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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL ERNEST RHEIN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 4, 1971
    Decided November 17, 1971.

      Before Judges Corroed, Matthews and Eritz.

      Mr. Franlc B. Brack, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. George E. Pollard, Assistant Deputy Public Defender, of counsel).

      Mr. Edward Boy Bosen, Assistant Prosecutor, argued the cause for respondent (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

This is an appeal from denial by the Monmouth County Court of post-conviction relief sought by defendant.

A two-count indictment was returned against defendant charging (1) carnal abuse of a seven-year-old female child, contrary to N. J. S. A. 2A:138-1 (a high misdemeanor, subject to fine and imprisonment up to 30 years), and (2) inducement of a four-year-old child to do and submit to an act tending to impair her morals, contrary to N. J. S. A. 2A:96-3 (a misdemeanor, subject to fine and imprisonment up to three years). Defendant first pleaded not guilty but on April 15, 1969 appeared before the court with counsel assigned to him by the Public Defender, withdrew his plea of not guilty and entered a plea of guilty to the first count of the indictment.

On June 13, 1969 defendant was sentenced on his plea, pursuant to the Sex Offender Act, to the Diagnostic Unit of the State Prison Farm at Kahway for an indeterminate term. Under that act the defendant can be kept so confined for the maximum of 30 years prescribed for the offense by statute. At the same time, on motion of the prosecutor and concededly as a result of a plea bargain with defendant, the second count of the indictment was dismissed.

Defendant took no appeal but filed a petition for post-conviction relief on January 12, 1970, asserting denial of his rights under the Sixth and Fourteenth Amendments and specifying various acts of inadequacy or ineffectiveness of counsel in respect of the taking of the plea of guilty. At the hearing defendant testified that K. (not appellate counsel), assigned counsel from the Public Defender’s office, saw him at the court house for 20 minutes on the day of the plea and advised him to plead guilty. He testified:

Q. As a result of that conversation what did you decide to do? A. Well, through his advice I pleaded guilty to a carnal abuse charge, but I didn't understand the charge. I mean, I didn’t commit carnal abuse actually, but the way he explained it to me, if I as much as lint my hands on the girl this was carnal abuse, but no private parts of my body touched hers in any way.

On cross-examination defendant conceded he had signed Criminal Procedure Form 13A before entering his plea and that he understood what he was doing except that he “didn’t understand the charge of carnal abuse. This wasn’t explained to me thoroughly. * * * [K.] said if I as much as laid my hand on the girl this was considered carnal abuse.”

On redirect examination defendant testified:

Q. What was your understanding of putting your hands on the girl; in other words, just putting your hands, say on her shoulder or what exactly was your understanding. A. Yes, on her shoulder or legs and things like this. I mean, actually, I did molest the child. This I admit. But I didn’t attempt to have intercourse with her.

In defense the State adduced the testimony of K. He said he had consulted with an investigator for the Public Defender’s office as well as with a prosecutor’s representative, examined the prosecutor’s file on the case and conferred with defendant on the morning the plea was entered. He had determined that the prosecutor’s office would be willing to accept a plea on the carnal abuse count and consent to a dismissal of the count for impairment of morals. He advised defendant that in view of his prior sex offense record and the “fresh complaint” of the child he would probably be convicted if tried on the carnal abuse count. He also advised him that this was “a crime that was considered under the Sex Offender’s Act.” He did not testify as to what, if anything, defendant told him he actually did, physically, with the child.

On cross-examination K. testified:

Q. Did Mr. Rhein ever indicate to you that he actually committed the crime of carnal abuse by abusing these children? A. Yeah, we discussed that, of course, and Mr. Rhein indicated to me that he said, “Well, I really didn’t commit carnal abuse,” and, of course, it was then my duty to try to determine what he meant, what his understanding of carnal abuse was, and we discussed it and I told him that it wasn’t necessary under our law that he commit sexual intercourse. That the Statute was changed and it was intended to encompass more than that, and that if he fondled any of her private parts and molested her in any way which involved sexual parts or any part of his sexual part of his body that came in touch, in contact with any part of her body that it would be involved and I explained to him the meaning of a debauching rather than a rape or a sexual intercourse type of thing. [Emphasis ours]

Unfortunately, Mr. K.’s advice to defendant as to the constituents of the crime was substantially different from the definition of carnal abuse under our cases. This is to the effect that “ ‘carnal abuse’ is an act of debauchery of the female sexual organs by those of the male which does not amount to penetration, while carnal knowledge connotes penetration.” State v. Huggins, 84 N. J. L. 254, 259 (E. & A. 1913); State v. MacLean, 135 N. J. L. 491, 494 (Sup. Ct. 1947); Application of Faas, 42 N. J. Super. 31, 35 (App. Div. 1956).

The record of these proceedings indicates that defendant’s present position as to his culpable conduct in this matter is that he “molested” the child, inferably manually, but that his conduct was short of the legal requirements of carnal abuse as above defined. On the other hand, statements of the complaining child in the possession of the police purport to indicate an act of sexual intercourse. However, defendant is attended by the presumption of innocence until convicted by trial or on a plea of guilt voluntarily and understandingly made. The crux of the issue before us is whether defendant’s plea was in fact understandingly made. Goodlet v. Goodman, 34 N. J. 358, 371-372 (1961). If not, it must be set aside. Ibid. R. R. 3:5-2(a), which was in effect at the time of this plea, directed that a plea of guilty should not be accepted “without first determining that the plea is made voluntarily with understanding of the nature of the charge.” Inspection of the transcript of the plea and sentencing proceedings herein indicates that no one in the course thereof explained the meaning of carnal abuse to defendant and that he was not asked to state specifically what he had done with the girl so that the court might satisfy itself that he was, by such admission, in fact guilty of the crime.

Basically, it was the defendant’s position below, and is here, that he relied on assigned counsel’s advice in deciding to plead guilty; that counsel’s advice as to what constituted carnal abuse was erroneous, and that had he known the crime connoted the physical approximation of the sexual organs of both parties he would not have pleaded guilty.

In order to hold for defendant we are not necessarily required first to come to agreement with his factual assertion that he would not have pleaded guilty had he been correctly advised as to the law. At least in the absence of a concession by defendant below or here of facts equating with criminal liability, he has a prima facie right to assert a denial of due process if he can establish, as he did here, that when he pleaded guilty he was ignorant of the true nature of the charge against him because of erroneous legal advice by assigned counsel.

* * * If a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the faets. [McCarthy v. United States, supra, 394 U. S. at 466, 89 S. Ct. at 1171; emphasis ours]

See also Wilcox v. United States, 381 F. 2d 450 (9 Cir. 1967).

That defendant here did not possess a correct understanding of the relevant law was affirmatively established by the testimony of K., adduced by the State and quoted above. We therefore conclude that the plea of guilt of carnal abuse was void and must be set aside, along with the consequent conviction.

The possibility of the foregoing conclusion caused this court on its own motion to raise the question at oral argument as to whether the dismissal of the charge of impairment of morals (involving the other child) should not be vacated and the count reinstated if the carnal abuse conviction were set aside on this appeal. The State has embraced the affirmative of that issue and moves that we reinstate the impairment of morals charge if the carnal abuse plea and conviction is set aside. The critical issue is whether reinstatement of the impairment of morals count would place the defendant in double jeopardy, contrary to the state and federal constitutions. Both sides have submitted memoranda on the point which we have studied. We agree with the State’s position and order reinstatement of the impairment of morals count of the indictment.

In weighing a double jeopardy argument it is incumbent upon the courts to consider whether acceptance of the contention in the particular circumstances would create substantial obstacles to the fair administration of justice without the saving necessity of curbing the oppressive practices which gave birth to the constitutional prohibitions of prosecution after acquittal or subjection to double jeopardy of conviction. See State v. Farmer, 43 N. J. 145, 169 (1966), cert. den. 386 U. S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). Plea bargaining, in appropriate circumstances and properly conducted and controlled, is a salutary and approved practice in this State, as generally, in the interest of the just and expeditious disposition of criminal litigation. See State v. Dent, 51 N. J. 428, 438 (1968) ; American Bar Association Project on Minimum Standards for Criminal Justice, “Standards Kelating to Pleas of Guilty,” (Approved Draft 1968), at 61-62. To permit a defendant through his attorney to negotiate with the State a plea of guilty on one of multiple charges against him in return for dismissal of others, and later, albeit on proper grounds, to disavow and be relieved of the guilty plea, but yet to retain the negotiated absolution on the dismissed charges, would be to produce a climate decidedly discouraging to plea negotiation by prosecuting authorities.

Moreover, considerations of fairness to society as well as to the accused are relevant in weighing a contention of former acquittal. In State v. Williams, 39 N. J. 471 (1963), cert. den. 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), it appeared that one indicted for murder had succeeded in persuading the court, on the recommendation of the prosecutor, to accept a plea of non vult to second-degree murder on which he was accorded a 10-15-year prison term. Thereafter he moved for and obtained a vacation of his sentence and plea on the ground the plea had not been made voluntarily and understandingly. After his conviction of first-degree murder at the ensuing trial, and imposition of sentence of life imprisonment, he appealed on the ground he was entitled to have the prosecution limited to a charge of second-degree murder by virtue of the acceptance of his prior plea of non vult to that crime. In rejecting the contention the court said:

Since the defendant’s own actions led the trial court to accept his plea of non vult in the first place, it would be unjust and opposed to the public interest to permit him, upon the successful assertion that such plea was not understandingly made, to raise the termination of jeopardy resulting from the acceptance of his plea in the former trial as a bar to the present prosecution. Fair dealing to society requires that once he has been permitted to withdraw his plea, he should be placed in the same position with respect to the indictment as he was before the plea was entered. See State v. Stacy, 43 Wash. 2d 358, 261 P. 2d 400 (Sup. Ct. 1953). [39 N. J. at 480-481]

In State v. Stacy, the Washington case cited in the foregoing excerpt from Williams, the court dealt squarely with the problem confronting us here, and held the principle of double jeopardy would not preclude putting the State and the defendant back in statu quo after successful repudiation by the defendant of a plea of guilt in return for which the State had dismissed other charges. The court said:

Finally, it appears to us that the change of plea by the appellant and the dismissal of the kidnapping charge by the state are inextricably bound up in one and the same transaction; and that, in benefiting from setting the arrangement at naught, the appellant must accept the burden of any disadvantages that may accrue from setting it aside. Under the circumstances here, this is fair play and justice to the appellant as well as to society. In other words, in according the appellant the right to plead not guilty and to have his case passed upon by a jury, we think it is quite reasonable and not unfair to him for the state to have a somewhat comparable or resulting right to press the kidnapping charge again, as well as the assault charge, and to have a jury pass upon the question of appellant’s guilt or innocence. The end result of this is that the appellant will have an opportunity to start all over in defending himself against the state’s charges. We see no valid reason why the state should be less privileged as to a new start in pressing the charges. [261 P. 2d at 405-406]

We are in thorough accord with the views thus expressed. If a bargained guilty plea is set aside, the defendant should not emerge free of the collaterally dismissed charges but only of his bargain. Implicitly in accord: Munich v. United States, 337 F. 2d 356, 361 (9 Cir. 1964); United States v. Wells, 430 F. 2d 225, 230 (9 Cir. 1970); People v. Baron, 264 N. E. 2d 423, 425 (Ill. App. 1970); State v. Myers, 12 Ariz. App. 409, 471 P. 2d 294, 295 (Ct. App. 1970); State v. Brown, 9 Ariz. App. 323, 451 P. 2d 901, 904 (Ct. App. 1969).

The judgment denying post-conviction relief is reversed, as are the conviction, sentence and plea of guilty on the count of carnal abuse. The dismissal of the count of impairment of morals is also set aside and the count herewith reinstated. The indictment is returned for prompt trial on both counts, without prejudice, however, as to any motion for change in plea on either count the defendant may desire to make in lieu of trial thereof.

       Note that R. 3 :9-2, now in effect, states that the court shall not accept a plea of guilty until by direct inquiry of the defendant (and others, in the court’s discretion) the court determines “that there is a factual basis for the plea.” And see McCarthy v. United States, 394 U. S. 459, 466-467, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN THE MATTER OF BENJAMIN F. ROLL, AN ALLEGED INCOMPETENT.
    Superior Court of New Jersey Appellate Division
    Argued October 26, 1971
    Decided November 17, 1971.

      Before Judges Coheord, Matthews and Ekitz.

      Mr. Arthur B. Wenczel argued the cause for appellant Next-of-Kin.

      Mr. Charles A. Delehey argued the cause for respondent Nellie Geling (Messrs. Lenox, Giordano, Devlin & Barlow, attorneys).
   Per Curiam.

In a contest between appellant Charles W. Koll, nephew of the alleged incompetent, and respondent Mrs. Geling, a sister-in-law, over the right of appointment as guardian, the trial judge decided that while both applicants were fit persons and each “just as much interested in [the incompetent’s] welfare” as the other, the appointment should go to the sister-in-law basically because she had been closer to the incompetent and his recently deceased wife and had arranged for his commitment to a hospital. She is also the sole beneficiary under his present will. Thus the “best interests” of the incompetent’s estate would “probably” be served by appointment of Mrs. Geling.

The pertinent statute, N. J. S. A. 3A:6-36, as amended in 1968, reads:

In any case where a guardian is to he appointed, letters of guardianship shall be granted to the spouse, if the spouse was living with the incompetent as man and wife at the time the incompetency arose, or to the next of kin, or if none of them will accept the letters or it is proven to the court that no appointment from among them will be to the best interest of the incompetent or his estate, then to such other proper person as will accept the same.

Insofar as the issue before us is concerned, the present rule of practice is substantially to the same effect. R. 4:83-6(c).

We are in agreement with appellant’s contention that the statute (and rule) gives a preference to the next of kin as against other persons and that such preference must be recognized unless it it shown to the court’s satisfaction that the appointment of next-of-kin would be affirmatively contrary to the best interests of the incompetent or his estate in the sense of being deleterious thereto in some significant way. The statute does not mean that of two entirely fit persons, one a next-of-kin and the other not, the court may indulge in a weighing contest as to whose appointment would better serve the interests of the incompetent or his estate. It would appear that the present framework of statute and rule was designed to eliminate the former practice under which the court commonly appointed a friend of the court. See 6 N. J. Practice, (Clapp, Wills and Administration (3 ed. 1962), § 767 at 363.

Under the proofs and fact-findings of record, Boll is entitled to the appointment. He may apply to the trial court for counsel fees for services rendered relative to this contest below and on this appeal, to be paid out of the estate. No other costs.

Beversed.


text:
    DISTRICT 65, R.W.D.S.U., PLAINTIFF-APPELLANT, v. PARAMOUNT SURGICAL SUPPLY CO., PARAMOUNT SURGICAL SUPPLY CORP., AND PARAMOUNT SURGICAL SUPPLY CORP., A DIVISION OF ZENITH LABORATORIES, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 12, 1971
    Decided November 17, 1971.

      Before Judges Contour, Matthews and Eritz.

      Mr. Nicholas Politan argued the cause for appellant (Messrs. Xrieger, Ghodash & Politan, attorneys; Mr. Lewis O. Stanley, on the brief).

      Mr. David R. Simon argued the cause for respondent Paramount Surgical Supply Corp. (Messrs. Simon & Allen, attorneys; Mr. Richard B. Goldsmith, on the brief).

   The opinion of the court was delivered by

Conford, P. J. A. D.

The issues in this appeal have been considerably simplified by appellant’s warranted concession at oral argument that it is not entitled to judgment on the arbitrators’ award. With conspicuous fairness, it concedes that respondents may have been misled by their interpretation of the opinion in John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964), to believe they could with impunity abstain from participation in the arbitration proceedings although duly noticed to participate therein.

However, for future guidance, we here state our considered view that Battle v. General Cellulose Co., 23 N. J. 538 (1957), is controlling on the procedural issues presented and that Wiley is not in conflict with it.

Battle holds that when a party claims he has a contract with another calling for arbitration of disputes arising thereunder, and proceeds to invoke arbitration in the manner set forth in the alleged contract, there is no preliminary obligation on the demandant for arbitration first to go to court to compel the other party to participate. He may do so, but he is not compelled to. If he decides to proceed with the arbitration on the assumption that he has an agreement calling for it, then the opponent, who takes the position that there is no contract between them or that the dispute is not arbitrable, ignores notice of the arbitration proceeding at his peril of a later judicial determination that there was in fact a contract requiring arbitration of the dispute, and of being subjected to the award, even though he did not participate in the proceeding.

The foregoing does not mean that such a defendant waives his right to a judicial determination that he was under no contractual obligation to arbitrate. He may raise that issue in defense of an application by the demandant for entry of judgment on the award. But if he loses on that defense in court, he is obligated on the award. What he should have done if he wanted a judicial determination in advance of the arbitration, under the rationale of Battle, is to have moved in court to stay the arbitration proceedings at the outset and in that proceeding to have obtained a judicial decision on the question of contractual obligation to arbitrate.

We do not regard the dictum, in Wiley relied upon by respondents as being contrary to the foregoing. We need not intimate any view as to whether, if it were, it would, because involving a collective bargaining agreement, as here, have the force of overruling a state court decision construing a local arbitration statute. In Wiley, which was an action brought by a union pursuant to the Labor Management Relations Act to compel arbitration pursuant to a collective bargaining agreement, the court said:

Tlie duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. * * * [376 U. S. at 547, 84 S. Ct. at 913 emphasis ours]

The decision in Battle does not, however, enforce compulsory submission to arbitration in advance of a judicial determination as to arbitrability. It merely places the onus on the opponent of the arbitration to go to court to resist it at the outset if the demandant proceeds with arbitration on a claim of right to do so. In our opinion a contrary view would, on the whole, seriously impair the usefulness of the arbitration concept, whether in labor contracts or otherwise.

The trial court here held that further judicial proceedings for the determination of arbitrability should be had in the framework of a new plenary action rather than in the context of the pending action to enforce the award, brought pursuant to N. J. S. A. 2A:24-1 et seq. It consequently dismissed the action. We think this ruling does not accord with Battle, supra. It is there stated, in effect (23 N. J. at 543-544), that the issue of arbitrability may be decided, at the instance of the objector to arbitration, in the statutory proceeding to enforce the award. Although such a proceeding is ordinarily summary in nature, there is no reason why the court cannot adapt the procedure to allow for any prehearing discovery, etc., which might be appropriate, statement of the issues by the parties, and the taking of testimony if necessary. A new plenary action for resolution of the issues is not necessary, and to wait for its institution entails needless delay.

We consequently reverse the order of dismissal and remand for further proceedings in the N. J. S. A. 2A:24-1 et seq. action, but without costs. Pursuant to the concession at oral argument, we expressly direct that, in the event the dispute is determined to be arbitrable, a new arbitration shall be conducted.


author: PbtjLEE, J. S. C.

text:
    ANNA O. GRATE AND AMG ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFFS, v. TOWNSHIP OF SPRINGFIELD, UNION COUNTY, NEW JERSEY, A MUNICIPAL CORPORATION, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SPRINGFIELD, THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPRINGFIELD, AND PAUL GREENSTEIN, AS BUILDING INSPECTOR OF THE TOWNSHIP OF SPRINGFIELD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 5, 1971.

      Mr. Vincent J. Apruzzese for plaintiff (Mr. Frederick F. Danser, III on the brief; Messrs. Apruzzese & McDermott, attorneys).

      Mr. Jay B. Bloom for defendants Township of Springfield, the township committee, and Paul Greenstein, as building inspector, etc. (Messrs. Bloom & Drobner, attorneys).

      Mr. Sanford A. Meskin for defendant board of adjustment (Messrs. Goldhor, Meskin & Ziegler, attorneys).
   PbtjLEE, J. S. C.

The subject property, known as Lots 1, 2, 3 and 4 in Block 21 on the tax map, forms a block front parcel on the northerly side of Morris Avenue between Short Hills Avenue and Lewis Drive, in the Township of Springfield, Union County, New Jersey, and lies across the boundary of two zoning districts. Por 150 feet back from Morris Avenue it is in an 0 District zone (office use). The four lots comprise a unit with a frontage on Morris Avenue extending approximately 277 feet westerly from Short Hills Avenue to Lewis Drive and varying in depth from 195 feet in the center (lot 2), to 118 feet on the Lewis Drive side (lots 3 and 4), and 184 feet on the Short Hills Avenue side (lot 1). The rear portion of approximately 45 feet deep in the center (lot 2), and approximately 34 feet deep on the Short Hills Avenue side (lot 1), is in an S-60 single-family residence zone.

Application was made to the board of adjustment for the purpose of securing a variance to permit the use of the rear portion of the Lots 1 and 2 for 0 District zone use, the same as the front 150 feet thereof, so as to allow the entire parcel to be uniformly zoned and used for 0 District use.

In the proceedings on said variance application there was presented before defendant board of adjustment a proposed plan to erect an office building on the subject premises at the corner of Short Hills and Morris Avenues, said building to be fully within the 150-foot line from Morris Avenue, with the rear portion over the 150-foot line to be used as part of the parking area required for the building under the zoning ordinance. While the said rear portion was nominally approximately 34 feet deep, irregular, because of the fact that 10 feet thereof must be used for the required 10-foot buffer zone between the residential and office zone ■ areas, the land for which the use variance was required actually only consisted of a strip approximately 24 feet deep, irregular, fronting on Short Hills Avenue. Thus, looking at the subject premises from its Short Hills Avenue aspect, the land in question lies on Short Hills Avenue at a point 150 deep from Morris Avenue, to a point approximately 184 feet deep from Morris Avenue (as distinguished from the land across the street from the subject premises, on the other side of Short Hills Avenue, where it is in an office zone to a point 200 feet deep from Morris Avenue).

After full hearings the board of adjustment granted the application, recommending to the township committee by resolution dated April 1, 1969 that the same be approved subject to three conditions on the use of the property with respect to vehicular drives and buffer zones. The conditions were as follows:

(1) There shall be no vehicular entrance or exit drive between said property and Short Hills Avenue.
(2) The main entrance and exit drive shall be from and to Morris Avenue with a secondary drive, if applicants desire connected to Lewis Drive with a left hand turn only on exiting.
(3) A ten (10) foot deep buffer area shall be maintained along the entire rear property line and between the parking area and the adjoining properties in the S-60 District. The buffer strip shall consist of evergreen shrubs and a six (6) foot high close woven wood fence, as required in Section 9-E-10 of the Zoning Ordinance and permanently maintained.

Thereafter, proceedings on the board of adjustment’s recommendation were had before the township committee •which, at its meeting held on May 27, 1969, denied the application for a use variance.

Thereupon, these proceedings were instituted to review the denial and/or set aside the ordinance as it applies to the subject premises. During the course thereof plaintiffs modified their plans for the office building, relocated it to the corner of Lewis Drive and Morris Avenue, and proceeded with the erection of a three-story office building on that portion of the subject property where such use was permitted. The building is now completed and plaintiffs are occupying and using same.

In April 1968 a joint venture was formed to acquire the subject real property for the purpose of erecting and operating an office building thereon; the joint venture became the plaintiff AMG Associates, a New Jersey partnership, having as its members Vincent J. Apruzzese, Frank X. Mc-Dermott and M. David Giardino. Plaintiffs’ contract vendors of the subject property acquired it in 1941 and 1944, respectively. At the time of the making of contracts in April and May 1968 with the aforesaid contract vendors, the subject premises were, under the zoning ordinance of 1955 of the Township of Springfield then in effect, located in an LB use district which extended 150 feet from Morris Avenue, with the remainder of the premises in an S-60 use district. The LB district permitted office building use and the S-60 district permitted residence use. In April and May 1968 the zoning ordinance contained section 31-D-30.01, which permitted the board of adjustment in appropriate cases to recommend to the township committee, where the lot lay across the boundary of two districts, that a permit be granted for the extension into the more restricted district of a lawful conforming use permitted in the loss restricted district, but for a distance not exceeding 50 feet measured at right angles to such district boundary.

In April and May 1968 there was then in existence a report dated May 1967 prepared by the township planning board in furtherance of a master plan for the township, wherein and whereby the subject premises wore placed in a use zone district for office use to a depth of 200 feet from Morris Avenue.

Subsequently, a zoning ordinance was enacted in September 1968, which is the zoning ordinance now in effect in the Township of Springfield, under and by virtue of which the relief provisions of section 21-D-30.01 of the zoning ordinance of 1965 were eliminated and no comparable provisions for relief were provided. Office building use was provided for, designated as an “0” use district. Specific areas were designated as 0 zones, and also various areas along Morris Avenue were zoned for office use to a depth of 200 feet from Morris Avenue up to the easterly side of Short Hills Avenue. With reference to the subject premises and for two blocks west of the subject premises, the zoning for office use is 150 feet deep from Morris Avenue; the remainder of the subject premises over 150 feet deep from Morris Avenue was placed in an S-60 single-family residential use district.

In or about September 1968 there was passed on a first reading by defendant township an amendement to the zoning law aforesaid to extend the 150-foot office zone in the area of the subject premises to its rear property lines, which amendment thereafter failed of passage and was not enacted.

The proceedings before the board of adjustment and the township committee were conducted on the basis of the provisions of the zoning ordinance of 1968, as in effect at the time of the hearings.

Plaintiff appeals the denial of the variance and contends that the 1968 ordinance of the township committee is invalid in its application to its property. Defendants deny the contentions of plaintiffs.

I

With reference to the variance proceedings, conditions have changed since the hearings were conducted. Plaintiffs have modified their plans for said office building, relocated the same to the corner of Lewis Drive and Morris Avenue, and proceeded with the erection of the building on that portion of the subject property where such use was permitted under the provisions of the 0 District zone. The building is now completed and plaintiffs are now occupying same. Thus plaintiffs have rendered impractical the first and second conditions imposed by the board of adjustment that (1) there be no vehicular or exit drive between said property and Short Hills Avenue because this is permitted and is being done under the terms of the permitted use in the 0 zone, and (2) the use of a secondary drive with a left-hand turn on Lewis Drive has been prevented by the erection of the building blocking any such exit.

The photographs (Exhibits PA-29 annd PA-30) reveal that on Short Hills Avenue there is a driveway for ingress and egress to and from the parking lot in the 0 zone. Also, as stated supra, the building on the westerly part of the site prevents the use of an egress into Lewis Drive.

In addition, the reasons submitted by the board of adjustment in recommending the variance and the township committee in denying this variance may have been justified at the time, but the question is: What effect, if any, would the changed conditions have on the deliberations of the board of adjustment and the township committee if each was to consider evidence resulting from the changed conditions? This would require a remand or the filing of a new application. However, this would only prolong a final determination of the matter. Consequently, the denial of the variance by the township committee will not be disturbed.

II

Plaintiffs contend that the township’s 1968 ordinance is invalid as to their property. Plaintiffs do not challenge the zoning ordinance in its entirety. Their pro tanto attack is directed to the ab initio invalidity of the ordinance as it related to the subject property, and in that respect they maintain in effect that the ordinance is ultra vires and void. It was not only appropriate but essential under the circumstances that plaintiffs first apply for a variance before the local agencies of the municipality and thereby exhaust their available administrative remedies. In other words, when a zoning ordinance is not claimed to be invalid in its entirety, but only to be arbitrary and unreasonable in its application to the owner’s land, the trial court should ordinarily decline to adjudicate this attack upon the ordinance until after the owner has exhausted his remedy to seek relief from the local board of adjustment by applying for a variance. Ascione v. Union City, 77 N. J. Super. 542, 547 (App. Div. 1962); State v. Gallop Building, 103 N. J. Super. 367, 373 (App. Div. 1968). See also, Deal Gardens, Inc. v. Board of Trustees, Loch Arbour, 48 N. J. 492 (1967). In the present case plaintiffs did make an application for a variance for the use of the subject premises, and such application was denied by the township committee.

Plaintiffs’ property runs approximately 184 feet deep along Short Hills Avenue in a northerly direction from Morris Avenue. The division line of the zone runs through the property, so that the first 150 feet north from Morris Avenue is in an office use 0 zone and the remaining 34-45 feet is in an S-60 single-family residence zone fronting on Short Hills Avenue. The 150 feet in the 0 zone is used for the office building and parking and the remaining 34^45 feet in the rear is not used because it is zoned for residential purposes. It is plaintiffs’ contention that this zone line renders the 34r-45 feet in the rear useless for all practical purposes.

Zoning district lines need not coincide with property lines, and the municipality has the power and authority to set these district lines. The fixing of zoning lines is a critical function of the zoning process and is a matter of legislative discretion. Tidewater Oil Co. v. Mayor and Council of Carteret, 84 N. J. Super. 525 (App. Div. 1964), aff’d 44 N. J. 338 (1965). However, the local exercise of zoning power is not absolute and unlimited; it is conditioned by the statutory considerations to be served by zoning. Potts v. Board of Adjustment, Princeton, 133 N. J. L. 230 (Sup. Ct. 1945). The essence of zoning is territorial division according to the character of the land and structures and their peculiar suitability for particular uses and uniformity of said use within the division. Schmidt v. Board of Adjustment, Newark, 9 N. J. 405 (1952); Scarborough Apartments, Inc. v. Englewood, 9 N. J. 182 (1952).

In Spanich v. Livonia, 355 Mich. 252, 94 N. W. 2d 62 (Sup. Ct. 1959), the owner of a lot which had previously been zoned for industrial use and used for manufacturing purposes sought to restrain the city from enforcing an amended zoning ordinance which ran a district line across the owner’s lot so as to cut off the rear portion and create a small rectangular parcel limited to residential use. The court held that the action of the city in running this zoning district boundary line across the lot so as to cut off the rear portion and therefore create a small landlocked rectangle limited to residential uses was under the circumstances arbitrary, unreasonable and discriminatory and amounted to a confiscation of property rights in violation of state and federal constitutions.

It is true that zoning lines between areas must run somewhere and that the municipality is empowered to fix them, and that unless they are clearly shown to be unreasonable and arbitrary, courts will not interfere with the discretion of the zoning authorities.

However, a case in which the facts were somewhat similar to the facts in the present case is Buffalo Park Lane v. Buffalo, 162 Misc. 207, 294 N. Y. S. 413 (Sup. Ct. 1937), in which the court held that a division of a 60-foot lot adjacent to a lot zoned for apartment house use by a boundary line into a 20-foot lot similarly zoned and a 40-foot lot zoned for a strict single-family residential use was arbitrary and unreasonable and invalidated the division so as to permit the entire lot to be used for parking accessory to the apartment house.

See also Hecht-Dann Construction Co. v. Burden, 124 Misc. 632, in 208 N. Y. S. 299 (Sup. Ct. 1924) Rathkopf, Law of Zoning and Planning (Supp. at page 13-8), in which the court held that if the lot divided by a boundary line traversing it at an angle were to be considered subject to the front setback line restriction for a residentially zoned lot, it would be impossible for a house to be built thereon. The court therefore held the restriction invalid as unreasonable and confiscatory.

The inclusion of the rear portion, namely, the remaining 34 feet of lot 1 fronting on Short Hills Avenue, and the remaining 45 feet of lot 2 in the residential zone, does not bear a real and substantial relation to the public health, safety, morals, comfort, convenience or the general welfare in the particulars laid down in N. J. S. A. 40 :55-32, and so is violative of the constitutional precept and the essential policy of the statute. Furthermore, the minimum width for lots in a residential zone under the terms of the Springfield ordinance is 60 feet, and it would be necessary for plaintiffs to secure a variance to build on this substandard, undersized parcel with a width of 34-45 feet before such lot could be used for residential purposes, and also possibly to secure a variance because of maximum coverage and minimum yard requirements as set out in the ordinance. This would result in a rather “tight fitting” residence on an undersized lot which might compare unfavorably with the other residences on Short Hills Avenue. The question might also be raised as to what effect this would have on the uniformity of residential development on Short Hills Avenue.

A zoning regulation may be held invalid as to a particular property in a given zone by the unnatural running of boundary lines not in keeping with a well considered plan. Zoning, like every exercise of police power, must be contained by rule of reason. Katobimar Realty Co. v. Webster, 20 N. J. 114, 128 (1955). See also, Delawanna Iron & Metal Co. v. Albrecht, 9 N. J. 424, 429 (1952).

When a municipal legislative body divides a town into districts and provides the minimum land dimensions for particular uses in such districts, it does so with at least constructive notice of the existence therein of every substandard parcel held in single, separate ownership. It is under a duty to make adequate provisions for such parcels. While it can limit their use, it cannot render them useless. True, a line always exists beyond which the erection of a dwelling or place of business, or any other use of the substandard lot, may have become detrimental to the general welfare, but in such cases the municipality should compensate the owner if it proposes in the public interest to bar his property from any practical use for which it might be suited. Long Island Land Research Bureau v. Young, 7 Misc. 2d 469, 159 N. Y. S. 2d 414, 416, 417 (Sup. Ct. 1957).

A zoning ordinance may be held invalid as applied to particular property because of its inclusion thereof in a particular zone by an arbitrary, unreasonable, discriminatory and unnatural running of boundary lines not in accordance with a well considered plan, and this rule has applied as to a boundary line running through part of a single property. City of Omaha v. Cutchall, 173 Neb. 452, 114 N. W. 2d 6, 11 (Sup. Ct. 1962).

Apparently the zoning of the subject premises permitting an 0 (office) use for 150 feet north from Morris Avenue was not in accordance with a well considered plan, in view of the fact that the township planning board, in furtherance of a master plan for the township, included the subject premises in a use zone district for office use to a depth of 200 feet from Morris Avenue, which proposal was not adopted by the township committee. Additionally, there is the fact that various other areas along Morris Avenue were zoned for office use to a depth of 200 feet along Morris Avenue, up to the easterly side of Short Hills Avenue. Consequently, the lack of uniformity would seem to indicate that there was no well conceived plan in the zoning of the subject premises.

Use' district restraints are required to be general and uniform in the particular district. Rockhill v. Chesterfield Cty., 23 N. J. 117 (1957). See also Westbury Hebrew Congregation, Inc. v. Downer, 59 Misc. 2d 387, 302 N. Y. S. 2d 923 (Sup. Ct. 1969). Section 4-B-20 of the Springfield ordinance defines a district as any part of the township to which certain uniform regulations and requirements apply, and section 6-B states that district boundary lines are intended to follow street center lines and lot or property lines as they exist at the time of the enactment of the ordinance unless otherwise indicated on the zoning map. Apparently the zoning of the subject premises was an exception. Zoning consists of more than looking at a map and drawing lines thereon, and in case a zoning ordinance affects an owner’s property unreasonably and arbitrarily it will not be upheld in its application to this property. See City of Omaha v. Cutchall, supra, 114 N. W. 2d at page 11.

Equality and uniformity of operation within a particular zone as respects the use of property are basic in a zoning statute. See Potts v. Board of Adjustment, Princeton, supra.

Ill

One of the purposes of zoning is to relieve traffic congestion in the streets. See N. J. S. A. 40:55 — 32. The parking of vehicles on the subject premises may accomplish this purpose to a certain extent, and the additional space will also eliminate the necessity of parking on the streets in the area. However, this is not too significant. See Wajdengart v. Broadway Thirty-Third Corp., 66 N. J. Super. 346, 352, 353 (App. Div. 1961). See also Suesserman v. Board of Adjustment, Newark, 61 N. J. Super. 28, 35 (App. Div. 1960). Nor is to too significant that there may be a few more additional motor vehicles using - Short Hills Avenue at various times during the day if plaintiffs are permitted to use the rear portion of the parcel for parking — in addition to the vehicles that are legally parked in the 0 zone using the street. However, a municipality should not use the zoning power to regulate minor traffic problems in rapidly growing communities, and such powers should be used only to deal with such problems in their major aspects as they affect the entire community or major portion thereof. Bogert v. Washington Tp., 25 N. J. 57 (1957); Stevens v. Huntington, 20 N. Y. 2d 352, 283 N. Y. S. 2d 16, 18, 19, 229 N. E. 2d 591 (Ct. App. 1967).

IV

Defendants contend that since plaintiffs have since erected a three-story office building on the property and have assumed occupancy of the same, this belies the claim of confiscatory action on the part of the municipality. However, this is not the issue here. Plaintiffs have erected the office building on that part of their property zoned for that purpose (0 zone). It is that part of their property in the rear which is in issue. It is that part of their property in the rear which is zoned for single-family residences (S-60), namely 45 feet of lot 2 of the plot and 34 feet of lot 1 along Short Hills Avenue. As stated supra, as a result of the boundary line passing through this property, this rear portion has become a substandard, undersized lot for residential purposes, and no residence can be constructed on it without a variance. Thus, under the present circumstances, this rear portion of the lot is rendered unusable. Eurthermore, it is evident that the contracts for the purchase of the same were executed in April and May 1968 when the zoning ordinance of 1955 was still in effect, which contained section 21-D-30.01 permitting the board of adjustment in appropriate cases to recommend to the township committee, where a lot lies across the boundary of two districts, that a permit be granted for an extension into the more restricted district of a lawful conforming use permitted in the less restricted district, hut for a distance not exceeding 50 feet measured at right angles to such district boundary. At oral argument the attorney for plaintiffs stated that they relied on this provision in April and May 1968 when the contracts were executed. However, in September 1968 the new zoning ordinance was enacted and the relief provisions of section 21-D-30.01 were eliminated and no comparable provision for relief was provided.

The rear 34 feet of lot 1 on Short Hills Avenue and the rear 45 feet of lot 2 cannot be used for residential purposes without a variance, although they are in a residential zone, because they are undersized, substandard lots. Thus at present it is impossible to build there because the minimum width under the terms of the ordinance is 60 feet, which is almost twice the width of lot 1 on Short Hills Avenue. Accordingly, it is not peculiarly suitable for this use. However, it is practically on a level with the rest of plaintiffs parking area and it is contiguous to and abuts this area. There is no topographical difference between the rear parcel and the rest of the subject premises, and there is no extraordinary or exceptional situation with the property as compared to the remaining property of plaintiffs.

Thus it is the opinion of this court, for the reasons set out supra, that the provision of S-60 of the ordinance is invalid, arbitrary and unreasonable in its application to the rear of lots 1 and 2 of the subject premises. In the event that the said rear portions of lots 1 and 2 are used for parking as plaintiffs have requested, it will he necessary that the provisions of section 9 — E-10 of the zoning ordinance be complied with, which states that a ten-foot deep buffer area shall be maintained between the parking or loading areas located in the 0 district (among others), which abuts the S-60 residential district (among others). The ordinance further provides that the said buffer strip shall separate the above mentioned districts by means of a six-foot-high, close-woven wood fence and the planting of appropriate evergreen shrubs spaced so that they will create an effective screening. Fencing shall be located in the buffer area in such a manner that planting will he provided facing residential properties.

This will leave approximately 24 feet remaining for parking on lot 1 and approximately 35 feet remaining for parking on lot 2.


author: Fritz, J. A. D.

text:
    BOZZUTO’S INC., A CONNECTICUT CORPORATION, PLAINTIFF-APPELLANT, v. FRANK KANTROWITZ & SONS, INC., A NEW JERSEY CORPORATION, FRANK KANTROWITZ, DAVID KANTROWITZ, ARTHUR KANTROWITZ, AND CLYDE THOMAS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 13, 1971
    Decided December 3, 1971.

      Before Judges Contoed, Matthews and Feitz.

      Mr. Allan Maiilin argued the cause for appellant (Messrs. Feuerstein, Sachs & Maitlin, attorneys).

      Mr. Irving Vichness argued the cause for respondents Kantrowitz (Mr. Paul J. Vichness on the brief; Messrs. Hood, Mintz & Vichness, attorneys).

      Mr. James E. Davidson argued the cause for respondent Clyde Thomas (Messrs. Farrell, Curtis, Carlin & Davidson, attorneys).
   The opinion of the court was delivered by

Fritz, J. A. D.

The sole issue presented by this appeal is whether a foreign corporation, not qualified to do business in New Jersey pursuant to statutory mandate, may seek affirmative relief in an action at law in conjunction with its defense against the claim of another. The question is apparently of first impression in New Jersey and requires us to consider N. J. S. A. 14A :13 — 11 toward the end of ascertaining the legislative intent in this regard.

Plaintiff Bozzuto’s Inc., a Connecticut corporation not having a certificate of authority to do business in New Jersey pursuant to N. J. S. A. 14A :13-3, brought suit in contract against defendants Kantrowitz and Thomas. Thomas counterclaimed against plaintiff and crossclaimed against Kantrowitz. On defendants’ motions the trial court held that summary judgment was available to defeat plaintiff’s claim on the theory that the nonqualifying plaintiff doing business in New Jersey was statutorily enjoined by N. J. S. A. 14A:13-11 from the maintenance of the action. Entry of judgment was withheld to afford plaintiff an opportunity to qualify. Cf. Menley & James Laboratories, Ltd. v. Vornado, Inc., 90 N. J. Super. 404, 414 (Ch. Div. 1966). It determined not to do so. Conceiving at this juncture that defendant Thomas (whose counterclaim and crossclaim remained) was the real plaintiff seeking relief against Bozzuto and Kantrowitz, plaintiff moved to dismiss the Thomas claim (apparently on the ground that the dismissal of plaintiff’s claim should have ended the entire action), or, in the alternative, for leave to “counterclaim” against Thomas and “crossclaim” against Kantrowitz. These motions were denied.

The occasional denomination in briefs of plaintiff’s claim as a “counterclaim” in the present procedural posture causes us to eschew at once a determination based on pleading semantics. Cf. R. 4:5-4 (last sentence). The question is as we stated it at the outset, regardless of the label chosen for the claim. Additionally, it is to be noted that plaintiff’s motion to be permitted to crosselaim as aforesaid specifically sought the right to file “an affirmative claim” and indeed endeavored to reassert the claims of the dismissed complaint.

The right of access to our courts is among the privileges of foreign corporations properly subject to regulation by our Legislature. In this respect N. J. S. A. 14A:13-11 has been enacted and governs. It is to this statute we look:

14 A: 13-11
(1) No foreign corporation transacting business in tbis State without a certificate of authority shall maintain any action or proceeding in any court of this State, until such corporation shall have obtained .a certificate of authority. * * *.
(2) The failure of a foreign corporation to obtain a certificate of .authority * * * shall not prevent such corporation from defending any action or proceeding in any court of this State.

Where a statute conveys the legislative intent by language having a clear and explicit meaning, construction nr interpretation is not only unnecessary, but improper. Duke Power Co. v. Patten, 20 N. J. 42, 49 (1955). We view the statute under consideration as having such a plain meaning. Subsection (1) clearly proscribes the maintenance of any action or proceeding of any kind in any court of this State by a foreign corporation transacting business here until it obtains a certificate of authority. A clearer expression and a more extensive limitation would be hard to formulate. A single exception is engrafted on this broad prohibition by subsection (2): the right to defend against any action or proceeding in any court is preserved.

We are satisfied that the employment of such unqualified, direct terms to define the absolute limitation on nonqualifying foreign corporations with respect to access to our courts, except for the express, clearly limited purpose of defending an action, plainly manifests a purpose to deny access except as necessary to defend against an action by another. In view of the broadness of the exclusion of subsection (1) and the precise exception of subsection (2), we are of the firm conviction that had the legislature intended to permit any affirmative claim, albeit in the nature of a counterclaim, it would have said so.

While such a holding makes resort to principles of statutory construction unnecessary, reassurance as to the soundness of our holding appears in such an effort.

Eeference to the prior statute (see State v. Frost, 95 N. J. Super. 1, 3-4 (App. Div. 1967)) conduces to the view that the Legislature intended the broad prohibition we have found. Before the enactment of N. J. S. A. 14A:13-11, the limitation was far less restrictive:

Until such corporation so transacting business in this state shall have obtained such certificate of the secretary of state, it shall not maintain any action in this state upon any contract made by it in this state. [R. S. 14:15-4]

No effort to revise this proscription or to expand it generally appears. Eather, with the general revision of the Corporation Act, effective January 1, 1969, the sweeping prohibition of the Model Business Corporation Act was adopted, essentially verbatim in this regard. Had the Legislature intended to permit affirmative action by a nonqualifying corporation or, as a matter of fact, any conduct other than the defense against an action by another, the opportunity existed most recently with the general revision. Additionally, we believe that the obvious difference in degree between the prohibition of R. S. 14:15-4 and N. J. S. A. 14A:13-11 must necessarily have alerted the lawmakers to that opportunity in this area. Their adoption of the precise and broad Model Act language convinces us that the confinement to defending was advertent and unqualified.

The Commissioners’ Comments, provided with the report of the Corporation Law Revision Commission, and said in its report to have been submitted in the hope that they “will prove a useful tool in statutory construction,” support this view. After referring to the limited disability to sue” imposed by the prior statute, R. S. 14:15-4, the note appears that, “The disability to sue has been broadened * * * to bar suit by the non-qualifying foreign corporation on any claim or demand.”

Reference to N. J. S. A. 14A :13-3 in our search for meaning from statutes in pari materia (see Maritime Petroleum Corp. v. Jersey City, 1 N. J. 287, 297 (1949)) demonstrates that the Legislature recognized that the defense of an action is a limited concept, embracing only one discrete phase of litigation, and different from maintaining or otherwise participating in an action. In exclusions from conduct which constitute transacting business, the Legislature included:

(2) (a) maintaining, defending or otherwise participating in any action or proceeding, whether judicial, administrative, arbitrative or otherwise * * *. [N. J. S. A. 14A:13-3]

The recognition therein implicit of the difference between the maintenance of an action and a defense further persuades that the intention of N. J. S. A. 14A:13-11 was to limit against affirmative claims of any kind.

Considerations of essential fairness are supportive. In order to sue in our courts, domestic or qualifying foreign corporations must submit themselves to certain disabilities and obligations. It seems essentially unfair that a non-qualifying corporation should gain that access by virtue of a relationship with another sufficiently unsatisfactory that it is being sued. While the hypothetical situation is admittedly improbable, the inequities inherent in such a rule might well be demonstrated by assuming a nonqualifying corporation, subject to service here, engaged in a complex integrated contract with a New Jersey corporation. Intentionally risking breach on a minor section of the contract and inviting suit would be available as a gambit to permit then a “counterclaim” on the major portion of the contract — all without subjection to the corporation act sanctions and duties imposed upon the domestic corporation.

Plaintiff brings to our attention three cases said to constitute authority to the contrary: J. R. Alsing Co. v. New England Quartz & Spar Co., 66 App. Div. 473, 73 N. Y. S. 347 (App. Div. 1901), aff’d o. b. 174 N. Y. 536, 66 N. E. 1110 (Ct. App. 1903); James Howden & Co. of America, Inc. v. American Condenser & Engineering Corp., 194 App. Div. 164, 185 N. Y. S. 159 (App. Div. 1920), aff’d o. b. 231 N. Y. 627, 132 N. E. 915 (Ct. App 1921); Burley Newspapers, Inc v. Mist Publishing Co., 90 Idaho 515, 414 P. 2d 460 (Sup. Ct. 1966). Each of these cases dealt in part at least with a statutory prohibition against an action on a contract or agreement, and the bar thus legislatively decreed was limited to this circumstance. (The New York eases also considered a similar but more extensive statutory prohibition within its tax laws. This tax statute was conceded to be “construed strictly in favor of the taxpayer.”) Such a limited abridgement of the right of a nonqualifying corporation to sue would seem to constitute legislative acquiescence in at least an implicit right to access to the courts under other circumstances. But these cases are readily distinguishable. The statutes therein concerned bore a marked resemblance to our prior statute, R. S. 14:15-4. Our present statute contains no circumscription to its bar against the maintenance of “any action or proceeding” by the nonqualifying corporation.

We believe a further significant distinguishing characteristic of the New Jersey statute, as contrasted with the statutes considered in the cited cases, is the fact that here, unlike the others, the Legislature has said not only what the foreign corporation may not do, but also what it may do, i. e., defend. We believe such additional consideration constitutes words of limitation, not present in the Idaho or New York statutes, and all the more meaningful in their expression in view of the fact that due process considerations may well require the allowance of a defense without particular statutory enunciation in any event. 17 Fletcher, Cyclopedia of Private Corporations (rev. vol. 1960), § 8535 at 789.

The significance of such an expression is apparent from Alsing, supra:

The defendant, having been brought into court and thus made to defend, should be allowed, unless there is a distinct provision to the contrary, not only to defend, but also to litigate any question arising out of the transaction that has been made the basis of the plaintiff’s complaint. [73 N. Y. S. at 350; emphasis added]

We view the specific allowance of a defense, after the broad general prohibition, as being a “distinct provision to the contrary” opposing any conduct other than a defense.

Burley turns in part upon the public policy declared in Idaho:

The aim of the provisions [of the qualifying statutes including the designation of a statutory agent for services of process and the prohibition against suit upon a contract otherwise] is to protect the right of Idaho citizens to sue foreign corporations in Idaho. They are not intended to prohibit or discourage foreign corporations from doing business in this state. In fact the legislature has declared the policy to be the encouragement of foreign corporations to engage in business in Idaho. [Statutory citation omitted] [414 P. 2d at 462]

We are satisfied that the public policy of New Jersey, in this present day, is not so much to protect and attract foreign corporations and encourage their invasion of New Jersey, however laudable those purposes may be, as it is “to give full recognition to the rights of creditors,” and “to offer a favorable business climate for the incorporation of business enterprises.” Corporation Law Revision Commission, Report. We fail to see how an indulgent relaxation of qualifying requirements and of sanctions for failure or refusal to comply in this regard will encourage either of these pronounced ends.

Nor are we here impressed by the assertion in Burley that “Equity requires that if part of a contract is to be enforced * * * the entire contract, which is valid, also should be enforced, including the obligations of the plaintiff.” While it is inescapable that enforcement of the rule here declared might result in apparent inequities, it is to be observed that if such inequities result, they are the product of the foreign corporation’s own inactivity. With specific respect to the circumstances of the present case, it should be noted that a full opportunity was afforded plaintiff to qualify — a simple procedure, N. J. S. A. 14A :13 — 4 — and the opportunity was consciously rejected. The Sovereign conscience is not likely to shy from the sight of self-inflicted wounds.

On the other hand, a statute, Yernon’s Ann. Civ. St. Tex. art. 1536, prohibiting the maintenance of “any suit or action, either legal or equitable, in any Court of this State upon any demand, whether arising out of contract or tort” by a foreign corporation unless it “had filed its articles of incorporation under the provisions of this Chapter,” has been held to prohibit, by its “plain wording,” even a counterclaim (there denominated a “cross action”). Hightower Petroleum Corp. v. Story, 236 S. W. 2d 679 (Tex. Ct. Civ. App., 1951).

The simple fact is the law requires a foreign corporation to procure a certificate of authority before it may lawfully transact business in this State. We recall no other field in which wilful inattention to the law invokes sympathetic treatment. That the Legislature intended no such mollycoddling may be seen at a glance in such companion sections as N. J. S. A. 14A:13-11(3) where, as noted in the Commissioners’ Comments, “in addition” language preserves, along with specific monetary sanctions of the subsection, any other liabilities imposed by New Jersey law; and N. J. S. A. 14A:13 — 12 where the extraordinary injunctive remedy against violation is made available in a summary action, this, too, cumulative with other grounds for injunctive remedy.

Affirmed.

       At this motion plaintiff argued that it was not “transacting business” in New Jersey, but the issue was apparently determined adversely to plaintiff. Error in that determination has not been raised on this appeal, and we presume the argument has been abandoned.

       The word “suit” is omitted from the phrase “action, suit or proceeding” in the Model Act. § 117. We see no significance in this omission particularly in view of the adoption by our courts, prior to 1969, of “action” as a comprehensive word of art. R. 4 :2-1, 4 :2-2.

       Needless to say, this exclusion does not authorize such conduct by a nonqualifying corporation, especially in view of the restrictions of N. J. S. A. 14A: 13-11 ; it merely exempts it from a charge of “transacting business” on this account.

       In passing, we observe the natural tendency in Alsing — upon which decision Bowden and Burley in large part, depended — to empathize with the foreign corporation “having been brought into court and thus made to defend,” and therefore to permit its litigation of “any question arising out of the transaction that has been made the basis of the plaintiff’s complaint.” The situation here does not conduce to the same degree of sympathy. Here the nonqualifying corporation initiated the litigation in the face of apparent statutory prohibition, and then declined to qualify.