text:
    YELLOW CAB COMPANY OF CAMDEN, A CORPORATION OF NEW JERSEY; CHARLES NICKLES AND RAYMOND CONOVER, INDIVIDUALLY AND AS REPRESENTATIVES OF ALL THE DRIVERS EMPLOYED BY YELLOW CAB COMPANY OF CAMDEN, PLAINTIFFS-APPELLANTS, v. THE STATE OF NEW JERSEY, THROUGH THE DIRECTOR OF WAGE AND HOUR BUREAU, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 24, 1973
    Decided November 27, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. James J. Shrager argued the cause for appellants (Messrs, Hannoch, Weisman, Stern & Besser, attorneys; Mr. Henry J. Tyler, on the brief).

      Mr. Howard S. Simonoff filed a statement in lieu of brief, amicus curiæ, on behalf of Teamsters Local 676 (Messrs. Tomar, Parks, Seliger, Simonoff & Adourian, attorneys).

      Ms. Mary Ann Burgess, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Carton, P. J. A. D.

The principal question to be resolved on this appeal is whether taxi companies are subject to the overtime provisions of the New Jersey Wage and Hour Law, N. J. S. A. 34 :ll-56a4. Related issues presented are whether these provisions represent a valid exercise of legislative power and whether the Pair Labor Standards Act, 29 U. S. C. A., § 201 et seq., has preempted the area.

Plaintiff Yellow Cab Company of Camden and individuals representing themselves and all other drivers of the company sought a declaratory judgment to determine that the overtime provisions were; inapplicable. The trial court held that such provisions did apply; that they represented a valid exercise of legislative power, and that there was no preemption. Plaintiffs challenge each of these determinations.

The facts are brief and undisputed. Yellow Cab is a corporation organized under the laws of New Jersey, with its principal place of business in Camden. The two individual plaintiffs are employees of Yellow Cab and members and shop stewards of Local 676 of the Teamsters Union.

Yellow Cab is a carrier of passengers for hire. It operates under franchises which are issued and regulated by the State of New Jersey. N. J. S. A. 48:16-2. Its drivers are compensated on a commission basis which was negotiated by collective bargaining so as to include compensation for overtime work. A driver with six months experience receives a commission of 48% of all revenues taken in. Fringe benefits to the drivers and employee taxes constitute an additional 12% of revenues collected.

A driver for Yellow Cab, after reporting to the garage and punching a time card, is free to operate entirely on his own. Each driver’s earnings are completely dependent upon his own efforts. Earnings vary from a low of $3,100 to a high of $8,400 a year.

In 1970 the State of New Jersey filed a complaint in the Camden Municipal Court charging Yellow Cab with multiple criminal violations of N. J. S. A. 34:ll~56a4. That litigation precipitated the present declaratory judgment action. Prosecution of the criminal portion was then stayed by consent of the parties, with approval of the Camden Municipal Court, pending determination of the action for declaratory judgment.

APPLICABILITY OF OVERTIME PROVISIONS TO TAXICAB INDUSTRY

Yellow Cab’s basic argument is that it is a common carrier by motor bus and thereby exempted from the overtime provisions of the New Jersey Wage and Hour Law. The statute (N. J. S. A. 34:ll-56a4) specifically provides that the overtime provisions shall not apply to employees of such a carrier. In pertinent part it reads:

Every employer shall * * * pay to each of his employees wages at a rate * * * 1 and % times such employee’s regular hourly wage for each hour of working time in excess of 40 hours in any week * * The provisions of this section * * * shall not apply to * * * an employee of a common carrier of passengers by motor bus *' * *. [Emphasis added]

Plaintiffs’ thesis is that the words “motor bus” as used in the statute must be construed to include taxicabs, thereby making the statutory exemption applicable to company drivers.

We deem such construction strained and unnatural in light of the legislative history of the provision, the salutary public policy embodied in it, and the specific language used in the statute.

In 1966 the Legislature enacted the New Jersey Wage and Hour Law, N. J. S. A. 34:ll-56a et seq., declaring it to be

* * * the public policy of this State to establish a minimum wage level for workers in order to safeguard their health, 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 their health, efficiency and well-being.

At the time the New Jersey Wage and Hour Law was enacted the Federal Fair Labor Standards Act exempted not only motor bus carriers, but also specifically excluded “any employee of an employer engaged in the business of operating taxicabs.” 29 U. S. C. A., § 213(a) (12); (b)(7); thereafter amended, P. L. 89-601, 80 Stat. 833, 834, 836-838 (Sept. 23, 1966). The New Jersey statute; however, although exempting “common carriers of passengsrs by motor bus,” contains no such exclusion for either taxicab operators or for the taxicab industry.

The exemptions from the Fair Labor Standards Act were matters of great public interest and aroused spirited debate at the time of the enactment of the New Jersey Wage and Hour Law. Presumably the Legislature was well aware of the distinct exclusions from the federal law for “motor buses” and for “taxicabs” and deliberately determined that the interests of the citizens of New Jersey were best served by not granting a similar exclusion to the taxicab industry from the provisions of the Wage and Hour Law. Cf. Male v. Pompton Lakes Mun. Util. Auth., 105 N. J. Super. 348, 355-356 (Ch. Div. 1969).

The humanitarian and remedial nature of this legislation requires that any exemption therefrom be narrowly construed, giving due regard to the plain meaning of the statutory language and the intent of the Legislature. See A. H. Phillips, Inc. v. Walling, 324 U. S. 490, 65 S. Ct. 807, 89 L. Ed. 1095, 157 A. L. R. 876 (1945). The remedial nature of this law suggests also that the burden of proving that the employees’ activities fall within the claimed exemption should be imposed on the employer. Sherman v. Coastal Cities Coach Co., 4 N. J. Super. 283, 290 (App. Div. 1949).

The words “taxicab” and “motor bus” are words of common use. Such words are to be taken in their natural, plain, obvious and ordinary signification. A subtle or forced construction for the purpose of either extending or limiting their operation should not be indulged. Jamouneau v. Harner, 16 N. J. 500 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955). See N. J. S. A. 1:1-1.

The term “motor bus” is not specifically defined in the New Jersey Wage and Hour Law’s special definition section, N. J. S. A. 34:ll-56al. Thus, the term must be given its plain and ordinary meaning. “Motor bus” does not normally include the type of vehicle commonly called a “taxicab.” Webster’s Third New International Dictionary (1966) defines “motor bus” as “an automotive omnibus,” with “omnibus” in turn defined as “a public vehicle usually automotive and 4-wheeled and designed to carry a comparatively large number of passengers: bus”; whereas a “taxicab” is termed “a chauffeur-driven automobile available on call to carry a passenger between any two points (as within a city) for a fare determined by taximeter * * (Emphasis supplied).

It is undeniable that in everyday use a distinction is made between taxicabs and buses. Indeed, plaintiffs readily admit that such is the case. However, plaintiff Company cites in support of its exemption claim definitions which appear in the Public Utilities Code (N. J. S. A. 48:4-l) and the Motor Vehicles Traffic Act (N. J. S. A. 39:1-1).

In rejecting plaintiff’s contention that it is a “common carrier of passengers by motor bus,” and therefore exempt from the overtime provisions of N. J. S. A. 34:ll-56a4, Judge Wick held that such definitions in those statutes shed no light on the meaning of “motor vehicle” as it is used in the Wage and Hour Law since they were enacted for entirely different purposes. In so holding he followed State v. Comfort Cab, Inc., 118 N. J. Super. 162 (Cty Ct. 1972), which involved a fact situation essentially the same as the one before us. We agree with the conclusions stated in Comfort that

s- * * there is no reason for giving the term “motor bus” in the foregoing exemption any meaning other than ordinarily given to the term. “Motor bus” normally does not include a taxicab.
% s>»
Thus, the statutory exemption for a motor bus, which is to be strictly and narrowly construed as well as defined by its ordinary and plain meaning, does not include “taxicabs.” [at 175-176]

Equally unpersuasive is plaintiffs’ alternative argument that taxi operators are “outside salesmen,” as defined by Regulation 4.4 (N. J. A. C. 12:56-4.4), and therefore exempt from overtime provisions of the New Jersey Wage and Hour Law. Those provisions, in pertinent part, read:

* * * The wage rates fixed in this section shall not be applicable to employees engaged in domestic service in the home of the employer, to persons under the age of 18 or to persons employed as outside salesmen as such term shall be defined and delimited in regulations adopted by the commissioner.

The Commissioner of Labor and Industry is specifically authorized by N. J. S. A. 34:ll-56a5 to

* * * make such administrative regulations as he shall deem appropriate to carry out the purposes of this act or necessary to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates hereby established. Such regulations may include regulations defining and governing outside salesmen ® * *.

Regulation 4.4 promulgated by the Commissioner defines “outside salesmen” as follows:

[Any employee]
(a) Who is employed for the purpose and who is customarily and regularly engaged away from his employer’s place or places of business in:
(1) Making sales, or
(2) Obtaining orders, or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
(b) Whose hours of work of a nature other than that described in paragraph (a) (1) or (a) (2) of this section do not exceed 20 per cent of hours worked in the workweek by the outside salesman:
Provided, that work performed incidental to and in conjunction with the employee’s own outside sales or solicitations, including incidental deliveries and collections, shall be regarded as exempt work. Employees who basically drive vehicles and who only incidentally or occasionally makes sales do not qualify for this exemption.

Plaintiffs stress the first portion of the qnoted regulation, maintaining that since the drivers are regularly engaged away from the employer’s place of business in furnishing services for which they are paid a consideration by the customer, they fall within the category “outside salesmen.” On the other hand, defendant relies on the last sentence of the regulation, asserting that such individuals are basically drivers who only incidentally or occasionally make sales. Hence they urge that such drivers do not qualify for the exemption.

We believe that the trial court properly decided that taxicab drivers are primarily service personnel whose primary function is driving, not selling. Consequently, the Yellow Cab iaxicah drivers cannot rightly be described as “outside salesmen” within the meaning of the regulation.

Yellow Cab’s arguments as to the administrative difficulties which would arise, and the adverse economic effect wffiich would accrue, from making it subject to the overtime provisions are not convincing. We see no insurmountable problem. N. J. S. A. 34:11 — 56a4 mandates that covered employees he paid 1times their “regular hourly wage” for each hour of working time in excess of 40 hours in any week. “Kegular hourly wage” is defined as “the amount that an employee is regularly paid for each hour of work as determined by dividing the total hours of work during the week into the employee’s total earnings for the week, exclusive of overtime premium pay.” N. J. S. A. 34 :ll-56al (e). Pursuant to N. J. S. A. 34:11 — 56a5, the Commissioner promulgated the following regulation regarding determination of “regular hourly wage”:

The law does not require employers to compensate employees on an hourly rate basis. Employees earnings may be determined on a piece-rate, salary, bonus, commission or other basis, but the overtime compensation due to employees must be paid on the basis of the hourly rate derived therefrom. Therefore, the regular hourly wage of an employee is determined by dividing his total remuneration for employment, exclusive of overtime premium pay, in any work week, by the total number of hours worked in that work week for which such compensation was paid. [N. J. A. C. 12:56-3.5(b)]

Application of the formula contained in the regulation to the taxicab drivers’ situation places them on the same level as other employees who are paid on a piece-rate basis.

Plaintiffs’ contention that 12% of every dollar of fares goes toward payment of employee tax and fringe benefits does not appear to be borne out by the record. The agreement between Yellow Cab and the taxi drivers’ union provides for definite fringe benefits and in no wise conditions such benefits on the fluctuating earnings of driver employees. Increased earnings to employees of plaintiff company in the form of overtime compensation would increase the amounts of money to be paid by the company in the form of fringe benefits.

The assertion that the taxicab company will be “financially destroyed” should the provisions be applied to it is likewise unsupported by anything in the record. The agreement itself makes provision for negotiation of a revised method or rate of pay should the drivers become subject to the overtime pay provisions of the Pair Labor Standards Act or similar state or local law. It is there provided that in such event:

VI. * s * [T]ke parties will negotiate a revised method or rate of pay for such employees where necessary, to the end that the employee’s pay for each work week after such revision will be the same as for a similar work week before such revision, and that the company will be in full compliance with such law or laws. * * *

Moreover, pursuant to N. J. S. A. 34 :ll-56al3,

* * * The wage board [of the Department of Labor and Industry] may recommend establishment or modification of the number of hours per week after which the overtime rate established in section 5 [section 34 :ll-56at] shall apply and may recommend the establishment or modification oj said overtime rate * * [Emphasis added].

Provision is thereby made for those industries falling within the purview of the New Jersey Wage and Hour Law where, due to their unique status, application of said act could conceivably work undue hardship. This section will permit a more particularized approach to the overtime problem consonant with the remedial scope of pertinent regulatory legislation. Plaintiff company’s election to pursue this administrative remedy could well alleviate, in large measure, the very inequities of which it now complains.

PREEMPTION OF AREA BY FEDERAL LEGISLATION

Plaintiffs argue that by virtue of the Fair Labor Standards Act (ELSA) (29 U. S. C. A. 201 et seq.) the Federal Government has preempted the field of wages and hours, and, therefore, the New Jersey statute (N. J. S. A. 34:11 — 56a4 et seq.) does not apply. The trial court took judicial notice of the fact that Yellow Cabs cross the Delaware River Bridge into Pennsylvania and would therefore be subject to the federal act.

The overtime provisions of the FLSA appear in 29 U. S. C. A. § 207. 29 ü. S. O. A. § 213(b) (17) specifically exempts taxicab drivers from those provisions.

The United States Constitution gives Congress the exclusive power “to regulate commerce * * * among the several states * * * ” U. S. Const., Art. I, § 8, cl. 3. The FLSÁ and the amendments thereto were adopted pursuant to this grant of power.

A state, however, may concurrently exercise its police power as derived from the Tenth Amendment’s reservation to the states of powers not delegated to the Federal Government nor prohibited to the states. Such an exercise of power “will be sustained even though it may affect interstate commerce incidentally, so long as it does not unduly burden it.” Moyant v. Paramus, 30 N. J. 528, 545 (1959); Burton v. Sills, 99 N. J. Super. 516, 526 (Law Div. 1967), aff'd 99 N. J. Super. 459 (App. Div. 1968), aff'd 53 N. J. 86 (1968), app. dism. 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).

The Legislature of this State, in enacting the overtime provision of the Wage and Hour Law requiring payment of time and a half for each hour worked in excess of 40 hours in a work week (N. J. S. A. 34:ll-56a4), did so in a permissible exercise of the police power. The New Jersey act does not exclude taxicab drivers from the protective ambit of its overtime provisions.

Plaintiff drivers argue that ELSA has preempted them by way of its exemption. Preemption is governed by the intent of Congress regarding the federal act. Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960). In Huron the court stated:

In determining whether state regulation has been pre-empted by federal action, “the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal Legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted is in actual conflict with the law of the state.” [at 443, 80 S. Ct. at 816]

The doctrine was further refined in Florida Avocado Growers v. Paul, 373 U. S. 132, 142, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), in which the Supreme Court said that such preemptive intent will not be implied unless “either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakenly so ordained.”

29 U. S. C. A. § 218(a), in pertinent part, reads as follows:

No provision of this Chapter * *' ^ shall excuse non-compliance with any Federal or State I,aw or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Chapter, or a maximum workweek lower than the maximum workweek established under this Chapter. * * *

Plaintiffs argue that this section permitting a higher minimum wage, or shortening of the work week, cannot be interpreted as permitting the State to regulate exempt occupations. We do not read that provision as clearly evidencing a congressional intention to displace all state regulation in the field of hours and wages.

Congress has been silent on the question of state regulation of occupations exempted from the federal act. We are not convinced that simply because the federal act exempts this area, state regulation is precluded. The purpose of Congress in enacting the ELSA was to improve substandard labor conditions. Roland Electric Co. v. Walling, 326 U. S. 657, 66 S. Ct. 413, 90 L. Ed. 383 (1945). The purpose in enacting the maximum hour-overtime provisions was to induce employers, by reason of increased labor costs, to reduce the hours of work and employ more men, and to compensate the employees for the burden of a long week. Waling v. Youngerman-Reynolds Hardwood Co., 325 U. S. 419, 65 S. Ct. 1242, 89 L. Ed. 1705 (1944), The New Jersey Wage and Hour Law, by including taxicab drivers, does not present any obstacle to the accomplishment of those objectives and purposes. Rather, it extends these same considerations to this occupation.

This is not a ease where compliance with both the federal and state acts would be a physical impossibility demanding preemption. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520, 79 S. Ct. 962, 3 L. Ed. 2d 1003 (1959). The regulation of overtime pay for taxicab drivers is not a subject by its very nature admitting only of national supervision. Cf. Cooley v. Board of Wardens, 53 U. S. 299, 12 Haw. 299, 13 L. Ed 996 (1851). Nor is it a subject demanding exclusive federal regulation in order to achieve uniformity vital to national interest. Cf. San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, 241, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959).

We conclude that there is no conflict between the state and federal act and therefore no preemption, and that the State may properly regulate in this area.

CONSTITUTIONALITY OF CONSTRUING WAGE AND HOUR LAW TO INCLUDE TAXICABS

Finally, plaintiffs urge that construction of the Wage and Hour Law to include taxicab companies and exclude "bus” companies violates the Constitutions of New Jersey and of the United States.

We perceive no merit in the argument that such a distinction is demonstrably an arbitrary and unfair classification, in violation of the equal protection clauses of the New Jersey and United States Constitutions. N. J. Const. (1947), Art. I, pars. 1 and 5; U. S. Const., Amend XIV, § 1.

An act of the Legislature is presumed to be constitutional ; the burden of showing otherwise is on the party asserting its unconstitutionality. David v. Vesta Co., 45 N. J. 301, 315 (1965). Authority to make classifications and exemptions is generally a legislative and not a judicial function. Hotel Suburban System v. Holderman, 42 N. J. Super. 84, 93 (App. Div. 1956). Unless the statute plainly exceeds the constitutional power of the Legislature, a court should not adjudge it invalid. Thomas v. Kingsley, 43 N. J. 524, 530 (1965). As the court pronounced in the case of N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581 (1967), app. dism. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967),

* * * The Legislature has wide discretion in the creation of or recognition of classes for different treatment. Equal protection does not require that all persons be dealt with identically. If there is some reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the law makers, the constitution is not offended. *• * [48 2V. J. at 601]

Plaintiffs argue that in light of the purpose of the statute, the inclusion of taxi drivers, while bus drivers are excluded, is arbitrary and irrational.

Defendant Director asserts that the Wage and Hour Law was enacted to protect workers from the effects of working long hours, as well as to regulate compensation. He points out that bus drivers generally work an eight-hour day, on a definite schedule. Taxicab drivers, however, work generally a longer day, and the demands of the occupation are such that the efficiency of the taxicab operator is significantly affected by excessive hours of work. This, defendant maintains, endangers not only the operator but the general public, and the inclusion of taxi drivers within the ambit of the overtime provisions was to encourage the taxi industry to reduce this danger.

Constitutional challenges similar to those made by plaintiffs herein were rejected in Hotel Suburban System v. Holderman, supra, where the exemption of hotel employees from the Wage and Hour Law was attacked as discriminatory, and in N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295 (1957), where the constitutionality of a minimum wage standards order differentiating between hotel and other restaurants was questioned;

* * * Tims it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, or because of “some substantial consideration of public policy or convenience or the service of the general welfare.” [at 300; citations omitted].

It is certainly true that the taxicab industry and the bus industry have a great deal in common. It is equally true that there exist differences which would have induced the Legislature to treat them in different fashions.

Mass transportation has beeii a continual concern of legislatures, and has often been the object of special legislative treatment. This fact, when considered with the differences that do exist between the two occupations, in our view presents a reasonable ground for the different treatment in carrying out the objectives of the Wage and Hour Law. Plaintiffs have not shown that the classification used for the exception in question is arbitrary and unreasonable, and without relevance to the legislative goal. N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, supra.

Affirmed.

      We note that on February 14, 1972, Assembly Bill 694 was introduced in the Legislature. This bill would exclude “employee [s] of a common carrier of passengers by taxicab” from the overtime provisions of the New Jersey Wage and Hour Law. This bill, recently released by the committee, after progressing to a second reading, was then recommitted. This proposed legislation tends to confirm the conclusion that the Wage and Hour Law, as it currently stands, contains no taxicab exemption.


source: Caselaw Access Project

author: Crahay, J. A. D.

license: Public Domain

text:
    MYRNA GREENBERG, PLAINTIFF-RESPONDENT, v. ROBERT GREENBERG, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 15, 1973
    Decided December 11, 1973.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. Michael, D. Mark argued the cause for appellant (Messrs. Skoloff & Wolfe, attorneys; Mr. Michael D. Mark, on the brief).

      Mr. Martin Verp argued the cause for respondent (Messrs. Grabow, Verp, Krulewitz & Finamore, attorneys; Mr. Martin Verp, on the brief).
   The opinion of the court was delivered by

Crahay, J. A. D.

Plaintiff Myrna Greenberg was granted a judgment of divorce grounded in defendant’s extreme cruelty. She was awarded alimony at the rate of $100 a week and was granted a measure of “equitable distribution” of the parties’ real and personal property. Defendant appeals from the judgment, challenging only the quantum of the weekly alimony and the equitable distribution.

N. J. S. A. 2A:34-23, as amended in 1971, includes statutory mandates anent alimony, maintenance and equitable distribution. In part provides pertinent to the issues before us:

* * * In all actions brought for divorce, divorce from bed and board, ‘or nullity the court may award alimony to either party, and in so doing shall consider the actual need and ability to pay of the parties and the duration of the marriage. In all actions for divorce other than, those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. * * *
In all actions where a judgment of divorce or divorce from bed and board is entered the court may malee such atoará or aivards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage." [Emphasis added]

Our review of the record satisfies us that the trial court misconstrued — insofar as alimony was concerned — the operative provisions of N. J. S. A. 2A:34-23. Eurthermore, its findings on “equitable distribution” do not have sufficient record support to permit them to stand. A remand is required.

On the issue of alimony the trial court, in a written opinion, concluded:

The testimony further discloses that while plaintiff was undergoing serious operative hospitalization during which she became medically addicted, defendant to her knowledge because of his boastings successfully sought relief of concupiscence in adultery.
N. J. S. 2A :34-23 provides further that this Court may also consider the proofs made in establishing the ground on which divorce sought in determining an amount of alimony that is fit, just, and reasonable. The indignity of defendant’s conduct to the knowledge of his wife in her condition was so inhuman as to call on this Court to increase the projected amount of alimony under the language of the statute.
I increase the award of $75 per week to $90 per week in this regard * * *

In a letter opinion filed contemporaneously with the formal opinion, similar views were stated:

During her illness and hospitalization there is no question but that defendant committed adultery to alleviate his physical needs although I find that this was not with the consent and blessing of his wife.
It seems to me that 1 must consider these factors in the award of alimony. See N. J. S. 2A :34-23 ( — the Court may consider also the proofs made in establishing such ground in determining an amount of alimony •— that is fit, reasonable and just.)
1 will allow $75 per week, plus $10 per week for medcial and hospitalization, plus an increase of $15 per week on my consideration of the proofs (N. J. S. 2A :34-23, supra.)

It is clear from the above-noted impressions that the $15 a week, added to that which the trial court found necessary to maintain plaintiff and attend to her necessary medical care, had punitive overtones grounded in the husband’s misconduct.

We are satisfied that the statutory permission that “the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just,” does not bespeak legislative intendment that marital miseondifct may generate an award for alimony in excess of that which might he supported by long-established and traditional bases for such grants. Punishment of marital wrongdoing was not intended, nor could it he. Cf. Blaine v. Blaine, 96 N. J. Super. 460, 462 (Ch. Div. 1967). Rather, the Legislature merely meant that trial Courts might consider the proofs to support a matrimonial cause of action when it turned to the issue of alimony and support assessment. Examples thereof would include the length of marriage, the mental and physical health of the aggrieved spouse, the mode of living which the parties enjoyed, and the like.

The long-standing tests' for the amount of equitable support and maintenance have not in our view been altered in any wise by the statutory amendment. They continue to encompass: (1) the actual needs of the wife; (2) the husband’s actual means and his ability to pay support; (3) the physical condition of the parties; (4) their social position; (5) the separate property and income of the wife, and (6) ;any other factors which bear upon the question of fair and -.reasonable support.

That the Legislature intended that the basic tests for reasonable alimony be continued is evidenced by the words “fit, reasonable and just,” as contained in N. J. S. A. 2A: 34-23. Alimony is simply a continuation of a husband’s duty to support his wife and grows out of the marital relationship. Dietrick v. Dietrick, 88 N. J. Eq. 560 (E. & A. 1918); Khalaf v. Khalaf, 58 N. J. 63 (1971). The marital wrongs are-the grormds for breaking the marriage bond. The marital relationship, albeit ended, is the basis for the requirement of continuing support. We know of no authority which supports the view that alimony be a punitive device. Surely punishment or retribution toward an offending spouse was not a ■factor employable under any formula prescribing support ■either by legislation or general equitable principles.

As to equitable distribution of the real and personal •property off the parties, defendant challenges so much of it 1) that orders the transfer of the marital home to plaintiff and 2) that directs payment by defendant of $15,000 out of ¡approximately $70,000 which he allegedly held in savings accounts.

N. J. S. A. 2A:34-23 provides that the court make an award to the parties which would effectuate an equitable distribution of their real and personal property which was legally and beneficially acquired by them, or either of them, during the marriage. The operative language pertinent to the case before us is that the distribution be equitable and that the property distributed be legally and beneficially acquired by the parties during the term of the marriage.

As to the marital home, plaintiff wife was awarded all the equity in it, subject to a lien in favor of defendant’s parents in the amount of $10,000 loaned by them to the parties to purchase it. Our review of the record and the trial court’s determination in both its opinion and supporting letter memorandum does not demonstrate the basis for this determination nor the manner in which it constitutes equitable distribution of the real estate. We do not perceive any meaningful findings of fact or conclusions of law as mandated by B. 1:7-4 to support the judgment insofar as it relates to the real property.

Likewise, we do not find sufficient support in the record nor meaningful findings by the trial court to support the purported “equitable” distribution of monies in savings accounts, totaling approximately $70,000, which would warrant the award of $15,000 therefrom to plaintiff. The finding that defendant was possessed of $70,000 was the product of computation based upon interest from those accounts reported by him on income tax returns. There is a very strong suggestion that the monies came under his control from his parents, and whether they were gifts to him in whole or in part is not clear. Cf. Painter v. Painter. 118 N. J. Super. 332 (Ch. Div. 1972). Even assuming there be a fund in the approximate amount of $70,000 and that that fund is subject to the distribution contemplated by the statute, we are not supplied with, nor does the record support, the basis for the determination that the wife should enjoy $15,000 of it.

Accordingly, the judgment under review is reversed insofar as it (1) granted plaintiff wife $100 a week alimony; (2) transferred the parties’ real property to plaintiff subject to the lien mentioned above, and (3) awarded the wife $15,000. The cause is remanded to the Chancery Division with directions to make findings and enter judgment not inconsistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

      During the pendency of this appeal plaintiff’s motion to dismiss defendant’s appeal was denied — the order conditioned on payment by defendant of arrearages in support payments at the date of the judgment of $960. Additionally, he was ordered to pay a sum representing $100 a week as alimony, including medical and hospitalization expenses. At oral argument we ascertained that the order had not been complied with and that there was then due the sum of $3,000. We directed that arrearages in that amount be paid within 20 days and that further noncompliance would result in dismissal of the appeal. Payment was made within the time limited, but thereafter, by letter, plaintiff’s counsel advised us that certain medical bills were outstanding. In view of the directed remand, we do not pass upon defendant’s liability for these claims nor upon the necessity for the services and the reasonableness of the charges — leaving those determinations for the Chancery Division.


author: Per Curiam.

text:
    IN THE MATTER OF MICHAEL CALLAN, HARRIS DAVID AND GERALD CLARK, CHARGED WITH CONTEMPT OF COURT.
    Superior Court of New Jersey Appellate Division
    Argued November 19, 1973
    Decided December 17, 1973.
    Before Judges Leonard, Allcorn and Crahay.

      Ms. Annamay T. Sheppard and Mr. Dickinson R. Debevoise argued the cause for appellants.

      Mr. Ralph J. Jabbour, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Francis John Badach, Assistant Prosecutor, of counsel).
    An amicus curiæ brief was filed by Mr. Stanley C. Van Ness, Public Defender (Mr. Robert Westreich, Assistant Deputy Public Defender).
    An amici curiae brief was filed by Mr. Frank Askin, Esquire, c/o Constitutional Litigation Clinic, for the following amici: Commission on Law & Social Action of the New Jersey Region of American Jewish Congress; The National Conference of Black Lawyers; The National Legal Aid and Defenders Association; The New Jersey Legal Services Project Directors Association; The American Civil Liberties Union of New Jersey; The Student Bar Association, Rutgers University School of Law, Newark, New Jersey.
   Per Curiam.

Appellants, all members of the bar, appeal from a judgment of conviction of contempt of court, from the trial court’s denial of their motion to vacate the judgment and from the sentences imposed. Each was sentenced to 30 days in the county jail, which sentence was suspended and each was placed on one year’s probation and fined $500.

Appellants raise the following legal contentions:

I — They were denied fundamental procedural due process in that they were never apprised with sufficient certainty of the nature and cause of the accusation against them.

II — They were denied their right not to be proceeded against summarily for contempt except bjr a member of the judiciary.

Ill — Assuming that the charge tried by the prosecutor was properly within the order to show cause then the trial court had no jurisdiction in the matter because the prosecutor charged nothing more than a violation by an attorney of a disciplinary rule.

IV — The State failed to charge an offense under the summary contempt power as defined by In Re Szczepanik, 37 N. J. 503 (1962).

V — The trial court committed prejudicial error by applying a definition of the offense of contempt manifestly erroneous under State law.

VI — -The substantive common law standard for the offense of contempt is vague and indefinite in violation of the due process clause of the Fourteenth Amendment.

VII — They fully complied with the disciplinary rules.

VIII — If their professional conduct was in compliance with the disciplinary rules, then they could not properly be convicted for contempt on the basis of such conduct consistent with the due process clause of the Fourteenth Amendment.

IX — They cannot properly be convicted of contempt of court for failure to disclose information which they had a legal obligation not to disclose.

X — -The evidence adduced in this ease does not disclose a contempt.

XI — If this court finds appellants guilty of contempt, a sentence less harsh than that imposed below is appropriate.

We conclude that all of the above contentions and the arguments raised in support thereof, including the similar points urged in the amicus curiae brief of the Public Defender, are without merit.

Pursuant to our appellate responsibility, we have reviewed the evidence herein de novo on the record. We concur in the legal and factual findings below, as well as the determination of the guilt of each of the defendants of contempt of court beyond a reasonable doubt. The record clearly establishes that defendants each had notice of the wrongful diversion of the funds approximately 36 hours before the November 17, 1972 court hearing and were authorized by their clients to disclose the same at least 24 hours before that hearing.

Further, upon the whole record, we agree with the sentence imposed on each by the trial court and those sentences are herewith incorporated bjr reference into this determination. See Bd. of Ed. of Newark v. Newark Teachers Union, 114 N. J. Super. 306, 316, 318 (App. Div. 1971).

Affirmed.


author: Michels, J. S. C.

text:
    FRANK RUSIGNUOLO, PLAINTIFF, v. CARMEN A. ORECHIO, COMMISSIONER OF PUBLIC SAFETY OF THE TOWN OF NUTLEY, AND FRANCIS T. BUEL, CHIEF OF POLICE OF THE TOWN OF NUTLEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 3, 1973.

      Messrs. Mandelbaum, Mandelbaum & Gold for plaintiff.

      Mr. James M. Piro for defendants.
   Michels, J. S. C.

Plaintiff, a police officer of the Town of Nutley, instituted this action against defendants, the Director of Public Safety and the Chief of Police of the Town of Nutley, challenging the validity of (1) a special order issued by the Chief of Police requiring all members of the Police Department to have a telephone in their residences, and (2) Disciplinary Eule 6:16 providing that “Department members shall neither neglect nor refuse to pay their just debts.” Plaintiff seeks an order of this court to permanently enjoin the Director of Public Safety from holding a departmental hearing on the charges of violating the above special order and disciplinary rule. The complaint was filed by the Chief of Police. Plaintiff also contends that his suspension without pay from July.. 5, 1973 to July 16, 1973 was improper, and seeks to be reimbursed for back pay for the period of his suspension.

Plaintiff contends that the Chief of Police did not have authority to issue the special order requiring him and other members of the department to have a telephone in his residence, and that Disciplinary Rule 6:16 was not adopted by ordinance, as required by statute, and is vague and an unlawful intrusion on judicial jurisdiction. The thrust of plaintiff’s argument is that rules and regulations governing a police department can only be adopted by ordinance, not by resolution, or by special order of the police chief.

The Police Department of the Town of Nutley has been regulated and controlled since 1928 by Ordinance 357, entitled “A Supplement To An Ordinance Entitled IAn Ordinance to Establish, Regulate and Control A Day and Night Police Force In The Town of Nutley, in the County of Essex, and To Regulate And Define The Manner Of Their Appointment And Removal, Their Duties and Compensation,’” dated August 7, 1928. This ordinance was adopted pursuant to L. 1917, c. 152, Art. XVI, § 1, N. J. S. A. 40:47-1.

Under section 1 of Article 1 of the 1928 ordinance the Director of Pubic Safety was given full executive, judicial and administrative control of the Police Department, including the power to enforce the rules and regulations provided by the ordinance. The Director was also given power to promulgate administrative rules for the efficient management of the police department not inconsistent with these rules and regulations. Under section 2 of Article II the Chief of Police was given the power to promulgate orders to the police force not inconsistent with any of the orders or rules established therein, or administrative orders of the Director. Under section 32, relating to General Rules, each member of the police force was required to devote' his whole time and attention to i he service of the Department, and to be at all times subject to call for duty.

Thereafter, on February 6, 1968 the governing body of Nutley adopted by resolution the 1967 Eules and Eegulations governing the Police Department. These rules included Eule of Genera] Conduct 3.2.1, pursuant to which the order requiring telephones was issued, and which provides:

Duty Requirement. Police officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.

and Disciplinary.Eule 6:16, which provides:

Department members shall neither neglect nor refuse to pay their just debts.

The authority for the enactment of the 1928 ordinance supplementing the ordinance creating the Nutley Police Department is found in N. J. S. A. 40:47-1, which provides:

The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of article 3 of this chapter (§ 40:47-21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation.

This statute was repealed in 1971 and replaced by N. J. S. A. 40A:14 — 118, which provides:

The governing body of any municipality, by ordinance, may create and eslablish a police department and force and provide for the maintenance, regulation and control thereof, and except as otherwise provided by law, appoint such members, officers and personnel as shall be deemed necessary, determine their terms of office, fix their compensation and prescribe their powers, functions and duties and adopt and promulgate rules and regulations for the government of the department and force and for the discipline of its members.

The statute last quoted, which is the latest expression of the Legislature on this subject, is not significantly different from the earlier statute it replaced. The power to establish, maintain, regulate and control the police department, to appoint personnel, to prescribe their powers, functions and duties and to prescribe rules and regulations for the government and discipline of the police department and police force is very explicitly and broadly given to the municipal governing body. Smith v. Hazlet Tp., 63 N. J. 523, 526 (1973). Neither the Chief of Police nor the Director of Public Safety, who apparently requested the Chief to issue the order requiring telephones, derive any power directly from the statute. Their powers are to be found in the ordinances, regulations, rules and regulations adopted by the governing body of the municipality in the exercise of its broad statutory responsibility. See Smith v. Hazlet Tp., supra.

By the 1928 ordinance the Director is expressly given the authority of executive, judicial and administrative control of the Police Department, the officers and all members of the force, and the power to promulgate such administrative rules as in his judgment are proper lor the. efficient management of the department. The Chief of Police is given express power by that same ordinance to promulgate orders for the police force not inconsistent with the ordinance or administrative orders of the Director. Thus it appears that the day-to-day administration of the Nutley Police Department and. police force rests with the Director of Public Safety and the Chief of Police. This delegation to them of administrative powers may well be in the public interest as enhancing departmental efficiency. See Smith v. Hazlet Tp., supra.

However, the order of June 15, 1973 requiring all members of the Police Department to have a telephone, at their residences is not the type of order which either the Director of Public Safety or the Chief of Police may issue. This order exceeds the power and authority of the administrative heads of police departments to issue orders in the day-to-day administration of the Department. This order constitutes a rule or regulation within the intendment of N. J. S. A. 40 :47-1, now N. J. S. A. 40A:14-118, and must be promulgated by municipal ordinance. Cf. Jamesburg v. Hubbs, 18 N. J. Super, 5, 11 (App. Div. 1952) ; In re Leonard Gioglio, Jr., 104 N. J. Super. 88, 95 (Cty. Ct. 1968). Accordingly, the order of June 15, 1973 requiring all members of the Police Department to have telephones at their residences is invalid, and the charges based on its violation should be dismissed.

Plaintiff further contends that Disciplinary Rule 6:16 providing that “Department members shall neither neglect nor refuse to pay their just debts,” is invalid because it was not promulgated by municipal ordinance. Rather, it was contained in the 1967 Rules and Regulations of the Nutley Police department adopted by resolution of the governing body.

While our Supreme Court has not specifically passed upon the question of whether the rules or regulations governing a police department can only he adopted by ordinance and not by resolution (see Jamesburg v. Hubbs, 6 N. J. 578, 584-585 (1951) ; cf. Alcutt v. Police Comm’rs, 66 N. J. L. 173, 174 (Sup. Ct. 1901), aff’d 67 N. J. L. 351 (E. & A. 1902); Hofbauer v. Board of Police Comm’rs, 133 N. J. L. 293, 294 (Sup. Ct. 1945); see also, In re Leonard Gioglio, Jr., 104 N. J. Super. 88, 94-95 (Cty. Ct. 1968)), the clear and explicit language of N. J. S. A. 40:47—1, as well as N. J. S. A. 40A:14-118, which replaces it, mandates that such rules and regulations be adopted by ordinance.

It is axiomatic that governing bodies of municipalities in this State have no' powers other than those delegated by the Legislature, and must perform their prescribed activities within the statutory ambit. Scatuorchio v. Jersey City Incinerator Authority, 14 N. J. 72, 85 (1953) ; Auto-Rite Supply Co. v. Woodbridge Tp., 25 N. J. 188, 195 (1957). Thus, our courts have consistently held that where a statute or charter proclaims that a certain action, if desired by á municipal governing body, be taken by ordinance, the action cannot be done by resolution. Antonelli Construction v. Milstead, 34 N. J. Super. 449, 456 (Law Div. 1955); Roselle v. South Orange, 21 N. J. Super. 598, 603 (App. Div. 1952); Kessler v. Passaic, 113 N. J. Super. 59, 62 (Law Div. 1971); Chasis v. Tumulty, 8 N. J. 147, 153-154 (1951); McLaughlin v. Millville, 110 N. J. Super. 200, 209 (Law Div. 1970); Paterson v. Barnet, 46 N. J. L. 62, 66 (Sup. Ct. 1884); Essen v. Cape May, 72 N. J. L. 433, 434 (Sup. Ct. 1905); Levy v. Elizabeth, 81 N. J. L. 643, 646-647 (E. & A. 1911); Public Service Railway Co. v. Camden, 95 N. J. L. 190, 192 (E. & A. 1920). In Chasis v. Tumulty, supra, the Supreme Court stated:

* * r It lias long been settled that when the law requires a proceeding to be instituted by an ordinance it cannot be effected by resolution merely; the latter, wanting the solemnities of the former, is not regarded as a legal equivalent. * * * [8 N. J. at 153-154]

In Antonelli Construction v. Milstead, supra, the court, in declaring void an attempt by a municipality to restrict construction without compliance with the planning and zoning act, commented:

* * * In order to attain the zoning restriction here sought by the municipality it must be through the instrumentality of an ordinance. N. J. S. A. 40 :55-30. A resolution is ineffective to accomplish such result. A municipality which has had delegated to it power to accomplish certain acts by way of ordinance cannot accomplish that result by way of an enactment of any less dignity, nor can an ordinance be amended by a resolution. [34 A. J. Super, at 456]

Cf. Keegan v. Bayonne, 81 N. J. L. 120, 122 (Sup. Ct. 1911); Harvey v. Poole, 17 N. J. Misc. 165-166, 7 A. 2d 630 (C. P. 1939).

In granting the power to the governing body of municipalities under N. J. S. A. 40 :47-l to establish, maintain, regulate and control a police department and force, and to prescribe and establish rules and regulations for the government and discipline thereof, the Legislature expressly proclaimed that such power be exercised through the instrumentality of an ordinance. This Act, as well as N. J. S. A. 40A:14—118, does not permit the municipality to exercise such power by resolution. Cf. Isola v. Belmar, 34 N. J. Super. 544, 548-549 (App. Div. 1955).

Accordingly, the requirement that all members of the Rutley Police Department have a telephone in their residences, and Disciplinary Rule 6 :16 of the 1967 Rules and Regulations of the Rutley Police Department were not properly promulgated by municipal ordinance and are, therefore, invalid and unenforceable. Any action taken by defendants on the basis thereof is improper and without authority. Defendants are therefore enjoined from enforcing the order of June 15, 1973 requiring all members of the Rutley Police Department to have a telephone in their residences and Disciplinary Rule 6:16. Defendants are further enjoined from holding a departmental hearing against plaintiff on charges of violating said order and disciplinary rule.

The court further holds that plaintiff’s suspension under the circumstances was unlawful and without cause and that he is entitled to back pay at the appropriate rate for the period of suspension.

In view of the decision of this court, it is deemed unnecessary to determine whether Rule 6 :16 was invalid for vagueness and constituted an unlawful administrative intrusion upon the judicial function.

       Moreover, the order issued by the Chief of Police requiring telephones in the residence even appears to be in conflict with the 1967 Rules and Regulations of the Nutley Police Department promulgated by resolution of the governing body of the municipality. Rule 7:16-3 provides: “Police officers and civilian employees shall report tlieir home telephone number, or when there is no home telephone, they shall leave record of the number of the nearest telephone through which they may be reached.” The residency requirements set forth in Rule 7:10 — 3, of which 7 :16-3 is a part, are no longer in effect. See N. J. S. A. 40A :14-122.1, 122.2 and 122.3.

      Parenthetically. It may be noted that section 3 of Article IY of the 1928 ordinance provides in part: “The following are charges to be heard before the Director * * (7) Neglect in paying just debts, contracted while a member of the force.” The complaint filed by the Chief of Police against plaintiff charges him with violation of Rule 6:16, not with this provision of the ordinance, and its application was not raised in this action.


author: Kole, J. S. C.

text:
    JOHN POHLMAN, ANN POHLMAN, EDWARD NOIA, SANDRA NOIA, EDWARD RUDDY, LUCILLE RUDDY, ALBERT KOPAZ, GAIL KOPAZ, DOMINICK BRUNO, BELLA P. BRUNO, SHELDON ELLIOTT AND LOUIS MARSHELLO, PLAINTIFFS, v. METROPOLITAN TRAILER PARK, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, AND JUNE A. DYER, I, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 26, 1973.

      Mr. Arthur J. Lesemann argued the cause for the plaintiffs (Messrs. Mazer and Lesemann, attorneys).

      Mrs. Tonita S. Conaghan argued the cause for the defendants (Messrs. Porro, Conaghan and Murray, attorneys).
   Kole, J. S. C.

Defendant Metropolitan Trailer Park; Inc. is the owner and operator of a trailer park in Moonachie, New Jersey. Defendant June A. Dyer, I, is president of the corporation.

Plaintiffs in this action were mobile home owners who resided in the park until their evictions in late 1970. At issue here is plaintiffs’ claim that their evictions were wrongful and warrant the award of compensatory and punitive damages under the Tenant’s Reprisal Act, N. J. S. A. 2A:42-10.10 et seq. That Act provides as follows:

No landlord of premises or units to which this act is applicable shall serve a notice to quit upon any tenant or institute any action against a tenant to recover possession of premises, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise :
a. As a reprisal for the tenant’s efforts to secure or enforce any rights under the lease or contract, or under the laws of the State of New Jersey or its governmental subdivisions, or of the United States; or
e. As a reprisal for the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization; or s *
A landlord shall be subject to a civil action by the tenant for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jusisdiction in every case in which the landlord has violated the provisions of this section, [L. 1970, c. 210, § 1, eff. Sept. 30, 1970]

Based on the evidence at the final hearing, I make the findings of fact and law which follow.

Plaintiffs were active, to varying degrees, in the local election campaign in Moonachie in the fall of 1970. During this period the incumbent administration was considering amendment of the municipality’s zoning ordinance — in particular, that zoning district in which Metropolitan Trailer Park is located. Without discussing the specific proposals, suffice it to say plaintiffs and defendants had different views as to how the area should be zoned.

This divergence of opinion led plaintiffs to support one mayoral candidate while defendant corporation and its principals supported his opponent. It was clear from the evidence, however, that at least insofar as relevant here, the support of the respective personal candidacies by plaintiffs and defendants was subordinate in importance and incidental, to the zoning issue.

I find plaintiffs’ evictions were a direct result of their active opposition to defendants on the zoning issue in the fall of 1970. More specifically, I find that the residents evicted were those who, in defendants’ view, had clearly aligned themselves against defendants on the zoning issue and that this opposition was the proximate cause of the evictions.

I find, further, that the relationship of each plaintiff to the corporate defendant owner of the trailer park was that of tenant and landlord under the Reprisal Act. Additionally, the exception as to “owner-occupied premises with not more than two rental units” (N. J. S. A. 2A:42-10.13) refers to the entire premises of which a part is rented. It does not refer to a particular rented dwelling unit. Here defendant-landlord, not plaintiffs, is in the position of owner-occupant. The “owner-occupied” premises is the trailer park as a whole. The exception is therefore inapplicable.

The judge who denied the preliminary injunction against the evictions in this case stated that under the Tenant’s Reprisal Act the tenants would clearly have a cause of action if they had been evicted for some act that is “germane to the occupancy; and the complaint concerns a violation of some right of occupancy or use acquired by contract, lease or law; or that the organization or activity that involves complaints are actions against the landlord for some unlawful or undesirable act as a landlord.”

While such cases are those most clearly within the statute, I find no reported case which limits the statute to matters of dispute between landlord and tenant that are directly involved with the tenant’s occupancy. Indeed, there is unqualified language in at least one ease which plainly supports the view that a “reprisal” may be found whenever the landlord has retaliated against a tenant for the tenant’s exercise of a constitutionally protected right. See E & E Newman, Inc. v. Hallock, 116 N. J. Super. 220, 225 (App. Div. 1971).

There is no helpful legislative history on the Tenant’s Reprisal Act. Logically, the primary concern of the Legislature was the protection of those tenants who report such matters as housing and health code violations, or band together in tenants’ organizations to protest housing-related grievances collectively. See, for example, N. J. Landlord Tenant Relationship Study Commission, Interim Report, at 19, 20 (1970). Similarly, of course, recent case law involving the rights and obligations of the parties in a landlord-tenant relation ship focuses on occupancy-related issues such as inadequate services, unsafe conditions and increased rents. See, for example, Marini v. Ireland, 56 N. J. 130 (1970) ; Engler v. Capital Management Corp., 112 N. J. Super. 445, 448-449 (Ch. Div. 1970).

It does not necessarily follow, however, that the statute was intended to be limited in application to instances in which a tenant’s conduct was directly related to problems of occupancy. To so limit the statute would be contrary to the liberal interpretation given it by the courts, in part resulting from “the beneficial purposes of the legislation in question and ihe desirable social results intended by the Legislature * * See Silberg v. Lipscomb, 117 N. J. Super. 491, 496 (Cty. Ct. 1971).

Conceding that the primary evil sought to be remedied by the Legislature in enacting N. J. S. A. 2A:42-10.10 was reprisal for the exercise of tenants’ “housing” rights, it must still be recognized that the most significant elements in the statute are rights and reprisal. I find no reason why only certain rights should be protected under the statute when the Legislature has failed to clearly express such a limitation. Indeed, the Legislature has chosen to use broad language in several sections of the statute without any indication of an intended limitation thereon. See, for example, N. J. S. A. 2A :42 — 10.10 (a) which prohibits reprisals for a tenant’s “* * * efforts to secure or enforce any rights * * * under the laws of the State of New Jersey or its governmental subdivisions, or of the United States” and 2A:42— 10.10(c) prohibiting reprisals for “* * * the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization.” (Emphasis added).

Accordingly, 1 find the Tenant’s Reprisal Act applicable to the case at bar, involving as it does the tenants’ exercise of their rights to petition their local government for certain zoning ordinance amendments which they reasonably considered affected their tenancy rights and to communicate their feelings on this matter to their fellow residents similarly situated.

Assuming, arguendo, that the Reprisal Act applies only to retaliations for tenants’ conduct which is “germane to the occupancy”, the result would be the same, for in a very real sense plaintiffs’ conduct in this case was germane to their occupancy.

As discussed above, plaintiffs’ and defendants’ support of the individual candidates for mayor in the fall of 1970 was, on the evidence here, primarily based upon and a function of their respective positions on the zoning issues. .

This matter of zoning was not of mere political importance to the parties, nor were they merely interested therein as active citizens. Rather, both plaintiffs and defendants were concerned about the zoning ordinance only insofar as it affected the site of the trailer park. Plaintiffs were apparently seeking zoning protection against a sale of the tract by defendants for an industrial use. Defendants were attempting to block such rezoning to residential uses, in their view in order to prevent the eventual elimination of the trailer park caused by imposition of housing code or other requirements that mobile homes could not possibly meet. In addition, however, defendants had the unexpressed purpose of maintaining the present industrial zoning of the trailer park, thus preserving the site’s value.

In essence, then, the controversy was one quite common in a landlord-tenant relationship. To the tenant-mobile home residents the issue was one of security; that is, obtaining such protection as was possible against the threat of defendants’ unilateral termination of their occupancy.

The situation was thus not unlike an apartment house tenant’s efforts to secure protection against precipitous termination of his tenancy. Indeed, the significance of such protection may be greater to the mobile home owner than to the apartment tenant in view of the former’s substantial capital investment in his home, the cost of moving it, and the lack of available sites in the northern New Jersey area for relocation — with respect to which there was ample credible testimony. .

Similarly, defendants’ position was typical of that frequently experienced by landlords of apartment or other rental premises. In seeking to better their position the residents threatened the economic welfare of the landlord-owner both in terms of current income and, more important, in terms of the value of defendants’ capital investment. Defendants’ reaction to such threat logically was to seek maintenance of the status quo.

Thus, the activities of plaintiffs with respect to the zoning issue had a direct relationship to their occupancy in the park, as they were attempting to secure municipal protection against the unilateral conduct of defendants.

Concededly, a tenant’s complaint to the authorities about an existing violation of housing or health laws seems more closely related to the tenants’ occupancy than, as here, the tenants’ efforts to secure adoption of certain zoning changes. The difference, however, is Largely illusory. Had these plaintiffs sought amendment of the housing or health codes then applicable to the park, for example, could it seriously be contended that they would not be entitled to the protection of the Reprisal Act? I think not.

Tn the present case the absence of zoning protection against a lucrative sale of the tract for industrial use was viewed by plaintiffs as a direct threat to their continued mobile home occupancy. Certainly lawful political activity in response to such a threat — whether real or imagined — is entitled to the same protection as activity designed to seen re better housing conditions, rent-leveling protection, or other activities obviously “germane to the occupancy.”

The result would be the same even if one assumes the Reprisal Act is inapplicable.

N. J. S. A. 2A.-42-10.10 et seq. reveals the Legislature’s concern for and intent to protect the rights of residential tenants who, as it has long been recognized, have an unequal bargaining position with the landlord.

There was considerable evidence of the difficulties mobile homeowners encounter in finding a site for their homes. Thus, the fundamental problem of the apartment tenant and mobile homeowner is substantially the same — that is, the housing supply has not kept pace with demand, with the result that the lessor has a markedly superior bargaining position. The lessee’s right to move to more suitable premises is simply of little value when such premises are not readily available.

The Legislature has recently recognized the mobile homeowner’s position and his need for statutory protection against improper eviction and certain unconscionable conduct by lessors — i. e., by mobile park owners or operators. L. 1973, a. 153 (approved May 31, 1973). The Act expressly provides that it is necessary for the welfare of the State and its inhabitants and must be liberally construed to effect its purpose.

Assuming the Tenant’s Reprisal Act is inapplicable, the question is whether the retaliatory action of defendants in this case is, nonetheless, wrongful as offensive to the State’s public policy.

I conclude that the Mobile Home Owners Rights Act, even though not applicable to the instant case (since it became effective July 1, 1973), and the Tenant’s Reprisal Act, N. J. S. A. 2A:42-10.10 et seq., reflect and merely declare the public policy of this State which pre-existed their enactment. See Engler v. Capital Management Corp., supra; E & E Newman, Inc. v. Hallock, supra. Cf. Shell Oil v. Marinello, 63 N. J. 402, 409 (1973); Berzito v. Gambino, 63 N. J. 460 (1973); Edwards v. Habib, 397 F. 2d 687, 699-703 (D. C. Cir. 1968), reh. den. (1968).

In view of the foregoing conclusions it is unnecessary to reach the merits of plaintiffs’ claims based on the New Jersey Constitution. For discussions which may be relevant to some of the issues therein involved, see Independ. Dairy Workers, etc. v. Milk Drivers, etc., 23 N. J. 85 (1956) and 30 N. J. 173 (1959); Cooper v. Nutley Sun Printing Co., 36 N. J. 189 (1961). Similarly, there is no need to rule on plaintiffs’ claim that their federal constitutional rights under the 1st, 5th and 14th Amendments have been violated. In any event, it is questionable whether that contention has merit, since there is no showing of governmental involvement in defendants’ conduct. Cf. Lavoie v. Bigwood, 456 F. 2d 7 (1 Cir. 1972).

Plaintiffs are entitled to compensatory damages from defendants. No punitive damages are warranted under the facts of this case.


author: Gascoyne, J. C. C.

text:
    SEMI METALS INC. AND GENERAL INSTRUMENT CORP., PLAINTIFFS, v. PINTER BROTHERS AND EASTERN FREIGHTWAYS, INC., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 29, 1973.

      Mr. Clifford J. Sheehan for plaintiffs (Messrs. Hueston & Hueston, attorneys).

      Mr. Stanley P. Fishman for defendant Pinter Brothers (Messrs. Feuerstein, Sachs & Maitlin, attorneys).

      Mr. Nathan L. Amdur for defendant Eastern Freightways, Inc.
   Gascoyne, J. C. C.

Temporarily Assigned. Since this is a matter of first impression in this State, a thorough review of the facts and law would be appropriate.

There seems to be no question that on August 17, 1970 Semi Metals, Inc. delivered a shipment of “3 ctns Electronic Material”, with a weight of 335 lbs. to Pinter Brothers (Pinter) for consignment to Sylvania Electric Co., Chemical and Metallurgical Division (Sylvania), Towanda, Pa. The shipment was sent collect from plaintiff’s place of business at 173 Spruce Street, Westbury, New York. The shipment was placed in a sealed trailer with other freight and was delivered to Eastern Freightways, Inc. (Eastern) at Carlstadt, New Jersey on August 18, 1970. Thereafter, when the trailer was unloaded and a count made, it was found that the two cartons were missing. They have never been recovered and plaintiff sues for full value. If plaintiff is entitled to full value, it is stipulated that this would be in the sum of $19,280. Defendants contend that plaintiff is limited by controlling tariffs to the description as set forth on the bill of lading upon which the carriers relied and based their charges.

The proofs before the court established that the shipment was germanium scrap, a semi-precious metal, used in the manufacture of certain solid state components for electronic equipment. The particular germanium in question had been purchased by plaintiff for delivery to Sylvania. At no time did Pinter inquire as to the value of the goods being shipped, nor was any value declared in writing by the shipper on the bill of lading, this being left blank. No value was agreed in writing as to the released value of the property prior to shipment. The court is satisfied that Pinter could have made itself aware of the extent of its liability merely by instructing its employees not to accept any shipment unless a value was declared on the bill of lading For reasons that will become apparent later, it should be noted that defendants’ expert testified that the germanium shipment was of “high value” and not “extraordinary value.”

The questions to be decided by this court are twofold: (I) Is plaintiff entitled to full value or a sum less than full value? (2) What is the liability inter sese of the carriers in answering to damages?

For the purpose of convenience the court elects to answer the second question first.

Prior to the enactment of the Interstate Commerce Act with amendments culminating in 49 U. S. C. A. § 20 (II) , a shipper had the obligation of proving which carrier was responsible for the damage or loss. Since the adoption of the Act, the initial carrier is liable for any damage or loss caused by it or any connecting or succeeding carrier. The final or delivering carrier is responsible for any damage or loss by it or the preceding connecting carriers Thus, the shipper has option of proceeding against either the initial, delivering carrier, or both for any damage or loss of property, since both are jointly liable. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 S. Ct. 164, 55 L. Ed. 167 (1910); New York, Philadelphia & Norfolk R. R. Co. v. Peninsula Produce Exchange, 240 U. S. 34, 36 S. Ct. 230, 60 L. Ed. 511 (1915); Whitlock Truck Service, Inc. v. Regal Drilling Co., 333 F. 2d 488 (10 Cir. 1964). As between the carriers, the initial carrier is responsible unless it proves that a subsequent carrier was guilty of negligence which proximately caused the damage to or loss of the property. Southern Express, Inc. v. Motor Freight Lines, Inc., 200 F. 2d 797 (5 Cir. 1952). There being no proofs that the loss of the goods was due to the negligence of the terminal carrier, Eastern, the liability rests solely with the initial carrier, Pinter.

The question of damages presents a far more difficult problem. This court is convinced that plaintiff intentionally misdescribed the shipment solely for the purpose of obtaining the lowest rate possible at no risk to it, since plaintiff was insured. The description of the shipment as "electronic equipment” bears as much relationship to the nature of the cargo as describing a shipment of diamonds as watches simply because diamonds are used in the manufacture of watches.

Prior to the enactment of the Interstate Commerce Act by Congress the subject of liability of carriers for loss or damages to goods was left to the states to establish, leaving the states free to permit the carrier to limit its liability by contract. However, Congress, exercising its power to regulate interstate commerce, having spoken, the states are bound to follow the dictates of thé legislation. New York, New Haven & Hudson R. R. Co. v. Nothnagle, 346 U. S. 128, 73 S. Ct. 986, 97 L. Ed. 1500 (1952).

The purpose of Congress in enacting the Interstate Commerce Act was for the prevention of fraud, collusion and discrimination by carriers and favored shippers, to the injury and prejudice of the public. Interstate Commerce Commission v. Baltimore R. R. Co., 145 U. S. 263, 13 S. Ct. 844, 36 L. Ed. 699 (1892). A further purpose was to insure uniformity of application by the courts of this nation.

The parties are agreed that the provisions of 49 U. S. C. A. § 30, par. 11 is applicable to the instant case. It provides as follows:

Any common carrier, * * receiving property for transportation from a point in one State * *' * shall issue a receipt or hill of lading therefor, and shall be liable to the lawful holder thereof for any loss, * * * to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, * *’ * from the liability imposed; and any such common carrier * * * so receiving property for transportation from a point in one State * * * to a point, in another State ¥ >:’ * or any common carrier * ¥ * delivering said property so- received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, * * to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * * when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void * :i" * Provided, however, That the provisions hereof respecting liability for full actual loss i;" * * shall not apply *' * * to property, except ordinary livestock, received for transportation concerning which the carrier shall have .been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section 10 of this title; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon; and the commission is empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the- circumstances and conditions surrounding the transportation. * * *

As has been noted heretofore, the adoption of the Interstate Commerce Act was intended to correct certain evils in the industry. After the passage of the Carmack Amendment in 1906, both interstate carriers and shippers were chargeable with knowledge of the schedules filed with the Interstate Commerce Commission and were presumed to have contracted according to them in respect to rates and liability unless there was evidence of rebating or false billing! Atchison, Topeka & Santa Fe v. Robinson, 233 U. S. 173, 34 S. Ct. 556, 58 L. Ed. 901 (1913); Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853 (1915). However, after the adoption of first Cummins Amendment in 1915, no interstate common carrier could lawfully limit its liability by contract unless the goods were hidden from view by some means and the carrier was not notified of the nature of the goods. If the carrier was so advised, it could then require the shipper to declare the value of such goods in writing and its liability would be thus limited. Otherwise, the common carrier’s liability was for the full value of the goods, whether or not it issued a bill of lading or receipt.

The second Cummins Amendment was adopted in 1916 and the changes are reflected in the above quotation of § 20(11) of the Act. Pursuant to § 20(11) every initial carrier must issue a bill of lading or receipt, and such carrier is liable for the full actual loss or damage sustained during carriage on a through bill of lading. Any attempt to limit liability is prohibited except on declaration of value by the shipper or a released value agreed to by the parties. Both must be in writing. Thus, as the law stands today, the bill of lading is a contract and is binding upon the parties as any other contract. Pennsylvania, R. R. Co. v. Greene, 173 F. Supp. 657 (S. D. Ala. 1959). The rights and liabilities of the parties are governed by the acts of Congress, the bill of lading and the tariffs duly filed with the Interstate Commerce Commission. The bill of lading and tariff have the force of statute and they cannot he varied under any pretext. The carrier cannot lawfully depart from them. New York Central & Hudson R. R. Co. v. York & Whitney Co., 256 U. S. 406, 41 S. Ct. 509, 65 L. Ed. 1016 (1921).

The language of Caten v. Salt City Movers & Storage Co., Inc., 149 F. 2d 428 (2 Cir. 1945), seems to he particularly applicable to the ease suh judice.

■' * * Unless the carrier can comply with the requirements of the statute merely by putting into writing what the shipper has told it orally and then keeping that writing without giving the shipper a chance to verify it and acquiesce in it if found correct or to repudiate it if found incorrect, there was no compliance shown here. Obviously no such loose interpretation of the statute is permissible. It seems plain that nothing was done by these shippers in writing, or in respect to any writing, which had anything whatever to do with a valuation of tlieir property for shipment under one rate or any other. * * s- To permit a carrier, without any action, whatever by the shipper in respect to1 valuation in writing, to limit its liability on the basis of declared or released value on which the rate was charged would be to ignore entirely the statutory requirements that the shipper must make the declaration or agreement in writing, and nullify that part of the proviso.
The statute makes it abundantly clear that the carrier’s common law liability for full actual damages, whether or not caused by its negligence, is imxiosed when it accepts goods for carriage, unless a certain specified agreement limiting that liability has been made as the result of an equally certain specified action by the shipper in resi>oct to a voluntary valuation of his goods. Even then the carrier is not permitted to contract against liability for its own negligence. Only by giving the shipper an opportunity to choose between higher and lower rates based upon valuation can the carrier place the shipper who has selected a lower rate in the prescribed manner in the position where he is estopped to assert loss or damage to an amount in excess of the declared valuation upon which the rate was fixed. Boston & Maine R. Co. v. Piper, 246 U. S. 439, 38 S. Ct. 354, 62 L. Ed. 802, Ann. Cas. 1918E, 469; Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 S. Ct. 151, 28 L. Ed. 717; Union Pacific R. Co. v. Burke, 255 U. S. 317, 41 S. Ct. 283, 65 L. Ed. 656. Here nothing was done by the shippers which amounted to written action by them as to valuation, and any agreement limiting the defendant’s liability to less than the actual value was void. * * *

See also, Thomas Electronic, Inc. v. H. W. Taynton Co., 277 F. Supp. 639 (M. D. Pa. 1967); Paramount Dress Co. v. Kirby & Kirby, 167 Pa. Super. 524, 76 A. 2d 432 (1950), and Loeb v. Friedman Express, Inc., 187 Misc. 89, 65 N. Y. S. 2d 450 (Sup. Ct. 1946), where the court said:

* * * Here the charges constituting the freight rate were not entered in writing on the bill of lading, nor were those charges prepaid by the shipper. It could not be said, therefore, that having accepted the benefit of the lower rate dependent upon a specified valuation, the shipper is estopped from asserting a higher value; nor could it be said in this case, even on the basis of presumption of knowledge on the part of the shipper of the rate-valuation relationship, that there was anything in writing on the bill of lading to constitute an agreement as to valuation.
In order to sustain a limitation of liability in this case we should be obliged to go beyond the earlier cases and to hold that where a bill of lading in the form here used, received by the shipper and signed by him, contains a legend calling for the declared value to be stated by the shipper, which value is not inserted, that in itself is tantamount to a declaration in writing of the value of the shipment on the basis of the minimum tariff. The statutory language has no such meaning.
Liberality in the construction of a statute such as is here involved may be desirable, but that process may not be stretched to the point of disregarding its plain provisions. In the guise of judicial construction a court should not rewrite a statute. * * * [at 454]

Thus, even though the court feels that there was an intentional misdescription on the part of plaintiff, there are insufficient facts under the existing law to declare an estoppel.

There is another exception to the rule that permits the carrier to limit its liability. This was enunciated in Allied Van Lines, Inc. v. Smith, 28 Colo. App. 85, 470 P. 2d 926 (1970), as the "extraordinary value” exception. In light of the experts’ testimony, defendants do not fall within the corners of this exception.

Judgment will be entered in the sum of $19,280 without interest against defendant Pinter Brothers.


author: Albano, J. D. C.

text:
    PMS REALTY CO. INC., ADMINISTRATOR, PLAINTIFF, v. NANCY GUARINO, DORIS NICKENS, JEANETTE WIGGINS, DEFENDANTS.
    District Court — Essex County
    Decided December 5, 1973.

      Mr. Harvey Blaustein for plaintiff (Mr. Herbert Blaustein, attorney).

      Mr. John D. Atlas of the Essex County Legal Services, for defendants.
   Albano, J. D. C.

These landlord-tenant eases were tried together and present two common questions for determination: (1) In a month-to-month tenancy, was service on the first day of one month of a notice to quit and demand for possession on the first day of the following month sufficient? (2) Was the defense of reprisal under N. J. S. A. 2A:42— 10.10 established?

The proofs support a finding that on June 1, 1973 a proper notice to quit and demand for possession on July 1, 1973 was served, pursuant to N. J. S. A. 2A:18-53(a), on each defendant. N. J. S. A. 2A:18-56(b) provides that a month-to-month tenancy may be terminated only by the giving of one month’s notice to quit.

The leading case in New Jersey construing a notice to quit is Steffens v. Earl, 40 N. J. L. 128 (Sup. Ct. 1878); it has been followed with approval in too many cases to cite. There, in a month-to-month tenancy beginning on the first of the month, the landlord on June 29, made demand and gave notice in writing to its tenant to quit and surrender possession on August 1. The tenancy expired on August 1 and the tenant held over. In affirming a judgment for the landlord the court said that a notice to quit is not invalid merely because it names, as the day to quit, a day which corresponds in date with the day named in the original letting. But that ease was not concerned with the date of the service of the notice to quit and demand for possession, since it was made on June 29, but with the duration of the notice and the date of termination. There was, in fact, more than a full month’s time between the date of service and the date of termination.

Two cases have been cited by plaintiff as holding that service made on the first day of one month of a notice to quit and demand for possession on the first day of the following month is sufficient to terminate a month-to-month tenancy. They are Baker v. Kenny, 69 N. J. L. 180 (Sup. Ct. 1903), and Trela v. Novak, 4 N. J. Misc. 854 (Sup. Ct. 1926). A careful reading of these cases indicates that they both rely on a misconstruction of Steffens v. Earl, supra. In Baker v. Kenny, the court found a month-to-month tenancy and the necessity of a month’s notice to quit to terminate the tenancy. To the defense that the notice to quit should have been served before the recurring period of the tenancy began rather than on the first day thereof, the court said:

But this ground is clearly untenable. In a tenancy by the month, the notice must be to quit on one of the recurring periods of the holding, and if the notice be served on a day of the corresponding date in the preceding month, it will be sufficient. Steffens v. Earl.

This defense, however, is not untenable, if the court relied on Steffens v. Earl, as it said it did. Steffens v. Earl was concerned with the time period and the date of termination, where notice and demand were served on June 29 for August 1, and not on July 1, so that the time'period before the court was different from that in Baker v. Kenny.

Trela v. Novak, merely cited with approval and followed Baker v. Kenny, in holding notice served on the first was sufficient.

The time period referred to N. J. S. A. 2A:18-56(b) is one month. N. J. S. A. 1:1-2 defines one month as one calendar month. Should not one calendar month mean midnight of the last day of one month to midnight of the last day of the following month, and, if so, is notice on the first day a full month’s notice, or something less? The question answers itself.

The concept that a month is a full month and not a month less a part of the first day of the month is buttressed by rules of construction and court rules.

In computation of time, when a legal requirement fixes a number of days from a date or an event for the doing of an act, the computation is made by excluding the first date and including the last, absent any legislative indication of intent that a different formula should apply. DeLisle v. Camden, 67 N. J. Super. 587, 589 (App. Div. 1961).

And R. 1:3-1 provides that in computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included.

N. J. S. A. 2A:18-56(b) calls for one month’s notice to quit, and if the tenancy begins on the first day of the month, the tenant is entitled to a full and complete month’s notice, from midnight of the night before the first day to midnight of the last day of the particular month, thereby making any notice served on the first day of a month for possession on the first day of the following month fatally defective.

While the foregoing terminates these actions in favor of defendants, because insufficient- notice was given, the issue of retaliation was raised and should be determined in the event plaintiff elects to initiate new actions for possession after service of a proper and adequate notice to quit and demand for possession.

N. J. S. A. 2A:42-10.10 became effective September 30, 1970, and is referred to generally as the retaliation or reprisal statute. It prohibits a landlord from serving a notice to quit on any tenant and from bringing a dispossess action as a reprisal where, among other things, a tenant has attempted to secure or enforce his rights, or has made a good-faith complaint to any governmental authority, or has been an organizer or member of a tenants’ association.

The parties stipulated that all three defendants were members' of a tenants’ association and had made complaints, so that defendants were clearly within the class of persons the statute was designed to protect.

There was testimony as to reasons for the attempted termination of the three month-to-month tenancies, and plaintiff contended that the possession actions were not the result of reprisals. Defendants, on the other hand, alleged retaliation and raised N. J. S. A. 3A:43-10.10 as a defense. Credible testimony was adduced to show that (1) Mrs. Guarino’s children, among others, were destructive in that they played in the halls of the building, broke windows, tore up an outside drain cover, and were careless to a fault in disposing of garbage in and around trash cans furnished by plaintiff; (3) Mrs. Guarino’s apartment was overcrowded, and thereby in violation of a local ordinance; (3) Mrs. Nick-ens’ children, among others, were destructive in that they broke windows and the outside drain cover, and (4) Mrs. Wiggins’s apartment was overcrowded, and thereby in violation of the local ordinance.

There is no question that windows were broken and that plaintiff repaired broken windows or boarded up window frames, and that a drain cover was destroyed. But it was not clear that only the children of Mrs. Guarino and Mrs. Nickens were involved.-

This is not case where the landlord rashly increased the rent of one tenant association member and then instituted summary dispossess proceedings for nonpayment of rent, as in E & E Newman Inc. v. Hallock, 116 N. J. Super. 220 (App. Div. 1971), where a judgment for possession was reversed on appeal because the Appellate Division found reprisal against the one tenant. And this is not a case where tenants formed an association and eventually petitioned for the appointment of an administrator, only then to be served with notices to quit and summary dispossess actions, and where the court found that while the landlord was motivated in part by economic factors if the tenants had not acted as they had, more consideration would have been given them so that reprisal was made out. Silberg v. Lipscomb, 117 N. J. Super. 491 (Cty. Ct. 1971).

The testimony does lead to the conclusion that the defense of retaliation was sustained. While a landlord should not be required to sit idly by and watch his property be destroyed deliberately, N. J. S. A. 2A:42-10.10 mandates that a landlord may not discriminate in bringing dispossess proceedings. Had plaintiff: shown that only the Guarino and NTickens children were destructive, or had it brought proceedings against all concerned, the defense of reprisal would not have been sustained; but the clear indication is that other children were involved and dispossess actions were not instituted against other families. Incidentally, this court finds that playing in the halls and careless disposal of the garbage in this case are not factors of great moment; the breaking of windows and of the drain are.

With regard to the testimony of overcrowding in violation of a local ordinance, suffice to say that the county district court is not the proper forum for the prosecution or defense of such violations. Samuelson v. Quinones, 119 N. J. Super. 338, 342 (App. Div. 1972), suggests that Marini v. Ireland, 56 N. J. 130 (1970), and its progeny do not incorporate local housmg codes into every lease agreement. Local ordinance complaints should he disposed of in municipal courts, which have jurisdiction to determine them, and not in the county district court, which does not have such jurisdiction.

Judgments of dismissal will be entered in each of these eases.