author: Pashman, A. J. S. 0.,

text:
    THE BOROUGH OF DUMONT, PLAINTIFF v. BRIAN CARUTH, PAMELA FILIPOWICZ AND JAMES ALIMENA, DEFENDANTS.
    Municipal Court, Borough of Dumont.
    Decided March 6, 1973.

      Mr. Emil S. Cuccio, Acting Borough Prosecutor, for the Borough of Dumont; (Messrs. Calissi, Klinger, Cuccio and Baldino, attorneys); Mr. Emil S. Cuccio on the brief.

      Mr. Vincent McCarthy, for defendants Brian Carath, Pamela Filipowicz and James Alimena; (Bergen County Legal Services Assurance Corporation, attorneys) ; Mr. Vincent McCarthy on the brief.
   Pashman, A. J. S. 0.,

Temporarily Assigned. Defendants were charged by the Borough of Dumont with violating Ordinance #536, Chapter 2-31, in that they were present on June 6, 1972 at 11:06 p.m. in a Borough park located at 15 New Street in Dumont after the 11:00 p.m. curfew.

The ordinance in question adopted rules and regulations regarding the use of Borough parks and the facilities therein. One of the regulations provides that “[n]o person may remain, stay or loiter in a park between the hours of 11 o’clock p.m. and sunrise.” The foregoing facts have been stipulated.

In challenging the validity of this ordinance, the defendants, while framing their argument in somewhat more elaborate terms, are in essence claiming that:

(1) the ordinance constitutes an unreasonable exercise of the police power in that there is no statutory authority for the imposition of the curfew and that there is no necessity to justify its imposition under the general police power, and
(2) even if there is authority for the Borough to enact such an ordinance, the imposition of the curfew is done in such a way as to allow for arbitrary enforcement and abuse of police power so that the ordinance must be stricken as vague and overbroad in that it allows punishment of innocent conduct.

To counter these arguments, Dumont claims that N. J. 8. A. 40:12-6 explicitly grants municipalities the right to enact regulations governing the use of parks and playgrounds and that this statute authorizes the imposition of the curfew in question. It contends that because of this legislative authorization, the standards governing the validity of a general curfew do not apply and municipalities are to be allowed greater latitude in regulating the use of parks than in the case of public streets and sidewalks in general. In addition, it contends that the ordinance and its adopted regulations, taken as a whole, establish a valid constitutional purpose and set forth reasonable constitutional standards for enforcement which do not allow unconstitutional arbitrary enforcement.

We turn first to the question of whether the munieipalitj' is empowered either by specific statutory grant or by the general police power to impose a curfew in its parks.

The general power of municipalities to act for the welfare of their inhabitants derives from two main sources other than the specific grants of authority in N. J. 8. A. 40:48—1. It derives from specific grants of authority contained in many statutes in which municipalities are directed or advised to carry out the will of the Legislature in specific instances and it derives from N. J. 8. A. 40:48-2, which provides as follows:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

The regulation in question was adopted by the Dumont Recreation Commission pursuant to Ordinance #2-31, which is enacted under authority o£, and is substantially similar in wording to, N. J. 8. A. 40 :12-6, which follows:

“The board of recreation commissioners shall have full control over all lands, playgrounds and recreation places acquired or leased under the provisions of sections 40:12-1 to 40 :12-9 of this title [pertaining to the establishment and powers of boards of recreation commissioners over parks and playgrounds] and may adopt suitable rules, regulations and by-laws for the use thereof, and the conduct of all persons while on or using the same; and any person who shall violate any of such rules, regulations or by-laws shall be deemed and adjudged to be a disorderly person. . . .”

I agree with Dumont’s contention that the Legislature’s use of the word “and” between the phrases “may adopt . . . rules . . . for the use thereof” and “the conduct of all persons while on or using the same” indicates a desire to invest authority to regulate more than the mere deportment of persons using public parks. The Legislature clearly intended to allow the municipalities, through their boards of recreation commissioners, to regulate the “use” of parks as well as conduct while using them.

The municipality contends that the word “use” means that it is empowered to determine whether and when the parks can be used at all, rather than merely the uses to which the parks may be put. I agree. A survey of the cases dealing with the power of municipalities over public facilities in general bears out this conclusion. A municipality holds public property in trust for the public, but there is no requirement that such property must be made available for public use at all times. It is entirely reasonable, and I am sure that this is what the Legislature intended by wording the statute as it did, that in the interest of public safety and welfare a municipality may close a park during certain hours of the night just as it may close public buildings. Surely the Legislature did not intend that municipalities are required to hold open all public facilities for public use 24 hours a day.

The United States Supreme Court has addressed this subject in a case arising from New Jersey, Hague v. Committee for Industrial Organization, 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939). The court modified and affirmed a decree declaring unconstitutional a Jersey City ordinance which required a permit to be issued by the Chief of Police for the leasing of a hall for any public meeting at which the speaker advocated various “subversive” positions. The court ruled, as had the United States Court of Appeals for the Third Circuit, 101 F. 2d 774 (3d Cir. 1939), modifying Committee for Industrial Organization v. Hague, 25 F. Supp. 127 (D. N. J. 1938), that the ordinance unconstitutionally permitted uncontrolled suppression by public officials of freedom of expression of views. In making this determination, the court, by Mr. Justice Roberts, made the following observations regarding the right of municipalities to control the use of public facilities:

. . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 307 U. S. 496, 59 S. Ct. at 964. (Emphasis added).

The court concluded that the ordinance in question was invalid because this notion of comfort and convenience of the public was not its basis, but rather, it was premised on the desire of public officials to curtail dissident assembly and expression of views unpopular with the local regime. Thus the court was careful to distinguish between cases such as that before it and cases involving the legitimate interest of the public in limiting the “privilege” of using public facilities. Indeed, the court distinguished the case of Davis v. Massachusetts, 167 U. S. 43, 17 S. Ct. 731, 42 L. Ed. 71 (1897), in which a Boston ordinance limiting the use of the Boston Common for various purposes without a permit from the mayor was upheld as a reasonable exercise of the police power, in view of the fact that the State had the authority to prohibit the use of the park altogether.

Thus, our highest court has determined that a municipality can limit the use of public facilities, including parks, but that it cannot do so arbitrarily. I read the Hague case to this effect, and I think that in a practical sense the conclusion is inescapable that a municipality need not maintain public facilities open for public use 24 hours a day. The court stated that the right of private citizens to use public facilities is relative, not absolute, and it can be subordinated “to the general comfort and convenience, and in consonance with peace and good order.” Hague, supra, 307 U. S. 496, 59 S. Ct. at 964.

But in connection with the notion that any such restriction must not be arbitrarily imposed, it is necessary to examine the cases in New Jersey dealing with the power of a municipality to restrict freedom of movement on public streets generally, as opposed to limitations covering only parks. It should be borne in mind that a municipality’s control over the use; of specific public property such as a park, is arguably at least, greater than that regarding the public streets and sidewalks in general. This observation goes to the issue of when a curfew may be imposed (¿. e., under what circumstances). Thus, it is reasonable to conclude, as Dumont does, that higher standards must be imposed to justify a general curfew than those necessary to justify the closing of a park.

However, regardless of the circumstances, even if we assume arguendo - that the imposition of a curfew is justified, no such restriction can be upheld unless it meets constitutional standards of fairness in its enforcement. Such was the holding of Camarco v. City of Orange, 61 N. J. 463 (1972), which affirmed the- opinion below, 116 N. J. Super. 531 (App. Div. 1971). In upholding an ordinance of the City of Orange prohibiting loitering under certain conditions, the Appellate Division construed the ordinance to hold that as a condition to making illegal any of the described “conduct” [if loitering can be considered “conduct”], a warning to the offending party to move on had to be given by the police officer and not heeded by the offender. It based its decision on what was then the leading New Jersey case on the subject, State v. Caez, 81 N. J. Super. 315 (App. Div. 1963). In Gaez, the court held unconstitutional a Hackensack ordinance which provided in pertinent part as follows:

“No person stall loiter, lounge or sleep in or upon any street, park or public place; ... or obstruct passage through or upon any public street, park or public place”. Id. at 318.

No definition of “loiter” was supplied. The court ruled that the ordinance was unconstitutionally vague in that it failed to provide a guide or standard by which it could be determined who was loitering. This failure, the court stated, allowed arbitrary enforcement by police officers which is the evil that is to be prevented.

In relying on the reasoning in Gaez, all three courts in Gamarco, the Law and Appellate Divisions and Supreme Court, emphasized that they were upholding the ordinance in that case with the condition that the unlawfulness of the act of loitering must be preceded by a refusal to heed a warning by the officer that the “loiterer” must move on. Again, the evil sought to be prevented was arbitrary enforcement by police officers — the distasteful proposition that a police officer should have the unlimited discretion to determine who is in violation of the law and who is not.

It was this proposition — that the lawfulness of a person’s standing on a street or sidewalk should depend on the whim of any police officer — that caused the United States Supreme Court to strike down a loitering provision in 8 hid Shuttlesworth v. City of Birmingham, 382 U. S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965). The court stated in dictum in Shuttlesiuort'h that a construction of the ordinance in question, making “loitering” a crime only after a failure to move on following a warning by a police officer, would render the ordinance constitutional. Apparently the same route was taken in Oamarco.

Thus the key to judicial approval of this type of ordinance appears to be in controlling the conditions in which police officers are empowered to act. The rationale of the cases seems to be that of preventing the police from choosing among potential perpetrators the one whom they intend to prosecute.

While the case at bar is in a slightly different context, that of a curfew in a purely park setting, I am satisfied that the unmistakable thrust of. the cases must control. 1 believe that prosecution under this ordinance as it now exists is unconstitutional on the basis of the reasoning in Cama-rco, Caez and Shuttlesworth. While this ordinance is a curfew ordinance, “loitering” is an element of the offense. Even absent the word “loitering” in the ordinance, some warning to leave the park must be issued by the police officer before the conduct, that of remaining in the park after 11:()() lor., becomes unlawful. Since the ordinance contains no such provision to this effect, unlike that in Comarco, no construction by this court can save it. It devolves upon the Borough of Dumont, if it so desires, to enact an ordinance which comports with the standards established by Camarco and as otherwise outlined in this opinion.

The Borough of Dumont Ordinance #536, Chapter 2-31 and the regulation adopted thereby are unconstitutional on their face and as applied to these defendants. The complaint is dismissed.


source: Caselaw Access Project

author: Pbr Curiam.

license: Public Domain

text:
    BROOKCHESTER TENANTS’ RIGHTS CORPORATION, A NON-PROFIT CORPORATION ORGANIZED UNDER THE PROVISIONS OF TITLE 15 OF THE REVISED STATUTES OF NEW JERSEY; AND JEAN McCARTHY AND JOHN McCARTHY, INDIVIDUALLY AND AS REPRESENTATIVES OF THE CLASS OF PERSONS, TENANTS OF AND WITHIN THE SO-CALLED BROOKCHESTER APARTMENT COMPLEX, PLAINTIFFS-RESPONDENTS, v. BRUNETTI APARTMENTS; JOSEPH J. BRUNETTI CONSTRUCTION CO.; BROOKCHESTER APARTMENTS; BROOKCHESTER, SECTION I, INC., BROOKCHESTER, SECTION II, INC.; BROOKCHESTER, SECTION III, INC.; BROOKCHESTER, SECTION IV, INC.; BROOKCHESTER, SECTION V, INC.; BROOKCHESTER, SECTION VI, INC.; BROOKCHESTER, SECTION VII, INC.; BROOKCHESTER, SECTION VIII, INC.; BROOKCHESTER, SECTION IX, INC.; AND BROOKCHESTER, SECTION X, INC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 20, 1973
    Decided April 2, 1973.

      Before Judges Goldmann, Eeitz and Lynch.

      Mr. Herbert Klitzner argued the cause for appellants (Messrs. Olein, Pressler <& Shapiro, attorneys; Mr. David A. Pressler of counsel).

      Mr. David Waldman argued the cause for respondent Brunetti t/a Brookchester, Sections V, VII, VIII and IX, and Brookchester, Sections III, VI and X (Messrs. Heller & Lailes, attorneys; Mr. Murray A. LaiJes of counsel; Mr. Herbert B. Ezor on the brief).

      Mr. Eugene L. Dinallo filed a Statement in lieu of brief on behalf of Brunetti Apartments (which includes Brookchester, Sections I, II and IV).
   Pbr Curiam.

This is an action by a tenants’ organization, and a tenant (and his wife) as representatives of a class of tenants in 1,750 apartments owned, operated and managed by the various defendants, and known as Brookchester Apartments.

Plaintiffs allege that the terms of the leases of the apartments, and the regulations imposed thereunder by the landlord, are “onerous and unrealistic,” necessary services have been refused, inequitable, unreasonable and illegal rent increases have been exacted, the landlord has refused to renew leases without reason, has made threats of evictions and, goner ally, “certain undeniable equities have arisen in favor of the tenants.” More particularly it is alleged that many of the rent increases were “also contrary to the provisions of the Economic Stabilization Act of 1970, Section 201 el seq., 12 U. 8. O. A. Section 1904 [, Note] and Executive Orders Nos. 11615 and 11627 * *

Plaintiffs demand judgment: (1) enjoining defendants from raising rents prior to a plenary hearing on the legality and equitability of any proposed rent increases; (2) restraining defendants from evicting any tenant who is current in his rent payments as defined prior to August 15, 1971; (3) restraining defendants from 'enforcing certain of its lease provisions; (4) restraining defendants from engaging alleged harassment against any tenant; (5) striking alleged oppressive terms from the leases; (6) awarding damages and costs to any tenant who may have overpaid rent; and (7) seeking generally to have this court take over issues between the parties. An order to show cause why the relief demanded in the complaint should not be granted was signed on May 23, 1972, with temporary restraints against defendants prosecuting any actions against the tenants in the Bergen County District Court. On the return day the court dissolved the restraints and ordered the cause to a full trial on the merits.

During the course of discovery plaintiffs served voluminous interrogatories on defendants. An order was entered striking many of the interrogatories, but compelling defendants to answer Nos. 1, 2, 14 and 15, among others. We granted defendants’ motion for leave to appeal from the order with respect to those interrogatories. Nos. 1 and 2 sought defendants’ profit and loss" statements and balance sheets for the preceding five years. The court modified the time period, so as to require the information for only the preceding two years. Interrogatories Nos. 14 and 15 related to defendants’ principal suppliers of materials and services. Plaintiffs contend that the said interrogatories would lead to the discovery of evidence "which will support their claims (a) of “inequitable” rents and future increases, as well as other similar asserted inequities in the enforcement of the leases, and (b) that the rents are in violation of the Economic Stabilization Act of 1970, and Executive Orders Nos. 11615 and 11627.

As to (a), we know of no precedent which would justify the Chancery Division exercising its jurisdiction by undertaking the task of reviewing and determining whether the rents in these leases are “equitable.” If so here, why not thousands of others? The exercise of equitable jurisdiction rests in the sound discretion of the court. Metropolitan Life Ins. Co. v. Kaiser, 137 N. J. Eq. 95 (Ch. 1945), and cases cited therein. We are not persuaded that any equity powers which may exist should be exercised in these circumstances, or in disgorging the information sought by these interrogatories.

Plaintiffs cite Brookchester, Inc. v. Matthews, 118 N. J. Super. 565 (Cty. Dist. Ct. 1972), for the proposition that the Federal courts do not have exclusive jurisdiction to determine compliance vel non with the Economic Stabilization Act and the Executive Orders pursuant thereto. Perhaps not, but it does not follow that our courts should exercise any concurrent jurisdiction here. In Matthews, the Federal statute was invoked because the jurisdiction of the District Court to dispossess a tenant after default in rent encompassed the question as to whether the rent was due and owing. “Obviously,” said the court in Matthews, “a rent which is in excess of and violates the Economic Stabilization Act cannot be legally owing.” 118 N. J. Super, at 571. There was no question, as here, as to whether discretion was to be exercised in assuming jurisdiction. It was mandated by the statutory dispossess proceeding.

As to (b), counsel for plaintiffs conceded at oral argument that the Economic Stabilization Act is not related to “profit and loss” or suppliers and their relation to a landlord. Therefore, interrogatories Nos. 1, 2, 14 and 15 would not lead to the discovery of relevant evidence and are improper. The order compelling answers thereto is reversed.

       Ex. Ord. No. 11615, Aug. 15, 1971, 36 C. F. R. 15727 as amended by Ex. Ord. No. 11617, Sept. 2, 1971, 36 C. F. R. 17813, was superseded by Ex. Ord. No. 11627, Oct. 15, 1971, 36 C. F. R. 20139.
      Ex. Ord. No. 11627, Oct. 15, 1971, 36 C. F. R. 20139, was amended by Ex. Ord. No. 11630, Oct. 30, 1971, 36 C. F. R. 21023.


author: Collestjse, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT HUBBARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1973
    Decided April 2, 1973.

      Before Judges CoLlester, Leonard and Halhern.

      Mr. David Noah Dubrow, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Collestjse, P. J. A. D.

Defendant was found guilty by a jury of murder in the first degree and armed robbery. He was sentenced to life imprisonment for the murder and to concurrent prison terms aggregating 12-15 years for the conviction of armed robbery. This appeal followed.

James Eainey, Eobert Arrington, William Anderson and defendant Eobert Hubbard were jointly indicted for the murder of Eobert Howard and the armed robbery of Howard, Lorenzo Bens and Alonzo Bankston. They were tried separately. Eainey was convicted of second degree murder and Arrington and Anderson pleaded non vult to the murder indictment. The Hubbard case was the last to be tried'.

The State’s case against defendant was based on the theory of a felony murder. The State’s proofs indicated that on May 27, 1971 defendant, together with Eainey, Arrington and Anderson, forced their way into Howard’s apartment. During the course of the robbery Howard seized a hammer and struck Arrington. Eainey, who had a gun, shot and mortally wounded Howard.

On appeal defendant raises the following points as grounds for reversal: (1) the convictions for armed robbery and felony murder were barred by the doctrine of collateral estoppel; (2) the court’s charge on aiding and abet-, ting constituted plain error; (3) the verdict was against the weight of the evidence; (4) the court’s supplementary instructions in response to the jury’s question regarding the law applicable to a felony murder were legally insufficient and misdirected the jury; (5) the court’s review of the evidence in the charge was prejudicial; (6) the court erred in denial of a motion for a mistrial; (7) the conviction and sentence of life imprisonment was excessive; and (8) the sentence to life imprisonment is unconstitutional.

Defendant’s principal contention is that his convictions for armed robbery and felony murder were barred by the doctrine of collateral estoppel. The record indicates that at the close of the testimony defendant’s motion to strike the charge of felony murder from the jury’s consideration was denied by the trial court. Defendant argues here, as he did below, that the prior conviction of Rainey of second degree murder constituted a finding that no robbery had occurred and, that issue having been decided, the State was collaterally estopped from proceeding against Hubbard on the charge of felony murder. Defendant bases his argument primarily on Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).

In Ashe six men engaged in a poker game were robbed by three or four masked gunmen. Ashe was tried and acquitted of robbery of one of the poker players. Thereafter he was tried for the robbery of another of the players and was convicted. The United States Supreme Court reversed. The court held that since the single rationally conceivable issue before the jury in the first trial was whether defendant had been one of the robbers, the rule of collateral estoppel, which is embodied in the Eifth Amendment’s guaranty against double jeopardy, made the second trial wholly impermissible.

We conclude that the rule of collateral estoppel laid down in Ashe is not applicable to the instant case. The court in Ashe clearly indicated that the principle of collateral estoppel could be invoked in criminal cases only when an issue of ultimate fact has been previously litigated and determined by a valid and final judgment in the prosecution of the same defendant.

Under óur law all those who conspire to commit a crime and participate in some' way in its commission are1 equally guilty as principals. State v. Cooper, 10 N. J. 532, 568 (1952). We believe it is well settled that where principals in a joint indictment for murder are tried separately,: the conviction or acquittal of the defendant first tried has no bearing on a judgment against the other; that the doctrines of collateral estoppel and res judicata do not apply in cases in which a different defendant is prosecuted in the' second trial. See State v. Mondrosch, 108 N. J. Super. 1 (App. Div. 1969), certif. den. 55 N. J. 600 (1970); State v. Bradley, 361 Mo. 267, 234 S. W. 2d 556, 559 (Sup. Ct. 1950); State v. Wilson, 236 Iowa 429, 19 N. W. 2d 232, 239 (Sup. Ct. 1945); Maughon v. State, 9 Ga. App. 559, 71 S. E. 922, 924 (Ct. App. 1911); Reed v. Commonwealth, 125 Ky. 126, 100 S. W. 856, 858 (Ct. App. 1907); State v. Martino, 27 N. M. 1, 192 P. 507, 509 (Sup. Ct. 1920).

We conclude that United States v. Bruno, 333 F. Supp. 570 (E. D. 1970), upon which defendant relies, is inapposite. In that case two of three defendants charged with conspiracy were tried and acquitted. Thereafter the court dismissed the conspiracy indictment against Bruno on the ground that the acquittal of all the other co-conspirators precluded the conviction of the remaining defendant. The court’s reference to collateral estoppel (upon which defendant Hubbard relies) concerned a ruling that the government would be collaterally estopped from relitigating the issue of authenticity of a questioned document in the first case in a subsequent prosecution of the third conspirator. The ruling, which was unnecessary for disposition of the case, in our opinion was based upon a misinterpretation of Ashe v. Swenson, supra. We are satisfied and hold that the trial judge in the present case properly submitted the issue of felony murder to the jury for its determination.

-We turn next to the .claim that the trial judge erred in denying defendant’s motion for a mistrial. The' motion was based on testimony that defendant was arrested on “other charges” on October 27 (five months after the homicide), while using an alias, and that his fingerprint identification revealed he was the Robert Hubbard for whom an arrest warrant for the murder had been issued. The trial judge concluded that the testimony was not so prejudicial as to warrant a mistrial and indicated he would give cautionary instructions to the jury. When defense counsel requested that such instructions should not be given the judge said he would be guided by counsel’s wishes. The disposition of a mistrial motion is addressed to the sound discretion of the trial judge. A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice. State v. Provoid, 110 N. J. Super. 547, 558 (App. Div. 1970). We find no abuse of discretion in the denial of the motion in this case.

Defendant also challenges the sentence of life imprisonment imposed by the court, contending that it was excessive in light of the lesser sentences imposed on his accomplices. The answer to that contention is that the penalty of life imprisonment for murder in the first degree is mandatory under the statute. N. J. S. A. 2A:113-4. The power to prescribe the penalty to be inflicted for a crime rests with the legislative branch of government, not with the courts. When the Legislature fixes a single or mandatory penalty for a crime the courts have no alternative but to pronounce the prescribed sentence. State v. Griffin, 84 N. J. L. 429, 432 (Sup. Ct. 1913), aff’d 85 N. J. L. 613 (E. & A. 1914). It is only when the Legislature has provided for minimum and maximum limits of punishment that courts have discretion as to the punishment to be administered.

Defendant also contends that the mandatory life imprisonment sentence in this case is an unconstitutional penalty for the exercise of his Fifth and Sixth Amendment rights. Specifically, he argues that he was penalized because he elected to go to trial in this case while two of his eodefendants who pleaded non vult received sentences of eight to ten years. Defendant relies upon the rationale of United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), where the court held the federal kidnapping statute unconstitutional insofar as it authorized the death penalty. The statute was construed to mean that the death penalty could be imposed only by a jury, so that if a defendant waived his Sixth Amendment right to trial by jury he could suffer no greater penalty than life imprisonment. The court held that the death penalty provision was invalid because it imposed an impermissible burden upon an accused’s exercise of his Sixth Amendment right to a trial by jury and his Eifth Amendment privilege against self-incrimination.

We conclude that Jaclcson is distinguishable from the instant case. Here no such impermissible burden was imposed upon defendant. If he had chosen to waive his right to a jury trial and pleaded non vult to the murder indictment, the same sentence of life imprisonment could have been imposed. N. J. S. A. 2A:113-3. We find no constitutional invalidity in the sentence.

Defendant further asserts that the court committed plain error in charging the jury that he could be convicted of both felony murder and armed robbery and that his conviction and sentence on both charges constituted double punishment for the same offense. The State concedes that under the circumstances of this case the armed robbery was an integral part of the felony murder and thus the lesser offense merged with the greater. State v. Hill, 44 N. J. Super. 110 (App. Div. 1957). Accordingly, the concurrent sentences imposed for armed robbery must be vacated.

We have carefully reviewed the record and considered the other points raised by defendant. We perceive no reversible error in any of them.

The judgment of conviction for murder is affirmed. The conviction for armed robbery is vacated.


author: Bisohoit, J. S. C.

text:
    ALBERT C. JONES, t/a ALBERT C. JONES ASSOCIATES, PLAINTIFF, v. CONTINENTAL CASUALTY COMPANY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 26, 1973.

      Mr. Robert A. Porter for plaintiff Albert C. Jones, t/a Albert C. Jones Associates (Messrs. Hartman, Schlesinger, Schlosser & Faxon, attorneys).

      Mr. Arthur Montano for defendant Continental Casualty Company (Messrs. Kisselman, Deighan, Montano & Summers, attorneys).
   Bisohoit, J. S. C.

Plaintiff, a professional engineer, seeks a judgment declaring that he has coverage under a policy of insurance issued by defendant and called “Architects and Engineers Policy.” The initial policy issued by this defendant was for a period commencing February 23, 1965 to February 23, 1966, and thereafter the policy was renewed yearly until February 23, 1970. By an amendment to the last policy, the policy was amended to include the period from February 23, 1969 to April 5, 1970.

The first policy, as noted, was issued in 1965. Plaintiff testified he read it at that time but did not understand all of its provisions and did not seek any explanation of the terms.

Plaintiff discontinued coverage by defendant-company in 1970 when he was in financial difficulties. He went into receivership and was unable to pay the premiums charged. The premium for the last year of coverage was $10,000.

The facts which call for this declaratory judgment are as follows.

On August 8, 1966 the City of Millville engaged plaintiff as a consulting engineer for the construction of a multi-million dollar sewer plant. Bids wore received and the city entered into a contract for the construction of the sower plant with Pagano Construction Company on December 17, 1968. Several of the large tanks that composed the sewer treatment plant began to settle, and on March 12, 1970 plaintiff notified the contractor that the final settling tanks were not level and directed him to correct the deficiency. Thereafter the contractor instituted a lawsuit on a book account asking for payment of the balance of the money due him. Defendant in that action was the City of Millville, who counterclaimed for the costs of correcting the alleged improper work. Plaintiff Jones was not a party to the proceeding until Pagano Construction Company joined him as a third-party defendant on August 18, 1971. Receipt of the suit papers that day was Jones’ first knowledge of the claim or suit against him. This was more than 16 months after the expiration of the last policy of insurance issued by defendant. The suit papers were forwarded by plaintiff to defendant the next day. They were received by defendant on August 23, 1971. Defendant then forwarded the papers to the law firm of Kisselman, Deighan, Montano, King and Summers, who apeared in defense of a motion on August 27, 1971 in Bridgeton.

An investigator for defendant company went to the office of plaintiff in Mount Holly and received pertinent information pertaining to the claim, and attorneys from the firm of Kisselman, Deighan, Montano, King and Summers attended a meeting -with the City Commissioners of Millville on August 31, 1971. Other than the writing of one additional speed letter on September 8, 1971, no action was taken by defendant in connection with the defense of the matter. No answer was filed. The suit papers were returned to plaintiff. Coverage was denied. Plaintiff was informed he should obtain his own counsel to defend the matter.

This lawsuit revolves around the interpretation to be given to the following provisions of the policy, it being the contention of defendant that the claim and lawsuit in question fall outside of the policy period as that is defined in the policy itself.

IV. Policy Period, Territory.
(a) During the Policy Period.
The insurance afforded by this policy applies to errors, omissions or negligent acts which occur * * ’•' during this policy period if claim therefor is first made against the insured during this policy period.
(b) Prior to the Policy Period.
The insurance afforded by this policy also applies to errors, omissions or negligent acts which occur within the United States of America, * * * prior to the effective date of this policy if claim therefor is first made against the insured during this policy period and if all of the following requirements are present:
(1) the error, omission, or negligent act was also insured by this Company under the prior policy (as defined below) * * *
(2) no insured, at the effective date of the prior policy (as defined below), had any knowledge of a pending claim which might be made against any insured or had any knowledge or any circumstance which may reasonably be expected to create a claim against any insured.
Prior policy (for the purpose of this insuring agreement) means the combined total of all architects’ and/or engineers’ professional liability policies issued by this Company beginning with the first architects’ and/or engineers’ professional liability policy followed continuously by successive architects’ and/or engineers’ professional liability policies, the last of which expired on the effective date of this policy. [Emphasis supplied]

As noted, the last policy of insurance expired on April 5, 1970; plaintiff’s first knowledge of a claim occurred on August 18, 1971.

Plaintiff seeks a declaration that the policy provides coverage on two grounds. First, that defendant, by its actions over the two-week period between the notice of loss received by the company in Philadelphia with receipt of suit papers on August 23 and the return of the suit papers to plaintiff, assumed control and management of the lawsuit to such an extent that it is now estopped to deny its obligation to plaintiff to indemnify and defend.

Second, that the terms of the policy of insurance which exclude coverage for events which occurred during the policy period if notice is not given during said period are invalid as being against public policy.

With respect to the first ground, this court denies plaintiff’s contention. Defendant company is entitled to a reasonable time period within which to investigate and determine whether there is coverage under the terms of the policy, so long as its actions do not in any way prejudice the assured. Ebert v. Balter, 83 N. J. Super. 545, 553 (Law Div. 1964); Merchants Ind. Corp. v. Eggleston, 37 N. J. 114 (1962) ; Liberty Mutual Ins. Co. v. O’Rourke, 122 N. J. Super. 68 (Ch. Div. 1973).

1 find that under the circumstances of this case defendant company acted promptly and by its actions did not in any way prejudice its assured. Defendant is not estopped to deny coverage.

With respect to the second ground advanced by plaintiff, it is argued that the period of coverage, as defined in the policy of insurance, violates public policy and is contrary to the reasonable expectations and interests of lay people and the public, and is therefore unreasonable.

Plaintiff argues that unless an assured maintains his insurance continuously with the same company, his insurance is worthless in many respects. In that regard plaintiff points to the situation involving the death or retirement of an assured. In that situation, if defendant’s construction is accepted, neither a retiree who has dropped his coverage nor the estate of a deceased assured would be covered for events occurring during a policy period where claim is not made until after the expiration of the policy. Plaintiff further argues that freedom of contract is destroyed under the terms of this policy, because the assured, in order to maintain continuous protection, must continue coverage in the same insurance company.

The type of policy in question has been termed a discovery policy. The distinction between a discovery policy and an occurrence policy was pointed out in the case of Zarpas v. Morrow, 215 F. Supp. 887 (D. Ct. N. J. 1963) :

*■ * * In a “discovery” policy the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurance company during the pei’iod of the policy, no matter when the act occurred. In an occurrence policy, the coverage is effective if the negligent or omitted act occurred during the period of the policy, whatever the date of discovery. [Emphasis supplied]

The coverage agreements in this type of policy are quite different from those generally encountered in insurance policies. They are generally employed in professional liability policies.

Defendant, in support of its position, relies heavily on the ease of Rotwein v. General Accident Group, 103 N. J. Super. 406 (Law Div. 1968), as well as many cases from other states. However, the terms of the policies of insurance involved in each of the cases relied upon hear close examination.

In Rotwein the policy provision was of the discovery type and read as follows insofar as the period of coverage is concerned :

This policy also applies to any negligent acts, errors or omissions from services rendered during the policy period of any prior policy issued to the Insured, if the Insured has maintained Architect’s professional Liability Insurance continuously in force, provided * * * that such claim would have been covered under the said prior policy had it been in effect at the time of the negligent acts, errors or omissions. [Emphasis supplied]

It should he noted that the provisions of the policy there before the court covered losses occurring during the coverage of any prior policy of insurance maintained by the insured.

The court in Iiotwein discussed in detail the public policy argument which was made and rejected it. The court held:

* * * plaintiffs, at the time they became the insureds of General Accident, in fact obtained retroactive protection with respect to any negligent acts, errors or omissions attributable to professional services which may have preceded the issuance of the General Accident policy (provided they had other extant insurance), as long as the claim arising from such negligence was reported during the policy period. It has not been shown that such insurance protection is so inadequate or utterly inappropriate to the reasonable needs of a professional architect that it may be considered oppressive or unfair.

Not so in this ease. Eetroactive insurance coverage existed under the policy of Continental Casualty Company only if there was prior insurance in Continental Casualty.

The court in Botwein continued:

* * * Plaintiffs have failed to demonstrate that the General Accident insurance policy has any capacity to inhibit or discourage freedom of contract contrary to established notions of public policy, *• K *

In this case, clearly the policy provisions in effect inhibit freedom of contract. In order for plaintiff to maintain coverage or have continuity of coverage, he must continue to have defendant as the insurance carrier. Such provisions do inhibit freedom of action in this field.

In interpreting a provision in a policy of insurance such as this, we must bear in mind the fact that an insurance contract is not a truly consensual arrangement. It is not the result of open and equal bargaining or negotiations. It is available only on a take it or leave it basis. Cooper v. Government Employees Ins. Co., 51 N. J. 86, at p. 94 (1968).

An insured is entitled to the measure of protection necessary to fulfill his reasonable expectations, and the insured should not be subjected to hidden pitfalls in the policy. Gerhardt v. Continental Ins. Cos., 48 N. J. 291, 297 (1966).

As the Supreme Court said in the case of Allen v. Metropolitan Life Ins. Co., 44 N. J. 294 (1965) :

Wliile insurance policies and binders are contractual in nature, they are not ordinary contracts but are “contracts of adhesion” between parties not equally situated. [Citations omitted]. The company is expert in its field and its varied and complex instruments are prepared by it unilaterally whereas the assured or prospective assured is a layman unversed in insurance provisions and practices. He justifiably places heavy reliance on the knowledge and good faith of the company and its representatives and they, in turn, are under correspondingly heavy responsibility to him. His reasonable expectations in the transaction may not justly be frustrated and courts have properly molded their governing interpretative principles with that uppermost in mind * * *. [at 305]

Defendant cites in support of its position the case of San Pedro Properties, Inc. v. Sayre & Toso, Inc., 203 Cal. App. 2d 750, 21 Cal. Rptr. 844 (D. Ct. App. 1962). However, an examination of that case discloses that the policy provisions involved are different from those in the policy issued by defendant. The insurance policy in that case provided unrestricted retroactive coverage for any claim or claims for breach of duty “which may be made against them during the period stated in this said Schedule by reason of any negligent act, error or omission whenever or tvherever commuted.” (Emphasis supplied). In addition, the policy covered the insured where claim was first made up to one year after the policy terminated.

Brown Construction Co. v. D & M Mechanical Contr., Inc., 222 So. 2d 93 (La. App. 1969), also cited by defendant, concerned itself with tire interpretation to be provided to a discovery policy, but again, an examination of the coverage afforded by that policy discloses unrestricted retroactive coverage.

The same observation applies to the policy of insurance under consideration by the court in the case of Zarpas v. Morrow, supra.

No cases have been cited by defendant in support of its position where retroactive coverage was limited, as in this case, to prior coverage by the same insurer and where the coverage ceased upon the termination of the policy period.

It must be borne in mind that the coverage sought herein was required in connection with a multi-million dollar improvement. The public and third parties have interests in the type of insurance coverage that is provided in such circumstances.

Public policy is not a static thing. It changes as a public need requires. Public policy was defined in the case of Allen v. Commercial Casualty Ins. Co., 131 N. J. L. 475 (E. & A. 1944) :

Much has been written by text writers and by the courts as to the meaning of the phrase “public policy.” All are agreed that its meaning is as “variable” as it is “vagne,” and that there is no absolute rule by which courts may determine what contracts contravene the public policy of the state. The rule of law, most generally stated, is that “public policy” is that principle of law which holds that “no person can lawfully do that which has a tendency to be injurious to the public or against public good * *” even though “no actual injury” may have resulted therefrom in a particular case “to the public.” It is a question of law which the court must decide in light of the particular circumstances of each case.
The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the public for whom government — with us — is factually established. [Citations omitted; at 477]

Nowhere has the change in public policy in connection with claims been more noticeable in recent years than in the approach of our Supreme Court to the statute of limitations in the field of professional liability. The change of policy in this field first appeared in the case of Fernandi v. Strully, 35 N. J. 434 (1961). The court held that the bar of the statute of limitations in a medical malpractice case, when dealing with a foreign object left in the body during the course of an operation, fairly and justly begins to run when plaintiff knows or has reason to know of the presence of the foreign object and the existence of a cause of action based on its presence. This discovery rule, as applied to the statute of limitations, was thereafter expanded by the Supreme Court to cover a variety of situations. The Supreme Court in Lopez v. Swyer and Danon, 62 N. J. 267 (decided February 20, 1973) described this expanding concept in the following terms:

While Fernanda expressly confined the discovery rule to foreign body malpractice actions, 35 N. J. at 450, 451, subsequent decisions have gone much further and have acknowledged the relevance of the doctrine whenever equity and justice have seemed to call for its application. Thus in New Market Poultry Farms, Inc. v. Fellows, 51 N. J. 419 (1968) this court found that plaintiff’s cause of action against defendant, a professional engineer and land surveyor, arising from the latter’s negligent miscalculation of acreage, did not accrue when the error was made, but rather eleven years later when it was discovered. In Diamond v. N. J. Bell Telephone Co., 51 N. J. 594 (1968) plaintiffs did not discover that defendant’s installation of a conduit had apparently damaged their sewer line until nine years after the event. It was held that the statute did not start to run until plaintiffs became aware of the wrong. In Yerzy v. Levine, 57 N. J. 234 (1970), we affirmed a decision of the Appellate Division, 108 N. J. Super. 222 (1970), holding that a patient might sue for injuries resulting from an improper operative procedure, more than two years after the event, if she could establish that she had not previously known, nor could she reasonably have known, that she might have a basis for an actionable claim. See also, Farrell v. Votator Division of Chemetron Corporation, 62 N. J. 111, pp. 115-116 (1973). [at 566]

The Lopez case again dealt with the professional liability of a medical doctor. The court, describing the reason behind this discovery rule, said the following:

The discovery rule is essentially a rule of equity. It has been said that in equity lies its genesis. Owens v. White, 342 F. 2d 817 (9th Cir. 1965). Like so many other equitable doctrines it has appeared and is developing as a means of mitigating the often harsh and unjust results which flow from a rigid and automatic adherence to a strict rule of law. On the face of it, it seems inequitable that an injured person, unaware that he has a cause of action, should be denied bis day in court solely because of Ms ignorance, if be is otherwise blameless. Yet such is the result that must follow if the years of the statute are to be inexorably calculated from the moment of the wrong, whether or not the party aggrieved knows or has reason to know that he has a right of redress. Parenthetically, we note that the ignorance of which we speak may be of more than one kind. A person may, for instance, be unaware that he has sustained injury until after the statute of limitations has run. This was true in both New Market Poultry Farms, Inc. and Diamond, supra, where, in each case, the fact of the wrong lay hidden until after the prescribed time had passed. In other cases damage may be all too apparent, but the injured party may not know that it is attributable to the fault or neglect of another. The plaintiffs’ claim in this suit falls within the latter category, [at 566]

Public policy in this regard is thus clearly expressed in the judicial decisions (Allen v. Commercial Casualty, supra, 131 N. J. L. at 478) in favor of extending time for making claim or bringing suit for a wrong in the professional liability field. When comparing this clearly expressed public policy with the insurance policy before us, we find that the insurance policy provides for severely limited retroactivity and no prospective coverage for claims made after the expiration of the policy period. This limited coverage is clearly against public policy as it has been developed in this area in recent years by the decisions of our Supreme Court.

This is a court of equity. The restrictions in the insurance policy respecting the time within which claim must bo made offends plain principles of justice and fairness. I accordingly hold that insofar as the terms of the policy of insurance attempt to limit coverage under the policies to claims reported during the time period set forth in the schedule of the polio}’' is contrary to public needs and public policy. I further hold that the notice of suit given by plaintiff to defendant was given as soon as practicable under the circumstances, and brought the claim within the coverage of the policy of insurance. Defendant owes to plaintiff both a defense and indemnity, subject to other policy provisions.


author: Bkbsltn, J. C. C.,

text:
    CONTINENTAL CAN COMPANY, A CORPORATION, HORN HARDART COMPANY, A CORPORATION, NEW YORK SUSQUEHANNA AND WESTERN RAILROAD COMPANY, PLAINTIFFS, v. HUDSON FOAM LATEX PRODUCTS, INC., DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 23, 1973.

      Messrs. Feuerstein, Sachs .& Maitlin, attorneys for plaintiffs.

      Messrs. Vaccaro and Osborne, attorneys for defendant.
   Bkbsltn, J. C. C.,

Temporarily Assigned. This is a motion for summary judgment by three corporate plaintiffs (Continental Can Company, Horn Hardart Company and New York Susquehanna and Western Railroad Company) in a negligence action against defendant Hudson Foam Latex Products, Inc. (hereinafter Hudson). The action grows out of a fire that occurred in a warehouse located at 309 River Road, Edgewater, New Jersey, on or about February 22, 1966. At that time Hudson was a tenant on the second floor of the warehouse and plaintiffs had stored goods belonging to them on the first floor. The fire started in one of the baling machines used by defendant in its business, allegedly as a result of negligent maintenance by defendant. Plaintiffs’ goods were damaged when large quantitles of water used to extinguish the fire flowed from the second floor to the first floor. The water flowed from two sources, a sprinkler system in the building, automatically activated after the fire had started, and the fire-fighting equipment used by the firemen who responded to the alarm. Plaintiffs further allege that defendant negligently failed to take precautionary measures to see that any fire would be extinguished immediately without the need for the application of excessive quantities of water.

The fire in question was the subject of a prior suit captioned “Novamont Corporation and/or Chemore Corporation v. Hudson Foam Latex Corporation and Summit Warehouse Corporation,” Docket No. L-28180-68. Plaintiff therein had stored its goods on the first floor of the warehouse and, as do plaintiffs in the instant suit, complained of damage to its goods caused by the flow of water. Plaintiff therein (unrelated to plaintiffs in the instant case) brought an action against Hudson and against Summit Warehouse Corporation. The latter was bailee of Novamont’s goods, so that Novamont included in its complaint a count for breach of the bailment contract, as well as a negligence count against both defendants. A five-day trial on liability in April 1971 resulted in a jury verdict in favor of plaintiff and against Hudson only. In the present suit plaintiffs contend that the prior judgment conclusively established the negligence of Hudson and the causal connection between such negligence and the water damage to the goods on the first floor of the warehouse. Therefore, plaintiffs argue, the instant matter should summarily be determined in their favor on the issue of liability.

The resolution of the issue presented is complicated by the fact that at the prior trial, due to the alleged unavailability of the only two individuals who could testify for the defense, defendant (represented by the same attorneys who are handling the defense of the instant case) called no witnesses and the matter went to the jury in that posture. The two individuals referred to are Oscar Shuffman and his brother Fred, the principals of Hudson. According to representations made by Oscar, Fred had been incapacitated by an illness from September 1969 through the time of trial. Oscar was unavailable at the time of trial allegedly because he had been injured in an automobile accident a short time before the day on which the trial began; a doctor’s affidavit was submitted to corroborate the fact that he had injuries and that attendance at trial might prove detrimental to his health. Based on the unavailability of the Shuffman brothers, defendant made application for an adjournment before trial, for an adjournment and/or a mistrial during trial, and for a new trial after the verdict. All applications were denied and defendant applied to the Appellate Division for leave to appeal, which was denied. The matter was subsequently settled between the parties.

Plaintiffs contend that their motion in the instant case should be granted “either on the basis of res judicata or the doctrine of collateral estoppel.” It is probably more accurate to characterize the effect, if any, that the prior judgment would have on this ease as one based upon the doctrine of collateral estoppel rather than res judicata. The 1 alter doctrine involves the effect of a final judgment as between the parties to an original action and those in privity with such parties; the doctrine would normally be invoked in a subsequent action based upon the same claim or demand. See Mazilli v. Accident, etc., Casualty Ins. Co., 26 N. J. 307 (1958), citing Paterson v. Baker, 51 N. J. Eq. 49 (Ch. 1893). Collateral estoppel, on the other hand, is the doctrine which renders conclusive in a subsequent action on a different claim the determination of issues actually litigated in a prior action. However, it may or may not be allowable for a non-party to the prior action to assert in a subsequent action collateral estoppel against one who was a party (or is in privity with one who was a party) to the prior action, depending upon the view taken as to whether or not “mutuality of estoppel” is required. Mutuality of estoppel, if applicable, requires that a court not hold a judgment as conclusive in favor of a person unless it would be equally conclusive against him. Miller v. Stieglitz, 113 N. J. L. 40 (E. & A. 1934).

In the instant case three non-parties to the prior action are attempting to assert collateral estoppel against one (Hudson) who was a party to said prior action. The doctrine seems prima facie to be applicable to this case, at least if one accepts the reasoning of Justice (now Chief Justice) Traynor in Bernhard v. Bank of America Nat. Trust & Sav. Ass’n, 19 Cal. 2d 807, 122 P. 2d 892 (Sup. Ct. 1942), wherein the prerequisites for the application of collateral estoppel were set forth as follows: (1) an identity of issues, (2) a final judgment on the merits, and (3) the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the prior action. Although the cause of action in this case is different from the one prosecuted in the prior action, the primary issue appears to be identical: whether Hudson was guilty of negligent conduct which proximately caused damage to goods stored on the first floor of the warehouse. The other two prerequisites are obviously present in this case.

The Bernhard doctrine has been criticized as overbroad insofar as it would allow a plaintiff, who had not been a party to the prior action, to assert the estoppel in a subsequent action against a defendant who had unsuccessfully defended in the prior action. The result would be that in cases involving multiple claims emanating from a single occurrence, such as the crash of a commercial airliner, individual prospective plaintiffs could sit idly by while other plaintiffs attempt to establish the negligence of the defendant; as soon as one plaintiff is successful, the other plaintiffs could immediately come forward and assert collateral estoppel in lieu of having to prove their case. Prior judgments in favor of the defendant could, of course, not be asserted against the new plaintiffs since such a procedure would offend due process. Postal Tel. Cable Co. v. City of Newport, 247 U. S. 464, 38 S. Ct. 566, 62 L. Ed. 1215 (1918). This is the point at which proponents of mutuality jump to their feet and object; they contend that if mutuality is not required in such cases, a defendant is put in the position of having to conduct its defense with maximum vigor against each plaintiff, no matter how small the amount of the claim, whereas plaintiffs who have not yet litigated can sit on the sidelines, awaiting one judgment that is adverse to the defendant. The situation is aggravated if, in fact, the awaited adverse judgment has been preceded by judgments favorable to the defendant.

It has been suggested that while mutuality should not generally be required, a non-party to the prior action should not be allowed to affirmatively assert collateral estoppel against a defendant if the latter did not have full, fair and effective opportunity to contest the issue or if assertion of the estoppel would result in “intolerable anomalies in the administration of justice” (such as where the defendant is successful against the first plaintiff, unsuccessful against a second, and a third attempt, to assert the unsuccessful judgment). See Currie, “Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine,” 9 Sian. L. Rev. 281 (1957).

The state of the law in New Jersey is by no means clear with respect to whether mutuality is required in a situation where a party attempts to assert collateral estoppel. There is language in some earlier decisions which seem to imply that mutuality is required. See, e. g., Miller v. Stieglitz, supra, and Sbarbero v. Miller, 72 N. J. Eq. 248 (Ch. 1907), aff'd 74 N. J. Eq. 453 (E. & A. 1908). More recently, however, there have been decisions which seem to indicate that the determination as to whether to apply the mutuality requirement should depend upon the circumstances of the particular case.

In Reardon v. Allen, 88 N. J. Super. 560 (Law Div. 1965), a collision between two automobiles had resulted in a suit by Reardon’s subrogated insurance carrier against Allen for property damage to Reardon’s automobile; Rear-don, as a nominal party in that suit, had recovered a judgment. In the subsequent action Reardon’s wife and daughter sued Allen for personal injuries and Reardon made a per quod claim against Allen. The Reardons moved for summary judgment, asserting affirmatively the prior judgment against Allen. In denying the motion the court ably set forth numerous policy reasons supporting the mutuality requirement. Mutuality was not present in that case since the Reardons would not have been precluded by an adverse judgment in the prior suit: Reardon, as a mere nominal party, having been in no position to exert any control upon the conduct of said prior action.

In Reilly v. Dziamba, 90 N. J. Super. 325 (App. Div. 1966), a collision between an automobile owned by Warren and driven by his wife and one owned and driven by Dziamba had resulted in cross-actions for property damage in which the latter had prevailed. In the subsequent action, a passenger (Reilly) in the Warren vehicle sued the Warrens and Dziamba for personal injuries; after a judgment in favor of the passenger and against all three defendants, Dziamba moved for summary judgment granting him indemnity against the Warrens, based on the judgment in the first suit. The Appellate Division held that the prior judgment had no such effect, relying in part on the fact that the prior litigation had been conducted by the collision carriers for the respective parties and citing Reardon v. Allen, supra. In dictum the court said that the passenger could not have invoked the prior judgment to fix liability for the personal injuries upon the Warrens.

Desmond v. Kramer, 96 N. J. Super. 96 (Cty. Ct. 1967), involved a collision between a truck and a bus. A prior action by 14 bus passengers had resulted in a judgment in their favor and against all defendants. In the subsequent action, a bus passenger who had not been a party to the prior action brought suit against the same defendants and moved for summary judgment based upon the determination in the prior action. The court held that mutuality should not be required under the facts presented:

* * * It would be absurd for the law solemnly to adjudge that defendant Somerset was negligent as to 14 of its passengers but not as to the 16th passenger injured in the same accident.

The court added, however:

There are undoubtedly instances in which a party should not be estopped by a prior judgment from relitigating the same issue with a different adversary, [at 107]

In Miraglia v. Miraglia, 106 N. J. Super. 266 (App. Div. 1969), a prior suit had involved cross-actions for personal injuries by the drivers of the two automobiles involved in a collision; the jury had returned a verdict of no cause for action as to both claims. In the subsequent action, two passengers in one of the vehicles brought suit against both drivers for personal injuries. The jury returned a special verdict that only one of the drivers had been negligent. Prior to the verdict, the driver who eventually was found negligent had made a motion for summary judgment on a claim for contribution against the other driver; the basis of the motion was the judgment in the prior action. The Appellate Division, reversing the trial court, held that the prior judgment, as between the two driver-defendants, had conclusively established that both had been negligent. (The dissenting judge theorized that the prior verdict of no cause could have been based on a finding that neither driver had proven the other negligent.) The court declined to express an opinion as to whether in the subsequent action the passenger-plaintiffs could have invoked the prior judgment to summarily establish the liability of both driver-defendants. Citing and distinguishing Reardon v. Allen and Reilly v. Dziamba, supra, the court indicated (at 276) that “These cases illustrate the principle that the doctrine of collateral estoppel is not of automatie application, but must- depend upon' certain circumstances.”

The above-cited cases do no more than indicate that at present no general rule can be stated that will resolve in all cases the question of whether or not collateral estoppel should be applied. It appears that although mutuality may have a bearing on a given case, it is not an absolute prer requisite. Factually, Desmond v. Kramer, supra, more closely. resembles the instant case than do the other decisions cited. Plaintiffs strongly rely on that case in support of their motion. However, the instant case involves an element which distinguishes it from that case and compels a' 'conclusion that plaintiffs may not assert collateral estoppel as to the prior judgment.

In the prior action defendant Hudson was denied the opportunity to fully litigate the issue of its negligence (or freedom therefrom). Hudson was unable to present any testimony as to the measures taken by it to guard against fire and resultant damage to goods on the premises. The jury may well' have drawn an adverse inference from the failure of Hudson to offer the testimony of any witnesses in support of the thesis that it had acted with reasonable care.- This is not to say that it was error for the judge in the prior litigation to deny Hudson an adjournment pending the' incapacity of the two prospective witnesses. There may well have been ample justification for the denial. However, the resulting procedural advantage that inured to the plaintiff in the prior suit should not automatically be afforded to these three new plaintiffs. Furthermore, Hudson took an appeal to test the validity of the denial, but the case was settled while the appeal was pending. Since the clear policy of the law is to encourage settlements, it would be most inappropriate if Hudson were to be penalized for not prosecuting the appeal by the application of collateral estoppel to the instant suit.

In Zdanok v. Glidden Co., 327 F. 2d 944 (1964), the Court of Appeals for the Second Circuit allowed the affirmative assertion of collateral estoppel by a new plaintiff against a defendant who had been unsuccessful in a prior action. The requirement of mutuality was therefore rejected, but the court held that the party against whom the estoppel is asserted must have had reason and opportunity to litigate the first action strenuously and fully. Said requirement was added to the three set forth in Bernhard v. Bank of America Nat. Trust & Sav. Ass’n, supra. The same court appeared to go even further in Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F. 2d 532 (2 Cir. 1965), by implying that the mutuality requirement should not be dispensed with unless the party against whom collateral estoppel is asserted had opportunity and motive to folly litigate both at trial and, in appropriate circumstances, on appeal. Embodied in the opinion is a notion that a party should not be affected so drastically by a prior litigation unless it was foreseeable that the ultimate outcome of said litigation, if adverse, could later be used by others on a collateral estoppel basis.

In the instant ease there is no doubt that Hudson did not fully litigate the matter in the prior action due to the trial judge’s denial of an adjournment, a circumstance beyond Hudson’s control. The appeal was abandoned in favor of a settlement presumably deemed favorable by the parties concerned. It is difficult to imagine that Hudson contemplated the instant situation in deciding to forego the appeal; nor should such lack of foresight be considered unreasonable in view of the uncertain state of the law.

Desmond v. Kramer, supra, is to be contrasted in that defendants there had more than ample opportunity to litigate in the prior action, which encompassed an 11-day trial, an appeal, a retrial which covered ten days, and a second appeal. The court conceded: “Perhaps when a prior ease has not afforded the defendant full opportunity and motivation for a strong defense, its effect should not be extended to other cases arising out of the same facts and involving the same issues.” 96 N. J. Super, at 105.

Furthermore, in Desmond v. Kramer a single plaintiff took the benefit of the efforts of the 14 plaintiffs who had previously been successful. In the instant case three plaintiffs attempt to avoid the burden of proving negligence by relying on the success of the single plaintiff in the prior litigation. Somehow it seems less objectionable to allow the one to ride the coattails of the many than the many the coattails of the one. Certainly, one cannot assume that the result in Desmond would have been the same had the lone plaintiff prevailed in the prior suit and had the other 14 plaintiffs then come forward to assert collateral estoppel.

An excellent summation of the current status of the law appears in Judge Davis’ opinion in Technograph Printed Circuits, Ltd. v. United States, 372 F. 2d 969, 178 Ct. Cl. 543 (Ct. Claims 1967), cited in Desmond v. Kramer, supra, at 107:

From the course of decisions since Bernhard [supra] in 1942 it is clear to us that the courts have been moving cautiously, attending closely to the circumstances and needs of the particular case and type of litigation, rather than applying sweeping generalizations or the broad principle that, “one day in court” is always enough. If appraisal of the factors pertinent to the concrete ease plainly teaches that the prior judgment should be conclusive, mutuality may well be held unnecessary; but if that road is not the one dearly marked, relitigation will still be allowed, [at 976]

At present, therefore, doubts should be resolved in favor of relitigation. It is clear that, at best, plaintiffs’ assertion of collateral estoppel is of doubtful merit; relitigation is appropriate.

For the foregoing reasons, plaintiffs’ motion for summary judgment is denied.


author: Van Tassel, J. D. C.,

text:
    BOROUGH OF UPPER SADDLE RIVER, PLAINTIFF, v. GAESS ENVIRONMENT SERVICE CORPORATION, DEFENDANT.
    Bergen County Court
    Decided March 28, 1973.

      Mr. Samuel J. Davis, attorney for plaintiff.

      Messrs. Citrino, Carella, Balsam & Ford, attorneys for defendant.
   Van Tassel, J. D. C.,

Temporarily Assigned. Defendant Gaess Environment Service Corporation was engaged in pumping out a septic tank in the Borough of Upper Saddle River, New Jersey, on June 19, 1972. The driver of defendant’s truck was stopped by a policeman who asked to see his permit. The driver was unable to produce such permit and thereafter Gaess Corporation was given a summons for violating Board of Health ordinance 5-5-6 of the Borough of Upper Saddle River, which deals with the failure to obtain a permit before removing human excrement from a septic tank.

Defendant argues that the Solid Waste Management Act of 1970 (N. J. S. A. 13 :1E-1 et seq.) and the Solid Waste Utility Control Act of 1970 (N. J. S. A. 48:13A-1 et seq.) preempt the powers of a municipality to require a cesspool cleaner to obtain a permit in order to remove waste from a cesspool tank. Defendant relies primarily upon Ringlieb v. Parsippany-Troy-Hills Tp., 59 N. J. 348 (1971). That case held that the State had preempted the field of solid waste collection and disposal management, and therefore the township could not provide additional protection in such area by an ordinance which involved penalties and required a person to go through the same procedures as required by the State. The holding in Ringlieb was specifically directed against the power of a municipality to regulate sanitary landfills.

In the case of Municipal Sanitary Landfill Authority v. Hackensack Meadowlands Development Comm’n, 120 N. J. Super. 118 (Law Div. 1972), plaintiff contended that concurrent power to regulate landfill operations had been granted by the Legislature, respectively to the Department of Environmental Protection (DEP) under N. J. S. A. 13:1D—1 et seq. and to the Board of Public Utilities (PUC), pursuant to N. J. 8. A. 48:13A-4 and 6, and therefore a grant of similar powers to the Hackensack Meadowlands Development Commission must be negated because such powers have been preempted by the named state agencies. Referring to the Binglieb case, supra,, the court in Municipal Sanitary Landfill stated, “In response to this decision, the Legislature amended the relevant statute (N. J. 8. A. 13:1E-1 et seq.) to clarify its intention that the doctrine of preemption was not to apply. L. 1971, c. 461. This history argues strongly against our finding a similar preemption here.”

In an analogous case of asserted preemption of municipal power. Chief Justice Weintraub said in Summer v. Teaneck, 53 N. J. 548 (1969) :

* * * It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power. * * * Hence the fact that the State has licensed a calling may not be enough to bar local licensure to protect an additional value of local concern. * * * The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act. [at 554-555.]

Assuming that the Legislature granted regulatory power over the cleaning of cesspools to the Department of Environmental Protection and the Public Utility Commission, it is nevertheless clear that there is no legislative intent to “immobilize” municipalities from regulating matters of local concern which affect the health and environment of the community.

N. J. 8. A. 13:1E-16, entitled “Effect of act on powers of local boards of health,” clearly applies to the present case, and having been enacted subsequent to Binglieb, supra, is a manifestation of the Legislature’s intention that such matters of local concern shall not be preempted by the State. N. J. S. A. 13:1E-16 reads as follows:

Nothing in the act to which this act is a supplement shall be deemed or construed in any way to affect the powers of local boards of health in relation to health and environmental protection aspects of solid waste collection or solid waste disposal.

Surely it cannot be argued that removal of human excrement from septic tanks is not a matter cognizable by a local board of health and within its power to oversee the health and environmental aspects of such activities.

The court, therefore, finds that municipal ordinance 5-5-6 is valid and enforceable and that the judgment which found defendant guilty of violating such ordinance is affirmed.


author: Leonard, J. A. D.

text:
    KATHLEEN JULIE O’CONNOR, ETC., ET AL., PLAINTIFFS-RESPONDENTS, v. ABRAHAM ALTUS, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1973
    Decided April 12, 1973.

      Before Judges Coldester, Leonard and Halpern.

      Mr. Herbert 0. Klein argued the cause for defendant-appellant Harrison Park, Inc. and defendant-cross respondent Abraham Altus (Messrs. Krieger and Klein, attorneys).

      Mr. Peter H. Wegener argued the cause for plaintiffs-respondents and cross-appellants (Messrs. Bathgate, Wegener and Sacks, attorneys).

      Mr. John E. Morris argued the cause for defendant-respondent Romolo Bottelli, Jr.
   The opinion of the court was delivered by

Leonard, J. A. D.

On September 13, 1967 infant plaintiff, then 15 years old, was injured when she came into contact with a glass sidelight adjoining a glass door in the lobby of a high-rise apartment building located at 377 Harrison Street, East Orange.

Defendant Harrison Park, Inc. (Harrison) was the owner of the building at the time it was built in 1955-1956. Thereafter, on October 1, 1958 Harrison sold it to Harrison Associates, a limited partnership (not a party to this litigation). Defendant Romolo Bottelli, Jr. was the architect who designed the building in 1955. Defendant David Shuldiner, Inc. installed all the glass therein, which was manufactured by Pittsburgh Plate Glass Company. Defendant Abraham Altus was the record owner of the property at the time of the accident.

Plaintiff, through her guardian ad litem, and her father Koger O’Connor instituted suit against all of the above-named defendants. Altus did not answer and a default was taken against him. At the conclusion of plaintiffs’ opening Pittsburgh Glass was dismissed upon motion. Eollowing a jury trial as to the remaining defendants, the jury returned a verdict of no cause of action in favor of Shuldiner and verdicts of $100,000 in favor of the infant plaintiff and $3000 for her father, both against Harrison and Bottelli.

After the trial the court heard and disposed of various defendants’ motions for dismissal, made during the trial and reserved, as well as motions for a new trial and for judgments n.o.v. Bottelli’s motion for judgment n.o.v. based upon his defense of the ten-year statute of limitation favoring architects and others, N. J. S. A. 2A:14-1.1, was granted. Altus’ motion to vacate the default entered against him and to strike the service of process purportedly made upon him was also granted. Harrison’s motions for judgment n.o.v., a new trial and indemnification from Bottelli were all denied.

Harrison appeals from the judgment entered pursuant to the jury verdict and from the denial of its motions. Plaintiff cross-appeals from the order entering judgment n.o.v. in favor of Bottelli and from the order vacating the default against Altus. No active appeal is taken from the judgments entered in favor of Pittsburgh Glass or Shuldiner.

Plaintiffs’ principal allegation of negligence was that defendants negligently designed, constructed and maintained the glass sidelight. Their expert testified that the panels were constructed of plate glass, which shatters into large fragments, rather than tempered glass, which disintegrates into small particles. He further stated that there was a failure to place decals, or other markings thereon. Thus, he was of the opinion that the doors and panels did not conform to the standard of providing safe passage to the users thereof, which standard was in existence at the time they were installed.

The general rule is that, once the- vendee has taken possession, the vendor of real estate is not subject to liability for bodily harm caused to the vendee or others while upon the premises by any dangerous condition, whether natural or artificial, which existed at the time the vendee took possession. Sarnicandro v. Lake Developers, Inc., 55 N. J. Super. 475, 479 (App. Div. 1959); Restatement, Torts 2d, § 352 at 234 (1965). The rule applies equally to the situation where the vendor created the dangerous condition as well as the case of failure to repair, where he merely suffered the condition to exist. Sarnicandro, supra, at 479-480.

However, there are at least two recognized exceptions to the general rule. One is where the vendor creates a situation which interferes with the rights of the public or with the use or enjoyment of adjoining lands. In such cases where the land is transferred in such a condition that it involves an unreasonable risk of harm to those outside the premises, the vendor has been held, liable on the theory of a public or private nuisance, at least for a reasonable length of time after he has parted with possession. Id. at 481; Restatement, Torts 2d, § 373 at 276.

Another exception which has led to holding a vendor liable is his failure to disclose a dangerous condition known to him, where he should have realized that the vendee did not know and probably would not discover the condition or its potentiality for harm. Sarnicandro, supra, at 481— 482; Restatement, Torts 2d, § 353 at 235.

Defendant Harrison now argues, as it did below, that since it had disposed of the property nine years before the accident, it was entitled to a dismissal of plaintiffs’ action or to a judgment n.o.v. by reason of the above-noted general rule. To the contrary, plaintiffs now argue for the first time that Harrison is legally liable to them by reason of either or both of the noted exceptions. In so doing they rely upon the evidence which indicated that the plate glass originally installed in the sidelight, if broken, was more dangerous than tempered glass would be. Further, upon inspection there was no visual difference between the two types of glass. Thus, they presently assert that Harrison knew of this dangerous condition but did not disclose it to the vendee, even though he should have realized that the vendee did not know and probably would not discover the condition.

However, the difficulty with plaintiffs’ present position is that during the course of the trial Harrison moved for a judgment of dismissal based upon the general rule and submitted a request to charge with respect thereto. Nevertheless, neither the general rule nor the exceptions (plaintiffs made no request to charge them) were submitted to the jury for its consideration. Rather, the court charged Ihe traditional negligence concepts of an owner of a building who created a hazardous condition in the construction of his premises and thereafter maintained them in an unsafe manner. Following the verdict Harrison moved upon the same grounds for a judgment n.o.v. or a new trial. Both were denied, but again the trial court did not refer to the legal concepts herein discussed.

Even if the appropriate charge had been given, there would remain one or more factual determinations to be made by the jury in the application of these enunciated legal principles before they could fix liability upon Harrison. Thus, we are of the opinion that the trial court properly denied Harrison’s motion for a judgment n.o.v. On the other hand, upon the entire record, and particularly in light of the inappropriate jury instructions, we conclude that the court’s denial of Harrison’s motion for a new trial was in error and clearly resulted in a manifest denial or miscarriage of justice under the law. Dolson v. Anastasia, 55 N. J. 2, 6-7 (1969) ; R. 2:10-1. Accordingly, the judgment entered in favor of plaintiffs and against Harrison is reversed and this phase of the matter is remanded to the trial court for a new trial.

We consider next the disposition of the psychiatric phase of infant plaintiff’s claim. She testified that following the accident she suffered from a repeating nightmare that broken bits of glass were falling upon her and, additionally, whenever she heard glass breaking she froze and tensed up and “'could taste blood in my mouth.” She stated she consulted a psychiatrist in connection with these sensations. Later in the trial plaintiff called her psychiatrist, Dr. Lyons. All defendants objected to the doctor being allowed to testify on the ground that a copy of his report was not submitted to them, in spite of several demands therefor. Nevertheless, the trial court allowed Dr. Lyons to be called as a witness, state his qualifications and testify to the bare fact that he treated plaintiff following the accident. At that point the court again allowed defendants to approach side bar and state their full objections to the testimony of this witness. Thereafter, the court ruled that further testimony of the doctor would not be permitted. Harrison moved for a mistrial, asserting that the procedure was prejudicial. This was denied.

The judge in his charge referred to plaintiff’s testimony as to her nightmares and sensations and that she had been to a psychiatrist. He also made reference to the abortive testimony of Dr. Lyons, but merely said that further testimony from him was ruled out for legal reasons. He refused Harrison’s request to charge that “there is no proof supporting any claim that plaintiff had any psychiatric difficulties as a result of this accident.” Regardless of whether Dr. Lyons should or should not have been allowed to testify in the first instance, we are of the opinion that the procedure adopted by the court was prejudicial to Harrison. The jury was left to speculate on the causal connection of plaintiff’s alleged psychiatric symptoms to the accident and the nature and extent of her treatment therefor. See Kelly v. Borwegen, 95 N. J. Super. 240, 244 (App. Div. 1967). Further, we are not in a position' to ascertain what part of the ultimate amount awarded to plaintiff, if any, was allotted to these alleged ailments. Thus, the new trial previously ordered shall be both as to damages as well as liability.

We affirm the order of the trial judge which set aside the default as to Altus, since service of process on him was not in accordance with R. 4:4-4(d)(2) or 4:4-4(a). X-L Liquors Inc. v. Taylor, 29 N. J. Super. 486 (App. Div. 1954), aff’d 17 N. J. 444 (1955): Ammond v. Lafayette, 63 N. J. Super. 86 (App. Div. 1960). It is to be noted, that Altus’ counsel has advised us that he is authorized to acknowledge service for him and he will do so.

Likewise, we affirm the order of the trial court granting a judgment n.o.v. in favor of Bottelii, the architect. X. J. S. A. 2AA4-1.1. bars the bringing of an action of this type against an architect more than ten years after the performance or furnishing of his professional services. This statute has been held to be constitutional. Rosenberg v. North Bergen, 61 N. J. 190, 198 (1972). Further, the trial judge correctly determined that this statute by its terms bars Harrison’s present claim for indemnity against Bottelli but was not a bar to plaintiffs’ claim against Harrison. He correctly reasoned that the statute, after the passage of the ten-year period, barred all actions against architects but it was not applicable to owners, or former owners, of the real property. See Rosenberg v. North Bergen, supra, at 201.

In view of our disposition of the above points we do not find it necessary to consider any other of the contentions raised by any party hereto on the appeal or cross-appeal.

Following remand and before retrial a supplemental pretrial conference should be held at which, among other things, plaintiffs, as well as defendants Harrison and Altus, shall set forth in detail their respective factual and legal contentions.

The judgment of plaintiffs against Harrison is reversed and that phase of the matter is remanded for a new trial, together with plaintiffs’ claim against Altus. In all other respects the judgment is affirmed. Ho costs.


author: McKejtzie, J. C. C.,

text:
    JAMES F. HANSEN, PLAINTIFF, v. PATRICIA ANN FREDO, OTHERWISE KNOWN AS PATRICIA ANN HANSEN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 29, 1973.

      Mr. Gabriel Kirzenbaum for plaintiff.
   McKejtzie, J. C. C.,

Temporarily Assigned. Plaintiff sues for annulment on the ground that at the time of the marriage ceremony in question his prior marriage had not been terminated.

Plaintiff married for the first time on January 4, 1965. Eollowing a separation his wife informed him in the early part of 1967 that she had gotten a divorce from him. He received no divorce papers and made no request for the same.

Thereafter, on April 3, 1967 plaintiff went through a form of marriage ceremony with defendant before a justice of the peace in Georgia. Two children were born of the marriage.

His first wife actually did not obtain a judgment of divorce in New Jersey until November 2, 1967. Plaintiff testified that it was not until about November 1968 that he ascertained that his first marriage had not been dissolved at the time of the second. He did not separate from defendant until April 1969.

Under the foregoing circumstances, is plaintiff barred from obtaining a judgment of annulment?

A marriage contracted while one of the parties is lawfully married to another is void ab initio and not merely voidable. Dacunzo v. Edgye, 19 N. J. 443 (1955); Chirelstein v. Chirelstein, 12 N. J. Super. 468 (App. Div. 1951); Thompson v. Monteiro, 58 N. J. Super. 302 (Ch. Div. 1959). This was the common law rule. Rooney v. Rooney, 54 N. J. Eg. 231 (Ch. 1896).

At one time there was some question as to whether a court of equity could refuse to declare a bigamous marriage void. See Rooney v. Rooney, supra. This issue was resolved by our former Court of Errors and Appeals in- Tyll v. Keller, 94 N. J. Eq. 426 (1923). It was there held that plaintiff had the burden of proving by a preponderance of the evidence that he had no knowledge of the prior marriage. Plaintiff having failed to persuade the court in this respect, his petition was dismissed.

This rule has been the subject of criticism on the ground that to bar a plaintiff from relief under such circumstances amounts to bigamy by estoppel.” See Note 3 Rutgers L. Rev. 295 (1949); 12 N. J. Practice (Herr, Marriage. Divorce and Separation), § 1385 at 20 (1963). Nevertheless, the Tyll case has been followed and our courts have consistently refused to grant an annulment to a plaintiff who has failed to establish his lack of knowledge of the impeding marriage. Dolan v. Wagner, 95 N. J. Eq. 1 (Ch. 1923); aff’d 96 N. J. Eq. 298; Smith v. Hrzich, 1 N. J. 1 (1948); Tonti v. Chadwick, 1 N. J. 531 (1949); Endres v. Grove, 34 N. J. Super. 146 (Ch. Div. 1955).

In addition, our courts have historically refused to grant relief to a party who, upon ascertaining "the existence of the impediment rendering the marriage bigamous, continues to live with the other party. Ancrum v. Ancrum, 9 N. J. Misc. 795 (Ch. 1931); Keller v. Linsenmyer, 101 N. J. Eq. 664 (Ch. 1927); Dacunzo v. Edgye, supra; Endres v. Grove, supra.

With the adoption of our new Divorce Act our Legislature amended N. J. S. 2A :3L-7 to provide:

Recrimination, condonation and the clean hands doctrine are hereby abolished as defenses to divorce from the bonds of matrimony or from bed and board, and if both parties make out grounds for a divorce, a decree may be granted to each; provided that nothing herein shall preclude or abrogate the responsibility of a party for the penalty provided by law for perjury or the subornation of perjury.

It is noted that this provision includes both types-of suits for divorce, but does not include annulment cases. In view of the long-continued application by our courts of the unclean hands doctrine to annulment cases as well as divorce cases, it seems clear that the Legislature intended by the foregoing to continue the unclean hands doctrine as a defense in annulment eases, and this court so holds. See Lemke v. Bailey, 41 N. J. 295 (1963); Lane v. Holderman, 40 N. J. Super. 329 (App. Div. 1956) aff’d 23 N. J. 304 (1957) ; Blackman v. Illes, 4 N. J. 82 (1950).

The present case was uncontested and therefore no defense was raised. However, a court of equity, as a court of conscience, should sua sponte raise such a defense itself where, after weighing the equities and the interests of justice and public policy, it believes that plaintiff should not receive the relief requested. Ancrum v. Ancrum, supra; Trautwein v. Bozzo, 39 N. J. Super. 267 (App. Div. 1956) ; Untermann v. Untermann, 19 N. J. 507 (1955). See also Huntley v. Huntley, 121 N. J. Super. 328, 297 A. 2d 13 (Ch. 1972).

Here it is to be noted that defendant wife was in no way responsible for the situation. It was in fact plaintiff’s prior marriage which caused the impediment. He offered no testimony as to any real effort on his part to ascertain whether he was actually divorced before entering in to the marriage in question. He did not testify that he received any suit papers. He did not attempt to obtain a copy of the judgment for divorce before he married apparently a very short time after he was told by his former wife that she had divorced him. He could not recall whether he was asked, when obtaining a license to marry the defendant in Georgia, whether he had been previously married.

From the facts adduced before the court, plaintiff’s conduct in failing to ascertain the status of the prior marriage before marrying defendant, and then continuing to live with her after he unquestionably was aware of the bigamous nature of his marriage to her, calls into play the doctrine of unclean hands, barring plaintiff from the relief sought.

The complaint is dismissed.