author: Eastwood, J. A. D.

text:
    FLOYD BARNHART AND LAWRENCE DeANGELIS, PLAINTIFFS-RESPONDENTS, v. UNITED AUTOMOBILE, AIRCRAFT, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) INTERNATIONAL UNION AND AMALGAMATED LOCAL 669, CIO, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided March 1, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Martin J. Loftus argued the cause for the plaintiffs-respondents.

      Mr. Samuel L. Rothbard argued the cause for the defendants-appellants (Messrs. Rothbard, Harris •& Oxfeld, attorneys; Mr. Abraham L. Friedman, of counsel).
   The opinion of the court was delivered by

Eastwood, J. A. D.

We are of the opinion that the judgment of the Superior Court, Chancery Division, directing the reinstatement of the plaintiffs as members of: United Automobile, Aircraft, Agricultural Implement Workers of America (UAW-CIO) International Union and Amalgamated Local 669, UAW-CIO, must be affirmed, on the ground that the international convention was without authority to expel them.

It is not necessary to engage in a detailed factual recital with respect to the charges made against the plaintiffs. A statement thereof may be found in the opinion of Judge Grimshaw, reported in 10 N. J. Super. 357 (Ch. Div. 1950). Suffice it to say that the plaintiffs, Barnhart and DeAngelis, president and financial secretary-treasurer, respectively, of Local 669, were charged with offering a bribe to one Eugene Zoppo (a member of Local 669 and international representative assigned to assist Local 950, whose members were employees of the Eowe Manufacturing Company), to secure a reduction in the wage rates of the employees of the Eowe Company when it changed the model of a cigarette vending machine. On December 20, 1948, the plaintiffs were tried and acquitted by the trial committee of Local 669 and their verdict was approved by the local union. Thereafter, in July, 1949, Local 950 presented the same charges to the executive board of the international convention, which in turn referred the matter to its grievance committee. At the outset of the trial by this committee, the plaintiffs entered a special appearance, protesting the committee’s authority to hear and determine the charges and thereupon left; the meeting. Notwithstanding this protest, the grievance committee proceeded with the hearing and reported to the convention their findings of plaintiffs’ guilt, recommending expulsion. The resolution expelling the plaintiffs was adopted by an almost unanimous vote of the convention. At the conclusion of the trial of the present action to set aside the expulsion of the plaintiffs, the Chancery Division determined that * * the expulsion of the plaintiffs from the defendant union was not accomplished in the manner provided by the Union Constitution” and directed their reinstatement.

The constitution of the international union with which we áre concerned was adopted at Atlantic Oity in November, .1947. In July, 1949, the convention adopted a constitution at Milwaukee, Wisconsin, wherein “In case of extreme emergency, and when it appears to the International Executive Board that irreparable injury may result to the International Union or to a subordinate body * * *” the executive board is vested with authority to originate and try charges against members. However, the issue here is not affected by the 1949 constitution.

The pertinent provision of the 1947 constitution is contained in sections 1 and 3, Article 48, viz.:

“All ekai'ges against a member of the Union with the violation of any of the provisions of this Constitution, or with conduct unbecoming a member of the Union, must be specifically set forth in writing and signed by the member making the charge.
Charges must be submitted. to the Recording Secretary of the Local Union or of the Shop Organization, as the case may be, within sixty (60) days of the time the complainant becomes aware of the alleged offense, * * *”

Courts are loath .to interfere with the internal management of an unincorporated, voluntary association. The right of a voluntary association to interpret and administer its own rules and regulations is as sacred as the right to make them, and there is no presumption against just and correct action or conduct on the part of its supervising or appellate authorities and tribunals. The expulsion of a member, if for cause within the jurisdiction of the tribunal of the association by which it is pronounced, after notice and opportunity to be heard and a trial conducted in accordance with the constitution, laws and regulations of the association, is conclusive upon the civil courts. Dragwa v. Federal Labor Union No. 23070, 136 N. J. Eq. 172 (Ch. 1945). While it is clear from an examination of the authorities that a trade union may discipline and even expel a member, such action cannot be arbitrarily exercised, but must follow the procedure specifically provided for in tlie laws of the association. Walsh v. International Alliance, &c., 22 N. J. Misc. 161 (Ch. 1944); Gordon v. Tomei, 19 A. 2d 588 (Super. Ct. Pa. 1941); Sweetman v. Barrows, 263 Mass. 349, 161 N. E. 272, 62 A. L. R. 311 (Mass. Sup. Jud. Ct. 1928); 25 R. C. L. 58; Dragwa v. Federal Labor Union Mo. 23070, supra. Membership in an association or society is based upon the implied, if not express, condition of loyalty. The power of expulsion is included in what may be denominated the police power of such an organization, which is derived from the law of self-preservation. It must have the power to relieve Itself of its discordant elements, in order that harmony may prevail and, therefore, it has the right to provide by its constitution and by-laws, for the expulsion of members transgressing their reasonable provisions. See DeMille v. American Federation of Radio Artists, 31 Cal. 2d 139, 187 P. 2d 769 and 175 A. L. R. 382, pp. 390-393, 506-523 (Cal. Sup. CL en banc 1947).

The settled rule in New Jersey is that the constitution is a contract between the international union and the local union and the members thereof. “The members of the local may all, of right, insist that their affairs be managed in the manner therein prescribed.” Harris v. Geier, 112 N. J. Eq. 99 (Ch. 1932). The procedure for the trial of charges made against a member must be that proscribed by the constitution, and unless it is followed the penalty imposed upon the member will he set aside. Blanchard v. Newark Council, 77 N. J. L. 389 (Sup. Ct. 1909); Gaestel v. Brotherhood of Painters, &c., 120 N. J. Eq. 358, 362 (Ch. 1936). So long as such an association adheres to such rules and regulations, the member must likewise act in accordance therewith. When, however, the association departs from the letter and spirit of the contract, it would he without reason to say that the member cannot secure relief from such unauthorized action. The contract, which is the constitution, rules and regulations, operates alike on both the association and the member. Rueb v. Rehder, 24 N. M. 534, 174 P. 992 (Sup. Ct. N. M. 1918); Leo v. Local Union No. 612 I. U. O. E., 26 Wash. 2d 498, 174 P. 2d 523. 168 A. L. R. 1452 (Sup. Ct. Wash. 1946).

The appellants argue that the trial resulting in an acquittal of the plaintiffs by the trial committee of Local 669 was a farce and intended solely as a whitewash of the charges in question; that it was invalid, in that it did not comply with the pertinent provisions of the constitution; that the action of the trial committee of Local 669 did not'bar action by the international convention and its grievance committee; that the international convention was possessed of inherent authority to try the plaintiffs and expel them in view of the fact that the charges were made by another union local; and that the almost unanimous adoption by the convention of the resolution of expulsion was in effect equivalent to an amendment of the constitution, thus sanctioning the action of the international body.

No direct attack has been made with respect to the trial and acquittal of the plaintiffs by Local 669. Therefore, we are not called upon to review the validity or effect thereof. However, we point out here that the only method by which a person can become a member of the international union is through his membership in a local; in other words, there is only one membership. The eligibility of and election or rejection of an applicant for membership in the local union is subject solely to the action of the local.

The appellants contend that the international convention possessed inherent power to expel the plaintiffs. A quality or attribute is said to be “inherent” when it is firmly or permanently contained or joined; infixed; indwelling; involved in the constitution or central character of anything. Fackrell v. City of San Diego, Cal., 157 P. 2d 625, 629 (Sup. Ct. Cal. 1945). Cf. concurring opinion of Mr. Justice Green in Meehan v. Excise Commissioners, 75 N, J. L. 557, 70 A. 363 (E. & A. 1908). In seeking an answer to this contention, it will be enlightening if we examine the constitution. In doing so, we find that it carefully and comprehensive^ sets up the rights and responsibilities of the members, the respective authority of the local unions, amalgamated unions, international officers, the international convention and the committees created to effectuate the objects thereof. To demonstrate the comprehensiveness of the constitution, we call attention to the following provisions: sections 1 and 2, of Article 48, specifically provide that “all charges-’ against a member must be “* * * signed by the member making the charges” and must be “* * * submitted to the Eecording Secretary of the Local Union or of the Shop Organization,” and tried before a trial committee elected by the local union. Under section 2 of Article 12, the international executive hoard is empowered to revoke charters and reorganize subordinate bodies pursuant to the specific provisions set forth therein. The trial of “an officer or executive board member at large of an amalgamated local union” is prescribed in section 9, Article 48. The trial of charges against international officers is governed by the provisions of Article 29. Articles 32 to 47 concern the local unions and Article 48 deals with the “trial of members.” Article 48 contains 16 sections setting forth the manner in which charges against members shall be made, the selection of a trial commiitee, the right of the accused to appear and in the event of a conviction, the right of appeal to the next meeting of his amalgamated local and a further appeal to the international executive board.

Ft is significant that the word “must” is used in sections 1 and 2, Article 48, where charges are presented and filed against members. It is one of the recognized standards of siatutory construction that the word “must” ordinarily is used in a mandatory or obligatory sense. There is no apparent reason why the term should not be given this interpretation in the present instance. Gordon v. Tomei, supra. It is clear from section 2, Article 48, that there is no alternative; that the charges must be filed with the recording secretary of the local union, preliminarily to a trial thereof in conformity with the prescribed procedure. It may, perhaps, be true, that if the constitution did not provide any method or procedure for the trial of members, the international body might well be possessed of inherent power to deal with recalcitrant members to the end of enforcing its rules and regulations and to preserve its integrity and existence. However, in the 1947 constitution there is a complete absence of any provisions vesting the international officers, its executive officers, grievance committee or the convention with any original jurisdiction to discipline or expel members. On the contrary, the constitution quite carefully and specifically sets up the procedure for presenting and filing charges against a member, for the trial thereof and for appeals. We are convinced that the omission of an alternative provision in the 1947 constitution to discipline or expel members, was purposely deliberate. We conclude, therefore, that in the circumstances here, the international convention was not possessed of any inherent power of original jurisdiction.

The appellants argue further that we should hold that the interpretation by the chief executive officers of the international union that the issue was not an intra-local one and, therefore, Article 48 did not apply, but that the existing practice where one local complains against another local before the international convention and its grievance committee, did apply. We are in disagreement with this contention. It is undisputed that although the charges originated with one Eugene Zoppo, who is a member of Local 669, they were presented to the international body by Local 950. It is clear, however, that the charges and the trial thereof involved the plaintiffs as individual members and not Local 669.’ At the argument, the appellants conceded that they were not able to cite any other instance or case where the international convention had exercised original jurisdiction to try members of local unions. Thus, there is no proof of an established practice or long standing interpretation bjr the international officers applicable to this issue. The cases cited in support of appellants’ argument are not analogous.

The argument of the appellants that the almost unanimous vote of the convention expelling the plaintiffs is tantamount to an amendment of the constitution, is specious, indeed. No extended discussion is necessary to establish the universally accepted rule that a constitution may be amended only by meticulously following the procedure prescribed in the constitution itself. The constitution under consideration here sets forth the required amendatory procedure (Article 3 and section 15, Article 8), but no action to conform therewith was taken prior to the trial and expulsion of the plaintiffs.

While the question as to whether the trial judge erred in refusing to admit certain alleged original recordings of telephone conversations between the plaintiffs and Eugene Zoppo, does not affect our determination, we think it may be profitable to comment thereon. Zoppo testified as to the telephone conversations and that recordings were made thereof in his presence, and stated that at the conclusion of each conversation, the recording was read to him and he verified its correctness. The witness Craiunore corroborated Zoppo’s testimony, stating that he sat near the telephone and heard directly about 75% of each conversation. The recordings were offered in evidence1, but the court refused to admit them on the authority of State v. Simon, 113 N. J. L. 521 (Sup. Ct. 1934) ; affirmed, oil opinion of Supreme Court, 115 N. J. L. 207 (E. & A. 1935). At the argument it was not seriously disputed by counsel for the plaintiffs that the recordings, properly identified and their accuracy verified by competent testimony, were admissible.. The plaintiffs argued, however, that the appellants had failed to lay the proper foundation for their admission. In the Simon case, the Supreme Court ruled:

‘‘We know of no ease and counsel cite none, in which a phonograph record of an alleged conversation was admitted in a court of law as evidence thereof. One good reason may bo that it cannot be cross-examined as to whether the whole conversation was reproduced. Such machine may be thrown in and out of gear at the will of the operator.”

Wigmoro criticizes the Simon opinion; 2 Wigmore on Evidence (3rd ed.), p. 791. With competent supporting proof, our courts and other jurisdictions have admitted into evidence telephone conversations, Burket v. Ellis, 105 N. J. L. 560 (E. & A. 1928); photographs, Ellis v. Rosenberg, 15 N. J. Misc. 37, 188 A. 499 (Sup. Ct. 1936) ; phonograph records, 32 C. J. S., § 709, p. 613, Note 98; X-rays, Greco v. Schmidt, 101 N. J. L. 554 (E. & A. 1925); electrocardiographs, Randolph v. Woman’s Club of Bloomfield, 127 N. J. L. 49 (Sup. Ct. 1941); dictagraph records, State v. Dougherty, 86 N. J. L. 525 (Sup. Ct. 1915); dictaphone records, U. S. v. Goldman, 118 Fed. 2d 310 (2d C. C. A.); motion pictures, Morris v. E. I. DuPont deNemours & Co., 346 Mo. 126, 139 S. W. 2d 984, 129 A. L. R. 361. The opinion in the Simon ease indicates that the admission of the recordings was denied largely because the foundation for purposes of impeachment had not been laid on cross-examination. Query: Where there is competent supporting testimony as to the relevancy and accuracy of recordings of telephone conversations, should they not be admissible?

As we indicated at the outset, our determination does not comprehend the guilt or innocence of the plaintiffs. Therefore, no implication is to be drawn that we condone such alleged misconduct, if true. If labor unions are to achieve the worthy purposes for which they are organized, we think it will be conceded that the unions must free themselves of all members whose misconduct may be violative of their by-laws and constitution and their duty of loyalty, and thus tend to thwart the attainment of their lawful objectives.

The judgment of the Chancery Division is affirmed, with costs.


source: Caselaw Access Project

author: Arthur B. Smith, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH TYSKA, DEFENDANT.
    Somerset County Court Law Division
    Decided February 24, 1951.
   On motion to correct criminal conviction and sentence.

Arthur B. Smith, J. C. C.

The defendant institutes this proceeding acting on his own behalf without the assistance of counsel. The moving papers, as might well be expected, are not skillfully prepared, although exhibiting a great deal of effort. It is suspicioned that the defendant may have had the assistance of some other fellow inmate of the State Prison of the type more or less commonly referred to as a “jailhouse lawyer.” They do not exhibit any clear understanding on the part of their author of the legal problems involved in the questions attempted to be raised, but suggest a grasping at all straws in the hope that one might be of sufficient substance to either entirely release the defendant or substantially shorten the period of his incarceration. The moving papers are denominated “On Motion to Correct Criminal Conviction and Sentence.” In the first paragraph thereof the defendant states “the present motion is to vacate the applicant’s convictions and sentences and after trial to sentence the accused in accordance with the Rule of Criminal Practice Rules. Buie 2:7-13: ‘The court may correct an illegal sentence at any time.’” At various other points throughout the moving papers, which are a combination of application or motion, argument and memorandum of law, the defendant charges (1) that he “was pleaded and sentenced without the aid and advice of counsel and asks that the convictions and sentences be reversed for this reason”; (2) that a statement was obtained from one Lillian Taylor, allegedly in some one or more ways unlawfully, and that-“the Prosecutor made use of this statement to intimidate me” and that the “statement caused me to plead guilty”; (3) that the defendant was detained for five days before being arraigned before a magistrate and that such “detention period and deferred arraignment constitute violations of 2:216-9, R. S. 1937” and were employed by the law enforcement agencies to sufficiently impress the defendant through identification and oral statements of complainants and witnesses to induce him to enter a plea of guilty to the crimes alleged; (4) that a statement was obtained from the defendant by the assistant prosecutor illegally, he having been improperly influenced to make such statement by the statement made by Lillian Taylor and by the alleged illegal detention and deferred arraignment; (5) that the defendant daring his period of alleged illegal detention was unlawfully “borrowed” by the police of the City of Newark from the police of the Borough of Bound Brook for a period of 50 hours and “while in the illegal custody of the Newark police the petitioner was questioned endlessly, seemingly identified by a dozen persons, threatened and roughed up”; (6) that during the month of July, 1946, while detained in the Somerset County jail, the defendant was visited by the assistant prosecutor who informed him “that cooperation on my part would be rewarded”; confronted the defendant with the statement alleged to have been unlawfully obtained from Lillian Taylor and after he “had drawn a dark picture of the nature of the evidence and had enlarged on the fact that I couldn’t expect any clemency unless I cooperate, he suggested that I enter a plea of guilty to Two (2) charges of breaking and entering, receive a sentence of Three (3) to Five (5) years and he ■would drop the other charges. After ordeal (oral) assurance that he. as the representative of the State of New Jersey would not make a promise unless it was legally enforceable, I agreed and gave him a statement. He assured me that the promise Three (3) to Five (5) years would be kept, and advised that a lawyer would be unnecessary”; (7) that the court and prosecutor failed to discharge their alleged duty by failing to apprise, the defendant of his right to counsel and that the defendant did not waive his right to counsel.

The defendant now seeks (a) to withdraw his previous pleas; (b) “that there be an order issued vacating the judgments and sentences made in the issues under discussion, that a daie be set and that there be a redetermination of these issues through process of trial.”

In the concluding paragraph of his moving papers the defendant asserts:

“In the Somerset County proceedings the Court unfamiliar with the unfair methods used by the Police and Prosecutor’s Office and, that these were unaffected by the restraints of law in apprehensional, investigational, and proseeutional duties, condoned these methods and thereby created an injustice in permitting the defendant to enter a plea of guilty, and in sentencing the accused lent the sacredness of the Court’s office to proceedings basically unfair.”

The defendant also asserts in his moving papers that “the applicant made this motion upon the advice of Mercer County Court Judge Charles P. Hutchinson, the applicant having previously applied for release on a writ of habeas corpus

On October 18, 1946, the defendant, having been indicted by the then current Somerset County grand jury under two separate indictments charging him with breaking, entering and larceny, entered pleas of guilty to each such indictment. The defendant was also indicted by the same grand jury on a charge of having attempted to escape from the Somerset County jail while there incarcerated awaiting the action of the grand jury on the breaking, entering and larceny charges. To this latter indictment the defendant, on the same date, entered a plea of not guilty. Subsequent to the return of these three indictments by the grand jury, the defendant was charged with again having attempted to escape from the county jail and an allegation with respect to this charge had been signed. On the same date the defendant entered a plea of not guilty to the charge of attempted escape preferred against him in the allegation, he having previously signed a waiver of indictment and trial by jury with respect thereto. In view of the two pleas of not guilty, sentence on the two guilty pleas was deferred.

On October 25, 1946, the defendant again appeared before the court and requested permission to withdraw his former pleas of not guilty to the indictment and allegation, respectively charging him with attempted escape on two separate occasions and to enter pleas of guilty to each thereof. This permission was granted and pleas of guilty to both the indictment and the allegation were entered by the defendant. Sentence was thereupon imposed upon the defendant on all four of his pleas of guilty. The court’s attention was directed, among other things, to the defendant’s lengthy record of numerous violations. He was not charged with or indicted for being a habitual criminal and was not so sentenced. It appears from a stenographic transcript of the court proceedings on this date that before sentence was imposed the defendant was asked in open court whether he had anything to say in his own behalf and replied, "Nothing at all.” The defendant’s lengthy record of previous convictions was reviewed by the court and openly commented upon at some length in the presence of the defendant. The defendant was informed by the court that it was quite apparent from his record that he had no intention of ever establishing himself as a useful, worthwhile, law abiding citizen; that the court saw no hope of his rehabilitating himself nor anything about his record to suggest in any way that there should be any leniency accorded to him and was convinced that for the welfare of the people of the community and society in general it was the duty of the court to see to it that the defendant was confined for a sufficiently long period so that for as long as possible the defendant would not again bo causing trouble to the people in the community. The defendant was sentenced to terms of not less than six nor more than seven years in the State Prison on each of the two indictments for breaking, entering and larceny and to terms of not loss than two nor more than three years in State Prison each on the indictment and the allegation for attempted escape, and it was directed that these sentences run consecutively. The defendant did not at that time or at any time subsequent thereto, prior to the filing of the present application or motion, communicate to the court any alleged grievance with respect to his apprehension, detention, arraignment, sentence or any other matter.

There are in the files of the prosecutor’s office two statements, each signed by the defendant, respectively dated July 25 and July 26, 1946, from which it appears that the defendant was specifically informed that he was to speak voluntarily; that anything he said might be used against him in the event of trial or prosecution, and that no promise of leniency was held out to him.

It is obvious from the defendant’s moving papers that he does not regard the present proceeding as an application for a writ of habeas corpus, having apparently previously unsuccessfully made application to one of the judges of the Mercer County Court for such a writ. In any event, since the defendant is detained outside of the County of Somerset, this court would have no jurisdiction to entertain an application for such a writ. In re Van Winkle, 3 N. J. 348 (1950). Although the defendant’s present motion or application is to correct or vacate criminal conviction and sentence, apparently including therein an application for permission to withdraw his previous pleas of guilty in order that he might be tried upon the indictments and allegation and be again sentenced after trial, it is plain that he bases his claim to relief on the provisions of Rule 2:7-13 of the present Rules of Criminal Practice. The defendant’s motion or application will, therefore, be disposed of strictly upon the basis of whether or not the relief sought can be granted by the court under the proper application of that rule. The rule provides as follows:

“Tlie court may correct an illegal sentence at any time. The court may reduce or change a sentence within sixty days from the date of the judgment of conviction.”

This court, in State v. Weeks, 5 N. J. Super. 505 (Cty. Ct. 1949); affirmed, 6 N. J. Super. 395 (App. Div. 1950), had occasion to consider under what circumstances the provisions of the rule were available to a defendant to obtain relief, pointing out the applicability of the decisions of the federal courts interpreting, construing and applying Rule 35 of the Federal Rules of Criminal Procedure (18 U. S. C. A.) after which our state rule was patterned. It was suggested in the opinion in the Weelcs case that there were some restrictions or limitations on the jurisdiction of the court to correct an illegal sentence and some federal court decisions were died to indicate the nature of the restrictions or limitations. It is now pertinent to consider whether the defendant is entitled to relief under Rule 2:7-13 on any of the grounds set forth in his moving papers or whether the restrictions or limitations which should be applied to the application of that rule bar him from obtaining any relief on those grounds.

In Lockhart v. United States, 136 F. 2d 122 (C. C. A. 6th 1943), which was treated as an application to correct an illegal sentence, appellant, among other things, contended that he was never informed of the nature and cause of the accusation against him, as required by the Sixth Amendment to the Constitution, and that instead of denying his motion, the court should have taken testimony and decided this issue. It was held that this would be quite a different procedure from that of correcting an erroneous sentence and that there was no merit in the contention.

In Cook v. United States, 171 F. 2d 567 (C. C. A. 1st 1948), certiorari denied, 336 U. S. 926, 69 S. Ct. 647, 93 L. Ed. 1088, it was said that a motion for correction of sentence under Federal Rule 35 presupposes a valid conviction and affords a procedure for bringing an improper sentence into conformity with the law and that a defendant could not circumvent the short time limit upon motions in arrest of judgment, as provided in Federal Rule 34, by a motion at any time after conviction for vacation of judgment and sentence on the ground of defects in the indictment upon the theory that such a motion is merely to “correct an illegal sentence”' under Rule 35. The object of such a motion, said the court, would not be to “correct” a sentence but to be relieved of it altogether.

In McIntosh v. Pescar, 175 F. 2d 95 (C. C. A. 6th 1949), certiorari denied, 336 U. S. 926, 69 S. Ct. 645, 93 L. Ed. 1087, it was determined that the illegality referred to in Federal Rule 35 authorizing the correcting of an illegal sentence is one disclosed by the record, such as a sentence in excess of statutory provision, or in some other way contrary to applicable statute, and that the court did not have jurisdiction to, determine whether the sentence was in violation of some constitutional right not put in issue in the case. It was also there held that the court in such a proceeding would not have the right to determine whether the sentence was invalid because of the defendant’s alleged insanity at the time sentence was pronounced.

Our Superior Court, Appellate Division, in State v. Weeks, 6 N. J. Super, 395, 398, appears to have recognized that the application of Rule 2 ¡Y-IS was limited to those cases where the defendant sought the correction of a sentence which “was disclosed by the records to be illegal.” The record in the instant case discloses no illegality in the sentence. The matters which the defendant now seeks to raise are completely outside the record. The defendant here does not seek simply the correction of an illegal sentence, but rather to have set aside the judgments of conviction based upon his own pleas of guilty. It is obvious that the rule upon which the defendant’s application is based does not extend to the vacation of a judgment, in which event it would necessarily follow that the .sentence be completely set aside and not merely corrected as contemplated by the rule.

This court is quite aware that the Eederal Congress, by the provisions of 28 U. S. C. A., § 2255, substantially enlarged the jurisdiction which the federal courts could exercise under Federal Rule 35. Under this Act of Congress the federal court which imposed a sentence is now empowered to vacate, set aside or correct the sentence,- on motion for such relief made at any time where a prisoner in custody under sentence of the court claims a right to be released upon any one or more of several grounds therein specified. However, this court is not aware that any similar statute has been adopted by the Legislature or rule promulgated by the Supreme Court of this State comparably enlarging the jurisdiction of the County Courts in cases where defendants have been convicted and sentenced by those courts.

Eor the reasons herein expressed, the defendant’s motion or application is denied.


author: Bigelow, J. A. D.

text:
    JOHN T. WOLAN, APPELLANT, v. MARTIN J. FERBER, DIRECTOR, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF LAW AND SAFETY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1951 —
    Decided March 6, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Arthur J. Sills argued the cause for the appellant (MY. David T. Wilentz, attorney).

      Mr. John J. Kitchen, Deputy Attorney General, argued the cause for the respondent (Mr. Theodore D. Parsons, Attorney General, attorney).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is an appeal from an order of the Director of the Division of Motor Vehicles, revoking appellant’s license to drive a motor vehicle.

The proceeding was initiated by a notice dated May 18, 1950, of the proposed revocation of the license in accordance with B. 8. 39:5-30. It alleges: “Reasonable grounds for the action of this Division aTe based on the charge that on April 23, 1950, at about 2:08 A. m. on Route 25 at Main Street, Bonhamtown, New Jersey, you did operate a motor vehicle in a reckless and incompetent manner, and while under the influence of intoxicating liquor, thereby causing an accident.” A hearing was had June 28, 1950, at which appellant was-represented by counsel, witnesses were examined and arguments heard. Two weeks later, the director made the order which is now under attack, reciting that it appeared “that reasonable grounds exist for the revocation of your driver’s-license, to wit:” — and then follow the same specifications that were set forth in the notice.

The statute, B. 8. 39:5-30, empowers the director to revoke-a driver’s license “for a violation of any of the provisions of this title, or on any other reasonable grounds.” We are doubtful whether the clause which authorizes revocation of the license “on any other reasonable grounds” is valid or whether it is fatally defective in failing to warn the licensee what conduct on his part may bring about a forfeiture of his license. U. S. v. L. Cohen Grocery Co., 255 U. S. 81; 41 8. Ct. 298-(1921); A. B. Small Co. v. Am. Sugar Refining Co., 267 U. S. 233; 45 S. Ct. 295 (1924). In order that the appellant may have the benefit of the doubt, we will assume that a driver’s license may be revoked only for a violation of one of the provisions of Title 39. R. S. 39 :4-96 imposes penalties on reckless driving, which is defined as driving “carelessly and heedlessly * * * without due caution and circumspection * * * in a manner so as to endanger * * * a, person or property.”

The charge that appellant “did operate a motor vehicle in a reckless * * * manner” is a charge of a violation of section 96. The recital contained in the order revoking the license should be construed to be a finding by the director that appellant was guilty of each specification contained in the notice, including the allegation that appellant operated his automobile in a reckless manner. State v. Huggins, 84 N. J. L. 254, 258 (E. & A. 1912) ; Harper, Hollingsworth, etc., v. Mountain Water Co., 05 N. J. Eq. 479 (Ch. 1903); Welch Co. v. State, 199 A. 886; 120 A. L. R. 282 (N. H. 1938); affirmed, 306 U. S. 79; 59 S. Ct. 438 (1938) ; Buhler v. Department of Agriculture, 280 N. W. 367 (Wis. 1938). This finding, by itself, furnished a sufficient basis for the revocation of appellant’s license, provided, of course, the evidence supported the finding. All the other matters which are recited may be treated as surplusage.

Appellant had been attending a wedding reception at the Karitan Township Firehouse. About 1:30 A. m., he left and, with three of his friends, drove to the Dixie Belle on Main Street in Bonhamtown to get a tomato pie. At about 2 A. H., the men returned to their car and appellant started to cross State Highway 25 which was only a few hundred feet from the Dixie Belle. He had scarcely reached the center of the highway when he was struck by an automobile driven by a, person named Biddulph. The intersection of Main Street and the highway is guarded by a traffic light. If appellant, drove into the intersection in disregard of the traffic signal,. that is, while the light shone red as a warning for cars on Main Street to stop, he was driving recklessly. State Highway No. 25 is one of the busiest in the State; Biddulph, who was approaching the intersection along the highway, was endangered by appellant’s manner of driving if, in fact, appellant ignored a red light.

Biddulph was so prejudiced that his testimony may properly be disregarded. A Mr. Sutherland, whose home on Main Street was only 400 or 450 feet from the highway,-happened to be standing on the front porch. He heard the-noise of skidding tires and immediately looked toward the intersection. “I observed that the traffic light on Main Street was red, and that there was a car proceeding * * * down Main Street toward me through the intersection. Another car was approaching from New York in a westerly direction, apparently skidding, attempting to stop before the collision.” Appellant argues that because this witness did not notice the light until appellant had driven into the intersection, his evidence does not reach the critical question- — what color .was displayed for Main Street just before appellant reached the intersection. Since Sutherland observed the light before the collision occurred, appellant could not have entered the intersection more than a couple of seconds earlier, and the light — accepting Sutherland’s testimony as true — must almost certainly have been red or yellow, but not green, when appellant drove up to the intersection. The deputy director, who took the proofs, gave much weight to Sutherland’s testimony.

Radvansky, who was one of appellant’s passengers,- testified that after their car was backed out of the parking lot, he “noticed the light on the Highway was amber.” “I don’t know which was amber, ours or the Highway side — I couldn’t definitely tell you — hut the light on the Highway was amber.” Evidently he was referring to the light at the intersection. His testimony, while not at all clear, tends to support the State’s case.

Appellant testified that “the light had just turned from red to green and I started to move, across the Highway.” Galya, who was in his car, furnished corroboration.

We conclude tliat the director’s findings were justified by the evidence and that the revocation of the license must stand. No costs are allowed.

Appellant urges that revocation rather than suspension for a period is too harsh, especially since he had had a clean record save on this one occasion. Attendance at the wedding reception and the lateness of the hour probably combined to lessen appellant’s usual caution. The director, pursuant to R. S. 39 :5-32, may well consider the renewal of appellant’s license after not too long a period.


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

text:
    THERESA SENSALE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ANTHONY SENSALE, PLAINTIFF-APPELLANT, v. APPLIKON DYEING & PRINTING CORPORATION (NOW KNOWN AS BERTHUM CORPORATION) AND HUMBERT CORPORATION, CORPORATIONS OF THE STATE OF NEW JERSEY, AND ARTHUR NAZZARO, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 12, 1951 —
    Decided March 7, 1951.

      Before Judges McGeehan, Jayne and Wi. J. Bkennan, Jb.

      Mr. David GoTm argued the cause for plaintiff-appellant.

      Mr. John IF. Hand argued the cause for defendants-respondents (Messrs. Evans, Hand •& Evans, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The defendants’ motion for dismissal made at the close of the plaintiff’s case was granted in the Passaic County Court and the plaintiff appeals.

This negligence action was brought under the Death Act for the death of Anthony Sensale. Sensale was an employee of Applikon Textile Dyers & Printers, Inc., a corporation (hereinafter referred to as “Textile”) which operated a textile dyeing and printing plant in Paterson. Textile is not a defendant in this action. During the afternoon of December 14, 1948, Sensale and other employees of Textile were engaged in turning a jay box in Textile’s plant “a quarter way around” when Sensale was electrocuted. This jay box was a large machine in the form of an unright “J” which was operated by electricity. The jay box involved was a new machine which had been built and assembled in Textile’s plant, and it had been installed less than two months when the accident to Sensale occurred. In the installation, wires were strung from the rafters over the machine to a motor attached to one side of the jay box, and wires were also strung from the motor down to a switch box which was also attached to the side of the jay box below the motor. While the jay box was being moved, Sensale was holding a part of the metal frame of the jay box. There was no evidence that the jay box itself was defective in any way, but there was evidence from'which a jury might have inferred that the electrical wiring installed for the operation of the jay box was negligently done, in that the wires were not enclosed in a metal conduit, open wires were inserted into a rough or sharp opening in the switch box, and there was no proper ground, and that Sensale’s death while moving the jay box was caused by this negligent wiring. The wiring had been done by one Dargenio, an electrician employed by Textile, under the direct supervision of one Notte, the chief engineer employed by Textile, who had instructed Dargenio to use “open wires.”

The defendants are Berthum Corporation (formerly known as Applikon Dyeing & Printing Corporation, lyhich should not be confused with Textile), Humbert Corporation, and one Arthur Nazzaro, president of Textile, the employing corporation.

The plaintiff-sought to hold Berthum Corporation and Humbert Corporation liable on the theory that they owned the jay box involved and that they could have reasonably foreseen the danger “in the use of the equipment which when tied up with electric current would be productive of injury and death to anyone coming in contact with it.” There was testimony that machinery (without any identifying particulars) was purchased by Berthum Corporation and Humbert Corporation in December, 1947, and that Humbert Corporation on January 5, 1948, leased machinery (again without any identifying particulars) to Textile for a period beginning January 1, 1948, and ending December 1, 1952; but there was no evidence to connect either defendant corporation with the jay box involved or any equipment thereon or used in connection therewith. Therefore the dismissal as to the Berthum Corporation and the Humbert Corporation was proper. We note that counsel for the appellant, who also tried the case below, conceded as much on the argument of defendants7 motion, when he stated to the court below that he was willing to concede “that there might be a fair justification — my own opinion is there is sufficient — that there might be a fair justification for a motion in favor of” both corporate defendants.

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character, but a director or officer who commits the tort or who directs the tortious act to be done, or participates or cooperates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort. Pennington Trap Rock Co. v. Pennington Quarry Co., 22 N. J. Misc. 318 (Sup. Ct. 1944.); 13 Am. Jur., Corporations, §§ 1086, 1087, 1092; 19 C. J. S., Corporations, § 845; cf. Reliable Woodworking Co. v. Lindeman, 105 N. J. L. 121 (E. & A. 1928); and Rose v. Bernhardt, 107 N. J. L. 501 (E. & A. 1931).

There was testimony that Nazzaro, as president of Textile, was the executive in charge of. its operations; that he was frequently in the plant, sometimes twice a day and also in the evenings; that an employee of Textile, after experiencing difficulty in handling goods at the jay box, had called Nazzaro’s attention to the operation of the machine and recommended a change in its location; and that Nazzaro whs near the jay box about 20 minutes before the accident happened and at that time an employee overheard a conversation between Nazzaro and one D’Amico, an official of Textile, “about moving that jay box around so as to get more production.” There was no evidence that Nazzaro gave any particular directions for the installation of the wiring, or that he in any way supervised, participated or cooperated in the installation thereof, and no evidence that Nazzaro gave any particular directions for the moving of the jay box, or that he in any way supervised, participated or cooperated in the moving thereof.

Plaintiff argues, however, that a prim,a facie case of Nazzaro’s liability was made out, although there was no “evidence showing that he specifically directed the particular negligent act to be done, or participated or cooperated therein.” 'This argument is based on the claim that a jury could have 'legitimately found from the evidence (1) that a dangerous instrumentality was involved, and (2) that Nazzaro, acting ' with authority as master or manager, failed to warn and instruct the decedent as to the dangers of his employment ■of which Nazzaro knew, or in the exercise of reasonable care ■ought to have known, and of which Nazzaro knew or ought to have known the decedent had no knowledge, actual or constructive. Suffice it to say that no evidence has been called to our attention, and in our examination of the record we have found none, which could support a finding by the jury that Nazzaro knew or, in the exercise of reasonable care, ought to have known that the wires were installed in a negligent manner, or that the moving of the jay box would be dangerous because of the condition of the wires or of the switch box.

Plaintiff also contends that the court below erred in ■excluding testimony as to whether Nazzaro or anyone else ■on behalf of Textile obtained a permit for the installation of the wiring on the premises of Textile. We agree with the court below that, under the theory upon which the case was tried, such testimony was immaterial.

The plaintiff’s contention that the court below erred in the admission and rejection of testimony in several specific instances was waived by her counsel at the oral argument.

The judgment is affirmed.

In this case we have dealt with the plaintiff’s appeal, in spite of the fact that in the brief submitted by her counsel the references to the pages of the appendix and the citations ■of cases are, in a large number of instances, erroneous and the brief might well have been suppressed. See Bule 1:3-12. However, we wish to make it clear that such lenienpy is not to be expected in the future.


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

text:
    MEDICAL FABRICS CO., INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. D. C. McLINTOCK CO., INC., A CORPORATION OF NEW JERSEY, AND DUNCAN C. McLINTOCK,. DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1953 —
    Decided March 7, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Abraham P. Bab argued the cause for the appellants.

      Mr. Irving Hupart argued the cause for the respondent (Mr. Karl Huber, attorney).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The plaintiff is the owner of a secret formula, used in the manufacture of a combination pressure bandage called Contura, the trade-mark D. C. M. enclosed in a circle, and the trade name D. C. McLintock Co. It duly instituted action in the Chancery Division alleging that its formula, trade-mark and name had been unlawfully appropriated by the defendants and seeking to restrain their use thereof. After full hearing the Chancery Division rendered its opinion in favor of the plaintiff pursuant to which judgment was entered. It found that the individual defendant Duncan 0. McLintock was an officer and director of the plaintiff’s predecessor and, as such, acquired knowledge oí the formula which he inequitably and in breach of trust appropriated and used after his association with the plaintiff and its predecessor had terminated; it also found that although the defendants disclaimed any right to the trade-mark and name they had improperly used them in competition with the plaintiff.

The present appeal to this court by the defendants does not in any wise question the aforementioned findings by the Chancery Division or the sufficiency of the supporting evidence. Instead, they rest upon the contention that notwithstanding their wrongful conduct the plaintiff should not have been afforded any injunctive relief under the “clean hands” doctrine, citing Munn & Co. v. Americana Co., 83 N. J. Eq. 309 (E. & A.. 1914), and Pfender v. Pfender, 104 N. J. Eq. 107 (Ch. 1929); affirmed, 105 N. J. Eq. 247 (E. & A. 1929). The defendants point to the fact that the label on the Contura bandage lists among its ingredients bolus alba and gelatol which it does not contain and omits an oil and a gum which it does contain. The record indicates that the solo medical ingredients in the bandage were sot forth on the label, the gum simply serving as a vehicle for them and the oil facilitating manufacture. Apparently bolus alba and gelatol were originally listed on the label by the individual defendant when he was associated with the plaintiff’s predecessor; neither has any medical properties, the use of the former was discontinued after several months, and the, latter was never used. Contara has been sold as a medicated moist bandage exclusively to physicians who presumably were interested in that fact and were not materially misled by the misrepresentations which bore on its manufacturing process and not on its medical properties or value. The Chancery Division expressly found that the plaintiff had no intent to deceive and concluded that the “evidence does not show the fraudulent and unconscionable conduct which would justify a court of equity in withholding relief.”

The clean hands doctrine is an ethical concept long applied in courts of equity although not peculiar thereto. Chafee, Some Problems of Equity (1950), pp. 1, 94. In general, its requirement is not that suitors seeking relief in equity “shall have led blameless lives” (Loughran v. Loughran, 292 U. S. 216, 229, 78 L. Ed. 1219, 1227 (1934)), but rather that they shall not have acted fraudulently or unconscionably with respect to the particular controversy in issue. Precision Instr. Mfg. Co. v. Automotive M. Mach. Co., 324 U. S. 806, 815, 89 L. Ed. 1381, 1386 (1945); Neubeck v. Neubeck, 94 N. J. Eq. 167, 170 (E. & A. 1922). When applicable it is invoked not out of regard for the defendant or to punish the plaintiff but upon larger considerations “that make for the advancement of right and justice.” Johnson v. Yellow Cab Transit Co., 321 U. S. 383, 387, 88 L. Ed. 814, 819 (1944). Cf. Casini v. Lupone, 8 N. J. Super. 362, 365 (Ch. Div. 1950); Hansen v. Local No. 373, 140 N. J. Eq. 586, 589 (Ch. 1947).

While the doctrine is firmly rooted and naturally appeals to persons of good conscience, it may well disserve the interests of justice if applied oversensitively or as a rigid formula restraining the court’s just exercise of discretion. Precision Instr. Mfg. Co. v. Automotive M. Mach. Co., supra; Chafee, supra, p. 99. Accordingly, there has been a recent wholesome tendency amongst courts to apply the doctrine flexibly in the light of the particular circumstances presented. See 60 Harv. L. Rev. 980, 981 (1947); Rasmussen v. Nielsen, 142 N. J. Eq. 657, 661 (E. & A. 1948); A. Hollander & Son, Inc., v. Imperial Fur Blending Corp., 2 N. J. 235, 247 (1949); Hansen v. Local No. 373, supra. Thus in the Rasmussen case the Court of Errors and Appeals, after pointing out that there was no evidence of fraudulent intent on the part of the plaintiff, stated that the clean hands doctrine was “not so rigid in its application that it may not be relaxed, in the interest of fairness.” Similarly, in the Hollander case Justice Waehenfeld, speaking for the Supreme Court, expressed the view that the doctrine should be restricted to cases of “intentional serious wrongdoing” and should not be “construed as to allow or permit an unconscionable gain to the wrongdoer” at the plaintiff’s expense. And in the Hansen caso Judge Jayne, then Vice-Chancellor, indicated that in applying tiie doctrine courts have properly given consideration to the comparative innocence of the plaintiff and the interests of the public generally.

We are satisfied that within the foregoing authorities the Chancery Division did not exceed its discretionary powers iu dedining to deny relief to the plaintiff solely because of the misstatements on the Contura label. They in no wise affected the defendants and might perhaps be considered insufficiently related to the basic controversy which did not concern the name Contura or the accompanying label but was confined to the use of the underlying secret formula, the D. G. M. trade-mark and the D. C. McLintock Co. trade name. Germo Mfg. Co. of Missouri v. McClellan, 107 Cal. App. 532, 290 Pac. 534 (1930). In any event, under the Chancery Division’s findings they were not made with fraudulent intent, were not harmful and did not materially mislead. Cf. Nims, Unfair Competition and Trade-Marks (4th ed.1947), p. 1233. Notwithstanding the foregoing, it is acknowledged that there must be no mislabeling (21 U. S. C. A., § 331; B. S. 24:5-18) and there would appear to be no proper objection to an appropriate exorcise of the court’s powers to attain that end. Acceptance of the defendants’ contention, however, would serve no such desirable purpose. On the contrary, it would simply result in dismissal of the proceeding without correction of the mislabeling and permit the defendants to go scot-free despite their established appropriation of the plaintiff’s property. We fail to see how this result would serve to protect the public or satisfy the true ends of equity. Of. the remark of Justice Holmes in Coca-Cola Co. v. Koke Co., 254 U. S. 143, 145, 65 L. Ed. 189. 192 (1920), that “the defects of a plaintiff do not offer a very broad ground for allowing another to swindle, him.”

It seems to us that the circumstances presented to the Chancery Division called for an injunction against the defendants’ use of the plaintiff’s property which they had wrongfully appropriated, conditioned, however, upon the immediate elimination of any mislabeling on the Contura bandage. Such correction may have already been made although the record is not entirely satisfactory in this regard. The conditional injunction will here furnish, as a practical matter, adequate protection to the public, rightly hold the defendants fully accountable for their now undisputed wrongdoing, and afford to the plaintiff the measure of relief to which it appears justly entitled. See Hartman v. Cohn, 350 Pa. 41, 38 A. 2d 22 (1944); Chafee, supra, pp. 66, 100; 2 Nims, supra, p. 1225; Derenberg, Trade-Mark Protection and Unfair Trading (1936), p. 663. Cf. Diamond Crystal Salt Co. v. Worcester Salt Co., 221 Fed. 66 (2d Cir. 1915).

The judgment entered in the Chancery Division is modified in conformity with this opinion and, as thus modified, is affirmed with costs.


text:
    ALBERT AND IRIS M. CAMPBELL, WILLIAM E. RAUBER, HERBERT AND IMOGENE ROSENGREN, WENDELIN ORTH, Jr., GERALD S. AND RUTH H. WHITTAKER AND JULIUS AND WINIFRED SELLIKEN, PLAINTIFFS-RESPONDENTS, v. BOROUGH OF HILLSDALE, JAMES A. TATEM, MAYOR; GARRETT A. STORMS, BOROUGH CLERK; EDWIN DANE AND NEBBUL, INC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1951 —
    Decided March 7, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. James A. Major argued the cause for the appellants (¿Messrs. Major é Carlson, attorneys).

      Mr. George A. Brown argued the cause for the respondents (Messrs. Morrison, Lloyd & Griggs, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment entered in the Law Division setting aside the amendment of March 30, 1949, to the Hillsdale zoning ordinance insofar as it established a “B” Limited Commercial and Light Manufacturing District.

The zoning ordinance of the Borough of Hillsdale, as originally enacted in 1929, provided for an “0” Residence District, among others. In April, 194G, ail amendment was adopted creating a new “00” Residence District for one-family dwellings and providing for minimum size of plot and street frontage. This district included the so-called Lubben property which was then properly being used as a chicken farm. The general vicinity may be described as farm land without sign of industrial activity. In July, 1946, Lubben applied for permission to alter and operate his premises for the manufacture and packing of candy. His application was denied by the local building inspector and on appeal the denial was sustained by the board of adjustment. However, in August, 1946, the borough’s governing body purported to grant to Lubben permission to use his premises for the manufacture and packing of candy until May, 1951; this action was set aside by the former Supreme Court. See Lynch v. Hillsdale, 136 N. J. L. 129 (Sup. Ct. 1947); affirmed, 137 N. J. L. 280 (H. & A. 1948).

Thereafter petitions were addressed to the governing body requesting that the zoning ordinance be amended to enable the operation of the candy factory on the Lubben premises notwithstanding that it was located within a highly residential zone. Under date of March 12, 1949, the governing body addressed a letter to registered voters of the borough which pointed out that the proposed change was considered “poor planning” by the borough’s planning board, had been disapproved by the members of the board of adjustment when the subject was before them, and expressed the belief that if the vacant land in the residential area of the borough were permitted to be developed in accordance with the existing ordinance there would result “a moderate and stable tax bill for the people of Hillsdale.” Nevertheless, the governing body suggested that the wishes of a majority of the citizens would be followed and a reply card was enclosed with the Tequest that it be signed and returned. There were 1,300 replies of which approximately 1,100 voiced approval of operation of the candy factory at the Lubben premises. Although the record does not disclose where the 1,100 persons resided it is acknowledged that most of them do not live anywhere near the Lubben property. Thereafter on March 30, 1949, the borough adopted an amendment to its zoning ordinance which in part established, within-the “OO” Residence District and surrounded entirely thereby, a new “B” Limited Commercial and Light Manufacturing District. This new'district consists solely of the acre of land on which the Lubben building is located and the only new use permitted is “the manufacture, storage, packing and sale of candy at wholesale.” In due course the plaintiffs who resido and own property in the vicinity instituted action seeking to set aside the amendatory ordinance and naming as defendants the borough, its mayor and clerk, and Edwin Dane and Nebbul, Inc., the present owners of the Lubben building. After trial, the Law Division entered judgment which set aside the amendment in so far as it established the “B” Limited Commercial and Light Manufacturing District and the defendants Edwin Dane and Nebbul, Inc., have appealed therefrom.

We consider that the lower court’s action was proper under the principles recently expressed by this court in Cassinari v. City of Union City, 1 N. J. Super. 219 (App. Div. 1949). As there, the attempt to create the small isolated manufacturing “district” within the highly residential area and surrounded entirely thereby was not part of any comprehensive zoning plan and was in no significant sense calculated to achieve the statutory objectives. The candy factory was not in keeping with the character of the neighborhood and the purpose and effect of the amendment was to grant, without proper proceeding and showing before the board of adjustment (cf. R. S. 40:55 — 39; Lynch v. Hillsdale, supra), special permission to use the appellants’ property for their desired industrial purpose while confining all other comparably situated properties in the neighborhood to the severely limited uses permitted in the “00” Residence District. Similar arbitrary discrimination has heretofore been struck down by our courts. Cassinari v. City of Union City, supra; Appley v. Bernards Twp., 128 N. J. L. 195 (Sup. Ct. 1942); affirmed, 129 N. J. L. 73 (E. & A. 1942).

The appellants appear to place reliance upon the fact that a majority of the registered voters in the community had expressed themselves in favor of the amendment. While the borough’s informal referendum was entirely permissible it admittedly had no binding effect and the governing body’s full responsibility remained. Most of the voters lived in homes which were not in the vicinity and presumably would not be affected by the operation of the factory. Cf. Phillips v. Township Council, &c., Teaneck, 120 N. J. L. 45, 48 (Sup. Ct. 1938); affirmed, 122 N. J. L. 485 (E. & A. 1939). It appears sufficient to note that if the governing body were to abide an informal referendum of the voters of the entire borough in every instance when a property owner desired to use his residential property for a prohibited purpose, the underlying beneficent.purposes of the borough’s zoning plan would probably soon be frustrated.

The judgment of the Law Division is affirmed.


author: Freund, S. J. A. D. Pkootob, J. A. D.

text:
    HARRY GANGER, PLAINTIFF-RESPONDENT, v. ARTHUR W. MOFFETT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1951 —
    Decided March 9, 1951.
    Proctor, J. A. D., dissented.

      Before Judges Freund, Proctor and Rogers.

      Mr. Carl Kisselman argued the cause for the defendant-appellant (Mr. Barney B. Brown, attorney).

      Mr. Irvin M. Lichtenstein argued the cause for the plaintiff-respondent (Mr. Milton C. Nuroclc, attorney; Mr. 8. Arthur Levy, of counsel).
   The opinion of the court was delivered by

Freund, S. J. A. D.

The plaintiff, assignee of a contract for the sale of realty, recovered a judgment against the defendant assignor for $1,200, the consideration paid for the assignment, which amount the defendant had agreed to repay if the owners refused to sign a deed for the property.

The defendant was the vendee in a written contract for the sale of realty. Although title to the property was vested in a number of persons, the contract was not executed by all, but only by one, A. M. Ellis, individually and as agent for the other owners. It called for the delivery of a warranty deed conveying a marketable title, and provided that if such title could not be conveyed, and the buyer was unwilling to accept such title as the sellers could convey, the deposit of $100, together with reasonable title search and survey fees, was to he returned. The defendant assigned his interest in the contract to the plaintiff for $1,200, which included the sum of $100, the down payment made by the defendant to the vendors. In the assignment the defendant agreed that “in the event that any of the other parties in interest in title refuse to sign the said Deed, then the consideration money of Twelve Hundred Dollars to be returned to the said Harry Ganger, aforesaid.”

The plaintiff contended that he was prepared to perform his part of the agreement of purchase, but that the owners of the property repeatedly refused to sign a deed conveying a marketable title. Thereupon, he brought suit in the Chancery Division of this court against the owners for specific performance and damages. Pending that suit, he instituted the instant action against the defendant on the express stipulation in the assignment to recover the consideration therefor. Subsequently, the plaintiff settled the specific performance suit in consideration of the sum of $100 paid by the owners of the property, and he executed and delivered to them a covenant not to sue. The defendant herein filed an amended answer, asserting, inter alia, that the owners were willing to perform, but that the plaintiff was not; that by the institution of the specific performance action and the settlement thereof the plaintiff had made an election of remedies which precluded him from maintaining a suit on the assignment. At the trial, defendant’s motion for dismissal of the complaint was denied and the case was submitted to the jury. The court in its charge, to which no objection was made, directed the jury to determine whether the plaintiff was ready and willing to perform the terms of the contract for the purchase of tile property and whether the owners refused to sign a deed; and that, if so, the plaintiff would be entitled to a verdict. The jury returned a verdict in favor of the plaintiff for $1,200, and from the judgment entered thereon this appeal was taken.

Quite obviously, the plaintiff’s alleged cause of action as assignee of the vendee against the owners for specific performance of the contract because of the owners’ failure to perform, and his cause of action against the defendant on the express stipulation in the assignment, were distinct, against different persons and founded on separate instruments. The actions were entirely consistent. Ordinarily, the refusal of the owners of realty to perform gives rise to an action for specific performance at the suit of the vendee. In the instant case, the refusal of the owners to sign the deed also vested in the plaintiff a cause of action on the stipulation in the assignment. In the conventional form of assignment, the assignor merely transfers the property described in the assignment and thereafter the assignee stands in the place of the assignor. However, the assignment in this case contained an additional express undertaking on the part of the assignor, namely, a promise to return to the plaintiff the consideration money “in the event that any of the other parties in interest in title refuse to sign the said Deed.”

An election of remedies is deemed to involve a choice between two inconsistent actions. There is no such election if there is no inconsistency between the actions. The principle is not applicable to bar concurrent and consistent remedies. Adams v. Camden Safe Deposit & Trust Co., 121 N. J. L. 389 (Sup. 1938); Nazzaro v. Globe As Republic Ins. Co., 127 N. J. Eq. 279 (E. & A. 1940). The specific performance action which inured upon the refusal of the owners to execute a deed and the resulting additional cause of action against the defendant were in no way repugnant to or in conflict with each other. Stinson As Dickensheets v. Specialty Homes, 107 N. J. Eq. 295 (Ch. 1930). The defendant by his agreement in the assignment became directly and primarily liable to the plaintiff and this suit was predicated on that independent obligation. Pfeiffer v. Grossley, 91 N. J. L. 433 (Sup. Ct. 1918); affirmed, 92 N. J. L. 638 (E. & A. 1919). Gaffney v. Wm. E. Wright &. Sons Co., 112 N. J. L. 191 (E. & A. 1934); Case v. Plainfield Trust Co., 121 N. J. L. 239 (E. & A. 1938); Schumann v. Fidelity Union Trust Co., 127 N. J. Eq. 249 (E. & A. 1940).

The law will not make a better contract for the parties than they have seen fit to make for themselves. The defendant agreed unconditionally to repay the consideration which he received for the assignment in the event that the owners of the property refused to sign a deed. That contingency having arisen, the liability accrued. The instrument executed by the plaintiff to the owners, the defendants in the specific performance proceeding, was a covenant not to sue and not a release. The execution and delivery by the plaintiff of such a covenant did not release the defendant from his obligation under the assignment. Crane v. Alling, 15 N. J. L. 423 (Sup. Ct. 1836).

The defendant further argues that the plaintiff having extended the time for the delivery of the deed beyond the date fixed in the contract for the closing of title, thereby released the defendant from his obligation under the assignment. There is no merit in this contention. From the evidence, including correspondence between the plaintiff’s attorney and the vendor, the plaintiff diligently endeavored to acquire title to the property and the extensions of time were for the purpose of performance, rather than repudiation of the contract. Furthermore, the jury’s verdict established that the plaintiff was ready to perforin and that the owners were not.

The judgment is affirmed, with costs.

Pkootob, J. A. D.

(dissenting). As 1 think the defendant’s motion for dismissal should have been granted, I am obliged to dissent.

When the vendors who had not personally signed the contract refused to sign the deed, the plaintiff under the terms of the assignment had a cause of action against the defendant for the money he paid for the assignment. It may be assumed that the plaintiff had a right to commence an action for specific performance against the vendors on the contract without forfeiting his rights against the defendant under the terms of the assignment. However, conceding this, it was nevertheless competent for the plaintiff and the vendors to substitute the payment of money ($400) for the execution of a deed as first provided, and if such payment was made pursuant to mutual consent, it amounted to compliance with the condition of the assignment. 12 Am. Jur., Contracts, § 355. The plaintiff, having accepted the settlement from the purported vendors, cannot afterwards be heard to say that the condition, respecting reimbursement remained in force.


author: William J; Bkennan, Je., J. A. D.

text:
    BIRKFIELD REALTY CO., A CORPORATION, PLAINTIFF-APPELLANT, v. BOARD OF COMMISSIONERS OF THE CITY OF ORANGE, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 19, 1951 —
    Decided March 6, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Bkennan, Je.

      Mr. Millón M. Unger argued the case for appellant (Messrs. Millón M. and Adrian M. Unger, attorneys).

      Mr. Edmond J. Dwyer argued the cause for respondents.
   The opinion of the court was delivered by

William J; Bkennan, Je., J. A. D.

Plaintiff seeks a declaration that the application of the zoning ordinance of the Ciiy of Orange to plaintiff’s property at 395 South Center Street is unreasonable, arbitrary and capricious and that the ordinance is unconstitutional insofar as it affects such property.

South Center Street, a cross-town artery, runs -north and south. Plaintiffs tract is on the west side of the street, two and one-half blocks south of Central Avenue, a main thoroughfare running east and west.

The frontages on Central Avenue east and west of South Center Street are classified in the business zone.

The lands south of Central Avenue on both sides of South Center Street to the Tillage of South Orange line, about three-fourths of a mile, were originally classified in the single-family Residence A zone which extends west from South Center Street one-third to one-half mile to the east side of Lincoln Avenue.

The zoning ordinance was enacted in 1922. The governing body amended the ordinance from time to time to change certain lots along South Center Street, all located within a short distance south of Central Avenue, from Residence A to Residence C zone to permit the erection of apartment and garden-type apartment multi-family structures. Two of these locations, also on the west side of South Center Street, are between plaintiff’s tract and Central Avenue. One is within a half block of Central Avenue and the amendatory ordinance affecting it was enacted in 1928. The other is at 341-361 South Center Street, only 300 feet north of plaintiff’s tract, and is a garden type authorized by an amending ordinance adopted on October 21, 1947.

On the east side of South Center Street the frontages for two blocks south of Central Avenue have been reclassified Residence C, most recently by an amending ordinance adopted in 1940 under which apartments were constructed directly opposite the garden-type apartment at 341-361 South Center Street. Another, and the last, amending ordinance affecting the east side of the street was adopted in 1945 as to 468-512 South Center Street, about a block south of plaintiff’s tract, and a garden-type apartment has been erected thereon.

The gist of plaintiff’s argument is that these several changes have effectively destroyed the zoning ordinance as a comprehensive plan, at least so as to make its application to plaintiff’s property to restrict the use of that property to single-family residences, unreasonable, arbitrary and capricious. On that ground plaintiff applied on March 20, 1950, to the governing body of the city and sought the enactment of an amendatory ordinance to classify plaintiff’s property in a Eesidence C zone to permit the erection thereon of garden-type apartments. The application vas denied. Plaintiff thereupon brought this suit. The Lav Division, Essex County, after trial, dismissed the complaint and this appeal is from the judgment of that Division entered July 17, 1950.

The governing body’s resolution of April 18, 1950, denying plaintiff’s application enumerates several reasons, among vhich, and particularly relied on by the city as completely supporting the denial, are that “to grant the proposed zoning change for applicant vould be in violation of the zoning program and plan heretofore adopted in the City of Orange,” and “the Master Plan of the City of Orange specifically sets forth that the land area both surrounding and including lands of Birkfield Eealty Co. is residential property confined to single one family residences only, as defined in the Zoning Ordinance of the City of Orange.”

The “zoning program,” “plan” and “Master Plan” referred to is the zoning phase of the master plan for the future physical development of the city being developed on the authority of R. S. 40:5o — 6 by the Orange Planning Board created by a 1934 ordinance. That phase of the master plan vas completed and promulgated by the planning board in December, 1947, and vas adopted by the governing body. The. planning board’s recommended program for this neighborhood is the rezoning as a Eesidence C district of the frontages not already so classified on the easterly side of South Center Street lying betveen Central Avenue and the southerly boundary line of 468-512 South Center Street, and also the frontages on the vest side not already so classified to the southerly boundary line of 341-361 South Center Street; but all remaining frontages, including plaintiffs land, on both sides of South Centex Street to the South Orange line are proposed to be retained in the Eesidenee A single-family zone. The necessary revision of the zoning ordinance to accomplish the change to Eesidenee C in respect of the tracts to be affected is awaiting the general revision of the ordinance which, according to the planning board’s report, "is one of the most urgent needs of the city. It is not a simple procedure and will require a considerable amount of work.”

In file circumstances we arc not persuaded that plaintiff has successfully overcome the presumption that the zoning ordinance is altogether reasonable in its application to plaintiffs tract. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940); affirmed, 125 N. J. L. 367 (E. & A. 1940); Guaclides v. Borough of Englewood Cliffs, 11 N. J. Super. 405 (App. Dir. 1951). The refusal by the governing body to permit still another encroachment to do violence to the existing zoning ordinance will not be viewed as arbitrary or capricious when, as here, grounded in a determination to adhere to and to further an approved and adopted zoning program essential to the larger plan for the physical development of the municipality and plainly designed and reasonably adapted to conserve and promote the public health, safety, morals and general welfare of the city. Cf. Mansfield & Swett, Inc., v. West Orange, 120 N. J. L. 145 (Sup. Ct. 1938). “Municipal planning, in a word, is the accommodation, through unity in construction, of the variant interests, seeking expression in the local physical life to the interest of the community as a social unit. Planning is a science and. an art concerned with land economics and land policies in terms of social and economic betterment. The control essential to planning is exercised through government ownership or regulation of the use of the locus.” Grosso v. Board of Adjustment of Mullburn Twp., 137 N. J. L. 630 (Sup. Ct. 1948).

The attainment of planning objectives cannot be achieved overnight, particularly in a long-settled community like Orange, founded in 1664, where the .immediate effort must be in large part a struggle to preserve “such beneficial features as may have survived the period of spontaneous and uncontrolled growth” of the city. Duffoon Concrete Products, Inc., v. Borough of Cresskill, 1 N. J. 509 (1949). The regulatory power has, of course, its limits, see Mansfield ds Swett, Inc., v. West Orange, supra. We do not find that they have been over-reached in this case. The Legislature has expressly declared that proposed amendments to zoning ordinances shall first be submitted to the planning board, where it exists, for approval, disapproval or suggestions, and that that board shall have a reasonable time, not less than 30 days, for consideration and report, and in the event of an unfavorable report by the planning board, the amendments shall not become effective except by a favorable vote of two-thirds of the governing body. Laws 1948, c. 305, p. 1222, section 4, amending R. S. 40:55-35. The legislative intent plainly accords important, although, of course, not decisive, weight to the recommendations of the planning board concerning zoning ordinance amendments when based upon legitimate considerations of public interest and such reasonable supervision and regulation as may be essential for the common good and welfare.

The total area of the City of Orange is only two and two-tenths square miles. About one-half, or a little more, of that area lies north of Central Avenue. That half is a striking ■example of .the baneful consequences of planless growth and haphazard development. Orange is predominantly a residential community. Nevertheless, the north half of the city has ■only four small and widely separated sections presently zoned for single-family dwellings. It is zoned almost completely for business, industrial, two-family and multi-family uses.

South of Central Avenue, on the other hand, the south half of the city is not only almost entirely zoned for single-family residences but is presently built up almost entirely with single-family homes. The exceptions are confined to three sides of its perimeter (the fourth side is the South Orange line), back of the west side of the full length of Lincoln Avenue on the west, where apartments, commercial and industrial structures and two-family houses have been allowed, and along the Central Avenue frontage and the mentioned multi-family structures on South Center Street within a short distance south of Central Avenue. The section of approximately one-quarter square mile in area within that perimeter is one of the attractive single-family residential “oases” of Essex County. Many of the homes were built decades ago, but a large number have been built since the end of World War II. Considerable building activity of new one-family homes is now going on in several parts of the section, notably in the immediate vicinity of plaintiff’s tract, indeed just to its rear which abuts on lots facing on a new street, Adrianne Court, upon which several substantial homes are being erected.

The planning board from its study of the community concluded that “in a city such as Orange, where there exists little vacant land, where the population growth has remained on the decline, it is most important to protect those areas and investments that are good, while encouraging new constructions in those areas in need of rejuvenation.” Consistent with that general policy, which can hardly be characterized as unreasonable or arbitrary, the board adopted a subordinate policy applicable specially to the quarter-square mile section, which includes plaintiff’s tract, namely,

“It, will be tlie policy of tbe Planning Board to preserve tbe one family zone bordered by tbe South Orange line, Bincoln Avenue, Liglitbipe Place, 1he rear lines of properties on tbe south side of Reynolds Terrace, and Center Street to tbe South Orange line. It may also be stated that despite repeated requests the Board contemplates no zoning variance at this time for land located on tbe west side of Center Street, between Highland Avenue and Fuller Terrace based upon tbe character of fine homes still standing in this area.”

Plaintiff’s tract is “on the west side of Centex Street between Highland Avenue and Fuller Terrace.” Ligbthipe Place and “tbe rear line of properties on the south side of Reynolds Terrace” (which latter line includes the southerly boundary line of the garden apartments at 341-361 South Center Street) form a line starting a few hundred feet north of plaintiff’s tract, which line roughly parallels Central Avenue and extends from South Center Street on the east about one-third mile to Lincoln Avenue on the west.

A large measure of discretion is necessarily vested in the governing body to determine the effect upon the general public interest and welfare of the exercise' of its authority under B. 8. 40:55-35 to amend the zoning ordinance as desired by the plaintiff. An exception in favor of plaintiff’s lands might reasonably be considered by the governing body to be a threat to the whole carefully developed zoning program which is the first essential and an integral part of the master plan for the future development of the city. In the circumstances, whatever might be the merit in plaintiff’s allegations, but for the existence of that approved program, certainly the fact that the ordinance had been amended in the several instances mentioned before the adoption of the program does not make the refusal to do so in this instance arbitrary and capricious. O'Connor v. Mayor and Council of North Arlington, 1 N. J. Super. 638 (Law Div. 1949). “If that were so, one variation would sustain if it did not compel others, and thus the general regulation would eventually be nullified.” Scaduto v. Bloomfield, 127 N. J. L. 1 (Sup. Ct. 1941). That refusal escapes the taint of unreasonable and capricious action when grounded as it was upon the governing body’s determination, adopted upon the planning board’s recommendation, to adhere to the comprehensive zoning program which called a halt to further encroachment in the single-family zone and affects plaintiff’s tract in common with all others in the quarter square mile area which is the core of that zone. There is no reason to doubt that the general revision of the zoning ordinance necessary to implement the whole program will be enacted -in due time. The delineation of the boundaries of the multi-family zone along South Center Street is desirable if not, essential in the general interest as well as the interest of owners and prospective purchasers of lands to be affected by the change and not presently zoned for multi-family structures.

Plaintiff argues finally that “the only reason for the denial of plaintiff’s application in this case is the objections of some of the neighbors.-’ The city commission held a public hearing on plaintiff’s application and heard the protests of property owners in the immediate neighborhood and received some protest petitions. The commissioner who moved that the application be rejected gave the objections received as a reason for his motion. The formal resolution adopted two weeks iaier, however, grounded the commission’s action oil the deviation from the master plan entailed in favorable action as well as upon consideration of the effect of the structure upon immediately adjacent single-family properties and a finding that the structure in that location would increase traffic congestion and cause a hazardous condition on South Center Street. See 71. S. 40 :oo — 32.

It is true that the advantage or detriment to neighboring land owners may not be the sole criterion which guides governing bodies in zoning matters. Mansfield & Swett, Inc., v. West Orange, supra; Pfister v. Clifton, 133 N. J. L. 148, 152 (Sup. Ct. 1945); Ridgefield Terrace Really Co. v. Ridgefield,, 136 N. J. L. 311, 313 (Sup. Ct. 1947). We arc satisfied, however, that the city commission did not deny plaintiff’s application because it viewed the desires of the neighboring property owners as determinative, but rather primarily because the granting of the application would be an unwarranted departure from the approved comprehensive zoning plan. Cf. Crow v. Town of Westfield, 136 N. J. L. 363 (Sup. Ct. 1948).

Affirmed.


author: Peoctoe, J. A. D.

text:
    ROBERT W. VOLKSEN, BY HIS GUARDIAN AD LITEM, HANS H. VOLKSEN, AND HANS H. VOLKSEN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. THOMAS H. KELLY, DEFENDANT-RESPONDENT, AND ROBERT K. GARRABRANT, ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951 —
    Decided March 9, 1951.

      Before Judges PREinsro, Peoctoe and Rogees.

      Mr. James F. X. O’Brien, attorney for and of counsel with plaintiff s-app ellants.

      Mr. Gerald T. Foley, attorney for and of counsel with defendant-respondent.
   The opinion of the court was delivered by

Peoctoe, J. A. D.

This action was brought to recover damages for injuries to the plaintiff, Robert Volksen, 16 years of age, and the resulting loss to his father, Hans Volksen. The injuries were sustained by the infant plaintiff while riding his bicycle on Roseville Avenue between Sixth and Seventh Avenues, in the City of Newark.

At the end of plaintiff’s case a judgment of involuntary dismissal was entered in favor of the defendant Kelly, and the ease against the defendant Robert Garrabrant was submitted to the jury which returned a verdict for the plaintiffs. Plaintiffs appeal from the judgment of dismissal.

The scene of the mishap was a built-up residential area where the street was about 38 feet in width. Cars were parked at both curbs. The infant plaintiff was proceeding in a southerly direction, two or three feet to the left of the line of vehicles parked facing south. It was a clear day, the road was dry, and there was no other traffic in the vicinity. He testified that s when he was abreast of the rear wheel of the parked automobile belonging to the defendant Garrabrant its left door was opened in his path; that he tried to swerve to the left but came in contact with the door, causing him and his bicycle to fall outward; that the Kelly car, which was proceeding south, “came up” suddenly, the right rear fender and bumper striking and carrying him and his bicycle some distance before he was dropped to the pavement. He further testified that the Kelly car was brought to a stop about 27 feet beyond where he lay.

The defendant Kelly’s wife, called as a witness by the plaintiff, testified that she was in the front seat of the automobile driven by her husband, and when they entered Roseville Avenue, at Sixth Avenue, she saw the infant plaintiff on his bicycle half a block ahead of them; that she was looking “straight ahead”; that, as they proceeded south, “we were riding along and I seen Bobbie on a bicycle and I seen the car door start to come open and I saw Bobbie falling”; that her husband turned the car to the left; that the front of the car did not strike the infant plaintiff, but the right rear of the-car came in contact with him.

Another witness, Ryan, testified that he saw the infant plaintiff drop from the back fender of the Kelly car at a point 37 feet south of where Mrs. Kelly testified the collision occurred, and that the Kelly car proceeded a distance of more-than 25 feet from where the infant plaintiff lay before it came-to a stop. .

There was testimony that the infant plaintiff was proceeding at ten miles an hour. There was other testimony from-which it could be inferred that, while he was travelling 150 feet to the point of impact, the Kelly car travelled 750 feet to the same point.

The issues are (1) whether there was evidence from which-the jury could find that defendant Kelly was negligent, and if so, (2) whether such negligence was a proximate cause of the infant plaintiff’s injuries.

On a motion for an involuntary dismissal at the end of plaintiffs ease, evidence will not be weighed but all the proofs which support the claim of the party against whom the motion is made must be accepted as true and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. Where fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury. Vadurro v. Yellow Cab Co. of Camden, 6 N. J. 102, 106 (1950).

Erom the time and distance within which the Kelly car overtook the infant plaintiff after he was first observed by Mrs. Kelly and from the distance the Kelly car continued after the impact before coming to a stop, it could reasonably be inferred that Kelly was operating his automobile at an excessive speed.

Defendant contends that no act on his part was the natural and proximate cause of the infant plaintiffs injury; that the proximate cause of the injury was the negligent opening of the door of the Garrabrant car. In Daniel v. Gielty Trucking Co., 116 N. J. L. 172, 173 (E. & A. 1936), it was stated:

“The mere fact that another person concurs or co-operates in producing the injury or contributes thereto, in any degree, whether large or small, is of no importance, * * *. It is immaterial how many others have been in fault, if the defendant’s act was an efficient cause of the injury.”

In the present case, when all the circumstances atiending the happening of the accident are taken into consideration, the width of the street, the fact that there was no traffic in the vicinity, that it was a clear day, that defendant Kelly could have seen the infant plaintiff a considerable distance ahead of him before attempting to pass him, that defendant was to the roar of the infant plaintiff at the time of the impact between the latter and the door of the Garrabrant car, the proximity of the Kelly car to the left of the bicycle, the relative distances travelled by the bicycle and the Kelly car from the time the bicycle was first observed by Mrs. Kelly to the moment of impact together with the distance the car travelled after the impact with the infant plaintiff, we conclude it was for the jury to determine whether the inference should be drawn that the defendant Kelly was negligent in the operation of his automobile and that such negligence constituted an efficient cause of the accident.

The case of McMillan v. Mather, 131 N. J. L. 309 (E. & A. 1944), relied upon by the respondent, is distinguishable. There the defendant’s car and the plaintiff on his bicycle were travelling in the same direction, parallel to each other, three to five feet apart, when the bicycle turned sharply to the left and its rider struck the right front fender of the automobile. The defendant instantly applied his brakes and stopped “within a very few feet” before the rear wheels came in contact with the plaintiff. In the present case, the defendant was overtaking and passing the bicycle and there were facts indicating that he was traveling at an excessive speed.

Reversed and remanded, the costs to abide the event.