author: Collestek, J. A. D. Cootoed, S. J. A. D.

text:
    HAROLD CALIGUIRE AS ADMINISTRATOR AD PROSEQUENDUM FOR THE ESTATE OF VINCENT CALIGUIRE AND HAROLD CALIGUIRE, INDIVIDUALLY, PLAINTIFF-APPELLANT, v. CITY OF UNION CITY IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 18, 1967
    Decided November 9, 1967.
    Conford, S. J. A. D., dissented.

      Before Judges Coneokd, Collestek and Labkecque.

      Mr. Robert J. Garluccio argued the cause for appellant.

      Mr. Robert H. Wall argued the cause for respondent.
   The opinion of the court was delivered by

Collestek, J. A. D.

This is an appeal by plaintiff Harold Caliguire, individually and as administrator ad prosequendum of the estate of Vincent Caliguire, from a judgment of involuntary dismissal entered at the close of plaintiff’s case in the Superior Court, Law Division.

On May 2, 1963, plaintiff’s son, Vincent Caliguire, age 12, was injxxred when he fell from a rope suspended from a tree on defendant’s property on which he had been swinging. He died two days later as a result of injuries sustained in the fall. ■

Plaintiff brought suit to recover damages for the personal injuries and wrongful death of his son. He charged that defendant was negligent in maintaining a dangerous condition on its property on which defendant knew or shortld have known children would be likely to trespass and that it permitted a rope attached to a tree to be used by children as a swing. Defendant denied it was negligent in the maintenance of its property and further denied all knowledge of the existence of the rope. It asserted as separate defenses (1) that the accident was caused by the act of a third party over which it had no control, (2) contributory negligence of the decedent, (3) that decedent was a trespasser, and (4) that it was absolved from liability under the doctrine of municipal immunity.

Defendant’s property was an unimproved tract of land which it had acquired as the result of a tax foreclosure in 1952. It consisted of a steep slope or cliff located near the top of the Palisades which extended easterly down to Weehawken. Adjoining it on the west was a level tract of privately owned improved property known as the Abbey Inn site, about 90 to 100 feet in depth, which fronted on Mountain Hoad. Along most of the rear of the private tract was a wall, three feet in height and one and one-half feet in width, ■which marked the eastern boundary of the property. The Abbey Inn site was without trees or foliage, but the city property was covered with trees, boulders and heavy foliage, and the footing was dangerous.

The tree from which the rope was suspended was located 50 feet down the slope from the boundary wall. The rope was about seven or ten feet in length and the tree, which extended out on the side of the hill, was “somewhat taller.” According to three children, who were playing with decedent on the slope and who witnessed the accident, the rope had been tied on the tree for a period of from two weeks to a month. Hone of the witnesses at the trial knew who placed the rope on the tree.

The accident happened when Vincent took the rope in his hands and - swung out over the slope. He apparently lost his grip on the rope, then fell 15 feet to the ground and rolled another 15 feet down the slope.

The evidence showed that the children had played there daily for months before the accident. They testified that whenever they were observed by the police on the city or Abbey Inn property they were chased away.

Gerald Cerulli, a police officer of Union City, was called as a witness for plaintiff. He testified that he had patrolled the Abbey Inn area by motorcycle or police car for five years before the accident; that he passed along Mountain Road at least three times a day, and made an observation over the rear wall every day. He said whenever he saw children either on the private property or the slope of the city propert3r beyond the wall he would chase them away; that there was a “standing order” to do so. He said that there was heavy foliage on the city property down from the wall and that he had never observed the rope suspended from the tree nor had anyone informed him of its existence.

The trial judge granted defendant’s motion to dismiss holding that proof of actual knowledge of the existence of the rope was essential to establish a prima facie case. This appeal followed.

Plaintiff contends that the question of knowledge by defendant of the dangerous condition existing on its land was a factual issue for determination by the jury and that the court erred in dismissing the action. He alleges the proofs showed that defendant knew that children played on its property and argues that defendant was liable for Vincent’s death because (1) it knew that the natural condition of the land was inherently dangerous, (2) it had constructive knowledge of the existence of the rope suspended from the tree upon which children would swing, and (3) in any event, based on the evidence and the logical inferences to be drawn therefrom, the jury could have found that defendant had actual knowledge of the existence of the rope swing.

The liability of a possessor of land for physical harm to children trespassing thereon is dealt with under the rule set forth in 2 Restatement, Torts, 2d, § 339, p. 197 (1965). It provides:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children. * * ®”

Moreover, if an artificial condition exists upon the land, of which the landowner has knowledge, and which reasonable men may recognize as having propensities for causing an unreasonable risk of harm to an infant tresspasser, then it makes no difference whether the condition was created by third persons or the landowner himself. Simmel v. New Jersey Coop Co., 28 N. J. 1, 10 (1958).

We find no support for plaintiff’s contention that defendant municipality can be held liable because it had knowledge that the natural condition of the land was inherently dangerous, i. e., that it was a dangerous cliff or slope. Our cases have not extended liability for injuries resulting from the maintenance of natural conditions on the land even though the accident would not have happened if the landowner had taken appropriate action to prevent the child who sustained injury from trespassing. Ostroski v. Mount Prospect Shop Rite, Inc., 94 N. J. Super. 374, 380 (App. Div. 1967). Moreover, it was the use of the rope as a swing by plaintiff’s decedent, not the slope or cliff, which precipitated his fall.

Plaintiff also argues that defendant is liable because it had “constructive” or imputed knowledge of the existence of the rope swing. This is based on the testimony that the rope had been suspended from the tree for a period of two weeks to a month before the accident happened. We conclude that this argument is without merit. In Simmel v. New Jersey Coop Co., supra, the court set aside a judgment in favor of an infant trespasser because the trial judge did not limit the issue for determination by the jury to actual knowledge by the owner of the dangerous condition on his land, but told the jury that knowledge could be imputed if the condition existed for an unreasonable length of time before the accident.

In Simmel the court stated that the landowner is not an insurer of the safety of an infant trespasser, that he has no duty to periodically inspect the premises in order to ascertain whether third persons, themselves trespassers, might have created dangerous artificial conditions thereon. The case holds that before a landowner can be held responsible he must have actual knowledge of the condition created by the third persons. That decision controls us here.

The burden of proving actual knowledge by defendant of the existence of the rope swing on its property before the accident occurred was on the plaintiff and the record reveals he produced no direct evidence of such knowledge. However, plaintiff contends that the question of whether defendant had actual knowledge of the rope swing should have been submitted to the jury. He cites Lorusso v. De Carlo, 48 N. J. Super. 112 (App. Div. 1957) in support of his position. That case is readily distinguishable on the facts. There a four-year old child, while trespassing on defendant’s vacant lot, was burned by a fire caused by a third person who was burning papers on the lot. There was evidence that less than two weeks before the accident the defendant knew a third person was using his land for such purposes. The court held that such evidence presented a jrrry question as to whether the defendant should have anticipated an unreasonable risk of harm to trespassing children by fires set by the third person.

At oral argument plaintiff also contended that he was not bound by the testimony of Officer Cerulli who testified that lie never saw the rope when he made his daily inspection of the city property. lie argues that Cerulli’s testimony, though uncontroverted, was not conclusive because Ms credibility was in issue, and it therefore was a matter for the jurjr and not the trial judge to decide.

The resolution of the question of when it is for the jury alone to evaluate the credibility of a plaintiff and his witnesses and when it is within the province of the trial judge to do so was answered in Ferdinand v. Agricultural Ins. Co. of Watertown, New York, 22 N. J. 482 (1956). There the court stated:

“Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uneontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury. [Citations omitted] But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury.” (22 N. J., at p. 494)

Here the issue was whether Cerulli, for the city, had actual knowledge prior to the accident of the presence of ■the rope. In Ms argument on the motion for dismissal, plaintiff’s counsel initially stated:

“I do not say that there was actual notice but 1 do say that there was constructive notice. I can’t say that the policeman [Cerulli] misrepresented that he never saw the rope.”

He argued:

“[T]he jury can infer and draw the inference that having looked over the side of the cliff, having the fact that the tree was over seven feet tall, growing up, the fact that the wall was only three feet high and the rope was hanging from the tree; that, if he didn’t see it, he should have seen it, your Honor.
The Court: In other words, constructive notice. Mr. Carluccio: Constructive notice. * * *”

Thereafter, plaintiff’s counsel adopted the contention that the jury could have concluded from Cerulli’s testimony that the city had actual notice of the presence of the rope.

Implicit in the granting of the motion for involuntary dismissal was the trial judge’s conclusion that men of reason and fairness could not honestly differ in their appraisal of Cerulli’s testimony that he had not observed the rope before the accident. His testimony was not necessarily at variance with the testimony of other witnesses who said that the rope had been suspended from the tree for a period of two weeks to a month. His attention was primarily directed to the possible presence of trespassers. Eor the most part Cerulli’s observations were made either from the driveway of the old Abbe3r Inn property or from the public street (Mountain Road). The tree from which the rope hung was some 50 feet down the hill beyond the three-foot stone wall which was located 90 to 100 feet back from Mountain Road. The rope was described as hanging from a tree which grew out of the side of the cliff thus indicating that to an observer above it would have been difficult to see. Moreover, Cerulli’s testimony that the city property from the stone wall down to Weehawken contained heavy foliage was not contradicted but was confirmed to some extent by testimony elicited on. cross-examination of Martha Erueholz, one of the children who witnessed the accident.

• Where, as here, the uncontradicted testimony of a witness is unaffected b3r any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, and no other ground exists for hesitating to accept it as the truth, we cannot conclude that the trial judge erred in doing so. The mere fact that Cerulli was a member of the police department did not compel submission of the issue of his credibility to the jury. There was no evidence that he had any personal interest in the result of the trial or that he was in anyway responsible for the happening of the accident. There was no reason for him to commit perjury. He was called as a witness for the plaintiff and after he testified no attempt was made to contradict, impeach or neutralize his testimony. While, as plaintiff argues, he was not conclusively bound by Cerulli’s testimony we believe the trial judge could properly accept it as factually true — not because Cerulli was called as a witness by the plaintiff, but because it was the only testimony offered on the subject of defendant’s knowledge of the rope swing on its property. We are satisfied that there was no error on the part of the trial judge in refusing to submit the issue of Cerulli’s credibility to the jury.

In determining the propriety of the trial judge’s action in granting defendant’s motion for a judgment of involuntary dismissal we have accepted as true, as we must, all evidence which supports the plaintiff and have given him the benefit of all legitimate inferences which are to be drawn in his favor. Melone v. Jersey Central Power & Light Co., 18 N. J. 163, 170 (1955). Erom our careful review of the evidence we are convinced that fair minded men could not have determined that defendant had actual notice of the rope swing on its property, and accordingly, that the trial judge properly granted defendant’s motion for an involuntary dismissal.

Affirmed.

Cootoed, S. J. A. D.

(dissenting). I am unable to agree with the court’s conclusion that a jury question was not presented as to whether Officer Cerulli actually knew of the presence of the rope hanging from the tree at some time prior to the accident notwithstanding his denial that he ever saw it. I think a jury could reasonably have disbelieved him in the light of the evidence as to the surrounding circumstances. Plaintiff was of course entitled to the most favorable legitimate inferences from the proofs on the motion to dismiss. If Cerulli knew, his knowledge is imputable to defendant, and it then became a jury issue as to whether the rope had “propensities for causing an unreasonable risk of harm to infant trespassers” and whether defendant acted with due prudence under the circumstances in not removing it. Simmel v. New Jersey Coop Co., 28 N. J. 1, 10 (1958).

The thick, manila rope, of a 7-10 foot length, and knotted at the end, was hanging there for a period of from two weeks to a month, and a group of children played on it almost every da]' after school and week-ends. The tree was only 50 feet below an elevated observation point from which the officer said he had been making daily surveillance down the slope long prior to the accident. He was under instructions to chase children off the hill for “safety” and other reasons. He stated he could see children down the hill unless they were hiding. Another witness also said the children could be seen down the hill from the wall on top. Cerulli said he frequently chased them away from the hillside during his tours of inspection. A child swinging from a rope suspended from a tree would, it may be inferred, be particularly noticeable at a distance of only 50 feet. And the attendant presence of a group of children in that setting could inferably be noticed by sound as well as sight.

Although the officer described the hill as having “heavy foliage,” he did not relate that description to any particular time or date. Indeed, the accident having occurred on May 2, 1963, the period of daily observation during which the officer claims never to have seen the rope, although making regular inspection and observation in that direction, was substantially during the month of April. We may take judicial notice that arboreal foliage is sparse at that time of year and becomes copious only later in the Spring.

While one of the child witnesses for plaintiff on cross-examination answered “Yes” to the question, “Q. But this was in the Springtime when there were leaves on the trees the import of the question related to the time of the accident, May 2, not the preceding period of a month when the allegedly fruitless observations were made. Moreover, there is a difference between “leaves on the trees” and “heavy foliage.”

The officer might be deemed by the jury to have had some bias as to the issue tried, as the accident might have been thought to reflect a failure of the municipal “safety” policy with respect to local children playing in the area — a policy which the officer had been delegated to enforce. Contrary to defendant’s argument, the present-day view is that the plaintiff should not be conclusively bound by the testimony of an adverse party (or his representative) whom he has called as a witness. Becker v. Eisenstodt, 60 N. J. Super. 240, 248-249 (App. Div. 1960).

Applying the rule and language of Ferdinand v. Agricultural Ins. Co. of Watertown, New York, 22 N. J. 482, 494 (1956), I do not believe that Cerulli’s denial of ever having seen the rope is so “clear and convincing,” so free from contradiction “by witnesses or circumstances,” and “so plain and complete that disbelief of [his] story could not reasonably arise in the rational process of an ordinarily intelligent mind.”

It must be emphasized that the officer’s denial of seeing the rope implies a denial of seeing any children playing on the rope, and this as against the clear and credible proof that the children played on the rope daily for somewhere between two weeks and a month prior to the accident and the officer’s concession that he was making daily surveillance of the specific area during the same period.

There was therefore in my view a patent jury question as to whether defendant, through Officer Cerulli, knew prior to the accident of the condition which gave rise to this accident.

Defendant does not argue that any aspect of the rule of Simmel v. New Jersey Coop Co., supra, other than the question of knowledge by the landowner, precluded giving the case to the jury. As to the defendant’s assertion of the defense of municipal tort liability, I believe this is dissipated by the recent decision of the Supreme Court in B. W. King, Inc. v. Town of West New York, 49 N. J. 318, 326 (1967).

I would reverse.


source: Caselaw Access Project

author: Confobd, S. J. A. D.

license: Public Domain

text:
    JUAN ROMAN, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 19, 1968
    Decided January 17, 1969.

      Before Judges Confoed, Kilkenny and Leonaed.

      Mr. Arthur N. D’Italia argued the cause for appellant (Messrs. Warren, Ghasan, Leyner and Holland, attorneys).

      Mr. Eugene T. Urbaniak, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Confobd, S. J. A. D.

Eoman complains of the determination of the State Parole Board that he sustain loss of “street time” (i. e., between date of parole and date of apprehension for delinquency on parole) ordered upon revocation of a 1963 parole from a 1957 prison sentence because of his subsequent arrest for a narcotics offense committed in New York during his parole. He pleaded guilty to this offense, receiving a 2^-5-year prison term in New York.

The action of the State Parole Board was prima facie correct, under N. J. S. A. 30 ¡4-123.24, which requires loss of street time if parole is revoked for commission of an offense while on parole subsequently resulting in conviction of crime. The record before us indicates that the revocation of parole is dated April 24, 1964 and states as the reason therefor Roman’s conviction and sentence April 1, 1964 for attempted felonious possession of narcotic drugs.

Plaintiff seeks to cast doubt on the regularity of the foregoing record by reason of the fact that the declaration of delinquency on parole is dated December 17, 1963, yet refers, as a reason therefor, to the New York conviction and sentencing aforesaid “on April 1, 1964.” The State’s brief informs us that the original declaration of delinquency was executed on December 17, 1963, immediately on notification by the Parole Bureau of New York of Roman’s arrest in New York on that date, but that the declaration contained no “reason” therefor until the reason was typed in by a clerk in the State Parole Board’s office after the conviction. However, this irregularity in relation to the declaration of delinquency, whatever the related circumstances, is irrelevant to the issue before us. That matter depends on the reasons assigned in the revocation of parole alone, see Bonomo v. New Jersey State Parole Board, decided simultaneously herewith. The revocation is entirely regular on its face, and is attended by the presumption of regularity of an official record. We see no reason to grant appellant’s request for remand for a hearing as to the regularity of the revocation document on the mere basis of the irregularity of the declaration of delinquency on parole.

Roman argues that the effect of N. J. S. A. 30:4-123.24 in “adding the time on parole” to his sentence denies him liberty without due process of law. This argument is founded on the idea that, theoretically, time spent on parole is time spent in confinement, the “prison walls being pushed back,” so that imposition of service of that time on revocation of parole is fundamentally unfair as double punishment. We reject the position as unsound. Realistically, there is a vast difference between life in prison and life as a parolee. We see nothing fundamentally unfair, in a due process sense, in the State contracting with the parolee, as a condition of its grace, that if he commits a crime while on parole he shall serve behind the prison walls the period of the respite he has enjoyed from actual incarceration due the State under his sentence. The prisoner is of course always free to reject parole if dissatisfied with the statutory condition appurtenant thereto.

Roman also contends that the “penalty” imposed by the statute creates “a second penalty for previously punished conduct,” and is thus a violation of the double jeopardy provisions of the State constitution. We are in disagreement, notwithstanding the resourceful effort on Roman’s behalf to substantiate this thesis.

The prisoner is punished only once for the original crime, even when the statute is applied to deprive him of credit for his street time. The State did not have to create a parole system in the first place, and the convict is no worse off, in terms of time spent behind the bars, when the statute is applied, than he would have been had he not been paroled at all. A conditional remission of part of the adjudicated penalty does not become a “second” penalty when the adjudicated penalty is exacted from the prisoner for breach of the condition.

Judgment affirmed.


author: Coneord, S. J. A. D.

text:
    DOMINICK BONOMO, PLAINTIFF-APPELLANT, v. NEW JERSEY STATE PAROLE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 19, 1968
    Decided January 17, 1969.

      Before Judges Coneobd, Kilkenny and Leonard.

      Mr. Arthur N. D’Italia, argued the cause for appellant (Messrs. Warren, Ghasan, Leyner and Holland, attorneys).

      Mr. Eugene T. Urbaniak, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Bills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Coneord, S. J. A. D.

Two principal questions are presented by this appeal: (1) Does a convict, paroled during service of his sentence, who commits a crime during parole, but whose parole is revoked for a cause other than commission of crime, forfeit his “street time” (i.e., between date of parole and date of apprehension for delinquency on parole), and (2) does time spent in service of a prison sentence under a federal conviction of crime committed while on parole from service of a State Prison term count toward the time owed the State by the convict consequent upon revocation of parole? We resolve both questions in the negative.

Bonomo was serving aggregated sentences with a minimum of 17 years and a maximum of 24 for various crimes when he was paroled therefrom on September 21, 1961. On July 15, 1964 the State Parole Board issued its warrant to detain Bonomo because of his arrest as a disorderly person. On July 20, 1964= he was convicted as a disorderly person in the Municipal Court of Jersey City and sentenced to 30 days in the Hudson County Jail. The same day he was declared delinquent on parole by the Board for “failure to obey all laws and public ordinances as evidenced by your conviction * * * on a charge of Disorderly Person (4A Condition of Parole).” On August 5, 1964 Bonomo’s parole was revoked bj' the Parole Board, the “Seasons” for the revocation being stated in terms identical with those given in the declaration of delinquency. On August 18, 1964 Bonomo was surrendered to federal authorities; on September 16, 1964 he was indicted for possessing and passing counterfeit money and he was subsequently convicted of that charge and sentenced Eebruary 26, 1965 to a federal prison term of three years. It is undisputed that the federal offense was committed during the period of Bonomo’s enlargement on parole.

Bonomo served his federal sentence in a federal prison in Pennsylvania until May 4, 1967, after which he was detained there pending proceedings to extradite him to this State, except for the period from May 11, 1967 to June 23, 1967, during which he was free on bail. He was returned to New Jersey January 17, 1968, and has remained incarcerated at the State Prison since.

Bonomo has been advised by the Prison authorities that he must serve the balance of time remaining on his original sentence from September 21, 1961, without credit for any portion of the period between September 21, 1961 and May 4, 1961, unless sooner reparoled. He here appeals that determination. The Parole Board undertakes to defend the determination except for its concession that Bonomo will be credited, if he has not already been, with the time of detention between termination of his incarceration for disorderly conduct in Jersey City and the date of his being taken into custody by the federal authorities.

I 4s to the Forfeiture of “Street Time.”

In respect of this subject we are controlled by the statute, N. J. S. A. 30:4-123.24, which reads:

“A prisoner, whose parole has been revoked because of a violation of a condition of parole or commission of an offense which subsequently results in conviction of a crime committed while on parole, even though such conviction be subsequent to the date of revocation of parole, shall be required, unless said revocation is rescinded, or unless sooner reparoled by the board, to serve the balance of time due on his sentence to be computed from the date of his original release on parole. If parole is revoked for reasons other than subsequent conviction for crime while on parole then the parolee, unless said revocation is rescinded, or unless sooner reparoled by the board, shall be required to serve the balance of time due on his sentence to be computed as of the date that he was declared delinquent on parole.” (Emphasis added)

It is clear to us that the Legislature has by this language made the consequences of violation of parole, in terms of requirement of service of street time, expressly dependent on the “reasons” for the revocation of parole assigned by the Parole Board. If the parole is revoked “because” of conduct bjr the parolee during parole which subsequently results in conviction of crime, street time is forfeited. If parole is revoked for any other “reason,” it is not, and service of the uncompleted term is required beginning only as of the date of declaration of delinquency on parole.

We take cognizance of the argument of the Parole Board that this result would contravene the apparent policy of the statute that parolees committing a crime while on parole should be required to serve street time, in relation to cases where at the time of revocation the Board does not know of the crime but only of some lessor transgression, which it therefore assigns as the sole reason for revocation. Insofar as the present ease is concerned, however, there is an open question whether the Parole Board should not reasonably have known of Bonomo’s commission of the federal crime of passing counterfeit money when it revoked his parole (see footnote 1, supra). But in any event this court has on at least two prior occasions read this statute literally to make the effect of the Board’s action of revocation, in respect of defendant’s remaining penal term, dependent on the reasons specifically assigned by the Board for such revocation. State ex rel. Kincaid v. State Parole Board, 53 N. J. Super. 526 (App. Div. 1959) ; Pickering v. State, unreported, Docket No. A88-55 (App. Div. 1956). (Pickering, although unreported, is cited and relied on in the briefs of both sides.)

In Kincaid the court had for consideration the effect of the amendment of the section by L. 1957, c. 28, which produced its present text. Previously, the portion of the section antecedent to the language, “shall be required,” etc., had read: “A prisoner, whose parole has been revoked because of conviction of a crime committed while on parole,” L. 1948, c. 84, § 24. In the case of Pickering, supra, where the prisoner’s parole had been revoked “for good cause” August 11, 1953, and his conviction of crime did not take place until February 2, 1954, we held that the prisoner “obviously” did not lose Ms street time since parole had not been revoked because of conviction of a crime.

We pointed out in Kincaid, supra, 53 N. J. Super., at p. 529, that the purpose of the 1957 amendment was to broaden the category of such parole revocations as would effect forfeitures of street time. This was done by giving that effect to cases where a parole was revoked for commission of crime during parole notwithstanding conviction did not take place until after revocation. It is manifest that the amendment was designed to overcome the effect of decisions like Pickering, supra. But it is equally clear that the amendment left the statute in its previous condition of making the incidence of loss of street time dependent on the reason assigned by the Parole Board for its action in revocation of parole. See the Statement of the introducer of the bill which was enacted as L. 1957, c. 38. Were the Legislature desirous of making the fact of commission of crime while on parole determinative of the forfeiture of street time, regardless of the nature of the reasons given for revocation by the Board, such intention could readily and aptly have been expressed in the statute — if not originally, then at least when it was amended in 1957. The statute being penal in nature, it should not be construed against the rights of the prisoner in the face of its plain textual import to the contrary.

We are thus led to adhere to our previous readings of the statute in the cases cited above and to dismiss the Parole Board’s argument that it requires automatic loss of street time upon the prisoner’s conviction of crime committed while on parole, per se. Cf. Jerabek v. State, 69 N. J. Super. 364 (App. Div. 1961), where the point in question was not raised or considered.

The Parole Board argues that the conditions of parole, as stated in the parole certificate, constitute a “contract” with the State of New Jersey binding on the prisoner, and that Condition 7 of the certificate states that if the prisoner is convicted of a crime while on parole or commits an offense while on parole which results in conviction of a crime, the parole may be revoked without notice and the prisoner required to serve all the time remaining on his sentence as of the date of release on parole. However, the certificate must be read together with the statute, and not contrary thereto to the prejudice either of the State or the prisoner. State ex rel. Kincaid v. State Parole Board, supra, 53 N. J. Super., at p. 531. Moreover, as seen above, the parole was expressly revoked for conviction of disorderly conduct, not for commission or conviction of a crime.

The Board concedes that Bonomo’s conviction of disorderly conduct was not a conviction of a “crime”; and see Sawran v. Lennon, 19 N. J. 606, 611-613 (1955). It must follow that the Board did not revoke Bonomo’s parole because of an offense resulting in conviction of a crime, and the second sentence of N. J. S. A. 30:4-133.34 accordingly becomes operative. Defendant can be required to serve only the balance of time due on his sentence to be computed as of the date of declaration of delinquency on parole (subject to our holding in II, hereinafter).

The foregoing disposition renders it unnecessary for us to discuss Bonomo’s contention that a contrary result on this point would subject him to denial of liberty without due process and double jeopardy. We may say, however, that we have weighed those arguments and find them without merit. See our opinion in Roman v. New Jersey State Parole Board, 104 N. J. Super. 222, decided simultaneously herewith.

II

Bonomo contends that once his parole was revoked he began automatically to resume service of his original term of imprisonment; that such service could not be interrupted by the transfer of his custody to the federal authorities and that consequently all of the time which elapsed between the transfer of custody to the federal authorities and Bonomo’s return by the latter to the New Jersey authorities after service of his federal term must count toward his credit against his obligation on the original state term.

The record before us does not indicate what officer or agency surrendered Bonomo to the federal agents, but we think it makes no difference insofar as the instant issue is concerned. Bonomo took no steps to challenge the transfer when it took place. Considerations of comity rendered it not inappropriate for the State of New Jersey to transfer the prisoner to the United States Government for prosecution for his federal crime. 22 C. J. S. Criminal Law p. 306-307, § 111. We are not here called upon to decide whether New Jersey was obliged to turn Bonomo over to the United States for prior trial, or punishment by imprisonment, on a federal charge, before completion of service of his unfinished state sentence. The only question before us is this: New Jersey authorities having done so without objection at the time by the prisoner, and federal prosecution and imprisonment having actually ensued and been completed, what is the effect on the prisoner’s penal indebtedness to the State? Cf. Rau v. McCorkle, 45 N. J. Super. 191 (Law Div. 1957).

Bonomo’s reliance upon People v. Murphy, 1 N. Y. 2d 367, 153 N. Y. S. 2d 21, 135 N. E. 2d 567 (Ct. App. 1956), cannot serve his cause. On a state of facts roughly comparable with those here presented, the court held that the prisoner’s service of his original sentence recommenced after parole, upon his arrest for violation of parole, and that under the applicable New York statutes the running of that service could not be stopped by the fact of surrender of the prisoner to federal authorities for service of a federal prison term for an offense committed while on parole. The case before us is distinguishable in two important respects. First, so far as we are aware, there is no New Jersey statute like the New York act, relied upon in Murphy, absolutely prohibiting suspension or interruption of a prison sentence after imprisonment has commenced. Second, and of even more significance, New York does not appear to have any statute like our N. J. S. A. 30:4-123.27, which provides, in part:

“No part of a sentence, for which a parole has been granted and revoked, shall be deemed to be served by a prisoner, whose parole was revoked, while he is serving a sentence for an offense other than the one for which he was paroled.”

Except where the sentencing judge on the subsequent offense expressly. directs that the sentences be served concurrently, State v. Grant, 102 N. J. Super. 164 (App. Div. 1968), the foregoing statutory language precludes the period of time served on the subsequent sentence from being counted as a credit toward service, upon revocation of parole, of the original sentence. Chernachowicz v. State, 39 N. J. Super. 571 (App. Div. 1956), affirmed State v. Chernachowicz, 22 N. J. 83 (1956), certiorari denied 352 U. S. 897, 77 S. Ct. 136, 1 L. Ed. 2d 89 (1957). We have no doubt that the intent of the statute extends to subsequent service of out-of-state and federal prison sentences as well as New Jersey ones. The statute dispositively rules out Bonomo’s contention that the time served on the federal sentence also counts as service on the state sentence.

There remains for consideration the status of the time period in federal custody prior to commencement of service of the federal term. If Bonomo was given no credit fox this on his federal term he should be credited with it on the remaining New Jersey sentence. If, however, he was given such credit, he cannot be allowed the double credit which would eventuate by also crediting the New Jersey term therewith. In the latter case, the time involved should be deemed to fall within the effect of N. J. S. A. 30:A-123.27; and this result does justice to both the prisoner and the State, within the public policy embodied in the statute. Bonomo owed both the Federal Government and the State of New Jerseys full consecutive service of the respective terms meted out to him, subject to the parole action of the State Board.

Keversed and remanded with directions to the State Prison authorities to modify plaintiff’s penal status of record in accordance with the foregoing.

       The opinion of the Third Circuit Court of Appeals affirming' Bono-mo’s conviction indicates that he was arrested by the Jersey City police on July 15, 1964 while he and another were found passing counterfeit currency, in the course of which arrest he assaulted a policeman. United States v. Carlson, 359 F. 2d 592, 596 (1966). It is clearly inferable that the disorderly persons conviction arose out of the foregoing events. Bonomo contends that the State Parole Board knew or could readily have ascertained, at the time of the arrest, that he had committed a federal crime. The Board denies any knowledge of the federal charges until so informed by the State Police September 23, 1964.

      Post-argument data supplied us by the Parole Board seems to indicate no such credit was given.


author: Ooneokd, S. J. A. D. Kilicbxny, J. A. D.

text:
    CLIFFORD L. RALL, PETITIONER-APPELLANT, v. THE BOARD OF EDUCATION OF THE CITY OF BAYONNE, HUDSON COUNTY, NEW JERSEY, AND STATE BOARD OF EDUCATION, STATE OF NEW JERSEY, RESPONDENTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1968
    Decided January 24, 1969.
    Kilkenny, J. A. D., dissented.

      Before Judges Coneobd, Kilkenny and Leonabd.

      Mr. Joseph N. Dempsey argued the cause for appellant.

      Mr. John J. Pagano argued the cause for respondent Board of Education of the City of Bayonne.

      Mr. Arthur J. Sills, Attorney General, filed a brief, specially, at the request of the court (Mr. Stephen G. Weiss, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Ooneokd, S. J. A. D.

The principal question here presented is whether the Board of Education of Bayonne effectively conferred tenure in office on petitioner, as superintendent of schools of that municipal school district, by a resolution of January 14, 1965 purporting to accomplish that object. The State Commissioner of Education has ruled in the affirmative; the State Board of Education, on appeal, in the negative. Petitioner appeals.

The statute requiring construction for determination of this appeal, N. J. S. 18A:28-5 (being N. J. S. A. 18:13-16 prior to the revision of the State Education Law, effective January 11, 1968) reads, in material part, as follows:

“The services of all teaching staff members including all teachers, principals, assistant principals, vice principals, superintendents, assistant superintendents, and all school nurses including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, * * * shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by subarticle B of article 2 of chapter 6 of this title, after employment in such district or by such board for:
(a) three consecutive calendar years, or any shorter period which may he fixed hy the employing hoard for such purpose; or
(b) three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(c) the equivalent of more than three academic years within a _ period of any four consecutive academic years; * * (Emphasis added)

The particularly critical language is that underscored above in subparagraph (a).

There were cross-motions for summary judgment before the State Commissioner. The following facts emerge from the proofs then adduced.

On June 25, 1964 the city board appointed petitioner superintendent of the Bayonne public schools. His contract commenced on July 1, 1964 and was to terminate on May 31, 1967, making a term of two years and 11 months, one month short of the three-year term for the acquisition of tenure under subparagraph (a) of the statute. See Board of Education, Manchester Tp. v. Raubinger, 78 N. J. Super. 90, 97 (App. Div. 1963). On January 14, 1965 the same city board that executed his contract rescinded it and, reciting that petitioner had efficiently performed his duties since appointment, granted him tenure by a unanimous vote. This grant was declared to be pursuant to N. J. S. A. 18:13-16(a), now N. J. S. 18A :28-5. The resolution did not purport to shorten the period of service requisite generally for attainment of tenure by superintendents of schools or any other category of school employee. Nor did it even declare that the period of service by petitioner was one of sufficient length to justify positing tenure thereon.

Some two years and four months later petitioner apparently was investigating the possibilities of employment elsewhere. Although it appeared that the city board then in office and petitioner had resolved the problem at a conference on May 13, 1967, the city board on May 29, 1967 held a special meeting at which a resolution was adopted, by a vote of 6-3, rescinding the former city board’s January 1965 resolution, declaring the original employment contract adopted on June 25, 1964 to be the only valid and subsisting contract between the parties and, as the term of that original contract was to expire within two days, declaring the office of superintendent of schools vacant as of June 1, 1967. The resolution undertook to justify this action by stating that one board cannot bind subsequent boards “in matters beyond the term of” the first board, nor hamper or deprive a subsequent board of its right to exercise discretion over the question of tenure. Thus, so it was resolved, the prior board’s action was void because it deprived the present board of such discretion, because it attempted to usurp the present board’s legal duty and obligation, and because it violated the public policy of the State by denying the citizens of Bayonne the benefits of the probationary period required by statute to precede the acquisition of tenure by a school superintendent.

Petitioner contended on appeal before the State Commissioner that the January 1965 resolution validly granted him tenure because the pertinent statute provided that the city board could fix a term shorter than the three-year statutory period for the acquisition of tenure. The Commissioner agreed, ruling that he acquired tenure as of January 1965 and therefore could be removed only for cause following a hearing and determination pursuant to the Tenure Employees Hearing Act. He ordered petitioner reinstated with full compensation rights.

The Commissioner held that the city board had properly exercised statutory authority in granting petitioner tenure in January 1965 since this was merely a shortening of the three-year tenure period in petitioner’s case, as deemed to be allowed by statute. The action was held free from criticism as conferring a personal benefit upon petitioner as against others in his employment category, prohibited by such school decisions as Spadoro v. Board of Education, Jersey City, 1965 S.L.D. 134, and Rinaldi v. Board of Education, North Bergen, 1959-1960 S.L.D. 109, since petitioner was the only occupant of his employment category in the school system.

The State Board of Education, in reversing (with one dissent), held, in effect, that the statutory authorization for shortening the tenure period was not followed here by the city board in January 1965 since it did not adopt a resolution shortening the general statutory tenure period for any category of school staff, but conferred a benefit upon “one individual alone.” It pointed out that the fact that there could be only one superintendent of schools at a time was irrelevant, since a proper resolution reducing the tenure period for the position of superintendent of schools would apply to all successive holders of that position. We find ourselves in basic agreement with this rationale of the State Board of Education and, consequently, with its determination that the January 1965 resolution did not legally confer tenure on petitioner.

Although prior to 1952 superintendents of schools did not appear in the tenure statute, the incorporation of that category of school staff therein by L. 1952, c. 236, § 12, made the category subject to the full sweep of the statute and to ordinary rules of statutory construction thereof in relation to the categorjr, as though included in the statute from the beginning. Subparagraph (a) of the pertinent statutory section fixes a general period of three calendar years for attainment of tenure by the members of any of the staff categories designated in the section; but that provision is qualified to the extent that any local board of education is permitted, by express delegated authority, to promulgate for its own jurisdiction general legislation in place of the three-year rule and thereby ordain a specific, shorter period than three years wherein the members of any category designated by the board in such legislation may achieve tenure. Decisions of the Commissioner of Education prior to the instant case contain reasoning clearly in accord with this concept of the statutory design. See the Spadoro and Rinaldi eases, cited above.

We regard the foregoing construction of the statute as so obvious from its language and apparent purpose as to defy the contention that it authorizes a local board to simply select an individual member of an employment category who has served less than three years and confer tenure upon him alone, by name, ad hoc, without in any way undertaking to fix a specific, generally applicable, shorter-than-three-years term of service for achievement of tenure by members of that individual’s staff category or of any category inclusive of his.

This is not a matter of elevating form over substance. Ear from it. The statute, as we see it, contemplates that before acting under the authority of subparagraph (a) to fix a tenure period shorter than three years, the board will give consideration to whether such shorter period is suitable for general application to all present and future members of the category coming into the system until such time, in the indefinite future, as that or a later board amends or repeals the provision by a similarly general legislative resolution. The intent was plainly not to authorize exemptions from the three-year probationary term on an ad hoc basis in individual cases, as was so obviously done in the present instance. Were petitioner to have died or resigned a month or two after the January 1965 resolution, no successor would have been in a position to claim tenure after 6J4 months service on the mere basis of that resolution. It did not purport to have general prospective legislative effect, but rather to have exhausted its effect in its operation on the status of petitioner alone.

Petitioner challenges the foregoing reasoning on the ground, among others, that the city board could not legally have adopted a resolution for shortening tenure of superintendents which would automatically survive in legal effect the life of the adopting board, i. e., beyond the next annual reorganization meeting of the board the following February. It is true, broadly speaking, that rules and regulations adopted by a local board of education, being a noncontinuous body, die with the annual reorganization meeting of the board unless expressly or impliedly adopted anew by the next board. Skladzien v. Board of Education, Bayonne, 12 N. J. Misc. 602 (Sup. Ct. 1934), affirmed, 115 N. J. L. 203 (E. & A. 1935); Offhouse v. State Board of Education, 131 N. J. L. 391 (Sup. Ct. 1944); cf. Talty v. Board of Education, Hoboken, 10 N. J. 69, 712 (1952 ). However, the Legislature obviously has the right to empower a local board to act, in regard to particular subject matter, in a manner effective for a period of time beyond the life of the acting board, and there are many obvious examples of such legislation. E. g., N. J. S. 184. :29-4.1 (a salary schedule binds the adopting and future boards for two years from date of adoption); N. J. S. 184. :39-2 (contracting for school transportation for four years) ; N. J. S. 184. :27—3 (teacher employment contracts binding until June 30). There are many others. In all such instances the Legislature regards it as politic that the local board be enabled, pro hac vice, to act in the manner of a continuous body.

It is perfectly clear to us that by delegating to local boards the function of fixing, at option, a shorter term than three years for vesting tenure in employees, the Legislature in N. J. S. 18A :28-5 (a) intended to confer upon such a local board the power to enact such a regulation which would continue in effect indefinitely thereafter, just as does the three-year rule of the statute, until such time as that or a later board expressly abrogated or amended it. The argument of petitioner to the contrary, supported by the brief of the Attorney General, seems to us to involve consequences strongly militating against the construction advanced—that is, that a “shortening” resolution must automatically die with the incumbency of the succeeding annual board. For em-ample, should a board decide to reduce the statutory tenure period, say as to principals, to two years, no principal engaged by that board thereafter could enjoy the assurance that he would achieve tenure after two years of satisfactory service since he would be under the constant peril that either of the two successive annual boards might fail specifically to readopt the rule. Many comparable situations could be envisaged. It is thus obvious that considerations of school-employee morale strongly bespeak the construction of the statute which its natural reading evokes. Just as new-employee morale is promoted, under the three-year provision of the statute (where shorter periods have not been adopted), by the knowledge of such employees that the statutory provision does not require annual reenactment for continued subsistence and effectiveness, so would the same result follow from giving continuous prospective effect to a resolution shortening the tenure period for any category of employee.

In appraising the legislative intent we cannot properly distinguish the case of superintendents from that of other classes of school employees on the basis, contended for by petitioner, that there is only one superintendent in a school district at a time. The statute requires uniform construction as to all categories of staff within its coverage since its provisions are, in terms, uniformly applicable to all. Moreover, as indicated above, we are in accord with the reasoning of the State Board that successive holders of the position would fall within the category of superintendents, and that all of them would have to be treated uniformly by a local board undertaking to shorten the period of tenure for the category pursuant to the statutory authorization (subject, of course, to any later general amendment of the resolution).

To the extent, therefore, that the determination of the State Board of Education reversed the Commissioner’s summary adjudication that petitioner enjoyed tenure under the January 1965 resolution, we affirm it, concluding that the resolution failed of that effect as a matter of law.

Petitioner argues, in the alternative, that the purported tenure accorded him in 1965 must be left undisturbed because the corrective action of the later city board was not taken “promptly.” He cites the reference in the opinion in Thomas v. Board of Education, Morris Tp., 89 N. J. Super. 327, 335 (App. Div. 1965), affirmed 46 N. J. 581 (1966), to the fact that the second action of the board there, invalidating the first action granting tenure, was taken “promptly and expediently” and that no “legal prejudice” resulted to the petitioner.

We observe that the issue now raised by petitioner was not a subject of contention by him before either lower administrative tribunal. It comes too late. Nor do we discern any such prejudice to petitioner which could support anything like an estoppel (an argument not even advanced). The resolution of January 1965 was not a mere irregularity, but a totally unauthorized act, and void in legal effect. Cf. Thornton v. Village of Ridgewood, 17 N. J. 499, 510 (1955); V. F. Zahodiakin Engineering Corp. v. Board of Adjustment, Summit, 8 N. J. 386, 395 (1953). We could not lightly impose upon the public of Bayonne a tenured superintendent whose status as such was lacking in any official action having a statutory foundation, for no better reason than the date of official repudiation of the illegal action, when that repudiation took place before tenure would otherwise have legally vested in petitioner under the applicable statute.

Petitioner also complains of the decision of the State Board of Education that the purported rescission of the employment contract running from July 1, 1964 to May 31, 1967 was “mistakenly conditioned upon the purported grant of tenure,” and therefore the rescission is of no effect and petitioner is entitled to be paid his contractual salary through May 31, 1967. He argues that these are findings of fact and law never submitted as issues before the lower tribunals and that he ought not to be bound thereby in any future litigation over the amount of compensation he may be entitled to. We agree. These findings will be set aside.

We limit our determination solely to affirmance of the decision of the State Board that petitioner does not have and never has had legal tenure rights as superintendent of schools of Bayonne.

Modified in accordance with the foregoing; affirmed as modified.

Kilicbxny, J. A. D.

(dissenting). I would reverse the

decision of the State Board of Education. I agree with the determination of the State Commissioner of Education, and for the reasons expressed in his opinion, that petitioner was granted tenure by reason of the resolution of the Bayonne Board of Education, unanimously adopted on January 14, 1965. The discharge of petitioner as of May 31, 1967 by the board’s resolution of May 29, 1967, without charge or a hearing was violative of petitioner’s tenure rights.

Petitioner was originally appointed superintendent of schools of Bayonne by resolution of June 25, 1964 for a term of two years and 11 months — July 1, 1964 to May 31, 1967. Petitioner admittedly demonstrated his competency so completely that months of acknowledged excellent performance induced the board to insure his future services as its superintendent of schools by the riuanimous adoption of a resolution on January 14, 1965. Thereby, the board rescinded the original contract of employment and conferred tenure upon its superintendent.

The school superintendent’s continued satisfactory performance is manifested by the concurrence of succeeding boards of education in the action in 1965. There was a recognition of petitioner’s tenure status. For more than two years and four months no board or board member challenged the validity of the January 1965 resolution which conferred tenure. Petitioner, too, relied on the fact of tenure conferred in 1965. Without that assurance he might have pursued other courses.

The board of education concedes that the 1965 resolution conferring tenure was adopted in good faith. The attorney for the board admitted at oral argument that he drew the resolution to cany out the board’s intention to confer tenure. This was no “lame duck” appointment. It did not contain the objectionable feature, observed in some other cases, of granting tenure immediately upon appointment, without an allowance for a probationary period.

What prompted the board to take away in May 1967 a tenure which it had voluntarily and unanimously bestowed in January 1965 ? It had received information that petitioner was considering severing his relationship with the Bayonne schools and seeking, perhaps, a better job elsewhere. He was called into conference, the result of which was his issuance of a public statement disclaiming his intention of leaving Bayonne. The president of the board issued a confirmatory public statement.

Yet, a few days later, without warning or any notice of its intention to petitioner, the board at a special meeting adopted by a 6-3 vote its May 29, 1967 resolution terminating petitioner’s employment as of May 31, 1967 — a bare two days later, and about a month before the close of the school term. It purported to rescind its January 14, 1965 tenure resolution and to restore unilaterally the 1964 employment contract which the January 1965 resolution had cancelled.

I cannot in conscience subscribe to this conduct by the board and lend by my silent adherence to the majority opinion concurrence in the board’s treatment of the educational leader of its school system.

I appreciate the technical legal rationale of the majority. I need not repeat what I believe to be the sound legal answers thereto, as expressed in the opinion of the State Commissioner of Education. It is conceded that tenure may be granted by a local board of education in less than three years, if done in good faith and following a reasonable probationary period. N. J. S. A. 18:13-16(a), now N. J. S. 18A :28-5. This was done here, and intentionally so. There was a long-standing acceptance of that action and agreement of successive boards therewith.

That the tenure conferred was limited to a single person was necessitated by the fact that he was the only person in the particular category. To destroy that tenure because the proper form of resolution was not adopted would be nothing more or less than exalting form over substance. The board’s attorney admitted at oral argument that he used that form only because he was unaware of a different form to be employed to effectuate the board’s purpose. The conjectural effect of the lessening of the time for tenure in the case of the appointment of some new superintendent in the future is immaterial. In such an event the then-existing board can fix the terms of the contract and adopt its own rule.

I would reverse the decision of the State Board of Education and reinstate the determination of the State Commissioner of Education.


author: Wick, J. S. C.

text:
    MOORESTOWN MANAGEMENT, INC., SUCCESSOR TO MOORESTOWN CENTER, INC. AND MOORESTOWN MALL, MERCHANTS ASSOCIATION, INC., PLAINTIFFS v. MOORESTOWN BOOKSHOP, INC., t/a PAPER BACK DEN, ROCCO A. DI PALMO AND WILLIAM G. THOMPSON t/a BIG TOP OF MOORESTOWN MALL, INC. AND ROCCO A. DI PALMO, ASSIGNEE, WALTER J. HAGEN t/a STAMP KORNER, CHARLES SIBBITTS t/a MARI’S JEWELERS, GINZA, INC., EDISON NEW JERSEY STORES, INC. t/a BAKER’S SHOES, ALEXANDER R. CUNNINGHAM AND PATRICIA B. CUNNINGHAM, HIS WIFE, AND MERVIN HANDLER AND FLORA HANDLER, HIS WIFE, ASSIGNEES, t/a CLASSIC ONE HOUR CLEANERS, MURRAY ROTHENBERG AND MERCEDES MARINELLI t/a MERCEDES TIES AND ZOLTAN SCHWARTZ t/a ZOLTAN TIES, ASSIGNEE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 22, 1969.

      Mr. Antonio R. Cioffi, attorney for plaintiffs.

      Mr. Charles Lee Harp, Jr. for defendant Edison New Jersey Stores, Inc. (Messrs. Archer, Greiner, Hunter <& Read, attorneys).

      Mr. Edward N. Adourian, Jr. for defendant Zoltán Schwartz (Messrs. Plone, Tomar, Parks and Seliger, attorneys) .
   Wick, J. S. C.

In this suit the landlord and a third-party beneficiaiy under various leases seek a declaratory judgment for the purpose of determining the rights and obligations of the parties who have interests under the leases. N. J. S. A. 2A :16-50 et seq. Plaintiffs also seek specific performance of certain provisions of the leases. The operative facts are set forth below.

Plaintiff Moorestown Management, Inc. (“Moorestown”) is the owner and operator of a shopping center complex commonly known as Moorestown Mall located in Moorestown, New Jersey. Moorestown is the successor in title to Moorestown Center, Inc. which contracted to lease store area in the center with the following defendants involved in this suit: a lease dated June 24, 1963 with Edison New Jersey Stores, .Tnc. (“Edison”) for a term of 20 years; a lease with Murray Rothenberg and Mercedes Marinelli dated October 8, 1963 for a term of ten years (as of November 29, 1965 Zoltán ►Schwartz (“Schwartz”) assumed the obligations as assignee).

Moorestown Mall Merchants Association, Inc. (hereinafter “Association”) is a nonprofit association which was incorporated under the laws of New Jersey N. J. S. A. 15:1—1 ei seq. on February 17, 1964. The primary purpose of the Association is to promote the Mall by means of advertising, special events, public and community relations and other such means, It is composed of the tenants in the shopping center who elect the board of trustees and determine the policies thereof. The tenants are obligated under the terms of their leases to join the Association and pay dues thereto.

O21 February 17, 1964 an organizational meeting of the Association was held for the purpose of discussing and adopting a set of by-laws. Representatives of all stores, including Edison and Schwartz, attended this meeting. After discussing the proposed by-laws, the members were offered an option whether to vote on the by-laws or to have a committee review them and present them at a subsequent meeting for approval. The members voted to form a committee of ten tenants, including Edison.

The committee reviewed the by-laws and at a meeting on March 11, 1964 all the committee members except Edison voted to accept them. However, it does not appear from the evidence that these by-laws were ever voted upon or adopted by the entire membership.

On June 3, 1964 Edison notified the Association by letter that it was resigning from the Association and would not consider itself liable for dues for the reason that, contrary to the lease agreement, the by-laws interfered with the internal policies of Edison. Edison also contended that the voting arrangement in the by-laws violated the “one-man, one-vote” provision of the lease and that the by-laws were not properly adopted.

Defendant Schwartz took the position that paragraph 13(h) of the lease is unconscionable in that it attempts to bind the lessee to unspecified obligations. Both Schwartz and Edison continue to be tenants of the shopping center.

The plaintiffs instituted this suit to compel these tenants to continue their membership in the Association and to require them to pay the Association the past dues owed.

In this case the written shopping center leases are the instruments which primarily govern the rights and obligations of the parties. In light of this fact, I should point out that such leases present the court with novel legal problems which are just beginning to be dealt with in judicial and academic circles. Dover Shopping Center, Inc. v. Cushman’s Sons, Inc., 63 N. J. Super. 384 (App. Div. 1960); Barr & Sons, Inc. v. Cherry Hill Center, Inc., 90 N. J. Super. 358 (App. Div. 1966); Colbourne, “A Guide to Problems in Shopping Center Leases,” 29 Brooklyn L. Rev. 56 (1962); Morris, “Shopping Centers,” 1955 Ill. L. Forum 681; Pollack, “Shopping Center Leases,” 9 U. of Kans. L. Rev. 379 (1961); Kranzdorf, “Problems of the Developer,” 1965 Ill. L. Forum 173. A shopping center such as Moorestown is more akin to a joint venture of landlord and tenants than to the traditional independent relationships between a single landlord and tenant usually created in store leases. Eor example, in a shopping center such devices as the percentage leases and the merchants associations make the fortunes of the landlord and tenants unalterably intertwined. Thus, the greater the extent to which the center operates as a unified whole, with each store complementing the other, the greater the measure of success. Hemmingway, “Selected Problems in Leases of Community and Regional Shopping Centers,” 16 Baylor L. Rev. 1 (1964). It is from this perspective that the courts can best view the rights and obligations of the parties involved.

Edison and Schwartz’s obligations to join the Merchants Association and to pay dues thereto are predicated on paragraph 13(h) of the lease agreements executed by the individual tenants and on the by-laws which were enacted pursuant to the leases. Paragraph 13 (h) states:

“Rules and Regulations. Tenant agrees that at all times during the term of this lease it shall at its own cost and expense:
(h) Become a member of, participate fully in, and remain in good standing in the Merchants’ Association (as soon as the same has been formed) limited to tenants occupying premises in the Shopping Center, and abide by the regulations of such Association. Each member tenant shall have one vote and the Landlord shall also have one vote in the operation of said Association. The objects of such Association shall, among other things, be to encourage its members to deal fairly and courteously with their customers, to sell their merchandise or services at fair prices, to follow ethical business practices, to assist the business of the tenants by sales promotions and center-wide advertising, and in particular to help the interests of members of the said Association. The Tenant agrees to pay minimum monthly dues to the Merchants’ Association in such amount as may be established by the Association, subject, however, to annual adjustments, approved by a majority vote of the members of the Association, increasing said dues.
The Tenant also agrees to pay to the Merchants’ Association an initial assessment, in addition to the foregoing dues, in such amount as may be established by the Association for the jrarposes of defraying the promotional and public relations expenses to be incurred by the Merchants’ Association in connection with the joint opening of the Shopping Center.
Nothing in the By-Laws or regulations of the said Association shall be in conflict with the provisions of this lease, including without limiting the generality of the foregoing any reasonable rules and regulations adopted pursuant to the provisions of Subdivision K hereof, or in any wise shall affect the rights of the Landlord. (Tenant may however eease to be a member in the event that the Merchants’ Association interferes with the internal policies of Tenant.)”

Schwartz’s lease does not contain the final sentence. Article V of the by-laws of the Association establishes the formula for the assessment of dues. This formula is based on a dollar rate per square foot of the tenant’s store area.

Defendants raise the issue as to whether the Association, a third-party beneficiary under paragraph 13(h), is a proper party in a suit for the enforcement of the lease. N. J. S. A. 2A :15-2 provides for a suit by a person for whose benefit the contract is made although the consideration of the contract did not move from him. Under New Jersey common law the courts have recognized the right of a third-party beneficiary to enforce a contract if he is a donee beneficiary (if in buying the promise the promisee intends the promised performance as a gift to the third party), or creditor beneficiary (if in buying the promise the promisee intends the third party to receive the performance in satisfaction of a real or supposed duty or obligation owed by the promisee). Drewen v. Bank of Manhattan Co., 31 N. J. 110 (1959); Joslin v. New Jersey Car Spring Co., 36 N. J. L. 141 (Sup. Ct. 1873).

In order to qualify as a third-party donee or creditor beneficiary the applicant must prove that the contract was made and intended for him. If he does this, he has a sufficient interest in the enforcement of the promise so as to entitle him to sue for damages or to invoke the aid of a court of equity if the remedy at law is inadequate. Drewen v. Bank of Manhattan Co., supra; 4 Corbin on Contracts, (1963 Ed.) § 782, p. 78; Restatement, Contracts, (1932 Ed.), § 32. In this case the promisee, Moorestown, expresses a clear intention and purpose in paragraph 13(h) of the lease to confer a benefit upon Association as.a gift in the form of the promise by the tenant to join and to pay dues to the Association. Accordingly, the Association as a donee beneficiary has a sufficient interest in the enforcement of these covenants and is a proper party to this action.

We now come to a discussion of the merits of the case which involve issues relating to the validity, interpretation and enforceability of the terms of paragraph 13(h) of the leases. These aspects of the lease covenants — the promises to become and to remain a member in good standing of Association and the promise to pay dues — are governed by ordinary contract principles subject to the nuances mentioned above regarding shopping center leases. Thus, where the lease provisions were, voluntarily executed for consideration by competent parties, without fraud or deception, the parties should be bound thereby and their intention as expressed in the agreement should be enforced unless the agreement is against public policy. Dover Shopping Center, Inc. v. Cushman’s Sons, Inc., supra; Terminal Const. Corp. v. Bergen County, etc., Sewer Dist. Authority, 34 N. J. Super. 478 (App. Div. 1954), modified 18 N. J. 294 (1955); 17 C. J. S. Contracts § 1 (2), p. 545.

Schwartz justifies its nonperformance of the covenants on the ground that paragraph 13 (h) is unconscionable in that it attempts to bind the lessee to unspecified obligations, financial and otherwise, over which the tenant has no control or about which he cannot bargain. I do not concur, because in this case the element of unequal bargaining positions of the parties, which is ordinarily required to invoke the concept of unconscionability, is not present. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960); Williams v. Walker-Thomas Furniture Co., 121 U. S. App. D. C. 315, 350 F. 2d 445 (D. C. App. 1965). Moreover, it is settled that an agreement is not unenforceable for lack of definiteness of price (i. e., dues) if the parties specify a practicable method by which the amount can be determined. 1 Corbin, op. cit., § 98, p. 433. Here, under the by-laws which were incorporated by reference to the lease, article V provides the formula for establishing dues, and the liability of a member of an association for dues so established has generally been upheld. 2 Am. Jur. 2d, Associations and Clubs, § 25, p. 450.

Edison contends that it is relieved of any obligation to join or pay dues to Association because the Association has failed to comply with the terms of paragraph 13(h) in the following respects: (1) it has failed to have its by-laws formally adopted by the entire membership of the Association, and (2) certain by-laws by their terms deviate from the “one-man, one-vote” standard provided for in the lease.

After reviewing the procedure by which the Association’s by-laws were adopted, I have concluded that they were not enacted in the proper manner. Under common law the power to make by-laws resides in the constituent body, either members or stockholders of the corporation, unless the corporate charter or a statute provides otherwise. 18 Am. Jur. 2d Corporations, § 163; 18 C. J. S. Corporations § 186, p. 596. See also N. J. S. A. 14:3-2. Although this power may be delegated by the members to a selected body, such a delegation of power will not ordinarily be inferred in the absence of- any definite and clearly disclosed intention to this effect. Ibid. Applying the facts in this case I find that the proposed by-laws were discussed at the organizational meeting of the Association on February 17, 1964 attended by all tenants; that according to the minutes of the meeting a representative suggested that a vote be taken either to pass the proposed by-laws or refer them to a committee for the purpose of reviewing them and presenting them at a later date for membership approval; that the majority of the membership voted to send the by-laws to a committee; that on March 11, 1964 the by-laws committee voted to pass the by-laws, and that the by-laws were never submitted to the entire membership for their approval, yet the Association bound itself to do so.

Based on these findings of fact I believe that there was a technical defect with respect to the manner in which the Association’s by-laws were enacted. This should be rectified by submitting the by-laws to the entire membership of the Association. As the situation now appears, the present members of the Association, except for Edison and Schwartz, would be precluded from challenging any previous actions pursuant to the by-laws on principles of ratification and estoppel (i. e., participating in the operations of the Association during four years and accepting the benefits thereof, with considerable monies and efforts expended by the Association for the benefit of the tenants of the center). 18 C. J. S. Corporations § 186 (4), p. 597-598; Taner v. Atlantic Cas. Ins. Co. of Newark, 37 N. J. Super. 9 (App. Div. 1955).

W ith respect to Edison’s attack on the substance of certain by-laws, T find that the by-laws referred to below deviate considerably from the “one-man, one-vote” standard of voting set forth in the lease. As previously pointed out, paragraph 13(h) requires that “Each member tenant shall have one vote and the Landlord shall also have one vote in the operation of said Association.” It is clear that the language of the lease establishes a duty under which the Association is to guarantee the tenant one vote of equal value to any other with respect to all those matters which concern the operation of the Association. In light of the recent federal and state reapportionment cases, this democratic voting standard should be liberally construed. Jackman v. Bodine, 43 N. J. 453 (1964). Based on this line of reasoning the terms of the following by-laws are in violation of the lease: (a) article IT, which deals with the board of trustees, provides that the board shall “consist of nine (9) members in good standing, five (5) to be elected from the membership, one (1) to be the Landlord * * *, and three (3) to be members appointed by the Landlord.” This provision violates the lease standard inasmuch as the landlord is given a heavily weighted vote in the area of the day-to-day management of the Association’s activities; (b) article V, section G and article V, section I, sub section 3 depart from the standard in that the former provides the compensation of the promotion director, which is to be paid by the Association “shall be fixed by the Landlord only and shall not be subject to the approval or disapproval of the Board of Trustees;” and the latter provides that “The Promotion Director * * * shall be employed or discharged by the Landlord only."; (c) article VI, section 5(c) also conflicts with the “one-man, one-vote” scheme contemplated by the lease, particularly by granting the landlord absolute veto power over any by-law provisions which relate to it; (d) similarly, article VI, section 5(b) provides that the dues are subject to modification by a voting arrangement in which “each member in good standing (including the Landlord) shall have one vote for each dollar paid by such member in the fiscal year in which such vote shall take place.” This provision is in direct conflict with the provisions of paragraph 13(h) which provide for the annual adjustment of the dues, “approved by a majority vote of the members of the Association, increasing said dues.”

Notwithstanding these defects with respect to the manner in which the by-laws were adopted and with respect to the substance of certain by-laws, Edison and Schwartz should not be relieved of any future obligations to join the Association and to pay dues. Edison and Schwartz take this position, but I cannot agree with their argument because full compliance with paragraph 13 (h) by the Association is not expressly or impliedly a condition precedent or condition subsequent to the tenants’ obligations. A condition precedent is a fact or event occurring subsequently to the making of a valid contract and which must exist or occur before there is a right to immediate performance, before there is a breach of contract duty or before the usual judicial remedies are available. 3A Corbin op. cit., § 628, p. 16. A condition subsequent would occur after the breach of contract duty and terminates the right to immediate performance and also the right to judicial remedy. Ibid., at p. 17. I do not infer that the intention of the parties to the lease was to create a condition regarding these duties; rather, the language of the lease is merely promissory. See Duff v. Trenton Beverage Co., 4 N. J. 595, 604 (1950). If the parties had intended to establish such a condition they should have done so in language similar to that -in a provision discussed later herein.

The effect of the foregoing finding is merely that Edison and Schwartz will not be relieved of future obligations under paragraph 13(h) during their respective tenancies because Association has not fully complied the lease terms. If and when the Association rectifies its defects, this court would consider tenants’ noncompliance with its covenants as a breach lor which the appropriate legal remedies would be available. However, I do not feel that Association is entitled to recover the past dues allegedly owed by Edison and Schwartz because of Association’s noncompliance and because the tenants in question had notified Association of their repudiation from the very outset.

I have reviewed the provision in the lease which provides that Edison may cease to be a member of the Association in the event that the Association interferes with the internal policies of tenant. Edison relies on this provision to argue that its internal policies preclude it from joining such an undemocratic organization. Although I believe the provision may be intended to operate as a condition subsequent, I cannot uphold Edison’s position without any further clarification as to how it qualifies under it. A reasonable construction of the term “internal policies” suggests matters such as pricing, credit and inventory policies — not to such generalities as undemocratic voting arrangements in a merchants association. Furthermore, Edison has not submitted any proofs as to what its internal policies are. Therefore, it may not be relieved of future obligations on this ground.

The final issue to be resolved presents an interesting and novel question as to the right of the Association to compel the tenants to specifically perform their obligations under the lease. The general rule is that if the remedy in damages is inadequate, the determination of whether specific performance shall be decreed rests in the sound judicial discretion of the court. 2 Restatement, Contracts, § 359 (1932). Under the circumstances of this case there would be a great deal of difficulty in obtaining a substantial equivalent of the promised performance (i. e., joining the Association and remaining a member during the term of the lease) by means of money awarded as damages. For this reason, I deem the remedy at law is inadequate. It is true that as a general proposition, contracts which provide for the personal affirmative acts or personal services of the parties are not specifically enforced because courts do not think they possess the means and the ability for enforcing their decrees. Mowers v. Fogg, 45 N. J. Eq. 120 (Ch. 1889); Pomeroy, Specific Performance of Contracts (3d Ed. 1926), § 222; 5 Corbin, op. cit., § 1204, p. 400. On the other hand, in this case, where there are no unique, skilled or personal services required of the tenant, this rule should not be applicable. This is particularly true where both public and private interests should benefit from the enforcement. (The Merchants Association is an organization designed to foster cooperation of the tenants in order to make the shopping center a success which benefits all tenants. A subsidiary function of the Association is to promote ethical business practices among its tenants which benefits the public interest.) Moreover, the propriety of a decree for specific performance of a shopping center lease has been upheld in Dover Shopping Center v. Cushman’s Sons, Inc., supra, at p. 394. Notwithstanding that specific performance is an appropriate remedy to enforce the lease, the remedy would not be available until the Association fully complies with the lease by adopting the by-laws by a vote of the entire membership (including Edison and Schwartz) and by adopting by-laws which are properly democratic under the lease terms.

A judgment should be entered consistent with the foregoing conclusions.