author: Halpern, A. J. S. C.

text:
    EDITH LAWLOR AND C. LLOYD LAWLOR, HER HUSBAND, PLAINTIFFS, v. CLOVERLEAF MEMORIAL PARK, INC., A CORPORATION, AND CLOVERLEAF MEMORIAL PARK ASSOCIATION, DEFENDANTS, AND THIRD PARTY PLAINTIFFS, v. JOSEPH LA PREE AND RAHWAY HOSPITAL, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 7, 1968.
    Rehearing Denied June 7, 1968.

      Mr. Kenneth J. McGuire for plaintiffs (Messrs. Stein, Bliablias and Goldman, attorneys).

      Mr. Stephen J. Foley for defendant Cloverleaf Memorial Park Association and Cloverleaf Memorial Park, Inc. (Messrs. Campbell, Mangini, Foley and Lee, attorneys).

      Mr. H. Ourtis Meanor for third-party defendant Joseph La Pree (Messrs. Lamb, Blake, Hutchinson and Dunne, attorneys).

      Mr. Daniel K. Van Dorn for third-party defendant Rahway Hospital (Messrs. Mead, Gleason, Hansen and Paniages, attorneys) .
   Halpern, A. J. S. C.

These are companion motions by the third-party defendants for summary judgment dismissing plaintiffs’ claims as barred by the statute of limitations.

The undisputed facts are that on September 6, 1964 plaintiff Edith Lawlor allegedly fell and suffered personal injuries while visiting a gravesite at Cloverleaf Memorial Park. She was admitted that day as a patient to Rahway Hospital (hospital) and was treated there by Dr. Joseph La Pree (doctor). She was discharged from the hospital on October 17, 1964. On February 16, 1965 plaintiffs sued Cloverleaf Memorial Park, Inc. and Cloverleaf Memorial Park Association (cemetery), seeking damages for the injuries sustained. Answers were filed and the ease was pretried and placed on the trial calendar. On the eve of trial the original defendants were granted leave to file a third-party complaint against the hospital and the doctor for indemnification and contribution. On July 5, 1966 the third-party complaint was duly filed. On December 23, 1966 Mrs. Lawlor died.

On January 26, 1968 three motions were heard and disposed of as follows:

L Defendant Oloverleaf Memorial Park, Inc. was granted summary judgment dismissing the complaint as to it upon the ground that it did not own, operate or maintain the area at the time decedent had fallen. Leave has not been sought to appeal this ruling to the Appellate Division and for purposes of this opinion it is no longer involved in this case.

2. Defendant Oloverleaf Memorial Park Association (cemetery) was granted summary judgment dismissing the complaint as to it because of the applicability of the Charitable Immunity Act N. J. S. 2A :53A-7 et seq. Plaintiff was granted leave to appeal this ruling by the Appellate Division of the Superior Court and is now awaiting hearing.

3. Plaintiff was granted leave to amend the complaint to (a) substitute O. Lloyd Lawlor, as executor, in place of Edith Lawlor and to sue the doctor and the hospital directly under the Survival Act for their alleged negligence and malpractice, and (b) to add an additional count against the original defendants and the third-party defendants, under the Wrongful Death Act, for allegedly causing the decedent’s death.

The amended complaint was duly filed, as were the answers of the doctor and the hospital denying liability. Both third-party defendants, now direct defendants, pleaded the statute of limitations, and by these motions seek to dismiss the amended complaint.

The issues raised by these motions are:

1. Is plaintiff precluded by the statute of limitations from asserting the survival claims directly against the doctor and the hospital?

2. Is the wrongful death action barred by the statute of limitations when it is brought within two years of decedent’s death P

I

SURVIVAL ACTION PURSUANT TO N. J. S. 2 A :15-3 AGAINST THE DOCTOR AND HOSPITAL.

The applicable statute of limitations in a suit for personal injuries, N. J. S. 2A :14-2, provides:

“Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued.”

The cause of action is deemed to have accrued, and the two-year period commences to run, when the damage or injury occurs. Rosenau v. New Brunswick, 51 N. J. 130 (1968). Therefore, Mrs. Lawlor’s cause of action for personal injuries, and Mr. Lawlor’s claim for consequential damages against the third-party defendants, accrued on September 6, 1964 (date of the admission to the hospital), or at the latest, by October 17, 1964 (date of discharge and last treatment). Rex v. Hutner, 26 N. J. 489 (1958).

Plaintiffs instituted suit against the original defendants within the two-year statutory period. Based on this fact plaintiff argues that since the doctor and hospital were joined as third-party defendants by the original defendants within the two-year statutory period, such action inures to his benefit, and the statute of limitations is not a bar to his direct suit against the doctor and hospital. Plaintiff’s argument is bottomed on DeSisto v. City of Linden, 80 N. J. Super. 398 (Law Div. 1963), and R. R. 4:15-3. I respectfully disagree with the Be Sisto decision and hold that Mrs. Lawlor’s personal injury claim, now a survival action, and Mr. Lawlor’s per quod claim are barred. The holding in Be Sisto is contrary to the better authority throughout the country. See 3 Moore’s Federal Practice, §1409; 1A Barron & Holtzoff, §427, and cases cited therein.

Prior to the enactment of codes of procedure the concepts of procedural joinder and substantive liability were coterminous. “Only those tort-feasors could be joined as defendants who were jointly and severally liable under the substantive law.” Harper & James, The Law of Torts, § 10.1, p. 695. Today, procedural economy and trial convenience are recognized as desirable and legitimate goals. To this end R. R. 4:31 through 4:33 provide for joinder of actions and parties in one suit. To implement this objective, B. B. 4:14, dealing with third-party practice, was made a part of the overall scheme. The latter rule, however, is a mechanical aid and was never intended to create a new cause of action or new substantive rights for a plaintiff who is not even a party to the application. Schnitzer & Wildstein, New Jersey Rules Services, A IV-347, and eases cited therein; 3 Moore’s Federal Practice, §14.04, p. 501.

As a matter of practice, defendants normally bring in third-party defendants by motion, and notice thereof is only given to the parties then appearing in the cause. The party to be brought in receives no notice of the application. Seldom, if ever, will a plaintiff or any other party object to this motion because it results in bringing in a new party who may be held liable for all or part of plaintiff’s possible recovery. While the court has the power to deny the motion it will do so only if it is a late application which will adversely affect the trial calendar. The merits of the third-party claim are seldom considered by the court at that time. The motion merely provides the procedural means to implead proper parties to preserve and protect substantive rights, e. g., indemnity, contribution, subrogation, etc. It further permits a defendant (here, the cemetery) to join any claim against a third party (the doctor and the hospital) arising out of the same transaction or series of transactions, so long as the third party is liable to the cemetery for all or part of the plaintiff’s claim.

I turn to the problem of whether the third-party defendants were properly joined by the original defendants as joint tortfeasors within the meaning of N. J. S. 2A :53A-1, for the purpose of seeking contribution on plaintiffs’ claims. Unless parties act in concert or contribute concurrently to the same wrong, they are not joint tortfeasors. Their wrongs, if any, are independent and successive rather than joint. Daily v. Somberg, 28 N. J. 372 (1958); Derby v. Prewitt, 12 N. Y. 2d 100, 236 N. Y. S. 2d 953, 187 N. E. 2d 556, 559 (Ct. App. 1962) ; Knutsen v. Brown, 93 N. J. Super. 522, 532 (Law Div. 1966), affirmed 96 N. J. Super. 229 (App. Div. 1967). These cited cases all dealt with malpractice suits following an original injury arising from a disconnected tortious act.

The cemetery may be liable for the aggravation of the injury caused by the alleged malpractice; however, such liability is not the result of any concept of joint wrongs but of the legal principle that the original wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligence of others. Restatement, Torts 2d, §§457, 458; Rappaport v. Nichols, 31 N. J. 188 (1959). On the other hand, the doctor and the hospital would not be liable for the original injury resulting from the fall. Daily v. Somberg, supra. Thus, the plaintiff has two separate and distinct causes of action — one against the cemetery for negligent maintenance, and the other against the doctor or the hospital or both for alleged malpractice.

Although legal rights and obligations may exist between the cemetery, the doctor and the hospital, by way of indemnity, since they are not joint tortfeasors the doctor and the hospital were improperly impleaded by the original defendants under N. J. S. 2A :53A-1.

Plaintiff further argues that under R. R. 4:15-3 his amended complaint relates back to the date of the original filing of the complaint and, therefore, he is within the two-year statutory period. Again, I do not agree. Allowing a plaintiff, who sued within the statutory time, to amend or supplement liis complaint as to the original defendant properly relates back to the date of filing the original complaint •— but where plaintiff attempts to add a third-party defendant to his original suit he cannot evade the bar of the statute of limitations. Tackling v. Chrysler Corp., 77 N. J. Super. 12 (Law Div. 1962). A completely new cause of action is ineligible for relation back to the date the original complaint was filed — especially after the statute of limitations has run. Band’s Refuse Removal, Inc. v. Borough of Fair Lawn, 62 N. J. Super. 522, 540 (App. Div. 1960); Schnitzer & Wildstein, New Jersey Rules Service, 182 (supp. 4/27/61). The purpose in not allowing an amended pleading to relate back in these circumstances was succinctly expressed in Welsh v. Board of Education of Tewksbury Tp., 7 N. J. Super. 141, 146 (App. Div. 1950) :

“The existing liberality in permitting amendments is bestowed to prevent legalistic technicalities from impeding, or obstructing, the paramount aspiration to promote substantial justice in all litigous controversies. The present progressive judicial policy is not, however, intended to afford a refuge to languid and dilatory litigants. * * * Where a statute of limitations is involved, unwarranted graciousness might well constitute an unjustifiable judicial trespass upon the legislative field.”

II

DEATH ACTION, PURSUANT TO N. J. S. 2A :31-1 ET. SEQ., AGAINST THE DOCTOR, HOSPITAL AND CEMETERY

The Wrongful Death Act, now N. J. S. 2A :31-1, et seq., provides for recovery of the pecuniary loss to the surviving next of kin specified by the statute. The act is regarded as creating a new right of action on behalf of the designated beneficiaries. Harper & James, The Law of Torts, §24.2. The survival statute, known in New Jersey as the Executors and Administrators Act (N. J. S. 2A :15-3), was intended to give executors or administrators a cause of action for trespass to the person or property of their testator or intestate for his losses. Kern v. Kogan, 93 N. J. Super. 459 (Law Div. 1967). Plaintiff, by his amended complaint, is availing himself of the remedies under both statutes, and they are properly joined in the same action. Turon v. J. & L. Construction Co., 8 N. J. 543 (1952).

The doctor and the hospital (as well as the cemetery who reserved its right to raise this issue) contend that since decedent did not assert her claim against them within two years, and thereafter died, no right of action for wrongful death accrues. They cite as authority Knabe v. Hudson Bus Transportation Co., 111 N. J. L. 333 (E. & A. 1933); Coulter v. New Jersey Pulverizing Co., 11 N. J. Misc. 5 (Sup. Ct. 1932); Redick v. Rohm & Haas Co., 97 N. J. Super. 58 (Law Div. 1967). I do not agree. The Wrongful Death Act creates a new cause of action for the loss suffered by the designated beneficiaries. Such action is timely if commenced within two years following the death. Turon v. J. & L. Construction Co., supra; N. J. S. 2A :31-3.

The claim for personal injuries under N. J. S. 2A :15-3, against the doctor and hospital, as well as Mr. Lawlor’s per quod claim, are not revived by the death, nor do they vest in the executor. Biglioli v. Durotest Corporation, 44 N. J. Super. 93, 105 (App. Div. 1957); Redick v. Rohm & Haas Co., supra. However, the claim for wrongful death under N. J. S. 2A :31-1, since it was commenced within two years after decedent’s death, is not barred by the statute of limitations. Kotkin v. Caprio, 65 N. J. Super. 453 certification denied 34 N. J. 470 (App. Div. 1961).

To summarize, the motions by the doctor and the hospital for summary judgment on the claims under the Survival Act are granted; the motions for summary judgment under the Wrongful Death Act are denied.

On motion for reargument

These motions by the third-party defendants, La Pree and Rahway Hospital, seek to have the court reconsider its decision’denying their previous motions for summary judgment on plaintiffs wrongful death suit.

The thrust of their reargument is that since the decedent died 'more than two years after the alleged wrong was committed, without having instituted a suit against them, the action under the Wrongful Death Act is barred by the statute of limitations. This issue was decided adversely to the movants’ contentions in Kotkin v. Caprio, 65 N. J. Super. 453 (App. Div. 1961), certification denied 34 N. J. 470 (1961), and that decision is dispositive of these motions. In Koikin the Appellate Division reviewed the earlier cases, relied on by these movants, and adopted the majority rule recognized throughout the country (including New Jersey) that a wrongful death action may be instituted within two years of decedent’s death. See Annotations in 174 A. L. R. 815 (1948) and 97 A. L. R. 2d 1151 (1964) ; 16 Am. Jur. § 167, p. 113; Harper & James, The Law of Torts, § 24.7, p. 1295 et seq.

In Kotkin an accident had occurred on May 2, 1957 and the decedent died as a result thereof on June 13, 1957. Ho suit was started by the decedent during her lifetime. Her representatives started suit on May 29, 1959, more than two years after the accident, but within two years of her death. Although the complaint was inartistically drawn the court ultimately treated it as a two count complaint seeking relief under the Survival and the Wrongful Death Acts. The former was held barred by the statute of limitations, and the latter timely. The movants argue that Koikin is inapplicable because there the decedent had died within six weeks of the accident, when the statute of limitations had not yet expired. Such a distinction does violence to the provisions of the Wrongful Death Act, N. J. S. 2A :31-1 to 6, and is contrary to the holding in Koikin. The cause of action created by the Wrongful Death Act is neither dependent upon the decedent instituting a timely suit during her lifetime nor her dying within two years of the wrongful act. To hold otherwise would mean that the wrongful death action may be lost before it has ever accrued.

Whether a wrongful death action is maintainable is governed by the statute which created it. N. J. S. 2A :31-1 provides:

“When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.”

N. J. S. 2A :31-2 requires the action to be brought in the name of an administrator ad prosequendum or a fiduciary who qualified under decedent’s will.

N. J. S. 24:31-3 provides:

“Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.”

N. J. S. 24 :31-4 creates the class of persons for whose exclusive benefit the amount recovered shall be distributed in amounts determined by the court without a jury.

N. J. S. 24 :31-5 requires the jury to assess such damages as are * * fair and just with reference to the pecuniary injuries resulting from such death to the persons entitled * *

N. J. S. 24 :31-6 prohibits the proceeds of any settlement or judgment to he paid to the administrator ad prosequendum but requires payment to the general administrator of decedent’s estate.

In interpreting N. J. S. 24:31-1 to 6, consideration must be given to the legislative purpose for its passage viewing it as a whole to harmonize all of its integral parts. Thus viewed, it becomes evident that the Wrongful Death Act creates a new cause of action for the exclusive benefit of the persons specified in the statute. Any amount recovered is distributed to the statutory beneficiaries free of any claims against the decedent or his estate. Soden v. Trenton and Mercer County Traction Corporation, 101 N. J. L. 393, 398 (E. & A. 1925). In Soden the legislative history of the Wrongful Death Act is fully set forth. To recover under said act the plaintiff must: (a) prove that the death was caused by the wrongful or negligent act of the wrongdoer; (b) withstand any defense which could have been raised against the decedent such as contributory negligence; (c) withstand a defense that the cause of action has been disposed of by judgment or voluntary settlement during decedent’s lifetime; (d) commence the action within two years after decedent’s death; and (e) prove there were surviving statutory beneficiaries who suffered pecuniary loss resulting from decedent’s death. In construing the language used in N. J. S. 2A :31 — 1, “such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury,” it is clear that the Legislature was merely referring to the “merits” of the cause of action and it was not conditioning the right to sue on decedent’s having brought a timely suit or dying within two years of the alleged wrongful act. This becomes clear if the words “on the merits” were inserted after the word “action” in the quote last above.

A cause of action under the Wrongful Death Act must not be confused with one under the Survival Act, N. J. S. 2A :15-3, which latter statute preserves to the decedent’s estate any cause of action the decedent may have had against a wrongdoer for his personal injuries and damage. Any amount recovered from such suit becomes a part of the general assets of the decedent’s estate. The action must be brought by the executor or administrator, as the case may be, and must be commenced within two years of the alleged wrongful act. N. J. S. 2A :14-2. If the decedent commences the action during his lifetime, and dies before the case is completed, the action survives for the benefit of his estate. So too, if he dies within two years of the alleged wrongful act. without having started suit, his executor or administrator may bring such action provided it is commenced within two years of the alleged wrongful act. Therefore, under the Survival, Act,, an. action must be commenced by the decedent, or his estate, within two years of the alleged wrongful act. Howevér, an action under the Wrongful Death Act, is one to recover for the death caused by a wrongful act which arises at,the time of decedent’s death and may be commenced within two years thereof. Justice Heher recognized this distinction in Turon v. J. & L. Construction Co., 8 N. J. 543 (1952) when he. said:

“The right of action thus given [under the Wrongful Death Act] is not grounded in the injury sustained by the estate, but rather in the loss suffered by the statutory beneficiaries. As said, it is in no sense the enforcement of an action by survival. The damages which the deceased might have had had he lived are not includable in the award; * * * A cause of action is created in favor of the persons thus designated, * * (at p. 558)

' In conclusion, I hold that an action under the Wrongful Death Act accrues, or commences to run, from the date of decedent’s death. The motions to reconsider are denied.


source: Caselaw Access Project

author: Collester, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, BY THE POLITICAL SUBDIVISION, THE TOWNSHIP OF MIDDLETOWN, PLAINTIFF-RESPONDENT, v. NEW JERSEY DAIRIES, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1967 —
    Decided May 24, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Bean Sanford argued the. cause for appellant (Messrs. Wilentz, Goldman & Spitzer, attorneys).

      Mr. Robert H. Otten argued the cause for respondent (Mr. Whitney Crowell, attorney).
   The opinion of the'court was delivered by

Collester, J. A. D.

Defendant appeals from its conviction following a de novo trial in the Monmouth County -Court of having installed its milk vending machines in violation pf the setback requirements of the zoning ordinance of the Tpymship.of. Middletown and .of having failed to-obtain zoning permits for such machines. The court imposed a fine of $100 plus costs.

The case was heard on a stipulation of facts which can be summarized as follows. Defendant owned and operated eleven milk vending machines. Eight were installed in business zones and three in residential zones on sites which were leased to the defendant. It was agreed that if the location of the machines were subject to the zoning ordinance the front yard and side yard requirements of the ordinance had been violated. It was also conceded that defendant did not apply for and never received a zoning permit for the location of the machines.

The provisions of the township zoning ordinance, pertinent to the case, are as follows:

“§ 26.03 Definitions.
Certain words, phrases and terms in this Ordinance are defined for the purpose thereof as follows:
(49) STRUCTURE. Structure means a combination of materials to form a construction that is safe and stable and includes, among other things, stadiums, platforms, radio towers, sheds, storage bins, fences and display signs.
(53) YARD, FRONT. An open, unoccupied space on the same lot with the principal building, extending the full width of the lot and situated between the street line and the front line of the building projected to the side lines of that lot. Setback line shall be synonymous with the rearmost limit of the required front yard area.
(55) YARD, SIDE. An open, unoccupied space between the side line of the lot and the nearest line of a building and extending from the front yard to the rear yard, or in the absence of either of such yards, to the street or rear lot lines as the case may be. The width of a side yard will be measured at right angles to the side line of the lot.”
“| 26.07 Schedule.
The schedule or regulations entitled, ‘Schedule of Area, Yard, and Building Requirements, Zoning Ordinance of the Township of Middle-town, Monmouth County, New Jersey,’ and attached hereto applying to the uses of land and buildings and open spaces, minimum sizes of lots, lot areas, and all other matters therein contained as indicated for the various zones established by this Ordinance, and the , minimum- and maximum . regulations set forth therein, ' are hereby declared to be a part of this Ordinance.” "§ 26.08 General regulations. ' ' '
•" (1-)-'No building'or structure shall hereafter be-erected and no existing building, shall be moved, structurally altered, added to. ,or enlarged,, rebuilt, nor shall any land be designed, used or intended to be used for'any purpose other-than those included among the uses listed as 'permitted uses in each zone by this Ordinance and meeting the requirements as set forth by the schedule appended hereto and constituting a part of this Ordinance. Nor shall any open space contiguous to any building or structure be encroached upon- or reduced' in any manner, except in -conformity to the yard, lot area, building location, percentage of lot coverage, off-street parking space, and such other regulations designated in said schedule and this Ordinance for the zone in which such building, structure or space is located. In the event of any such unlawful encroachment or reduction, such building shall be deemed to be in violation of the provisions' of this Ordinance and the certificate of occupancy for such building or structure shall thereupon become null and void.
# $ J}! * * % SjS *
(8) Within the business zones, no products or goods shall be displayed or stored within the required front yard area of the lot.” “§ 26.24 Administration.
$ « :¡< :¡: -it H: it it
(2) CERTIFICATES AND PERMITS.
A. Zoning permits. Zoning permits shall hereafter be secured from the office of the building inspector prior to construction, erection or alteration of any structure or sign or part of a structure or upon a change in the use of a structure or land.”
“§ 26.27 Violations and penalties.
(1) * * * [T]he lessee * * * of * * * premises in which such violation [of any provision of this Ordinance] shall have been committed * * * shall for each and every violation upon conviction be imprisoned * * * for a period not exceeding Thirty (30) days or be fined not exceeding two hundred dollars ($200.00), or both. Each day that a violation is permitted to exist shall constitute a separate offense.”

The trial judge concluded that the milk vending machines were “structures” as defined in the zoning ordinance. He held that the defendant violated the ordinance by not having obtained zoning permits for the machines and that such machines had been installed in violation of the front yard and side yard setback requirements of the ordinance. This appeal followed.

Defendant alleges that the trial court erred in concluding that the milk "vending machines were “structures” within contemplation of the zoning ordinance and also contends that the setback provisions of the ordinance were never, intended to apply to milk vending machines. Defendant further argues that the zoning ordinance adopted by the township under the authority of N. J. S. A. 40:55-30, while not unconstitutional, cannot be constitutionally applied to milk vending machines because there is no reasonable relationship between a regulation requiring setbacks of such machines in front and side yards and the purposes of zoning set forth in N. J. S. A. 40 :55-32.

We do not agree with the appellant’s contentions. The definition of a “structure” contained in Section 26.03 (49) of the ordinance is sufficiently broad to include milk vending machines. Cf. Place v. Board of Adjustment of Borough of Saddle River, 42 N. J. 324, 328-29 (1964); Moore v. Bridgewater Tp., 69 N. J. Super. 1, 22 (App. Div. 1961). Moreover, while milk vending machines may not have been within the specific contemplation of the township governing body when the ordinance was adopted that does not render invalid the application of the ordinance in the instant case. It is an established rule of statutory construction that a statute (or ordinance) written in general terms will be given prospective application to situations unknown or nonexistent at the time of its enactment or adoption which are within its general purview and scope where the language fairly includes them. Safeway Trails, Inc. v. Furman, 41 N. J. 467, 477 (1964). As stated above, we believe that in its broad sense the word “structure” as defined in the ordinance includes milk vending machines, such as those which have been installed in the front yards of the properties in the instant case, and thus they are within the general purview and scope of the ordinance.

Further, we do not agree with the appellant’s argument that the setback provisions of the ordinance cannot be constitutionally applied to the machines because there is-no reasonable relationship between such regulations and the purposes of zoning as expressed in N. J. 8. A. 40:55-32. Among the purposes set forth in the statute are (1) to secure safety from fire and (2) to lessen congestion in the streets. In business zones, where eight of the machines are located, front and side yard setbacks afford access for fire-fighting equipment to all sides of a building located on the premises and further provide for parking and off-street loading facilities which lessen the congestion in the public streets fronting on the properties. Installing milk vending machines in the proscribed front yard area (and in one instance in this case a machine is located at the street line) may be expected to hinder or block access by fire-fighting equipment to the buildings on the premises. It may also produce greater congestion in the public streets and create traffic hazards when motorists do not drive their motor vehicles off the highway to use the facilities of such machines.

' The same zoning objectives apply to residential zones where three of the machines are located. Moreover, such setback regulations afford room for lawns and trees, keep residences away from street traffic and noise, provide for recreation and relaxation and add to the attractiveness and comfort of •& residential district.

. We are satisfied that the setback requirements of the ordinance can properly be applied to the milk vending machines in'this case.

Defendant also argues that setbacks are not a proper adjunct of the zoning power granted to municipalities in this State, i. e., that such requirements are not a valid exercise of the police power. The contention is without merit. See Gorieb v. Fox, 274 U. S. 603 (1927); San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148 (1958); Place v. Board of Adjustment of Borough of Saddle River, supra, at p. 329; Zampieri v. River Vale Tp., 29 N. J. 599, 610 (1959), and see' generally Rathkopf, Law of Zoning, chs. 34-4 and 34-22 to 23.

.Finally; defendant claims.the penalty' provision of the ordinance As unconstitutional and void because it' provides for excessively cintel and unusual punishment and since the penalty cannot he enforced the ordinance itself is a nullity.

Section 26.27(1), referred to above, provides that for each violation a jail term not exceeding 30 days and a fine not exceeding $200, or both, may be imposed. It further provides that each day that a violation is permitted to exist shall constitute a separate offense. It is defendant’s contention that if it were to be found guilty of an offense for every day during which the violation continued and sentenced to the maximum fine permitted by the ordinance for each of those days, the fine would be excessive and constitute cruel and unusual punishment.

Here defendant was found guilty of but one violation and a fine of $100 was imposed. It has sustained no injury because that provision of the ordinance relating to the cumulative imposition of sentences was not involved. In Town of Montclair v. Stanoyevich, 6 N. J. 479, 482-483 (1951), in a factually similar case where the same argument was advanced the court held it was not called upon to determine the validity of various sanctions which might be applied under the ordinance. See also Independent Warehouses, Inc. v. Scheele, 134 N. J. L. 133, 143-144 (E. & A. 1945). The fine of $100 imposed in the instant case was not excessive in constitutional intendment.

Affirmed.


author: Per Curiam.

text:
    LAWRENCE H. ROSENTHAL, INDIVIDUALLY AND t/a INDUSTRIAL REALTY AND FEIST & FEIST, A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS, v. ART METAL, INC., ETC., AND GENERAL DYNAMICS CORPORATION, ETC., DEFENDANTS-RESPONDENTS.
    Superior Court óf New Jersey Appellate Division
    Argued April 29, 1968 —
    Decided May 28, 1968.

      Before Judges Gaultcust, Lewis and Koi.ovs'ky.

      Mr. Philip L. Chapman argued the cause for Feist & Feist (Messrs. Hellring, Lindeman & Landau, attorneys).

      Mr. Joel Sondak argued the cause for Lawrence H. Rosenthal (Messrs. Waldor & Uochberg, attorneys).

      Mr. Richard R. Hellstern argued the cause for Art Metal, Inc. (Messrs. Lowenstein & Spicer, attorneys).

      Mr. William L. Dill argued the cause for General Dynamics Corporation (Messrs. Stryker, Tams & Dill, attorneys).
   Per Curiam.

In accordance with his opinion reported in 95 N. J. Super. 8 (Law Div. 1967) Judge Owens entered judgment in favor of defendants, and plaintiffs appeal. We affirm.

The facts are stated in that opinion and need not be repeated in full. Suffice it to say that (giving plaintiffs the benefit of all evidence favorable to them) plaintiff Bosenthal had been employed as a real estate salesman by Eeist & Feist (hereafter Feist); in February 1963 he left their employ and, as required by N. J. S. A. 45 :15-14, his salesman’s license was surrendered; on April 16, he took the broker’s examination; on April 18 he inquired by telephone and was told he had passed the examination; on April 22, before he received the license, he telephoned General Dynamics, whose plant had been destroyed by fire, and told its Mr. Yachmetz that the Art Metal plant was for sale and might be suitable for General Dynamics; the Art Metal plant was listed exclusively with Feist and five other brokers; on April 22, after talking to Yachmetz, Rosenthal entered into an agreement with Feist to split the commission if General Dynamics bought the property; on April 23 Rosenthal mailed a plot plan and other information relating to the property to General Dynamics; Rosenthal never told General Dynamics that the property was listed with Feist or of Feist’s interest in the deal, but on April 23 hé wrote Art Metal of his arrangement with Feist; Art Metal never replied; Feist never communicated with Art Metal or General Dynamics about the deal prior to the sale; on April 25 Rosenthal received his broker’s license; Rosenthal heard nothing from Art Metal or General Dynamics until May 12, when Yachmetz called him and asked whether he had any other property to offer, and Rosenthal suggested property in Elizabeth; Rosenthal did nothing other than above set forth to promote the sale, and Feist did nothing at all; on or about May 25 General Dynamics contracted to buy the property and thereafter closed title. Incidentally, all of Rosenthal’s letters were on letterheads of “Industrial Realty.”

N. J. S. A. 45:15-10, which deals with the examination for a broker’s license provides, in pertinent part, that:

“Upon satisfactorily passing such examination a license shall be granted by the commission to the successful applicant therefor as a real estate broker * f *, and the applicant upon receiving the license is authorized to conduct in this state the business of a real estate broker * * (Emphasis added) ■ ' ’ . !

Thus, the statute makes it clear that until receipt of the license an individual is not authorized to act as a broker. Acting as a broker without a license is punishable by a fine. N. J. S. A. 45 :15-33. And there is no distinction between an individual who was previously licensed as a salesman and one who was not.

In essence, Judge Owens held that Rosenthal was not entitled to collect a commission from Art Metal in his own right because he had no contract with it and was not licensed when he rendered the service for which he sought compensation; and Eeist could not in its own right because it had done nothing to earn it. He held further that neither Rosenthal nor Eeist was entitled to benefit from the co-brokerage agreement on the theory that each was the agent for the other because, when the joint enterprise was entered into and when Rosenthal acted pursuant thereto, Rosenthal was not a licensed broker. Therefore, Judge Owens concluded, neither plaintiff was entitled to recover in contract for commissions or in tort for malicious interference with his or their present contract or his or their present or prospective economic advantage. We agree. Therefore, it is not necessary for us to pass upon defendants’ argument that the sale was brought about through the efforts of others, and that, even if Rosenthal had a license, plaintiffs did not do enough to entitle them to a commission.

Plaintiffs’ appeal is predicated chiefly upon the proposition that N. J. S. A. 45 :15-3 requires only that a plaintiff be licensed when his cause of action arose.

N. J. S. A. 45:15-3 provides:

“No person, firm, partnership, association or corporation shall bring or maintain any action in the courts of this State for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he was a duly licensed real estate broker at the time the alleged cause of action arose." (Emphasis added)

Plaintiffs contend that their cause of action arose on May 25, 1963, when the contract for the purchase of the Art Metal property was signed by General Dynamics; at that time Rosenthal already .had his broker’s license; hence,, they complied with N. J. S. A. 45 :15-3 and are entitled to recover. The correctness: of that' argument is the key question in.this case.

As Judge Owens pointed out, no New Jersey case has expressly passed upon this question, but- see Tanenbaum v. Sylvan Builders, Inc., 29 N. J. 63 (1959) and Yoerg v. Northern New Jersey Mtg. Associates, 44 N. J. Super. 286 (App. Div. 1957). Elsewhere in the country there is a split of authority upon the question. Plaintiffs cite, as supporting their view, Pound v. Brown, 258 Iowa 994, 140 N. W. 2d 183 (1966); Schreibman v. L. I. Combs & Sons, Inc., 337 P. 2d 410 (7th Cir. 1964), certiorari denied, 380 U. S. 911, 85 S. Ct. 896, 13 L. Ed. 2d 797 (1965); Pierce v. Isabel, 70 Ohio App. 385, 40 N. E. 2d 481 (Ct. App. 1941). Defendants cite in opposition Bendell v. De Dominicis, 251 N. Y. 305, 167 N. E. 452 (1929). See also Calhoun v. Banner, 254 N. Y. 325, 172 N. E. 523 (1930); Kemmerer v. Roscher, 9 Wis. 2d 60, 100 N. W. 2d 314 (1960). Cf. Galbreath-Ruffin Corp. v. 40th & 3rd Corp., 19 N. Y. 2d 354, 280 N. Y. S. 2d 126, 227 N. E. 2d 30 (1967).

We adopt the views expressed by the New York Court of Appeals in Bendell because we think they express the policy which underlies our statute.

The New York statute considered in Bendell was almost identical with N. J. S. A. 45:15-3. Some time prior to September 1926, defendant asked Bendell to sell her property. At that time Bendell was a licensed broker. However, from September 1926 to November 7, 1927 Bendell had no license. During the period when Bendell was unlicensed, he produced one Lazarus as a prospective purchaser, but the parties could not agree on a price. Thereafter, and without the further intervention of Bendell, defendant and Lazarus, on November 15, 1927, signed a contract of sale. On that date Bendell' again had his broker’s license. The Court of Appeals held that nevertheless Bendell could not recover. In a unanimous opinion by Judge Pound, joined in by Chief Justice Cardozo and Justices Lehman, Kellogg, O’Brien and Hubbs, it reversed the judgment in Bendell’s favor, saying;

“The courts below have proceeded on the theory that the meeting of minds of vendor and purchaser on the terms of sale occurred on the date of the signing of the contract of purchase and sale; that the plaintiff was then a licensed real estate broker, and as that was ‘the date when the alleged cause of action Tfor commissions] arose,’ he maintained the burden of proof that he was a licensed real estate broker when such cause of action arose, within the provisions of section 442 — d, and is entitled to recover. Plaintiff has, however, failed to show that he was a licensed real estate broker at the time he rendered the services alleged in the complaint and proved on the trial. If he, while unlicensed, engaged in a single act prohibited by the article, he was guilty of a misdemeanor. His contention is that he is nevertheless subject only to the penalties imposed by law, and that his right to recover his commission is not affected by the statute. He relies on the principle enunciated as follows: ‘It is true that, where the statute prohibits the doing of a particular thing, the courts will not aid in enforcing contracts made in violation of the law; but where a contract, not unlawful in itself, has been executed, and the parties have enjoyed the benefits of the contract, the mere fact that one of the parties has violated a penal statute in the approach to the contract will not prevent a court from enforcing payment.’ * * *.
But the doing of the particular tiling, the rendering of services by plaintiff under his contract of employment as a real estate broker, when unlicensed, was in itself illegal. One purpose of the statute was to mark off ‘the business of the broker as distinct from occupations which by general acquiescence are pursued of common right without regulation or restriction,’ and to make illegal the acts of the unlicensed in the real estate broker’s field. Roman v. Lobe, 243 N. Y. 51, 152 N. E. 461, 463, 50 A. L. R. 1329. Plaintiff in this ease, having been left out of the picture from the time he made the offer of Lazarus to the time of the execution of the contract of sale, could not establisii his case upon his contract of employment without proving the criminal nature of his services in obtaining Lazarus as a xirospeetive purchaser for the real estate in question * * *. He seeks to avoid the effect of the illegal character of his services when rendered because, after his services ceased, tiie parties came together on terms first presented to the defendant by him. He comes not within the letter or the spirit of the statute. Parties are not allowed to cheat their licensed brokers by discharging them after a sale has been effected through their agency and at the same time gathering the fruits of their labor (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 382, 38 Am. Rep. 441), but this case is quite different. Out of services illegally rendered comes a lawful contract of sale. The question is whether, assuming for the purpose of the argument that plaintiff was the producing' cause of the agreement although he was absent when it was actually concluded, his claim for compensation is outlawed by the criminal nature of such services. The answer seems conclusively in the affirmative. Illegality is a defense to the action independently of the burden of allegation and proof contained in section 442 — d. Otherwise an unlicensed broker might negotiate sales with impunity up to the point of a complete agreement and then obtain his license for the purpose of recovering his commissions on the execution of a formal contract. The law is not so toothless.” (167 N. E. 453-454)

New York has adhered to that position in later cases. Calhoun v. Banner, supra. In Calhoun a broker, who had no license when he was hired, was permitted to recover only because the acts upon which he predicated his claim were all performed after he had his license. After quoting from Bendell, Judge Lehman said (172 N. E. p. 524) :

“Until the license was obtained any services he might render would be illegal; but for such illegal services, if any, the plaintiff claims no compensation. All the negotiations, all the services rendered through which the plaintiff induced his customer to accept the defendants’ offer, came after the date of the license. No illegal act by the plaintiff was a producing cause of the results achieved by the plaintiff for which he claims compensation, or taints with its own illegality the plaintiff’s cause of action.”

In the case at bar, neither Rosenthal nor Eeist did anything to accomplish the sale after Rosenthal received his license • — ■ every act upon which they predicate their claim was done by Rosenthal without a license, was illegal and was punishable under the Penalty Enforcement Law. N. J. S. 2A :58.1 et seq.; N. J. S. A. 45 :15-23.

Even if Rosenthal had not actually surrendered his salesman’s license, it would have made no difference, for he would not have been entitled to operate under it after he left the employ of Eeist. Cf. Brener & Lewis, Inc. v. Fawcett Publications, 197 Misc. 207, 90 N. Y. S. 2d 853 (Sup. Ct. 1949), affirmed 276 A. D. 994, 95 N. Y. S. 2d 598 (App. Div. 1950).

The judgment is affirmed.


author: Kolovsky, J. A. D.

text:
    APPLICATION OF JAMES T. MURPHY TO CONTEST THE ELECTION OF WILLIAM K. METTLER TO THE OFFICE OF COUNCILMAN-AT-LARGE OF THE CITY OF ENGLEWOOD, AND IN THE MATTER OF THE APPLICATION OF DOROTHY HEIR TO CONTEST THE ELECTION OF KENNETH KING TO THE OFFICE OF COUNCILMAN OF THE THIRD WARD OF THE CITY OF ENGLEWOOD, AND IN THE MATTER OF THE APPLICATION OF PETER M. ABEL TO CONTEST THE ELECTION OF ROBERT F. MILLER TO THE OFFICE OF MAYOR OF THE CITY OF ENGLEWOOD, PURSUANT TO N. J. S. A. 19 :29-1, ET SEQ. WILLIAM K. METTLER, INCUMBENT-APPELLANT, v. JAMES T. MURPHY, PLAINTIFF-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1968 —
    Decided May 24, 1968.

      Before Judges Gaulkin, Lewis and Kolovsky.

      Mrs. Sylvia B. Pressler and Mr. Michael L. Scherby argued the cause for appellant (Messrs. Ohin, Pressler d Scherby, attorneys).

      Mr. George S. Grabow argued the cause for respondent (Messrs. Grabow, Verp d Rosenfelt, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

At the general election held in the City of Englewood on November 7, 1967, Mettler, King and Miller were the Democratic candidates and Murphy, Heir and Abel, the Republican candidates for the offices of Councilman-at-Large, Councilman of the Third Ward and Mayor, respectively. The election returns showed the Democratic candidates to be the winners, Mettler by a majority of 17 votes, King by a majority of 376 votes and Miller by a majority of 136 votes.

A recount under N. J. S. A. 19 :28-l increased Mettler’s majority by one, an increase which was cancelled when it developed at the trial of the instant action that an additional absentee ballot should be counted for Murphy.

On November 24, 1967, the three Republican candidates instituted this action contesting the election of Mettler, King and Miller on the ground that, allegedly, “illegal votes [had] been received * * * sufficient to change the result.” N. J. S. A. 19 :29-l(e).'

During the course of a lengthy trial of the election contest, the court ruled that 35 of the more than 10,200 votes cast in the city-wide election for Councilman-at-Large and Mayor were to- be deemed “illegal” votes for the following reasons:

(a) Six, because the voters were disenfranchised by reason of criminal convictions.

(b) Seven, because the voters had moved from Englewood.

(c) Three, because the voters, whose present addresses were not proven, had moved from the addresses shown on the permanent registry records.

(d) Thirteen, because the voters, who were still residents of Englewood but had moved- from the addresses shown on the registry records, had not filed the change of address notice called for by N. J. S. A. 19 :31-ll(a) and had voted in the* district of their former residence. Of this group, one had moved to another address in the same district; ten, from one district to another district in the same ward; and two, to another ward.

(e) Six, because the total vote shown on the voting machines in the districts where they were cast exceeded the number of voting authorities issued.

The 35 votes adjudged illegal were insufficient in number to" have any effect on the elections of King and Miller. Their elections as Councilman of the Third Ward and Mayor, respectively, were confirmed. Their opponents Heir and Abel do not appeal.

With respect to the election for Councilman-at-Large, the trial court concluded that since no evidence had been adduced to show for whom the illegal votes had been cast, it was unable to “determine for whom the invalid ballots were cast and * * *, [since] the number of invalid votes cast exceeded the difference in the vote between Mr. Mettler and Mr. Murphy by 18 votes * * * [it] would find 'that neither candidate is'elected.”

Mettler appeals. We reverse. We are satisfied that even if the 35 votes were “illegal,” the contestants have not established a case for voiding an election under N. J. S. A. 19 :29-1(e).

Eespondent concedes that neither fraud, corruption nor widespread illegality was shown. Cf. In re Hunt, 15 N. J. Misc. 331, 191 A. 437 (Cir. Ct. 1937); Burkett v. Francesconi, 127 N. J. L. 541 (Sup. Ct. 1942); In re Donahay’s, 21 N. J. Misc. 360, 34 A. 2d 299 (Cir. Ct. 1943). With but few exceptions, there is not even a suggestion that the voters whose votes have been judged illegal had known that they were not entitled to vote as and where they did. There is no proof that illegal votes were cast at Mettler’s instigation or with his knowledge or consent. Cf. N. J. S. A. 19 :3-9.

We hold that in such circumstances an election may not be voided, as it was here, merely on a showing that the successful candidate’s majority was smaller than the number of illegal votes cast, without any attempt by the contestant to show for whom the illegal votes were cast.

When, as here, an election is contested on the sole ground that “illegal votes have been received * * * at the polls sufficient to change the result,” N. J. S. A. 19 :29-l(e), the contestant has not only the burden of showing that illegal votes were cast in number sufficient to change the result if they had in fact been cast for the contestee, but also the burden of showing, to the extent possible under the circumstances, for whom the illegal votes were cast.

Such is the rule not only of the New Jersey cases but also of the weight of authority elsewhere. Lehlbach v. Haynes, 54 N. J. L. 77, 80 (Sup. Ct. 1891); In re Clee, 119 N. J. L. 310, 325 (Sup. Ct. 1938); Brueckman v. Frignoca, 9 N. J. Misc. 128, 132, 152 A. 780, 782 (Cir. Ct. 1930); cf. Miller v. Town of Montclair, 92 N. J. L. 292, 296 (Sup. Ct. 1919), affirmed o. b. 93 N. J. L. 472 (E. & A. 1919); Wilkinson v. McGill, 192 Md. 387, 64 A. 2d 266, 274 (Ct. App. 1949); State ex rel. Brogan v. Boehner, 174 Neb. 689, 119 N. W. 2d 147 (Sup. Ct. 1963); Millet v. Board of Su pervisors of Maricopa County, 6 Ariz. App. 16, 429 P. 2d 508, 511 (Ct. App. 1967); see review of the authorities in In re Sugar Creek Local School District, 185 N. E. 2d 809, 817 (Ohio Com. Pl. 1962); cf. Bishop v. Smith, 350 S. W. 2d 494, 496 (Ky. Ct. App. 1961).

Lehlbach v. Haynes, supra, involved a petition contesting an election pursuant to a provision of the election law identical with that now found in N. J. S. A. 19 :29-1 (e) (see 54 N. J. L., at p. 78).

The court said:

“The contestant * * * insists that the statute only requires him to show illegal votes in number sufficient to change the result, if all be deducted from the incumbent’s tally. We do not, however, so read the act. It makes the reception of illegal votes a ground of contest only when they are sufficient to change the result — that is, not merely to show that the plurality declared for the incumbent is erroneous, but to show that another than he was the person legally elected. Unless the petition states circumstances which prima facie render this conclusion probable, it does not present a case within the law. Roche v. Bruggemann, 24 Vroom 122. There are other modes of proof besides the affidavit of the voter, and the obstacles in the way are not usually insuperable without compulsory process. But, at any rate, the difficulties spring from the terms of the statute, in accordance with which we must proceed in this statutory investigation. The presumption is with the incumbent, and we cannot assume, without evidence against that presumption, that the illegal ballots were for him rather than his opponents.” (at p. 81)

An exception to the rule has been recognized in eases where it is impossible to determine for whom the illegal votes were cast. Richardson v. Radics, 21 N. J. Misc. 466, 35 A. 2d 425 (Cir. Ct. 1943), reversed on other grounds 131 N. J. L. 406 (Sup. Ct. 1944); In re Application of Dorgan, 44 N. J. 440 (1965).

In Richardson v. Radics, supra, the trial court, after ruling that 63 of 244 military absentee ballots were invalid because those casting them were not registered voters, held that the whole soldier vote should be rejected because the 244 ballots had been commingled so that it was impossible to segregate the legal from the illegal votes. The appellate court did not reach the latter ruling since it determined that the 63 ballots were valid.

Dorgan presents an application of the exception noted. It does not, as respondent argues, support his contention that the only burden of a contestant is to show that illegal votes were cast in a number greater than the winner’s margin of victory. In Dorgan, the contestant did attempt to meet his burden of proving for whom the illegal votes were cast. On the basis of the proofs adduced, as the Supreme Court’s opinion notes,

“the court found that four such votes were cast for Pollotta reducing the vote for him to 3,108, the same number recorded for Dorgan, but found that one absentee ballot counted for Dorgan was invalid because, although the intent to vote for him was clear, the mark was placed just outside the square provided for it. The court felt it was obliged to disallow that vote under In re Keogh-Dwyer, 85 N. J. Super. 188, 204 A. 2d 351 (App. Div. 1964), in which matter an appeal is now before us.” (at p. 441).

The trial court in Dorgan found itself unable to determine for whom the remaining 21 illegal votes were cast. Six of these illegal votes represented an excess of votes recorded on the voting machine over “the number of persons who signed the voting books and the number of voting authorities issued.” Eifteen were the votes of voters who were questioned as to how they had voted. To quote from the cited opinion:

“There were 15 additional illegal votes as to which the trial court concluded it was unable to say for whom they were east. Some of those voters said they voted for Dorgan and some for Pollotta, but the trial judge, who had the benefit of seeing those witnesses, was not persuaded to credit their unsupported statements. Finally, the votes recorded on the voting machines exceeded by six the number of persons who signed the voting books and the number of voting authorities issued.
We think that upon this factual complex the trial court correctly concluded that neither candidate was entitled to a certificate of election and that the election be set aside.” (Emphasis added) (at p. 441)

We have noted that the trial court in the instant case ruled six votes invalid because the total vote shown on the voting machines exceeded the number of voting authorities issued. However, we conclude from our review of the record that the evidence is insufficient to support the court’s determination that these six votes should be adjudged to be illegal votes. Contestants made no effort to prove, as their petition had alleged, that the vote exceeded not only the number of voting authorities issued but also “the number of persons signing the voting books.” Further, we note that in the one district involving four of these votes — the other two were divided between two other districts — the vote cast for contestant Murphy was 490, that for appellant Mettler 321.

It may be conceded that the exception to the rule discussed supra is applicable to the six votes ruled illegal because of a deficit in voting authorities. However, the exception offers no justification for the contestants’ failure even to attempt to prove for whom the other 29 votes were cast.

Proof as to how an “illegal voter” voted may take several forms. Upon a determination by the court that a voter is not qualified, he may be compelled to disclose for whom he voted. N. J. S. A. 19 :29-7. Further,

“[c]ircumstantial evidence is admissible to prove for whom illegal votes were east at an election. * * ¥ Among the circumstances that may be considered are * * * [t]he party affiliations of the voter, and the relations between the voter and the candidates, or between him and others actively interested in advancing the canse of certain candidates, * * 26 Am. Jur. 2d, Elections, § 348.

The contestants offered no evidence on the critical issue, circumstantial or otherwise. (The only circumstantial evidence that crept into the case, and this by reason of cross-examination by contestee’s counsel, related to three disqualified voters, each of whom had in the past voted in the Republican primary. Two of them testified that they were employees of the City of Englewood which has not adopted the Civil Service Law. The third testified that he had split his ticket and, although he remembered for whom he had voted in the case of two other offices, he could not remember whether he voted for Murphy or for Mettler as Councilman-at-Large.)

Further, the contestants expressly rejected the judge’s continuing offer to compel each witness whose vote he had disqualified to disclose for whom he had voted. The same offer was then made to the contestees but we agree with them that they were under no obligation to accept it.

Apposite is what the Maryland court said in Wilkinson v. McGill, supra:

“The question is by no means free from difficulty, but we think the weight of authority and the better reasoning uphold the view that complainants, desiring to avoid an election because illegal votes are cast, have upon them the burden of proving for whom these votes are cast. They cannot thrust that burden upon the Court by arguing that there is a probability that such votes were east for the side having the majority. They must prove, or at least attempt to prove, how the illegal voters voted. If direct proof cannot be obtained from the illegal voters themselves, other evidence of a circumstantial nature may be offered. In any event, there must be an effort to produce this proof. If an eifort is made, which proves futile, and there is no way of producing proper evidence, it may be that the safest procedure is to throw out the election, but we have not that situation before us. As we have already said, the appellees in this case made no effort, either to prove how the illegal voters cast their ballots, nor to offer any explanation of their failure to do so. They did not state that such evidence was impossible for them to obtain. Under these circumstances, we must conclude that they have failed to meet the burden imposed upon them, and that the election must stand.” (at p. 274)

The judgment is reversed and the matter remanded to the trial court with directions that judgment be entered in favor of appellant Mettler.


author: Leonard, J. A. D.

text:
    VONINS, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LAWRENCE B. RAFF, ASSIGNEE FOR THE BENEFIT OF CREDITORS OF CREST, INC., DEFENDANT-APPELLANT, AND EDWARD LUBRANO, CREST, INC., A CORPORATION OF NEW JERSEY, AND TONE-CREST, INC., A CORPORATION OF NEW JERSEY, DEFEND ANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 29, 1968 —
    Decided May 31, 1968.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Lawrence B. Raff argued the cause for defendant-appellant (Messrs. Raff, Sherman & Scheider, attorneys; Mr. Terence P. Corcoran, on the brief).

      Mr. James M. Havey argued (he cause for plaintiff-respondent (Messrs. Novins & Novins, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant Lawrence B. Eaff, assignee for the benefit of creditors of Orest, Inc., appeals from an interlocutory order of the Superior Court, Chancery Division, denying the assignee’s motion to dismiss the complaint of plaintiff' Vonins, Inc., and from a final declaratory judgment entered in A7onins’ favor.

On October 27, 1965 Crest, pursuant to N. J. S. 2A :19 — 1 el seq., executed an assignment of its corporate assets to Eaff for the benefit of its creditors. On or about November 1, I960, a large quantity of merchandise was forcibly removed from Crest’s premises in Lakewood, and taken to New York, where the goods were confiscated and impounded pending legal proceedings in that state. On November 10, 1965, Eaff sold at public auction the remainder of the assets located at Crest’s premises for $8709.92. The Ocean County Court, Probate Division entered an order on November 12,1966, confirming the sale “free and clear of ail liens, liens, if any, to attach to the proceeds * * Subsequently, on December 22, 1965, Vonins instituted the present proceedings in the Superior Court, Chancery Division.

AYmins a seller of plumbing and heating parts and equipment, alleged in its complaint that on October 9, 1963 (over 2 years before the assignment for the benefit of creditors), it had entered into a written agreement with Crest, an installer of plumbing and heating apparatus. The agreement provided that Crest would assign all of its then existing installation contracts to Vonins. The latter agreed to engage Crest as its sub-contractor for furnishing labor under those installation contracts and under any others that Vonins might obtain during the period of the agreement. Yonins obligated itself to furnish Crest all “the specified quality and quantity of materials” that Crest would need for completion of the installation contracts. Crest was to receive for its labor services 40% of the total billings that Yonins would issue for a completed job.

Plaintiff maintained that from October 9, 1963 on, in accordance with its contract with Crest, it stored and warehoused at Crest’s place of business all the latter’s required supplies. It appears that the agreement between Yonins and Crest was terminated in June 1965, but that Crest had re-delivered to Yonins only a small quantity of the merchandise received under the contract. Yonins asserted that: at the time of the assignment for the benefit of creditors, a large quantity of the materials it had supplied was still stored at Crest’s premises; much of this equipment was confiscated therefrom by the taking that occurred on or about November 1, 1965; and the balance thereof was sold at the assignee’s sale in spite of plaintiff’s demand for the return of the merchandise.

Plaintiff in the Chancery Division sought, inter alia, a declaratory judgment determining the relative rights of plaintiff and Raff to the above noted equipment, and to the proceeds of the assignee’s sale which were purportedly in Raff’s possession.

I

Preliminarily, we consider Raff’s appeal from the interlocutory order denying his motion to dismiss the complaint. Raff argues, as he did below, that the Chancery Division did not have subject matter jurisdiction over the assignment proceeding which had been instituted and which was then pending in the County Court. He urges that the latter court had exclusive jurisdiction and that plaintiff should have sought a “turn-over” or reclamation order in that forum. This point is without substance.

Even if the Chancery Division lacked jurisdiction for the reason urged, defendant was not entitled to a dismissal of the complaint. At best he would have been entitled only to have the cause transferred to the County Court. See Gray v. Cholodenko, 34 N. J. Super. 190, 194 (App. Div. 1955); R. R. 1 :27D (a). Further, on this appeal we deem it proper to deal with the meritorious question. See Gray, supra, at 194; R. R. 1 :27D (b). See also Nat. Ben Franklin Fire Ins. Co. v. Camden Trust Co., 21 N. J. 16, 24 (1956).

Defendant also argues that the Chancery Division should have dismissed Vonins’ complaint because: (1) declaratory relief cannot bo given when existing alternative remedies are available; and (2) declaratory relief may be given only when there is a genuine uncertainty with respect to rights, status or other legal relations. Neither of these contentions are meritorious.

The existence of another available remedy does not preclude a judgment for declaratory relief. R. R. 4 :92A. See also Nat.-Ben Franklin Fire Ins. Co. v. Camden Trust Co., supra, at p. 23. Whether a court should grant declaratory relief is ordinarily a matter resting in judicial discretion. The interpretation of the 1963 Vonins-Crest agreement and the adjudication of the rights of the parties thereto in the merchandise allegedly delivered to Crest pursuant to that contract were matters well suited for declaratory relief. N. J. S. 2A :16-53 and N. J. S. 2A :16 — 54. Accordingly, we hold that the trial court did not abuse its discretion in determining that this proceeding was appropriate for the rendering of a declaratory judgment.

II

We next consider Kaff’s appeal from the final judgment. The assignee urges that the judgment entered by the trial court was against the weight of the evidence and in conflict with the applicable law.

The trial court in part based its determination for plaintiff upon the conclusion that “[s]ince the assignee for the benefit of creditors’ rights in this property could be no better than the rights of the assignor, * * * determination of Crest Inc.’s claim to this property necessarily fixes Raff’s rights and plaintiff’s claim to the proceeds of the assignee’s sale.” In so doing the court erred.

The assignee for the benefit of creditors not only has the general powers of a successor to his assignor, N. J. S. 2A :19-13, but also is vested with additional powers as the representative of the creditors. N. J. S. 2A :19-14 provides as follows:

“The assignee, in addition to the powers which he may exercise as the successor to the assignor, shall also at all times be the representative of the creditors of the assignor, and shall have the same power to set aside conveyances, and to recover or reach assets for the benefit of the creditors as a creditor would have who was the holder of a judgment and levy against the assignor and his property at the date of the assignment. All conveyances, mortgages and transfers of property, real or personal, made by the assignor, which are void or voidable as against the creditors of the assignor, shall in like manner be void or voidable as against the assignee.”

Further under the Uniform Commercial Code, N. J. S. 12A :1-101 et seq., the applicability of which is discussed infra, the assignee for the benefit of creditors has rights equal to those given to actual creditors. N. J. S. 12A :1-201 (12). Raff’s powers are not limited by those his assignor possessed.

Therefore the basic question here involved is whether the assignee by virtue of the Uniform Commercial Code has greater rights than plaintiff to the materials delivered pursuant to the 1963 Vonins-Crest agreement. The relevant Code provision, N. J. S. 12A :2-326, in pertinent part provides :

“(1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
(a) ‘a sale on approval’ if the goods are delivered primarily for use, and
(b) a sale ‘or return’ if the goods are delivered primarily for resale.
(2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer's creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum.’ However, this subsection is not applicable if the person making delivery
(a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
(c) complies with the filing provisions of the Chapter on Secured Transactions (Chapter 9) * *

At tlie outset, it is to be noted that the general policy of the dodo requires “good faith not only between the parties” to a commercial transaction, but as against interested third parties” as well. N. J. S. 12A :2-326, Uniform Commercial Code Comment 2. Therefore, subsection (3) of N. J. S. 12A :2-326 is to be construed so as to resolve all reasonable doubts concerning the nature of a commercial transaction in favor of general creditors of one who is deemed a “buyer” in a “sale or return” situation. As against such creditors neither the form of the relevant agreement nor the words used therein are controlling. See Comment, supra. In furtherance of this policy, subsection (1) of the statute establishes a presumption that a “sale” to a “buyer” for resale purposes is a “sale or return.” N. J. S. 12A:2-326, New Jersey Study Comment 1. Under subsection (2) of the statute, goods held by a “buyer” pursuant to such a transaction became subject to the claims of the “buyer’s” creditors.

The 1963 agreement between Vonins and Crest did not stem from arms-length bargaining. At the time this contract was executed Orest was in financial difficulty. It was then purchasing supplies from, among others, Elite Sales Corp., ■Inc. The controlling stockholder of Elite conceived A plan which would protect Elite’s accounts receivable due from Crest and keep the latter from going into insolvency or bankruptcy proceedings. The result was the formation of plaintiff corporation and the execution of the Vonins-Crest agreement.' No security agreement or financing statement was signed by Orest regarding the merchandise delivered'to it by Vonins pursuant to the contract.

The fact that the agreement is couched in “subcontractor,” as opposed to sales, terminology is not dispositive of the issue here involved. The agreement ostensibly was executed to protect the accounts receivable due the related supplier under its former sales arrangement with Crest. To allow plaintiff to prevail would be to allow Vonins, by the use of this ambiguous contract, to secure an advantage over all innocent creditors of Crest. This is the very evil that the Code seeks to prevent. See N. J. S. 12A :2-326, New Jersey Study Comment 1.

In General Electric Co. v. Pettingell Supply Co., 347 Mass. 631, 199 N. E. 2d 326 (Sup. Jud. Ct. 1964) an assignee-for the benefit of creditors was held to have a right in certain lamps superior to that of an alleged consignor of the merchandise. There the consignment arrangement was cast in the form of an agency relationship, and the consignor argued that since there was no “sale” or transfer of title to the consignee, the Code provision was inapplicable. Tb,e Court stated:

“We disagree with the contention that § 2-326 (3) is inapplicable. That subsection is by its terms concerned with certain transactions which,- although they may not be sales under the definition of * * * §. 2-106 .(1), are nonetheless ‘deemed to be on sale or return’ ‘with respect to claims of creditors of the person conducting the business * * *.’ The subsection specifically states that it is applicable' even though the ‘agreement purports to reserve title to the person .making delivery until payment or resale or uses such words as “on consignment” or “on memorandum”.’ * * (at p. 328)

Thus in the case at bar, we adopt the reasoning of the Massachusetts court and conclude that the supply arrangement between plaintiff and Crest, insofar as it may affect the rights of the assignee, in spite of its label, should be deemed a “sale or return,” within the purview of N. J. S. 12A :2-326 (3).

Plaintiff argues that the Code is not applicable because Crest did not engage at its place of business in over-the-counter selling of the merchandise delivered by Vonins. In support of this argument, plaintiff points to the provision in N. J. S. 12A :2-326 (3) requiring Crest to have maintained “a place of business at which [it dealt] in goods of the kind involved, under a name other than” Vonins.

This point has no merit. The record clearly indicates that Crest was in business “under a name other than the name of the person making delivery.” It is true that Vonins occupied the second floor of Crest’s premises and that signs of both Vonins and Crest were displayed on the exterior of the building. However, Edward Lubrano, Crest’s Secretary-Treasurer, conceded that no creditor of Crest who was not aware of the relationship between Vonins and Crest would have known that Vonins’ operations extended into Crest’s area of the confines.

Further we do not deem it to be a prerequisite to Code application that Crest have been engaged at its premises in over-the-counter retail selling of plumbing equipment. Before the 1963 agreement, Crest installed this equipment, purchased from Elite, for various builders and developers. Thereafter, it continued to do the same with the equipment it obtained from Vonins. At all times in which Crest was engaged in operations, it performed the same method of distribution of equipment from manufacturer to ultimate user. Clearly, Crest maintained a place of business at which it dealt “in goods of the kind involved.” Even though an overall price would be charged for the installation of the equipment, it cannot be denied that the price of the equipment installed was a distinct component of that consideration. Thus, plaintiff delivered goods to Crest “for sale” to others. That resale need not have been consummated at Crest’s premises for the statute to apply.

Having determined that N. J. S. 12A :2-336 (3) applies and that the transaction here involved is to be deemed a “sale or return,” we finally consider whether any of the exceptions stated in subsection (3) of the statute are applicable.

. New Jersey does not have “an applicable law providing for a consignor’s interest or the like to be evidenced by a sign.” Hence subsection (3) (a) has no vitality in this State. Nevertheless, the trial court found this subsection to be applicable, since the property was marked as Vonins’. We disagree. The cartons that the goods were stored in were la-belled “Vonins.” They were not marked “Vonins as consignor,” nor did they have thereon any other marking that would indicate the nature of the Vonins-Crest transaction. Nothing on the cartons would alert an innocent creditor that thej'- contained anything other than merchandise already purchased by Crest from Vonins in the usual course of business. Thus we find subsection (3) (a) to be inapplicable.

The trial court also found subsection (3)(&) to be applicable since it felt that the evidence demonstrated “general knowledge” by Crest’s creditors that Crest was “substantially engaged in selling the goods” of Vonins. However, the uncontroverted evidence establishes that although Crest’s trade creditors, approximately ten in number, may have known of the Vonins transaction, some 55 to 60 of its general creditors did not have such knowledge. This does not support the trial court’s conclusion that the Vonins-Crest transaction was “generally known” by Crest’s creditors. Consequently, we find that subsection (3) (&) does not apply.

Since it is not denied that the filing provisions referred to in subsection (3) (c) were not complied with, that subsection likewise has no application.

• Based upon the above, we conclude that as between plaintiff and defendant, defendant has the superior right to the merchandise sold at public sale and to the proceeds of that sale. We further determine that Baff has a right paramount to Vonins in the merchandise forcibly removed from Crest’s place of business to New York. This latter holding does not adjudicate the rights in the New York merchandise as between Baif and any other person asserting a claim thereto.

Beversed and remanded for the entry of judgment in accordance herewith.


text:
    EDWARD MULLANE, PLAINTIFF, v. WILLIAM STAVOLA, AND MARY STAVOLA, DEFENDANTS. MARIE C. SLANE, ADMINISTRATRIX AD PROS. AND GENERAL ADMINISTRATRIX OF THE ESTATE OF FRANCIS J. SLANE, JR., DECEASED AND MARIE C. SLANE, INDIVIDUALLY, PLAINTIFFS, v. WILLIAM STAVOLA, AND MARY STAVOLA, DEFENDANTS. JOSEPH F. SOMERSET, PLAINTIFF, v. WILLIAM STAVOLA, AND MARY STAVOLA, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 15, 1968.

      Mr. Stephen E. Barcan for plaintiff Mullane (Messrs. Wilentz, Goldman and Bpitzer, attorneys).

      Mr. John A. Pindar for plaintiffs Slane (Messrs. Pindar, McElroy, Connell and Foley, attorneys).

      Mr. Edwin T. Ferren for plaintiff Somerset (Messrs. Richman, Berry and Ferren, attorneys).

      Mr. Henry PI. Rubenson for defendants Stavola.
   Halpern, A. J. S. C.

This is a motion for judgment on the pleadings by the defendants based on their affirmative defense that the guest statute of the State of Florida bars plaintiffs’ suits arising from an automobile accident which occurred there; and a cross-motion by the plaintiff, Edward Mullane, (now deceased), to strike that defense. The plaintiffs in the consolidated cases have agreed to be bound by the determination of these motions.

The plaintiffs’ complaints charge defendants with negligence in failing to exercise reasonable care in the operation of their automobile, resulting in their sustaining personal injuries and/or wrongful death. The defendants contend the Florida law, which provides that a guest may not recover against his host-driver, applies unless he alleges and proves the driver to be grossly negligent or guilty of willful and wanton misconduct. Florida Statute § 320.59.

The following facts are undisputed: The plaintiffs, Edward Mullane, (now deceased), Francis J. Slane Jr. (now deceased) and Joseph F. Somerset, and the defendant, William Stavola, all domiciled in New Jersey when the accident occurred, were students at St. Leo’s College, Dade City, Florida, for the school year 1966-1967. On November 12, 1966 while returning to the campus from Dade • City, the automobile operated by the defendant, William Stavola, and owned by his mother, Mary Stavola, collided with a telephone pole. There were, six fellow students in the Stavola automobile. Three died immediately, or soon thereafter, from injuries received in the accident. Plaintiff, Edward Mullane, was one of the survivors — he remained in a coma from the date of the accident to February 15, 1968 when he died. Plaintiff, Joseph F. Somerset, and defendant, William Stavola, are the only remaining survivors.

Admittedly, the Stavola automobile was registered with the New Jersey Division of Motor Yehicles. Insurance was obtained in New Jersey and paid for under rates applicable therein. The plaintiffs and William Stavola resided in Florida while attending college and their ill-fated trip started and ended in Florida. Their respective parents were domiciled in New Jersey, and the plaintiffs and William Stavola expected to return to their New Jersey homes at the end of the school year.

The narrow issue is whether, under the facts here existing, New Jersey or Florida law applies on the issue of the duty owed by a host-driver to his guests.

New Jersey abandoned the lex loci delicti approach (that is, application of the law of the place of the wrong) in Mellk v. Sarahson, 49 N. J. 226 (1967), and adopted the approach used in Babcock v. Jackson, 12 N. Y. 2d 473, 240 N. Y. S. 2d 743, 191 N. E. 2d 279, 95 A. L. R. 2d 1 (1963). In Babcock, New York repudiated the lex loci delicti “jurisdiction-selecting” rule and replaced it with a “grouping of contacts” or “center of gravity” test as being more flexible and just. Today, the touchstone is to determine which state has the paramount governmental interest, or concern, in fixing the rights and liabilities between the parties when the case has multi-jurisdictional contacts.

The defendants argue that the guest law of Florida is applicable and rely heavily upon the 4 to 3 decision by the New York Court of Appeals in Dym v. Gordon, 16 N. Y. 2d 120, 262 N. Y. S. 2d 463, 209 N. E. 2d 792 (Ct. App. 1965), which' they contend is on all fours with the instant case. In Dym suit was commenced in New York by a New York passenger-guest against a New York driver-host, driving a New York registered car. The action was for personal injuries caused by the negligent operation of the host’s car on a trip that began and ended in Colorado. Both plaintiff and defendant wore domiciled in New York but were follow students attending Colorado University when the accident occurred. The court held the Colorado guest statute applicable. I am convinced the majority of the court in Dym misapplied the rule in Babcock; and, in any event, Dym by the criteria laid down in Melik is not the law in New Jersey. The majority in Dym fashioned a weighted contacts analysis, with the site (Colorado) where the relationship arose being the overly-weighted contact. The parties had “come to rest” there and were living under the aegis of Colorado law. The loci was not fortuitous. The majority of the court relegated public policy to a distant secondary position:

“* * # preoccupation with New Tort social welfare problems * * * should not be treated as ‘contacts’ which are found then to outweigh the factual contacts. * * * Public policy, per se, plays no part in a choice of law problem.” (262 N. Y. S. 2d 463, 468-469, 209 N. E. 2d 792, 795-796).

Judge Euld, who wrote the majority opinion in Babcock, sharply dissented:

“It was our endeavor in Babcoclc to .identify, in the first instance, the policies embodied in the particular laws in conflict, then to ascertain the interests of the jurisdictions involved * * * in view of their contacts with the case * * *. The mere fact that the guest-host relationship between the New York parties originated in Colorado has, in truth, as little relevance to the policy underlying that state’s guest statute * * * as did the fact, in Babcock, of the occurrence of the accident in Ontario in relation to the similar policy embodied in its guest statute.” (262 N. Y. S. 2d 463, 471-472, 209 N. E. 2d 792, 798-799)

The dissent in Dym comports with the philosophy expressed by Justice Proctor in Mellk on p. 229: “This Court has already recognized that the lex loci delicti should not be applied mechanically, but that courts should give attention to other factors which are relevant to the choice of law process.” See also Note: The “Grouping of Contacts” Rule, etc., 20 Rutgers L. R. 572 (1966); Reich v. Purcell, Cal. 63 Cal. Rptr. 31, 432 P. 2d 727 (1967); 46 Texas L. R. 141 (1967).

As held in Mellk, supra, the state wherein the wrong occurred has the dominant interest in regulating conduct within its borders, so that the rules of the road of Florida would apply to motor vehicles being driven on its highways. Florida, however, has little or no interest in denying a remedy for injuries suffered in Florida involving New Jersey domiciliarles. Florida’s concern operates to avoid imposition of excessive financial burdens on host-drivers. Its guest statute was enacted “under the impetus of a feeling that the gratuitous guest is entitled to no claim against his host for the ordinary mishaps of modern traffic, and under the impetus of the claim of liability insurance companies that frequent collision between host and guest has increased insurance rates.” Prosser, Law of Torts, § 77 (2nd edition, 1955).

In comparing Florida’s policy goal in its guest statute against Now Jersey’s strong declared policy of compelling a host-driver to exercise ordinary care for the safety of his guest-passengers, and to compensate them for injuries caused by Ms negligence, one must conclude that Florida’s guest law must give way. See Cohen v. Kaminetsky, 36 N. J. 276 (1961). Any test which gives little or no weight to a “policy” test is at best artificial. When courts speak of “grouping of contacts,” “center of gravity,” “paramount interest,” “seat of the relationship” or “fortuitous circumstances,” they are really attempting to arrive at a selective result. One might with more reason say “what law does justice require be applied ?”

As 1 view it, by any of the aforesaid tests, New Jersey law should be applied in the instant case. Even though Florida’s “contacts” may be quantitatively greater than New Jersey’s they are qualitatively less significant. The salient consideration is that all the parties at the time of the accident were domiciled in New Jersey. Their Florida residences were temporary. New Jersey’s interest and concern in the parties as domiciliarles was greater than Florida’s interest in them as temporary residents, hence New Jersey’s public policy requiring drivers to exercise greater care for passengers than Florida does should control. The car was licensed under the laws of New Jersey and the insurance coverage was written and rated pursuant to such laws. Such insurance coverage was considereed highly significant by Chief Justice Traynor in Reich v. Purcell, supra, 63 Cal. Rptr., at p. 35, 432 p. 2d, at p. 731 when he said:

“A defendant cannot reasonably complain when compensatory damages are assessed in accordance with the law of his domicile and plaintiffs receive no more than they would have had had they been injured at home.”

The distillation of all I have said imposes upon a court the duty to search and find the proper law to apply based upon the interests of the litigants and the states involved. Therefore, if an application of the law of the place of the wrong would defeat the interests of the litigant and of the states concerned, that law should not be applied. Reich v. Purcell, supra.

Defendants’ motion for summary judgment is denied. Plaintiffs’ motions to strike defendants’ affirmative defense applying the Florida guest statute are granted.

Plaintiffs will present an appropriate order.


author: Fisher, J. S. C.

text:
    THE STATE OF NEW JERSEY v. GERALD LEON AGENT, DEFENDANT.
    Superior Court of New Jersey-Law Division — Criminal
    Argued May 3, 1968 —
    Decided May 3, 1968.

      Mr. Thomas L. Yaccarino, Assistant County Prosecutor, for the State of New Jersey (Mr. Vincent P. Keuper, County Prosecutor of Monmouth County, attorney).

      Mr. Harold A. Iiarasic, Assistant Deputy Public Defender, for defendant (Mr. Peter Murray, Public Defender, attorney).
   Fisher, J. S. C.

Defendant has moved pursuant to R. R. 3 :2A-6(a) for an order suppressing evidence seized from his person by officers of the Matawan Police Department. The facts are stipulated. The defendant was brought to the Matawan Police Headquarters in an unconscious state by two unidentified men at 11:36 p.m. on November 4, 1967. While the defendant was still unconscious he was searched by police officers who discovered a quantity of marijuana on the defendant’s person. Defendant was later indicted under N. J. S. A. 24:18-4 for possession of narcotics.

Defendant argues that under these circumstances it was incumbent upon the state to secure a search warrant before conducting a search of the defendant’s person. U. S. C. A. Const. Amend. 4.

It was recognized in Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948) that “There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.” Such a situation existed in Wayne v. United States, 115 U. S. App. D. C. 234, 318 P. 2d 205 (D. C. Cir. 1963), certiorari denied 375 U. S. 860, 848 Ct. 125, 11 L. Ed. 2d 86 (1963) where police had reason to believe that the victim of an abortion was languishing near death inside of the defendant’s premises.

In State v. Puryear, 94 N. J. Super. 125 (App. Div. 1967) an agent of the Newark Bureau of Industrial Hygiene and Air Pollution Control received a complaint of an odor of coal gas emanating from an apartment in Newark. The police rescue squad was summoned and the apartment was broken into upon the assumption that people might be trapped inside. Evidence of bookmaking activities were discovered and seized. In sustaining the search without a warrant the Appellate Division noted that the purpose of the search was not to effect an arrest, “but rather to avert a possible disaster from what reasonably appeared at the moment to be a developing emergency.” (at p. 135).

In the case here under consideration there was nothing to indicate to the Matawan Police that the defendant had violated the law, but the officers had an unconscious man on their hands. He was obviously sick or injured. It then became absolutely necessary for the officers to search the defendant to discover his identity, next of kin, and possible information which would indicate that he was suffering some chronic disease. A search of an unconscious person by the police in these circumstances is not only reasonable, but required. In accord on similar facts is Vauss v. United States, 125 U. S. App. D. C. 228, 370 F. 2d 250, 252 (D. C. Cir. 1967).

The motion is denied.