ordered to forthwith pay to the following parties:

Yvonne J. Herndon $ 5.00

John Seaman 492.00

Lottie Pollard and her husband 136.00

Betty Leary 343.00

Eula Brown and her husband 245.85

Vera Sewell and her husband 135.00

Judith Anne Curcio and her husband 14.00

Evelyn Walker 6.00

He who seeks equity must do equity. The court, in ordering defendant to repay to the various purchasers the funds received by him, has rescinded each of the contracts. The purchasers should, upon receiving repayment, return such books and materials as they have to defendant, restoring him as much as possible to the status quo. Of course, some of the books or materials may have become soiled or lost, but the inability of the purchasers to make complete restoration to defendant will not bar the right to the recovery of the amounts to which I find they are entitled.

Defendant is directed to cause to be entered in the county district courts in which the respective default judgments were entered cancellations of said judgments. Defendant is further enjoined from instituting any action for the recovery of moneys from any consumers who testified in this cause.

I also find that defendant is subject to civil penalties pursuant to N. J. S. A. 56 :8-13, which provides:

Any person who violates any of the provisions of the act to which this act is a supplement shall, in addition to any other penalty provided by law, be liable to a penalty of not less than $50.00 or more than $100.00 for the first offense and not less than $100.00 or more than $250.00 for the second and each subsequent offense.

Collection and enforcement of the penalties is prescribed by N. J. S. A. 56:8-14 as follows:

Every county district court and municipal court shall have jurisdiction of proceedings for the collection and enforcement of a penalty imposed because of the violation, within the' territorial jurisdiction of the court, of any i>rovision of the act to which this act is a supplement. The penalty shall be collected and enforced in a summary proceeding pursuant to the Penalty Enforcement Law (N. J. S. 2A :58-l, et seq.). Process shall be either in the nature of a summons or warrant and shall issue in the name of the State, upon the complaint of the Attorney General or any other person.

N. J. 8. A. 56:8-3.1 (L. 1967, c. 97, § 1, effective June 8, 1967) empowers the Attorney General or his assistant to hold hearings and, upon finding a violation, to assess a penalty within the limits of N. J. 8. A. 56:8-13 against the person who committed such violation. It is urged that this court has no jurisdiction to assess penalties. Prior to the enactment of N. J. S. A. 56 :8-3.1 the only forum available for the assessment and collection of the penalty was the court. Cf. O’Dowd’s Dairy v. Hoffman, 52 N. J. Super. 135 (App. Div. 1958). Clearly, the intendment of this supplement (N. J. S. A. 56:8-3.1) to the Consumer Protection Act was to provide an alternative proceeding and not to deprive the court of the jurisdiction vested in it pursuant to N. J. S. A. 56 :8-13.

N. J. 8. A. 56 :8-14 is not a bar to the jurisdiction of this court. As already noted, this court has granted injunctive relief and restoration orders. It is appropriate in this proceeding to entertain the demand of the Attorney General for the imposition of penalties. The prime aim of the new practice is the just and expeditious determination in a single action of the ultimate merits of an entire controversy between litigants. Falcone v. Middlesex County Medical Society, 47 N. J. 92 (1966); Newark v. North Jersey District Water Supply Comm’n, supra. The court heard testimony with respect to 24 contracts and concluded that in all instances the contracts were induced by defendant through practices violative of N. J. S. A. 56 :8~2. As already noted, defendant was apprised of the misrepresentations and pressure tactics of his representatives in which he acquiesced. He also used his own pressure tactics in refusing to cancel the contracts and in insisting upon payments from the victimized purchasers. Accordingly, he will be subjected to a penalty of $100 for each offense for a total of $2400. Defendant is directed to pay said sum to the Clerk of the Superior Court, who will remit the same to the State Treasurer. N. J. S. A. 56:8-13; N. J. S. A. 2A:58-8.

A suit for statutory penalties is neither criminal nor quasi-criminal in nature, but civil. “Such offenses are punishable as the name implies, by penalties.’’ Sawran v. Lennon, 19 N. J. 606, 612 (1955). It matters not that in some instances the purchasers suffered no loss, and in others voluntary settlements were effected. The fact remains that defendant was found to have committed 24 “offenses” for which he is answerable to the State.

Defendant admits that he has not complied with N. J. S. A. 56 :l-2, which requires the filing of a certificate of his trade name, “Educational Services Co.,” before conducting any business in New Jersey. The cited statute provides that the certificate shall set forth the name under which the business is conducted and the true name of the person conducting the same, with his post office address. The purpose of this statute is to protect persons giving credit to the firm on the faith of the fictitious designation. Rutkowsky v. Bozza, 77 N. J. L. 724 (E. & A. 1909); Donner v. Parker Credit Corp., 10 N. J. Super. 350 (Ch. Div. 1950). A violation of this statute is a misdemeanor. N. J. S. A. 56 :l-4.

Ordinarily, a court of equity will not enjoin a violation of a criminal statute. Baird v. Board Recreation Comm’rs, South Orange, 110 N. J. Eq. 603, 605 (E. & A. 1932). Such violations are left to the agencies charged with the enforcement of the criminal law. Trisolini v. Meltsner, 23 N. J. Super. 204 (App. Div. 1952). In the absence of special statutory jurisdiction, where the grievance is subject to indictment, equity interferes with great reluctance even though its intervention be sought by the Attorney General, and then only to prevent a very serious public injury. Raritan Tp. v. Port Reading R. R. Co., 49 N. J. Eq. 11 (Ch. 1891); cf. Mayor and Council of Alpine Borough v. Brewster, 7 N. J. 42 (1951). This case does not present such an injury. The remedy by indictment, if invoked, appears sufficient to rectify the situation. Accordingly, injunctive relief enjoining the defendant from engaging in business in New Jersey pending registration of his trade name will be denied.