author: Schwartz, L., J. D. C.,

text:
    DIVAN BUILDERS, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. PLANNING BOARD OF THE TOWNSHIP OF WAYNE AND MAYOR AND COUNCIL OF THE TOWNSHIP OF WAYNE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 13, 1973.

      Messrs. Corrado, Corcoran & SoTcalslci, attorneys for plaintiff (Mr. Ronald SoTcalslci appearing).

      Messrs. Hunzilcer, Hunzilcer •,& Slein, attorneys for defendant Planning Board (Mr. Kenneth 8. Stein appearing).

      Mr. Michael C. Rudolph, attorney for defendant Mayor and Council.
   Schwartz, L., J. D. C.,

Temporarily Assigned. Plaintiff, an applicant for final subdivision approval, brought this action against the governing body and the Planning Board of Wayne Township to recover the sum of $20,000 which it was required to contribute towards the construction cost of an off-site municipal drainage facility as a condition precedent to receiving approval.

The facts, as stipulated in this case, are that preliminary subdivision approval had been granted to plaintiff by the Planning Board of Wayne Township in 1970 for a tract of land to be divided into 31 lots. .A substantial portion' of the premises was covered by a pond in which water had been temporarily withheld before it flowed from the premises by a conduit. The developer’s plans, approved by the municipal engineer and the planning board, called for the draining of the pond and the piping of water as it entered the premises from upstream, so that it flowed through the development and into the previously existing drainage facility on its downstream border.

In 1972 the municipality adopted an amendment to its subdivision ordinance known as ordinance 69. Among other matters, it provided as a condition precedent to subdivision approval, site plan approval and issuance of building permit, that applicants post performance bonds or make cash payments towards off-site public improvements in whole or in part made necessary by the applications. An allocation of costs was provided depending upon the extent of benefit conferred on the plots which were the subject of the applications, the cost of the improvement, the extent to which the facility was made necessary to protect neighboring properties as the result of the proposed plans and other conditions later adverted to in this opinion.

When plaintiff subsequently applied for final subdivision approval, in accordance with ordinance 69 the planning board imposed a condition precedent that it make payment of $20,000 representing its allocation toward the cost of a $250,000 off-site drainage system the municipality planned to construct. The system would accommodate the increased run-off from plaintiff’s property as well as drainage from neighboring properties and properties located downstream in the drainage basin.

In order to secure approval plaintiff delivered the sum of .$20,000. A similar payment was made by a neighboring developer who had applied for site plan approval.

The established policy of the municipality is to impose a required contribution from each of the undeveloped proper-tics in the drainage basin in accordance with ordinance 69 at such time that the owners thereof apply for subdivision approval, site plan approval or a building permit.

Existing developed properties in the drainage basin will be protected by the proposed drainage system from increased water flow that will emanate from the plaintiff’s lands and lands of other as yet undeveloped properties, by reason of their development of the same, but the municipality contends that the already developed properties in the area will not be benefitted by the new drainage system as the existing system has been adequate for their purposes.

Three months after plaintiff’s application was approved the governing body adopted ordinance 108, a general improvement ordinance. By its terms the $250,000 cost of this particular public improvement will be defrayed by the $40,000 required from the two developers, and bonds will be sold which will be retired annually as a, municipal expense, in payment of the balance of the cost of the project.

Our Supreme Court has previously refrained from passing on the question of whether the Planning Act authorizes a municipality to impose upon a subdivider, as a planning matter, the duty to provide off-site improvements, an appropriate case not having been presented to the court. Longridge Builders, Inc. v. Planning Bd., Princeton Tp., 52 N. J. 348, 350 (1968).

Since the adoption of the Planning Act of 1953 (IV. J. 8. A. 40:55 — 1.1 et seq.) it has been the accepted rule that a municipality may, by a proper implementing ordinance, condition approval of a subdivision application upon a developer installing most onsite improvements. Deerfield Estates, Inc. v. East Brunswick Tp., 60 N. J. 115, 124 (1972); Kligman v. Lautman, 53 N. J. 517, 536-537 (1969); Magnolia Development Co., Inc. v. Coles, 10 N. J. 223, 227 (1952).

N. J. 8. A. 40 ¡55-1.21 provides:

Before final approval of plats the governing body may require, in accordance with the standards adopted by ordinance, the installation, or the furnishing of a performance guarantee in lieu thereof, of any or all of the following improvements it may deem to be necessary or appropriate: street grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor’s monuments, water mains, culverts, storm seioers, sanitary sewers or other means of sewage disposal, drainage structures, and such other subdivision improvements as the municipal governing body may find necessary in the public interest.
The municipality may also require a maintenance guarantee for a period not to exceed 2 years after final acceptance of the improvement, in an amount not to exceed 15 per cent of the cost of the improvement or of the original installation. [Emphasis supplied]

The trial court in Colonial Oaks West, Inc. v. East Brunswick Tp., 61 N. J. 560 (1972), found that off-site water-mains,'required by the planning board to be installed by the developer, under the particular circumstances as they appeared from the record, were “in a real sense an on-site improvement.” This explicit factual determination was not the subject of appeal and, therefore, the Supreme Court did not consider disturbing it (at 564).

The opinions in Deerfield Estates, Inc., supra, and Colonial Oaks West, Inc., supra, recognizing the authority of a municipality to require installation of on-site water main extensions by a subdivider “in an appropriate case,” has limited application here.

The distribution of water is a proprietary function. Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N. J. 229, 233 (1952). Determinations based upon the financial condition of a municipal water utility, the supplier of the product, on the one hand, and the extent of reimbursement to consumers who are the developers and the ultimate purchasers of the lots, on the other hand, are not dispositive of the issues here.

We are • here concerned with off-site drainage in which municipal income is not involved, and the statutes must be examined to ascertain municipal authority to require pay-meat for or contribution to the cost of such improvement installed by the municipality.

N. J. S. A. 40:55-1.20 provides that the planning board shall require “in the public interest that the tract shall be-adequately drained” and shall be adaptable for the intended purposes “without danger to health or peril from flood * * erosion or other menace.” (Emphasis supplied)

The amount of rainfall absorbed by the land is reduced in proportion to the extent of structures, roads, driveways and other impervious surfaces which cover a development. As the surface outflow increases in amount and intensity by such construction, “flood” and “erosion” may menace the plots in the subdivision as well as lands of others located on its borders. Also, if downstream flow is obstructed by an inadequate exterior drainage system, the lots in the subdivision will be flooded in the back-up process.

In the opinion of the Appellate Division in Longridge Builders, Inc. v. Planning Bd., Princeton, 98 N. J. Super. 67 (App. Div. 1967), a case involving off-site street improvements, we find this language:

It is entirely conceivable that a broader approach might have to lie-entertained in relation to drainage or the provision of water or sewerage facilities, for example. These essentials for a residential subdivision might in some circumstances call for off-site operations to produce acceptable on-site conditions. And those might possibly be within the contemplated board’s discretion to require of the developer, a point we have no occasion here to determine, [at 75-76]

This court is satisfied that municipalities have the right to require protective drainage improvements to be constructed on-site and off-site as a condition precedent to the approval of a subdivision which will be fully integrated with the community at large, particularly where the previous retention of water in a substantial pond on the premises will no longer be accommodated according to the subdivision plan. The subdividing of land is a privilege to which the Legislature has attached certain conditions. One who seeks the advantage of the privilege must comply with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the safety and general welfare of the lot owners in the subdivision and of the public. City of Buena Park v. Boyar, 186 Cal. App. 2d 61, 8 Cal. Rptr. 674 (D. Ct. App. 1960).

Our courts have refrained from expressing views as to planning board authority to require installation of on-site or off-site improvements by subdividers where municipalities failed to adopt ordinances establishing standards and procedures for plat approval. Longridge Builders, Inc. v. Planning Bd., Princeton Tp., 52 N. J. 348, 350-351 (1968); Levin v. Livingston Tp., 35 N. J. 500, 510, 514-515 (1961); Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N. J. 423, 441 (1958).

N. J. S. A. 40:55-1.14 provides:

In any ordinance creating a planning board * * * provision may be made for the regulation of subdivisions within the municipality by approval of the planning board acting in lieu of the governing body of all plats before such plats may be filed with the county recording officer, provided such ordinance regulating subdivisions establishes regulations, requirements, and standards for plat approval by the planning board. * * * [Emphasis supplied]

S. J. 8. A. 40:55-1.15 provides:

Before [approval of a subdivision] the governing body shall adopt by ordinance, standards for approving the design of subdivisions and the required street improvements, requirements for the submission of subdivision plats, and the procedure to be followed by subdividers. '* * * [Emphasis supplied]

In this instance Wayne Township adopted ordinance 69 as an amendment to the subdivision ordinance, providing for standards by which contributions required to be paid by subdividers and others toward off-site municipal improvements could be calculated.

■ It provided that prior to the granting of final subdivision approval the applicant shall be required to post a performance bond or make cash payments toward off-site improvements in whole or in part made necessary by the proposed subdivision and where the making of such improvement will confer a benefit upon the subdivided plots. The allocation of cost as between the subdivider, other property owners and the township shall be made in accordance with the following:

(1) The total cost of the off-site improvements, the increase in market values of the i>roperty affected and any other benefits conferred, the needs created by the application, population and land use projections for the general area of the applicant’s property and other areas to be served by the oft'-site improvements, the estimated time of construction of the off-site improvements, and the condition and periods of usefulness, which periods may be based upon the criteria of N. J. 8. A. 40A :2-22. The following criteria may also be considered as well as any other reasonable criteria which would aid in said determination:
* * *
(3) Drainage facilities may also be based upon and determined by the drainage created by or affected by a particular land use and considering :
(a) the percentage relationship between the acreage of the application and the acreage of the total drainage basin;
(b) the use of a particular site and the amount of area to be covered by impervious surfaces on the site itself;
(c) the use, condition or status of the remaining area in the drainage basin.

If the payment by an applicant is more than its share of the actual cost of the installations, the ordinance provides a rebate; if it is less, it will be assessed the difference. Others benefited would be required to make proportionate contribution.

The municipality has urged that the ordinance moved in the direction of the suggestion of the court in Longridge Builders, Inc., supra 52 N. J. at 350, and Brazer v. Mountainside, 55 N. J. 456 (1969), that by virtue of the Planning Act a subdivider may be compelled to assume the cost of an improvement “which bears a rational nexus to the needs created by, and benefits conferred upon, the subdivision.” But the term “needs” refers to improvements to accommodate the subdivided plots. It does not relate to the effect of the subdivision on exterior lands nor to off-site improvements to accommodate the adjoining areas, made necessary by the proposed subdivision, as urged by the township.

Longridge, supra, did not refer to such needs; it referred to the needs of the subdivision only. Brazer, supra 55 N. J. at 466, affirmed this position, saying: “Beyond that, Planning Board impositions, although purportedly authorized by the Planning Act or the local ordinance, amount to impermissible exactions.” Princeton Res. Lands v. Princeton Tp. Plan. Bd., 112 N. J. Super. 467, 475 (App. Div. 1970), limited its effect to required dedication or donation of off-site streets, rather than improvement by road construction thereon.

Deerfield, supra 60 N. J. at 131, described three principal ways that a water main extension may be financed: first, by a general improvement ordinance undertaking the work at municipal expense; second, by a local improvement ordinance under N. J. S. A. 40 :56-l et seq., assessing the cost against those properties benefiting; third, by requiring the developer to do the work as a condition precedent to subdivision approval, with partial or total reimbursement from the municipality engaged in the business of delivering water. The court said the third recourse “may be had only where appropriate local legislation” is adopted.

However, nowhere in the case law of our State is there direction supplied to the specific course to be followed by municipalities. Longridge Builders, Inc., supra 52 N. J. at 351, only states that “there must be adequate standards and procedures for determining how the allocation of cost shall be made.”

Is there any authority in the Planning Act by which a municipality may exact from a subdivider a contribution to be applied toward the cost of an off-site improvement installed by the municipality which would not have been necessary but for the effect of the development construction upon •the property of others?

It must be borne in mind that the financing of the installation of public facilities by a governing body and the authority of a municipality exercised under the Planning Act are not interlocking powers. Considerations governing one are alien to the other. The statutes cannot be read in pari materia.

A municipality can only finance such improvements as provided by statute by adopting general improvement bond ordinances and performing the work at municipal expense, or by adopting local improvement bond ordinances under N. J. S. A. 40A :2-l et seq. and assessing those benefitted as provided in N. J. S. A. 40:56-l et seq.

In Magnolia Development Co., Inc. v. Coles, 10 N. J. 223 (1952), the court condemned as a misuse of municipal authority the imposition upon a subdivider of conditions not authorized by the planning statute at that time. A municipality exercises police power under this statute with respect to new developments within its borders. But in exercising its powers, it must resort only to the powers granted to it by the Legislature for this purpose, and the procedures therein prescribed. Planning powers may not be exerted by indirection; the exercise of these powers must needs be in keeping with the principles of the enabling statutes. Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N. J. 229 (1952).

While the goal of imposing equitable charges to avoid injury to the neighbors of developers is laudable, payment for municipal off-site improvements may not be secured indirectly through planning board procedures without legislative sanction. Planning board ordinances depend for their validity upon the statute.

Municipalities only have the means to achieve the result sought here by resort to the statutory scheme, N. J. 8. A. 40:56-1 et seq., for the construction of local improvements to be paid for by assessments levied against the property owners who are benefitted by enhancement of their property values, to the extent of such benefit. Deerfield Estates, Inc. supra 60 N. J. at 129.

Therefore, insofar as the result urged by the municipality is posited on the powers granted by the Planning Act, it cannot be sustained. For the same reason the result cannot be sustained by the body of statutory or decisional law relating to extensions of public improvements by a municipality. Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, supra 28 N. J. at 441.

Plaintiff’s right to recover was further enhanced by the municipality’s adoption of ordinance 108, a general improvement bond ordinance governing the financing of this particular drainage system towards which the plaintiff had been required to contribute.

It described “contributed funds” in the sum of $40,000, which it had secured from plaintiff and another developer, appropriated as a down-payment in accordance with N. J. S. A. 40A:2-11. The balance of the cost of this general improvement was to be paid from ad valorem taxes imposed upon all taxable property in the township, although contributions toward the cost would subsequently be required from other developers.

Since the improvement was undertaken as a general, it “may not be transmuted into a local improvement at the whim” of the governing body. River Edge Homes, Inc. v. River Edge, 130 N. J. L. 376 (Sup. Ct. 1943). Nor may it be transmuted into an improvement to be paid for by subdividers in accordance with the standards described in ordinance 69. The exaction of payment from only plaintiff and one other developer under this ordinance was unjust and discriminatory.

The township should have denied the application for the subdivision if the abandonment of the pond or other 'Subdivision features would have threatened properties in the drainage area with flood or erosion, or it should have obliged plaintiff to construct a drainage conduit from the development to an existing main channel as a condition precedent to subdivision approval, as was required by the planning board in Kotlarich v. Ramsev, 51 N. J. Super. 520, 534 (App. Div. 1958), but not passed upon by the court. Instead, it engaged in ultra vires acts resulting in imposing an impermissible exaction upon the plaintiff.

Counsel shall submit an order providing for judgment in favor of the plaintiff.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY JOHN LA PORTE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 20, 1972
    Decided July 5, 1972.

      Before Judges Labrecque, Kouovsky and Allcorjl

      Ms. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for the appellant {Mr. Stanley G. Van Ness, Public Defender, attorney; Martha K. Kiviiny, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Ralph J. Jabbour, Assistant Prosecutor, argued the cause for the respondent {Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney; Mr. Jabbour of counsel and on the brief).
   Per Curiam.

After a review of the record, the court is satisfied that the search of the defendant’s automobile made subsequent to his arrest was reasonable and proper in view of the attendant circumstances, including the very real probability that the automobile contained the gun used or the money stolen in the Roselle armed robbery, or both. Cf. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (Decided June 12, 1972). Accordingly, there was no error in the action of the trial court denying the motion to suppress.

The conviction of the defendant of the present charges of robbery, when armed (arising out of the Belleville holdup), must be reversed, however, despite the overwhelming evidence of his guilt of such charges. The defendant was unduly and improperly prejudiced at the trial by testimony on the- State’s case relating to the fact that he was “wanted” by the police of a neighboring community for another armed robbery; and by'permitting the prosecutor to ask each of two character witnesses called by the defendant, whether they were aware that defendant, in March, 1970, “was arrested for the crime of embezzlement” from his then employer.

Notwithstanding the direction of the trial judge to “strike” the testimony regarding the other armed robbery, and his cautionary instructions to the jury on this testimony as well as on the information supplied to the jury by the prosecutor concerning the defendant’s arrest for embezzlement, such extraneous, improper information could hardly have been ereased from the minds or the consideration of the individual members of the jury. With such information in mind, the jurors could not avoid being prejudiced by it in passing on the defendant’s guilt or innocence of the charge of armed robbery, here involved.

Reversed and remanded for a new trial.


text:
    TROY HILLS VILLAGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BRUCE FISCHLER AND BETH FISCHLER, HIS WIFE, AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1972
    Decided January 29, 1973.
    Before Judges Fritz, Lynch and Joelson.

      Mr. Lester P. Dubow argued the cause for appellant (Mr. Ralph Labendz, on the brief; Messrs. Krug man, Chapnich, Grimshaw & Dubow, attorneys).

      Mr. Ivan V. While, Jr. argued the cause for respondents (Messrs. Mandón & While, attorneys).

      Messrs. Michael D. Lang and Richard IS. Blumberg filed a brief amicus curiae on behalf of The New Jersey Tenants Organization.
   Per Curiam.

The sole issue before us is the constitutionality of L. 1970, c. 210 (N. J. S. A. 2A:42-10.10 et seq.). The court below found the law constitutional and we agree, substantially for the reasons set forth in Judge Collins’ written opinion, 122 N. J. Super. 572 (Law Div. 1971).

The matter reached us prematurely, a counterclaim not yet having been decided. We were advised at oral argument that defendant-tenants have moved; the counterclaim may be moot. In any event, we remand for disposition of the counterclaim.

Judgment denying plaintiff’s motion for summary judgment and dismissing complaint is affirmed. Counterclaim is remanded for disposition. We do not retain jurisdiction.


author: Matthews, J. A. D.

text:
    RAYMOND F. MALE, COMMISSIONER, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. ERNEST RENDA CONTRACTING CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT, AND HILLSBOROUGH MUNICIPAL UTILITIES AUTHORITY, TOWNSHIP OF HILLSBOROUGH, COUNTY OF SOMERSET, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 17, 1972
    Decided February 21, 1973.

      Before Judges Labeecque, Kolovsky and Matthews.

      Ms. Virginia Long Annich, Deputy Attorney General, argued the cause for appellant (Mr. John P. Sheridan, Jr., Deputy Attorney General, on the brief; Mr. George F. Kugler, Attorney General'of New Jersey, attorney).

      Mr. Raymond P. DeMarco argued the cause for defendant-respondent Ernest Eenda Contracting Co., Inc. (Messrs. Romer & DeMarco, attorneys).

      Mr. William P. Westling argued the cause for defendant-respondent, cross-appellant Township of Hillsborough Municipal Utilities Authority (Messrs. Imbriani and Westling, attorneys).

      Mr. Thomas L. Parsonnet filed a brief on behalf of amicus curiae New Jersey State A.E.L.-C.I.O. (Messrs. Parsonnet, Parsonnet and Duggan, attorneys).

      Mr. Anthony G. Meola filed a brief on behalf of amicus curiae New Jersey Building and Construction Trades Council, A.F.L.-C.I.O. (Messrs. Dunn and Pylcon, attorneys).

      Mr. Ronald L. Tobia filed a brief on behalf of amicus curiae Associated Independent Contractors.

      Mr. Richard K. Rosenberg filed a brief on behalf of amicus curiae Utility Contractors Association of New Jersey, Inc. (Mr. Herbert R. Ezor on the brief; Messrs. Heller and Laihs, attorneys).
   The opinion of the court was delivered by

Matthews, J. A. D.

The Commissioner of Labor and Industry (Commissioner) instituted this action under N. J. 8. A. 34:11-56.25 el seq., the Prevailing Wage Act (act), in the interest of employees of defendant Ernest Eenda Contracting Co., Inc. (Eenda), who performed work on a public works project contracted for by defendant Municipal Utilities Authority of the Township of Hillsborough, Somerset C ou nty (Authority).

The complaint alleged that defendants failed to pay the prevailing wage to employees of Eenda on the aforementioned public works project and otherwise failed to fulfill the obligations under the act. The Commissioner sought judgment requiring defendants to pay to him, as trustee for the workmen involved, the difference between the amount actually paid to those workmen and the amount that should have been paid in compliance with the act. That amount was originally computed after preliminary audit at $3,288.64. Later, in August 1970, after the commencement of this action, the Commissioner caused an additional audit to be conducted which covered the entire period of the project which by then had been completed. The additional audit disclosed that the difference between the amount Renda’s employees had actually been paid and the amount due under the prevailing wage schedule to be $57,685.16.

N. J. 8. A. 34:11-56.25 ei seq. was adopted in 1963. (L. 1963, c. 150). Section 1 of the act (N. J. S. A. 34:11-56.25) provides:

It is declared to be the public policy of this State to establish a prevailing wage level for workmen engaged in public works in order to safeguard their efficiency and general well being and to protect them as well as their employers from the effects of serious and unfair competition resulting from wage levels detrimental to efficiency and well-being.

Under section 2 (N. J. 8. A. 34:11-56.26) certain terms as used in the act are defined. These include subsection (4), . “public body”:

(4) “Public body” means the State of New Jersey, any of its political subdivisions, except municipalities having a population of less than 25,000, any authority created by the Legislature of the State of New Jersey and any instrumentality or agency of the State of New Jersey or of any of its political subdivisions.

and subsection (9), “prevailing wage”:

(9) “Prevailing wage” means the wage rate paid by virtue of collective bargaining agreements by employers employing a majority of workmen of that craft or trade subject to said collective bargaining agreements, in the locality in which the public work is done.

Under section 3 (N. J. 8. A. 34:11-56.27) it is stated that the act applies to every contract in excess oí $2,000 for any public work and that every contract covering such work must contain a provision setting forth the prevailing wage to be paid as the same has been established by the Commissioner.

Section 6 of the Act (N. J. 8. A. 34:11-56.30) sets forth the method in which the Commissioner is to establish the prevailing wage rate in any locality. “Locality” is defined in N. J. 8. A. 34:11-56.26(2) as follows:

(2) “Eocality” means any political subdivision of the State, combination of the same or parts thereof, or any geographical area or areas classified, designated and fixed by the commissioner from time to time, provided that in determining the “locality” the commissioner shall be guided by the boundary lines of political subdivisions or parts thereof, or by a consideration of the areas with respect to which it has been the practice of employers of particular crafts or trades to engage in collective bargaining with the representatives of workmen in such craft or trade.

The testimony adduced below disclosed that the Commissioner did not adopt any rules or regulations to implement the act because he concluded that it was sufficiently specific. A procedure was established, however, to facilitate ascertainnitnt of the prevailing wage. First, the county was chosen as the “locality” within which to determine the prevailing wage pursuant to N. J. 8. A. 34:11-56-26(2) because he determined that political unit to he the most proper subdivision for practical determination of the prevailing wage. Second, the number of collective bargaining agreements covering a particular tjqoe of work within each county are ascertained. Third, if there exists more than one collective bargaining agreement covering a particular type of work, he determines which agreement covers the majority of workers for a particular craft or trade. Fourth, the wage rate set forth in that collective bargaining agreement becomes the prevailing wage rate for that craft or trade in the county concerned. Fifth, the prevailing wage rato is promulgated and filed in the office of the Secretary of State. It was explained at the trial that the Commissioner, to insure the accuracy of prevailing wage rate schedules, usually checked the collective bargaining contract rates against a building contractor’s manual which is published monthly and, also, against bulletins received from the Associated General Contractors. It was noted that it has been the experience of the Department that any mistakes in a schedule are quickly brought to the Commissioner’s attention by contractors.

In May and July of 1968 the Commissioner promulgated prevailing wage rate schedules for Somerset County for types of work which may be, for our purposes, classified as heavy and general construction, and operating engineers’ work. Before these schedules were promulgated the Commissioner contacted the International Union of Operating Engineers, Local 825, and the Heavy and General Construction Workers, Local 472, and requested that he be provided with the contract of each with the Associated General Contractors. Only these unions were contacted because they were the only unions which were parties to collective bargaining agreements covering the aforementioned types of work within Somerset County. Thereafter, the pertinent prevailing wage schedules were prepared from those contracts and promulgated, as above described.

During the latter part of September 1968 the Commissioner was informed of the public works contract between defendants. The contract, on which work had commenced on September 1, 1968, provided for the construction of the Royce’s Brook Interceptor Project at a cost of $624,775.40. Knowledge of this contract was gained through the Dodge Reports. A check of the commission records disclosed that no request had been received from defendant Sewer Authority for a copy of the prevailing wage rate which would be applicable to the contract. The Commissioner immediately caused an investigation to be conducted to determine whether the parties to the contract were complying with the act. When it was ascertained that there was a failure of compliance, the Commissioner ordered Renda to commence compliance and to pay up the difference required under the Act. As heretofore indicated, no such payments were made and this action was instituted.

After a three-day trial the trial judge dismissed the complaint with prejudice and without costs for reasons expressed in an oral opinion. lie found that the act applied to the contract in question. He also found the act “as a whole” to be constitutional, but he viewed the statutory scheme under the facts presented, which disclosed that the collective bargaining contracts here involved were each the product of one union and one employer’s group, and as interpreted by the Commissioner, as an unconstitutional delegation of legislative power to private individuals. He expressed concern for what he found to be significant potential for arbitrary, self-interested action inherent in the scheme as interpreted bjr the Commissioner; that this was improper since the parties to the collective bargaining agreement are not accountable to the public and because their actions are not subject to review. He also concluded that the action should be dismissed for the additional reason that the Commissioner failed to secure wage assignments from the employees on whose behalf the action was instituted. See N. J. 8. A. 34:11-56.40. He also noted that had he not dismissed the complaint both defendants would have been found jointly liable to the Benda employees.

The Commissioner appeals from the dismissal of the complaint and the Authority cross-appeals from the ruling that it would be jointly liable with Benda had the complaint not been dismissed.

I

We do not find that the act, or the Commissioner’s interpretation thereof, presents a problem of delegation of legislative power. As we view the act, the Commissioner has not been delegated power to perform a legislative function; rather, he has merely been granted the power, as a matter of legislative convenience, to determine a set of facts, i. e., the wage rates established under collective bargaining agreements in given circumstances. The Legislature has determined, for reasons set forth in section 1 of the act (N. J. 8. A. 34:11-56.25), that the wages paid under collective bargaining agreements negotiated between labor unions representing a majority of the workmen engaged in the trade under collective bargaining’agreements and their employers shall be the wages paid in the performance of public work. That public policy determination was for the Legislature. We find no constitutional bar thereto. To conclude, as the trial judge did, that under such a scheme “the public is not sufficiently protected against arbitrary or self-motivated action on the part * * * of such private party to whom the legislative function has really been delegated/5 misses the point and actually constitutes a substitution of judicial judgment for that of the Legislature. As was noted by the Kentucky Court of Appeals in Baughn v. Gorrell & Riley, 311 Ky. 537, 224 S. W. 2d 436, 439 (1949), a case involving a somewhat similar statute, “The wisdom of this type of legislation may be debatable, but that is not a judicial question.55 See also, Union School District of Keene v. Commissioner of Labor, 103 N. H. 512, 176 A. 2d 332 (Sup. Ct. 1961).

Moreover, we cannot agree that because of the facts presented here — that the Operating Engineers Local 825 and Heavy Laborers Local 472 are the only unions having jurisdiction over the work and the only unions in these respective trades having collective bargaining agreements covering the “locality55 — there is potential for arbitrary, self-interested action which would be detrimental to the public good. It is an every day fact of industrial life that within the labor movement work jurisdiction boundaries in New Jersey have been laid out for the various local unions representing the various trades and crafts. These boundaries may encompass a single county or the entire State. To meet this organization strength, various employers have banded together into trade associations for collective bargaining purposes. We regard it as being highly improbable that these competing groups representing opposing economic interests would conspire together or collaborate to subvert the interest of the public in work performed on public construction. As the Attorney General has noted in his brief, collective barga ¡Tiing agreements reached between groups such as these represents a balancing of interests, not the interests of a group having a single purpose.

The amicus curiae have raised the question as to how statutory procedure established by the act protects the employer from unfair competition when the employer individually has no part in determining prevailing wages. The answer is relatively simple. The act was not adopted in the interest of employers. It was adopted to further the interest of the State. As was stated in Perkins v. Lukens Steel Co., 310 U. S. 113, 60 S. Ct. 869, 84 L. Ed. 1108 (1940) :

Like private individuals and businesses, tlie Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon w'hieh it will make needed purchases, [at 127, 60 S. Ct. at 876]

The State need not resort to competitive bidding, and a bidder’s rights are subordinate to the primary interests of the State as a consumer. Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 478-481 (1971).

II

An additional reason given by the trial judge for dismissing the complaint was that the failure of the Commissioner to obtain assignments from the employees of Eenda barred him from maintaining this action for recovery of the deficiencies in wages. He regarded such assignments to be a condition precedent to the institution of the action under the provisions of N. J. S. A. 34:11-56.40. This section gives each workman who is paid less than the prevailing wage the right to institute a civil action against his employer for such wage deficiency, allowing him to recover, in addition, costs and reasonable attorney’s fees. The section also provides :

At the request of any workman paid less than the prevailing wage to which such workman was entitled under the provisions of this act the commissioner may take an assignment of the wage claim in trust for the assigning workman and may bring any legal action necessary to collect the claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court.

The Commissioner, however, did not institute this action under this section. N. J. 8. A. 34:11-56.40 is not the only section which empowers the Commissioner to pursue an employer or a workman who fails to comply with the provisions of the act. Section 9 of the act (IV. J. S. A. 34:11-56.33) establishes a procedure which requires a fiscal or financial officer of any public body to withhold sufficient sums for workmen who have been underpaid from payments due to an employer on account of public work performed. Section 12 of the act (N. J. 8. A. 34:11 — 56.36) gives the Commissioner the power to supervise the payment of amounts due workmen under the act, and requires the employer to make such payments to the Commissioner to be held in a special trust account for the workmen. Such amounts are to be paid on the order of the Commissioner directly to a workman or workmen. This procedure is established “As an alternative to any other sanctions or in addition thereto, herein or otherwise provided by law for violation of this act * * As we read this section, it grants the Commissioner the implicit power to institute an action to require an employer to create a trust account as provided therein. The implicit right granted to the Commissioner here does not conflict with the right of action contained in section 16 (N. J. 8. A. 34:11-56.40), since the judgment entered against an employer would not be in the name of individual' workmen in fixed amounts, but rather would require an employer to comply with the provisions of the section and establish the account directed.

Consequently, wo find the action of the trial judge in dismissing the complaint to have been erroneous.

Ill

The trial judge also concluded in his oral opinion that had he not dismissed the complaint he would have found both Eenda and the Authority liable for the wage deficiencies owed to Eenda’s employees. That conclusion is challenged by the Authority’s cross-appeal.

The trial judge found that the contract between Eenda and the Authority contained specifications requiring that the provisions of the act be complied with. Implicitly, he also found that the Authority did not mislead Eenda with respect to the application of the act to the work in question. We have difficulty in understanding just what theory supports the trial judge’s conclusion that the Authority should be held co-responsiblo with Eenda. Absent some contractual provision as the basis for such liability, justification for finding a public body liable for a deficiency owing to employees under the act must be found in the provisions of the act itself. A search of the act discloses that the Legislature has adopted no provision under which a public body may be found liable to a workman. The only duty imposed upon a public body under the act is found in section 4 (N. J. S. A. 34:11-50.28), which requires the public body to ascertain the prevailing wage rate in the locality for the work to be performed and to “specify in the contract itself what the prevailing wage rate in the locality is for each craft or trade or classification of all workmen needed to perform the contract during the anticipated term thereof.” We find no way that the act can be read to impose the sanctions or remedies expressly imposed on the employer on the public body.

The record supports the trial judge’s finding that Eenda knew or ought to have known he should hid his labor costs on the basis of the prevailing wage scale then in force. In addition, that the specifications incorporated in the proposed contract were sufficient to put Renda on notice as to the applicability of the act as a matter of law.

We find Male v. Pompton Lakes Bor. Mun. Util. Auth., 105 N. J. Super. 348 (Ch. Div. 1969), to be factually distinguishable. However, to the extent that it may appear to hold to the contrary to our holding as to the liability of a public body under the act, it is disapproved.

The judgment of the Chancery Division is reversed and the cause remanded for further proceedings consistent with this opinion. Ho costs.


text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. LEONARD E. HATCH, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1973
    Decided February 23, 1973.

      Before Judges Fritz, Lynch and Ackerman.

      Mr. John J. DeCicco, Deputy Attorney General, argued the cause for appellant (Mr. Fred JET. Kumpf, Deputy Attorney General, of counsel and on the brief; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Carl B. Lobel, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney).
   Per Curiam.

We affirm, essentially for the reasons expressed by Judge Leahy below. 118 N. J. Super. 96 (Cty. Ct. 1972).

Without diminishing the vitality of the truism that each individual is expected to know the law, we are satisfied that conviction for a crime of this nature without an attendant showing of knowledge, actual or constructive, of the precise proscription involved, in a situation where defendant had reason to believe otherwise, as here, presents a sufficiently serious due process challenge to justify the result below. Lambert v. California, 355 U. S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), reh. den. 355 U. S. 937, 78 S. Ct. 410, 2 L. Ed. 2d 419 (1958). We are not persuaded to the contrary by the argument of the State that the registration requirement of defendant's home state should have provided sufficient warning of the likelihood of licensing in New Jersey to constitute constructive knowledge.

It being unnecessary to the decision here, we intimate no opinion with respect to what the result might be were notice to be given, for instance by signs at points of entry to the State, advising transients of the necessity for a firearms purchaser identificaton card.

In the circumstances of this ease, we affirm.


author: Horn, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH CUMMINGS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1973
    Decided February 27, 1973.

      Before Judges Carton, Mintz and Horn.

      Messrs. Miller, Hochman, Meyerson & Miller, attorneys for appellant (Mr. Gerald D. Miller on the brief and argued the cause for appellant).

      Mr. Geoffrey Gaulkin Hudson County Prosecutor, attorney for respondent (Mr. Edwin H. Stern, First Assistant Prosecutor, of counsel and argued the cause for the respondent; Mr. Eugene H. Farber, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Horn, J. S. C.,

Temporarily Assigned. Defendant appeals from a County Court judgment of conviction of a disorderly persons charge of possession of prescription legend drugs, in violation of N. J. S. A. 2A:170-77.8. On December 12, 1969 defendant was arrested and on the same day complaints were filed against him in Bayonne Municipal Court charging him with open lewdness (Complaint 5370) and with possession of prescription legend drugs (Complaint 5369).

Both complaints, were referred to the county grand jury, the possession charge having been sent to the grand jury because it involved the same transaction, or was related to the indictable open lewdness offense. On February 8, 1971 the grand jury returned a “no bill” on the open lewdness charge.

Thereafter, on February 9, 1971 the Hudson County prosecutor notified the clerk of the Bayonne Municipal Court of the “no bill” and stated by letter that the complaint against defendant on the possession charge was still pending.

Rather than to proceed on the remanded complaint, the Bayonne authorities, on July 22, 1971, filed a second complaint (68690) which was substantially identical with the first one in that it charged defendant with possession of seconal, contrary to said statute, on the same date mentioned in the first complaint. The second complaint was filed more than one year after the discovery and commission of the offense.

As a result of the trial on the second complaint held January 26, February 17 and March 9, 1972, the municipal court judge found defendant guilty of possession of the seconal tablets and dismissed the complaint insofar as it charged use of same.

This conviction was appealed to the Hudson County Court, which conducted a trial de novo on July 14, 1972 and affirmed the conviction.

Defendant asserts three reasons for reversal: first, that the prosecution was barred by the statute of limitations; second, that the chain of possession of the tablets was not sufficiently established so as to permit them into evidence, and third, that the verdict was against the weight of the evidence.

N. J. 8. A. 2A:169 — 10 provides that prosecutions under the Disorderly Persons Act must be brought within one year of the discovery or commission of the offense.

The original complaint was timely filed. It was never dismissed or otherwise finally disposed of. Prosecution of defendant on the same charge could have thus proceeded upon the original complaint. There was no need for a new complaint to be filed.

Since defendant can point to no real prejudice accruing to him by reason of the prosecution on the second complaint, the defense based on the statute of limitations is purely technical because of the filing date.

Although no case directly on point from this State has been referred to us, the theory of superseding prosecutions in this State has been found acceptable, although no statute of limitations was involved. Accordingly, it was held that a superseding indictment did not vitiate an earlier indictment, so that a prosecution could be brought under the first. State v. Janiec, 20 N. J. Super. 471 (App. Div. 1952), rev’d on other grounds, 11 N. J. 397 (1953). In Janiec, as here with respect to the first complaint, there was no formal abandonment, dismissal, or nolle prosequi of the first indictment.

In State v. Adjmi, 170 So. 2d 340 (Fla. App. 1964), the State proceeded on ten additional informations filed outside of the statute on limitations by charging defendant with specific crimes asserted in an earlier indictment which was filed within the statutory period. The court held that the ten additional informations were valid because they were shown to be linked with the first one.

We feel that the theory of superseding complaints or indictments is sound. Inasmuch as the first complaint was still viable and effective, it could have been prosecuted for all intents and purposes, and it would have been better procedure to have done so. In the absence of a showing of prejudice to defendant, the second complaint may likewise be prosecuted.

With respect to the alleged failure on the part of the State to show a chain of possession of the evidence introduced at the trial, it appears that there was sufficient identification of the tablets.

A trial judge’s discretion to determine whether a chain of possession has been adequately established will not be overturned in the absence of a clearly mistaken exercise thereof. State v. Brown, 99 N. J. Super. 22, 22 (App. Div. 1968), certif. den. 51 N. J. 468 (1968)

Our review of the testimony does not lead us to believe that the trial court was clearly mistaken in ruling that the chain of evidence was sufficiently established, as contended by appellant

We find ample evidence to support the conviction.

Accordingly, the judgment is affirmed.


text:
    TOWNSHIP OF HANOVER, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. THE INTERNATIONAL FIDELITY INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND PARKER MADISON, INC., ET ALS., DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1973
    Decided March 5, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Lawrence K. Eismeier argued the cause for plaintiff (Messrs. Young and Sears, attorneys).

      Mr. David Samson argued the cause for defendant International Fidelity Insurance Company (Messrs. IÁel, Wolff & Samson, attorneys).

      Mr. Edward A. Dreslcin argued the cause for defendant Parker Madison, Inc.
   Per Curiam.

This action was instituted by plaintiff township against Parker Madison, Inc. (Parker) and The International Fidelity Insurance Company (International) to recover $12,000, the amount of the bid bond submitted by Parker as principal and International as surety to guarantee that Parker would enter into a contract if its bid were accepted by the township.

The trial court denied cross-motions for summary judgment made by plaintiff and Parker. At the same time it severed for trial the cross-claim and third-party action filed by International against Parker and its indemnitors and a cross-claim filed by Parker. By leave of the court, the township appeals from the denial of its motion for summary judgment, and Parker and International appeal from the denial of Parker’s cross-motion.

The essential facts are undisputed. The township had advertised for bids for alterations of its municipal building. The specifications required each bidder to submit with its bid a surety bond in the amount of 5% of the bid to insure that it would enter into the contract if it were the successful bidder. The specifications contained a provision authorizing the municipality to waive informalities in the bids.

On December 2, 1969 Parker submitted a bid of $277,700 and a bid bond under seal, executed by it as principal and International as surety, in the amount of $12,000. The condition of the bond read as follows:

Now, Therefore,
(a) If [the bid of the principal Parker] shall be rejected, or in the alternate
(b) If said bid shall be accepted and the Principal shall execute and deliver a contract in the Form of Contract attached hereto, properly completed in accordance with said bid, and shall furnish a bond for the faithful performance of said Contract, and for the payment of all persons performing labor or furnishing materials in connection therewith, and shall in all other respects perform the agreement created by the acceptance of said bid;
Then, This Obligation Shall Be Void, otherwise the same shall remain in force and effect; * * *

Parker’s bid, $277,700, was the lowest bid submitted and on December 30, 1969 the township committee awarded the contract to it. Notice of the award was given to Parker on January 5, 1970 and contract documents sent to it for execution on January 21, 1970. Parker did not execute the contract documents even though it was advised by letter of March 17, 1970 that a default would be declared and the work readvertised for bids. (Parker contends that it was unable to enter into the contract because International had refused to provide, as allegedly it had promised to do, the required performance bond. The breach of that alleged agreement forms the basis of the cross-claim filed by Parker: against International.)

On April 9, 1970 the township committee readvortised for bids. It received new bids and awarded the contract to a company which submitted a low bid of $297,700.

This action was then instituted. The answer filed by Parker admitted the material allegations of the township’s complaint and alleged that (1) it, Parker, was “at all times” ready, willing and able to perform its contract, and (2) that the “acts of the co-defendants caused the plaintiff’s loss.”'

International’s answer, filed in July 1970, embodied a cross-claim against Parker alleging that it had executed the bid bond on Parker’s representation that its bid would be $240,000, whereas the bid submitted was $277,700. (International gives no indication of why it was prejudiced by the alleged misrepresentation.) The sole affirmative defense pleaded by International to the township’s complaint was that the township’s award of the contract to Parker “was illegal and improper in that the said bid did not conform with the instruction for bidders.”

That affirmative defense embodies the sole substantive issue on this appeal. Defendants contend that Parker failed to comply with the specifications when it submitted a bid bond of $12,000 instead of one for $13,885, 5% of its bid of $277,700; that its failure to submit a bond in the specified amount was a material and substantial irregularity which could not be waived by the township so that Parker’s nonconforming bid was not subject to acceptance by plaintiff. That being so, the argument continues, Parker was not required to execute the tendered contract, so that there was no breach of the conditions of the bid bond.

The township’s position is that the deficiency in the amount of the bid bond submitted by Parker, was a “minor or inconsequential” variance from the specifications which it could and did waive, in good faith, in awarding the contract to Parker, and that Parker’s failure to execute the contract was a breach of the conditions of the bond.

The trial court, in denying the cross-motions for summary judgment, ruled that the question of whether the variance from the specifications was a “minor or inconsequential” variance (which could be waived) or a material departure from the specifications (which could not be waived) was a fact question precluding grant of summary judgment. We disagree and hold that the posed question is a legal issue to be decided on the uncontradieted proofs before the court.

Before proceeding to a consideration of that issue, we note that the validity of the township’s resolution of December 30, 1969 awarding the contract to Parker has never been challenged by any taxpayer or citizen of the township or by any competing bidder.

Indeed, had one of Parker’s competitors or a taxpayer waited, as did International, for a period of more than six months before seeking to attack the December 30, 1969 resolution awarding the contract to Parker, the attack would have been dismissed as untimely because not brought within 45 days of December 30, 1969. B. 4:69-6. The attack hero made does not involve the basic statutory power of the township to act. Cf. Greenberg v. Fornicola, 37 N. J. 1, 5 (1962). It is undisputed that the township had authority to contract for the improvement and that it had proceeded in accordance with the bidding statute, N. J. S. A. 40:50-l.

The statute does not direct that a municipality demand that a deposit or bid bond accompany a bid. Nevertheless, a municipality may require, as plaintiff did, submission of “some form of security as a guarantee that the contract [would] be entered into if the bid [were] accepted.” P. Michelotti & Sons, Inc. v. Fair Lawn, 56 N. J. Super. 199, 202 (App. Div. 1959), certif. granted 31 N. J. 75 (1959), app. dism. 31 N. J. 556 (1960); Hillside Tp. v. Sternin, 25 N. J. 317, 323 (1957).

At best, the attack here presented projects a debatable question as to whether the township could waive strict, and accept what it in good faith deemed substantial, compliance with a bid bond provision which it had elected to include in the specifications. Such an attack, if made by an unsuccessful bidder or a taxpayer of the township, would call for application of the general rule that “attacks upon public contracts must be seasonably made.” Greenberg v. Fornicola, supra, 37 N. J. at 4. The circumstances would not call for invocation of the authority granted to a court by R. 4:69-6 (c) to enlarge the 45-day period “where it is manifest that the interest of justice so requires.” Cf. Greenberg v. Fornicola, supra, at 5.

Nevertheless, despite the lapse of time, the meritorious issue presented must be decided in view of what the court said in Hillside Tp. v. Sternin, supra, 25 N. J. at 325-326, just as if it would have been decided if it had been raised in a timely attack by a taxpayer or unsuccessful bidder on the award of the contract to Parker.

In Hillside Tp. v. Sternin the advertisement for bids for installation of two sirens provided that:

A certified check made payable to the Township of Hillside for not less than 10% of the amount bid must accompany each proposal.

Sternin submitted a bid of $1,087.25. No cheek accompanied the bid. Indeed, Sternin contended that he was unaware of the advertisement for bids and of the specifications to which it referred. He said that he had submitted his bid as the result of conversations he had had with a municipal official. The contract was awarded to Sternin but he refused to sign it claiming that the work called for h}' the specifications was more “demanding” than the work which his bid had contemplated.

In defense of an action instituted against him to recover the difference between his bid and that of the next lowest bidder, who was awarded the contract, Sternin contended that (1) his bid was not based on the specifications and that he should not be held to his bid, and (2) the municipality had no authority to accept his bid since he had not submitted a certified check with the bid.

The trial court, in granting summary judgment to Sternin, ruled in his favor with respect to both contentions. On the township’s appeal, the Supreme Court ruled that, with respect to the first contention, a factual issue existed precluding grant of summary judgment on that ground. Nevertheless, the court held Sternin was entitled to judgment, even though he was thus taking advantage of his own default, because the township had no authority to accept his bid since he had not submitted the check called for bjr the advertisement for bids.

■ The court recognized that “minor or inconsequential variances and technical omissions [in the bid] may be the subject of waiver” by the municipality, but held that the deficiency in Sternin’s bid — the failure to submit the required check — was a “material departure” from the bidding requirements which could not be waived.

It is immediately evident — defendant’s argument to the contrary notwithstanding — that the situation presented in Hillside Tp. v. Sternin, supra, differs materially from that present in the case before us. In Hillside Township the bidder failed to submit any cheek. Indeed, he neither attempted to, or intended to, submit a check as called for by the advertisement.

Here, however, there is not even a suggestion of an intent to ignore the bid bond requirements of the specifications. Parker’s bid was accompanied by a bid bond, executed by it as principal and an insurance company as surety, in the substantial amount of $12,000, although that amount was $1,885 less than 5% of the bid of $277,700.

The precise question here presented has not been dealt with in the reported cases. However, in our opinion, those which are most pertinent — see, e. g., P. Michelotti & Sons, Inc. v. Fair Lawn, supra; Bryan Const. Co. v. Bd. of Trustees, etc., Montclair, 31 N. J. Super. 200 (App. Div. 1954); 10 McQuillin, Municipal Corporations, §§ 29.66, 29.29 (3d ed. 1966) — support our conclusion that the variance between $13,885, the amount of the bid bond which should have been submitted with the bid of $277,700, and $12,000, the amount of the bid bond actually submitted, was minor and inconsequential. The township committee, whose good faith is not challenged, was authorized to waive the variance and award the contract to Parker, the lowest bidder.

Apposite is what this court said in Bryan Const. Co. v. Bd. of Trustees, etc., Montclair, supra:

[The municipality] expressly and specifically reserved “the right to waive minor informalities” in any bid. Further, a municipal body has a greater function in dealing with irregularities in such matters than merely exercising a ministerial and pei’functory role. It has inherent discretionary power, and what is more, a duty to secure, through competitive bidding, the lowest responsible offer, and to effectuate that accomplishment it may waive minor irregularities, [at 206]

See also Faist v. Hoboken, 72 N. J. L. 361, 363 (Sup. Ct. 1905).

Parker’s failure to enter into the contract awarded it entitles plaintiff to recover on the bid bond whose conditions were thus breached.

The order appealed from is reversed and the cause remanded to the trial court for entry of judgment in favor of plaintiff against Parker and International for the amount due on the bid bond.


author: Pee Citbiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES RAY EBRON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1973
    Decided March 2, 1973.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mrs. Martha G. Pugh argued the cause for defendant.

      Mr. Michael H. Kessler, Assistant Prosecutor, argued the cause for respondent {Mr. Karl Asch, Union County Prosecutor, attorney).
   Pee Citbiam.

Defendant Charles Ray Ebron appeals from his conviction of possession of a dangerous knife, in violation of N. J. 8. A. 2A:151-41(c). He was sentenced to an indeterminate term at the Youth Reception and Correction Center, Yardville.

Defendant raises seven points which may be summarized as follows: (1) the statute, N. J. 8. A. 2A:151-41(c), as applied to the facts alleged in the indictment is unconstitutional by reason of vagueness; (2) the knife in question was not a dangerous knife within the meaning of the statute; (3) defendant was prejudiced by comments on the evidence by the prosecutor and the trial judge; (4) it was error to refuse to charge defendant’s requests; (5) denial of defendant’s motion for acquittal was error; (6) denial of the motion for a new trial was error, and (7) error was committed in the presentencing procedure.

On June 8, 1971 a police officer looking through the front window of an ice cream store observed, as defendant leaned over the counter, that he was carrying a knife in his left hip pocket. Its handle was protruding below the bottom of his waist-level jacket. He entered the store, walked up to defendant, released the snap on the sheath in which the knife was being carried, and removed the knife from defendant’s pocket. The knife was of German make and had a fixed steel blade five inches long. Defendant was not observed to remove it or handle it in any way during the incident. He testified that he had found the knife in a nearby park about a half hour before, picked it up and strapped it to his belt with the sheath in his pocket.

We find defendant’s first and second points to be without merit. While a penal statute may be invalidated for vagueness if it prohibits “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,” State v. Smith, 46.N. J. 510, 518 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966), we find no such vagueness here. State v. Horton, 98 N. J. Super. 258 (App. Div. 1967), certif. den. 51 N. J. 393 (1968). Defendant seeks to distinguish State v. Horton on the ground that defendant in that case had been arrested for shoplifting in addition to possession of a knife. We find this to be a distinction without a difference.

It must be conceded that all knives are not per se dangerous. See Degree v. United States, 144 A. 2d 547 (D. C. Mun. Ct. App. 1958). A knife may be used as a tool in certain trades, hobbies or sports. Thus, a cook or chef may carry the tools of his trade, a barber may carry a straight razor, or a hunter, a camper or a Boy Scout may have a legitimate use for a hunting knife. As we interpret the statute, it outlaws the carrying of a knife, even if it would otherwise be a useful object, where the surrounding circumstances, such as the time, place and situation under which the defendant was found in possession of it, or any alteration of the knife itself, indicate that his possession is for the purpose of using it, then or later, unlawfully against another. See State v. Edwards, 120 N. J. Super. 46 (Law Div. 1972), quoting from Scott v. United States, 243 A. 2d 54 (D. C. Ct. App. 1968). Cf. State v. Horton, supra, 98 N. J. Super, at 261-262. See also The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission, vol. 1, § 2C :39-3i (1971).

Applying the test laid down in State v. Reyes, 50 N. J. 454, 458-459 (1967), we are satisfied that defendant’s motions for judgment of acquittal and for arrest of judgment were properly denied. As we read defendant’s brief he contends that the evidence before the jury could not support a finding that the knife in question was a “dangerous knife” within the meaning of the statute and that an element of the offense under the statute was that the weapon be “concealed.” Neither contention is meritorious. Whether the weapon was a “dangerous knife” within the intendment of the statute was for the jury “based on all the facts and circumstances.” Defendant, who was 18 years of age, 6 feet 7 inches tall and weighed 245 lbs., was carrying it on his person after dark, at a location where a number of youths of his acquaintance were engaged in verbally harassing a police officer. He admitted he was neither a hunter nor a Boy Scout. While he had previously gone camping, he had not used this or a similar knife for camping purposes.

While concealment of the knife was a significant fact and circumstance which the jury could take into accouut in arriving at a determination of whether the implement was a “dangerous knife,” State v. Green, 116 N. J. Super. 515, 523 (App. Div. 1971), certif. granted 60 N. J. 22 (1972), we are convinced that concealment was not a necessary element of the offense. Although the Article in which it is contained continues to be entitled “Carrying Concealed Weapons,” N. J. S. A. 2A:151-41, as amended by L. 1966, c. 60 and L. 1968, c. 307, contains no language requiring that the knife be concealed. It refers to one who “carries, holds or possesses * * * on or about his clothes or person, or otherwise in his possession, or in his possession or under his control in any public place or public area” a dangerous knife. Further, even if it be assumed that concealment is a necessaiy element of the offense, the proofs sufficiently established that the blade of the knife was inserted in a sheath which extended into defendant’s back pocket, and the handle was covered by the jacket he was wearing to such an extent that until he leaned over the counter it was not observable. See State v. Rabatin, 25 N. J. Super. 24, 30 (App. Div. 1953), certif. den. 13 N. J. 361 (1953).

Defendant, though he made no objection thereto, complains of a comment made by the trial judge in his charge, contending that the “clear implication of the remark” was that defendant, if he was in possession of the knife, must have had it for some unlawful purpose We find no error, much less plain error. We do not read the court’s remark as does defendant. Further, the judge was free to comment on the evidence so long as he clearly and fairly left for the jury’s determination all factual issues and ultimate questions of guilt or innocence, State v. Rudd, 49 N. J. 310, 314 (1967), which he did here. See also State v. Lisena, 129 N. J. L. 569, 574 (Sup. Ct. 1943), aff’d o. b. 131 N. J. L. 39 (E. & A. 1943)

Defendant’s claim of error based upon the prosecutor’s inadvertent reference to the weapon defendant was carrying as a gun is clearly without substance. The prosecutor immediately recognized the error and corrected his question to indicate that he meant the knife. Defendant also challenges as error comment by the prosecutor about the harassment of the arresting officer which had been going on prior to defendant’s arrest. We find the point to be without merit. Counsel is entitled to wide latitude in summation so long as he stays within the evidence and the legitimate inferences to be drawn therefrom. State v. Mayberry, 52 N. J. 413, 437 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Smith, 27 N. J. 433, 460 (1958); cf. Wimberly v. Paterson, 75 N. J. Super. 584, 604 (App. Div. 1962), certif. den. 38 N. J. 340 (1962). Defendant also asserts as error a remark contained in the conclusion of the prosecutor’s summation. While it would have been better had the remark been left unsaid, there was no objection and we find no plain error. See State v. Farrell, 61 N. J. 99, 106 (1972); State v. Macon, 57 N. J. 325, 333 (1971).

Defendant contends that the court’s refusal to charge three of his requests was error. We disagree. Upon consideration of the charge as a whole, we are satisfied that omission to charge N. J. S. A. 2A:151-41 in full was not error and that, in any event, defendant was not thereby prejudiced. We find that-the charge as to what constituted a dangerous knife within the meaning of the statute was correct and adequate. The jury was instructed:

A dangerous knife has been defined as a knife dangerous to life or human safety, one by the use of which a fatal wound may probably or possibly be given.
Now, in the definition of a dangerous knife I think you can see that many knives could fall within this definition. For example, as has been suggested, a bread knife or a Boy Scout knife, as a matter of fact, S-l in my humble opinion — and you will be the ultimate judges — appears to be very similar, S-l, to a Boy Scout knife. A dangerous knife, again, has been defined as a knife dangerous to life or human safety, one by the use of which a fatal wound may probably or possibly be given. So, is a bread knife in a woman’s kitchen a dangerous knife? Booking just at the definition X think your answer would be “Yes.” But you must look at the facts and circumstances also to determine whether or not S-l was a dangerous knife. A bread knife in a picnic basket in the company of a family going to a picnic I think you would understand and say in your mind is not a dangerous knife. A woman coming home with a bread knife from a hardware store or a market where knives are sold in a shopping bag, I think you would say is not a dangerous knife. Yet a wound may probably or possibly be given by that knife. Now, a bread knife carried in an inside coat pocket in a business suit while a man is walking the streets, or socializing, or in a tavern, may take on the characteristics of a dangerous knife. Consequently, the statute which I have read to you a few minutes ago prohibiting the possession of dangerous knives in a public place likewise prohibits the carrying of any dangerous instrument of the kind known as a blackjack, billy, a dagger, a dirk, metal knuckles, and other instruments in addition to a dangerous knife. When read in this context I believe it is more readily seen what the Legislature contemplated by a dangerous knife. The apparent intent of the Legislature being that people be prohibited from arming themselves with dangerous instruments; that is to say instruments dangerous to life or human safety, one by which a fatal wound probably or possibly would be given. Hence, this statute prohibits the possessing of a dangerous knife, a type of knife which could be used by the possessor as a weapon. So, whether or not the knife in question allegedly possessed by the defendant, Ebron, in light of this statute is, in fact, a dangerous knife depends upon all of the circumstances under which the defendant allegedly possessed the knife.

We are convinced that it was not error to deny defendant’s motion for a new trial. The proofs adequately supported the jury’s finding. The newly discovered evidence consisted of the affidavit of an employee of the ice cream store to the effect that on the night in question defendant had ordered and received a milk shake when he was arrested. Denial of the motion did not amount to a mistaken exercise off the discretion vested in the trial judge. State v. Johnson, 34 N. J. 212, 222 — 223 (1961), cert. den. 368 U. S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961).

We have reviewed the transcript of defendant’s sentencing and the presentenee report and find no support therein for defendant’s contention that he was prejudiced by the manner of presentation of his juvenile record or that the court considered illegal matter in sentencing him. In the exercise of his discretion the sentencing judge could consider defendant’s entire background, State v. Washington, 113 N. J. Super. 184, 185 (App. Div. 1971), certif. den. 58 N. J. 332 (1971), including his prior adjudications of delinquency, State v. Hodgson, 44 N. J. 151, 164 (1965), cert. den. 384 U. S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). Here it was conceded that the presentenee report correctly portrayed defendant’s juvenile record.

We find no cause to disturb the sentence imposed. It was neither unduly punitive nor did it amount to an abuse of discretion. State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); State v. Vance, 112 N. J. Super. 479, 481-482 (App. Div. 1970), certif. den. 58 N. J. 97 (1971). The offense was one for which the court could have imposed a much more severe penalty. Defendant had been discharged from probation for a previous offense on May 14, 1971, less than one month prior to the commission of the present offense.

WTe have reviewed defendant’s remaining contentions and find them to be without merit.

Affirmed.


author: Trautwein, J. S. C.

text:
    CITIZENS FIRST NATIONAL BANK OF RIDGEWOOD, A NATIONAL BANKING CORPORATION, PLAINTIFF, v. RICHARD GRULL AND DIANNE GRULL, HIS WIFE, AND MIDLAND PARK LUMBER & SUPPLY CO., INC., A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 20, 1973.

      Mr. John S. Harrison, attorney for plaintiff Citizens Eirst National Bank of Ridgewood.

      Mr. Edward F. Merrey, Jr., for defendant Midland Park Lumber & Supply Co., Inc. (Messrs. Merrey & Merrey, attorneys) .

      Mr. Robert F. Henn for defendant Dianne Grull (Messrs. Weber, Muih & Weber, attorneys).
   Trautwein, J. S. C.

This matter came on in the form of a motion by a junior encumbrancer, named as a defendant in a mortgage foreclosure suit, seeking an order directing the issuance of an alias writ of execution pursuant to the provisions of B. 4:64^4.

The court has considered the pleadings, the affidavits, the briefs and oral argument and makes the following findings of fact (all uncontroverted) :

On January 11, 1968 defendants Richard Grull and Dianne Grull, husband and wife, executed a mortgage in favor of Citizens Eirst National Bank of Ridgewood (hereinafter “bank”) covering premises located in Allendale, New Jersey, which they owned as tenants by the entirety. In May 1970, the bank filed a complaint in foreclosure. Midland Park Lumber and Supply Co. (hereinafter “Midland”) was made a party defendant by virtue of a judgment obtained by it against Richard Grull on October 17, 1969 in the amount of $3,574.32.

On August 3, 1970 a final judgment of foreclosure was entered in favor of the bank on its mortgage for $19,535.77. Subsequently, execution was issued to the Sheriff of Bergen County to satisfy the amount due on said mortgage. Thereafter an agreement was reached between the bank and the Grulls whereby the bank agreed to accept periodic payments on account of its judgment and the mortgage. Pursuant to this agreement the sheriff was instructed by the bank not to proceed with the sale and to return the writ of execution to the court unsatisfied.

Defendants Grull failed to make payments as agreed and the bank obtained the issuance of an alias writ of execution. The premises were advertised for sale but thereafter adjournments were requested and granted by the sheriff. On April 19, 1972 the bank assigned its judgment to Joseph E. Grull and Velma H. Grull, the parents of defendant Richard Grull, for the sum of $17,400. On October 30, 1972 the alias writ of execution was returned unsatisfied to the court by the sheriff pursuant to instructions from the assignees (parents of Richard Grull) of the bank’s judgment. At this juncture there is no action pending by the assignees to enforce the judgment by proceeding with the sale.

Defendant Midland now seeks an order for the issuance of an alias writ of execution directing the sheriff to sell the premises. In support of this motion Midland relies on B. 4:64-4, the mortgage foreclosure abandonment rule.

This rule is a carry-over from the practice under the former Chancery rules. Research discloses that the earliest Chancery rule was promulgated in April 1841 and amended in 1868. After the revision of 1910 this rule, Chancery Buie 28, provided:

When the complainant, in any bill filed to foreclose a mortgage, makes prior or subsequent encumbrancers parties to said bill, and they come in and answer, and the complainant then for four months neglects or refuses to proceed, the said defendants, or any of them, may take an order upon the complainant to show cause at any time, on ten days notice, why the said defendant or defendants shall not be allowed to proceed with the said cause to decree and execution in his name; and unless good cause being shown to the contrary, an order may be made that the said defendant or defendants shall be allowed so to proceed with the suit, and the complainant shall not be allowed his costs. [Kocher, Pleading and Practice in the Court of Chancery of New Jersey 583 (1913)]

During the revision of 1917, Chancery Buie 38 was renumbered to 191 and entitled, “In a foreclosure a defendant encumbrancer may be allowed to proceed in the suit if the complainant delays four months.”

The only change in the substance of the rule from the 1910 revision was the elimination of a ten-day requirement of notice to the complainant in the foreclosure suit. The revised rule required that the defendants take an order “on notice.” 2 Kocher & Trier, New Jersey Chancery Practice and Precedents, 1608-09 (1934). (See tables indicating source rule, Id. at 1673-74).

B. 4:6A-4 in its present form, “Abandonment of Action by Plaintiff; Right of Defendants to Proceed”, provides:

If the plaintiff makes prior or subsequent encumbrancers parties to the action to foreclose a mortgage, and they answer, and the plaintiff neglects or refuses to proceed, the defendants, or ’any of them, •make application to the court for an order permitting them to proceed with the action to judgments and execution. Plaintiff by such order shall not be allowed his costs.

There are no reported decisions involving the application of the abandonment rule since its adoption as part of the court rules in 1947. However, there 'are a few decisions involving the former Chancery rule which set forth guidelines for .its application.

In Young v. Young, 17 N. J. Eq. 161 (Ch. 1864), plaintiff filed a complaint for the foreclosure of a mortgage and joined other encumbrancers as parties. Plaintiff did not proceed with the suit and subsequently a defendant, who had ■ answered, sought an order permitting him to proceed under the abandonment rule, then Chancery Rule XIV, § 9.

Thereafter, this defendant encumbrancer, Wells, proceeded with the suit and obtained a decree pro confesso against the mortgagor who had failed to answer. The mortgagor then moved to vacate, the judgment and dismiss the complaint on the ground that the mortgagor had earlier paid the amount due and costs to plaintiff and had received a stipulation of dismissal from plaintiff’s attorney. He also offered to pay Wells, the additional encumbrancer defendant, the amount due on Ms mortgage but not his costs. Wells rejected the offer and obtained the order granting Mm permission to proceed with the suit.

The court denied the mortgagor’s motion to vacate the judgment and held that under the abandonment rule an additional encumbrancer who is joined as a defendant in a foreclosure suit may be allowed to proceed with the suit although the debt due to plaintiff mortgagee had been satisfied and the plaintiff had agreed not to prosecute the suit any further. Id. at 162; Anonymous, 8 N. J. Eq. 174 (Ch. 1849). As regards the underlying policy of the abandonment rule, the court noted:

But tlie design and operation of the rule is to prevent any arrangement between the complainant and the mortgagor, operating to delay or defeat the suit to the prejudice of other encumbrancers, who have appeared and answered. Prior to the adoption of the rule, if the progress of the suit was delayed or arrested by any arrangement between the complainant and the mortgagor, the only remedy of the other encumbrancers who made defendants, would have been to dismiss the complainant’s bill, and institute new proceedings in their own name. To avoid this inconvenience and delay, whenever a complainant from any cause refuses to proceed, the rule authorizes the encumbrancer who has answered, to proceed with the cause to decree and execution in the name of the complaint. [17 N. J. Eq. at 162; emphasis added!

In discussing the application of this rule, the court further declared:

It might seem at first view, where a complainant refuses further to prosecute his claim, that the fair presumption is that the claim is satisfied, or the right to prosecute waived, and before another party should be permitted to prosecute the suit, the defendant should have an opportunity of showing cause against it. But the answer is that a payment of the complainant’s demand, or a stipulation by him not to prosecute the suit, is no objection to the prosecution of the suit by another encumbrancer for his own benefit. If in the further progress of the suit, any surprise is occasioned, or injustice done to the mortgager, that would afford distinct ground for relief. But there is here no complaint of surprise or wrong. [163; emphasis added]

Coulston v. Coulston, 37 N. J. Eq. 396 (Ch. 1883), involved the procedure to be followed by a party seeking the benefit of the abandonment rule. In Coulston plaintiff filed a complaint in foreclosure and thereafter an additional defendant encumbrancer, Hollinshead, answered and also established the priority of his mortgage over the plaintiff’s. Defendant Hollinshead then proceeded to conduct the suit and drew and obtained the judgment. Plaintiff then moved to vacate the judgment. The court ruled that plaintiff was entitled to control and conduct the suit despite Hollinshead’s priority. Id. at 396.

In this connection the court, referring to the plaintiff, stated:

He was magister litis and could not have been deprived of that character, except under the rule for his refusal or neglect to proceed with the suit. If, after the decision, he had unduly delayed entering the decree, the court on the defendant’s application, would have directed him to draw the decree and present it to be settled or signed, and had he not complied with the direction, it might have ordered the defendant’s solicitor to draw it * * *. [at 397]

Applying these principles to the case at bar it is clear that Midland’s motion for an alias writ of execution is improper at this juncture. Under the Coulston decision a defendant seeking to avail himself of the abandonment rule must first seek permission to continue the suit before seeking affirmative remedies or otherwise becoming magister litis of the suit.

As previously noted, B. 4:64^4 provides that a defendant such as Midland “may make application to the court for an order permitting them to proceed with the action to judgment and execution.” It appears that this rule is discretionary in nature. This construction of the abandonment rule comports with the plain meaning of the language used therein and the prior construction of this rule in its earlier form. Young, supra, 17 N. J. Eq. at 163.

The purpose of the abandonment role was to prevent arrangements between plaintiffs in foreclosure suits and mortgagors which would result in inconvenience, delay and prejudice to the other encumbrancers joined as additional defendants and who had answered. Prior to this adoption of the abandonment rule if plaintiff and mortgagor reached an agreement which resulted in a delay or abandonment of the proceedings, the only alternative remedy of an additional defendant encumbrancer was to institute new proceedings which, of course, constituted inconvenience, delay and prejudice. Young, supra, at 162.

However, in a situation such as that presented in the present case sub judice where the additional defendant encumbrancer in the foreclosure action has already attained the status of a judgment creditor, there is no inconvenience, delay or resulting prejudice by refusing to allow him to proceed with the suit to execution and sale, as he can seek execution on the husband’s interest in the estate immediately without instituting any further proceedings.

As previously noted, defendants, the Grulls, own the premises as tenants by the entirety. Under well established principles, defendant Midland, by virtue of the judgment it has against the husband, is entitled as a levying creditor to sell the debtor spouse’s one-half interest in the life estate for the joint lives as well as the debtor spouse’s right of survivorship. King v. Greene, 30 N. J. 395, 412-413 (1959) ; Dvorken v. Barret, 100 N. J. Super. 306, 309 (App. Div. 1968), aff’d 53 N. J. 20 (1968). The levying creditor may not compel a partition of the fee by sale or otherwise which would destroy the wife’s common law right of survivor-ship. Dvorken, at 309. On the other hand, if defendant Midland is permitted to proceed with the suit to execution and the sale of the premises, then the wife’s right of survivorship will be destroyed as a tenancy by the entirety cannot exist in the surplus funds. Fort Lee S. & L. Ass’n. v. LiButti, 106 N. J. Super. 211, 214 (App. Div. 1969), rev’d, 55 N. J. 532 (1970).

As Judge Carton stated in Fort Lee, in his dissenting opinion adopted by the Supreme Court, both husband and wife as mortgagors executing a mortgage must understand and consent that their respective interests may be cut off by a foreclosure and sale of the realty in the event of a default. (At 217).

However, the facts presented here are readily distinguishable in that here a judgment creditor of the husland only seeks to proceed with a sale of the realty and cut off the wife’s interest. Certainly the wife cannot be deemed to have understood or consented to such act by a creditor of her husband only. - In this regard it must be noted that under B. 1:13 — 8, “The-priorities of parties’ liens and encumbrances are fixed and determined as of the date of the commencement of the acition, unless the parties otherwise agree or it is otherwise adjudicated in the action or in.any other-action.” The extent' of Midland’s encumbrance is a lien on the husband’s interest in1 the -estate. To permit • Midland- to proceed with this action to execution-and sale would enable Midland as a levying creditor to destroy the wife’s right of survivorship and. would contravene the policy considerations underlying B. 1:13-R Midland as a levying creditor of > the husband only is indirectly attempting, through B. 4:64U4, to destroy the wife’s right of survivorship — a result which they may riot accomplish directly. Dvorken v. Barret, supra, 100 100 N. J. Super. at 309.

Therefore where, as here, the continuation of a mortgage foreclosure suit to execution and sale results in an injustice and deprivation of the vested right of a mortgagor a distinct grourid for -relief is present and this defendant will riot be allowed to proceed with the suit. Young, supra, 17 N. J. Eq. at 163.

Midland, a junior encumbrancer, should not be permitted to employ a rule of court to ■ markedly enhance the dollar value of its lien over that which it held at the commencement of the suit to the detriment of one of the defendants. Moreover, the court was advised at oral argument in response to questions it propounded of counsel that defendants Ei chard and Dianne Grull were separated and a matrimonial action was in the offing The parents of Eichard are assignees of plaintiff’s mortgage. Their abandonment of the sheriff’s sale is, to a point, understandable and legally defensible, but standing mute while Midland proceeds to the detriment of their estranged daughter-in-law, while also understandable, is not legally defensible.

The motion is accordingly denied.