author: Bischoff, J. A. D.

text:
    TOWNSHIP OF EWING AND RICHARD WEASNER, PLAINTIFF-RESPONDENT, v. THOMAS M. KING AND DONALD FORT, DEFENDANT-APPELLANT.
    Superior Court, of New Jersey Appellate Division
    Submitted October 21, 1974 —
    Decided November 1, 1974.

      Before Judges Leonard, Seidman and Bischoee.

      Messrs. Scott and Fox, attorneys for appellant.

      Messrs. Dietrich, Allen & St. John, attorneys for respondent.
   The opinion of the court was delivered by

Bischoff, J. A. D.

Defendant Thomas M. Fling, having been convicted in the municipal court of a violation of a zoning ordinance and fined $200, appealed to the County Court. After a trial de novo on the record, B. 3:23-8(a), defendant was again convicted. This further appeal followed.

Defendant and his father are the owners of a dwelling in the Township of Ewing near Trenton State College. The property was leased to Donald Fort for the 1971-72 school year and, in turn, occupied by eight female college students. Defendant was charged in the complaint with "renting illegally converted one-family residence to eight college students * * *.” The complaint was based on an alleged violation of the Ewing Township Zoning Code, Art. T, § II, which contains provisions respecting student rooming houses. We are, however, concerned only with paragraph 1 thereof which provides, “No more than four (4) students will be roomed in any one house.”

The facts were stipulated at the trial. The sole defense interposed was the contention that the ordinance was unconstitutional. Defendant submitted no evidence in support of that contention and proceeds on the theory that the ordinance is per se invalid, and he basically relies on the cases of Gabe Collins Realty, Inc. v. Margate, 112 N. J. Super. 341 (App. Div. 1970), and Kirsch Holding Co. v. Manasquan, 59 N. J. 241 (1971), as support for that contention.

The narrow issue thus presented is whether a zoning ordinance may properly limit the number of students rooming-in a one-family dwelling to four.

Zoning ordinances are to be liberally construed in favor of the municipality and to be given a reasonable construction and application. Place v. Saddle River Bd. of Adj., 42 N. J. 324, 328 (1964); J. D. Const. v. Freehold Tp. Bd. of Adj., 119 N. J. Super. 140, at 145.

We are instructed that:

Judicial review of a zoning ordinance duly adopted by a municipality is confined to a narrow sphere. There is a presumption in favor of the validity of the ordinance which can only be overcome by an affirmative showing that the ordinance is arbitrary or unreasonable, (citation omitted). “By these standards which control judicial review, the plaintiff to prevail must show beyond debate that the township in adopting the challenged amendment transgressed the standards of R. S. 40:55-32.” [Morris v. Postma, 41 N. J. 354, 359-360 (1964)]

Defendant concedes that a municipality may act by zoning to prevent overcrowding, but would confine the exercise of such power to a specific use ratio formula such as that suggested in Kirsch Holding Co. v. Manasquan, supra, “limiting the number of occupants in reasonable relation to available sleeping and bathroom facilities or requiring a minimum amount of habitable floor area per occupant.” Id., 59 N. J. at 254, and contends that the blanket prohibition against no more than four students in a one-family dwelling regardless of the size of the structure renders the ordinance arbitrary, unreasonable and unconstitutional.

We disagree. Defendant’s reliance upon the Qabe and Kirsch cases, supra, is misplaced.

In the Qabe case plaintiffs, the owners of two-family houses attacked a provision of the zoning ordinance of Mar-gate City defining a family for the purposes of use restrictions in certain zones as “one or more persons related by blood, marriage or adoption or not more than two unrelated persons occupying a dwelling unit as a single non-profit housekeeping unit.” Id., 112 N. J. Super. at 342. This definition was adopted in an attempt to eliminate what the governing body considered undesirable conditions resulting from summer rentals at the seashore for unmarried groups of young men and young women. This court held that the definition was “unreasonably restrictive of the ordinary and natural utility of such property as dwellings for people, and of the right of unrelated people in reasonable number to have recourse to common housekeeping facilities in circumstances free of detriment to the general health, safety and welfare.” Id. at 349. The court, however, said it was not holding that “an ordinance may not limit a group of unrelated rentors or owners to a reasonable number in a single dwelling unit.” Id. at 350. That is the specific issue now before use.

The ordinance in the Kirsch case, supra, was somewhat similar in that it sought to deal with the influx of summer visitors and rentors to a seashore town and, in particular, to control group rentals. The court, in striking down the ordinance as “sweepingly excessive,” pointed out that it was aimed at the prohibition of obnoxious rentals but said that in its attempt to bar one offensive dwelling use the ordinances, in effect, barred many uses which were non-obnoxious.

It is clear from the opinion in that case that when “intensity of use, i. e., overcrowding of dwelling units and facilities,” is a factor in causing anti-social conduct, zoning ordinances can, under appropriate circumstances, be used for the purposes of control. Id. at 254.

Defendant’s attack on the ordinance in question is a generalized one. He argues the principle of invalidity without any factual support in the record.

A substantially similar ordinance has recently been approved by the United States Supreme Court in the case of Village of Belle Terre v. Boraas, 416 U. S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). A zoning ordinance there restricted land use to one-family dwellings and prohibited occupancy of a dwelling by more than two unrelated persons “as a family” while permitting occupancy by any number of persons related by blood, adoption or marriage. The ordinance was attacked by the owner of the property who had been cited for violating the ordinance as a result of his renting his property to six unrelated college students. The court, in upholding both the zoning ordinance and this principle of land use restriction said:

The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more ears rather continuously pass by; more cars are parked; noise travels with crowds.
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs. This goal is a permissible one. (citation omitted). The X>olice power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people. [416 U. S. at 9, 94 S. Ct. at 1541, 39 L. Ed. 2d at 804].

We see nothing inherently unreasonable in the provisions of the ordinance here attacked, limiting occupancy of the dwelling to four student roomers. The ordinance is presumptively reasonable and valid. The burden is upon defendant to demonstrate that the ordinance is arbitrary and unreasonable, and he has not done so.

Our opinion is not to be understood as approving any other sections of this ordinance. Our attention has been directed solely to the one provision restricting roomers to no more than four students in any one house which defendant was charged with violating.

Affirmed.


source: Caselaw Access Project

author: Lynch, J. A. D.

license: Public Domain

text:
    ARNOLD G. CARLSEN, PLAINTIFF-APPELLANT, v. GLADYS C. CARLSEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 8, 1974 —
    Decided November 6, 1974.

      Before Judges Lynch, Allcobn and Milmed.

      Mr. Joseph Schoenholz argued for appellant.

      Mr. Joseph L. Murray, Jr. argued for respondent (Messrs. Morrison & Griggs, attorneys).
   The opinion of the court was delivered by

Lynch, J. A. D.

This is an appeal by plaintiff (husband) from a judgment of July 20, 1972, which ordered that plaintiff pay to defendant (wife) $100,000 in full satisfaction of the defendant’s claim to equitable distribution and of any claim she may have for alimony and support against plaintiff.

Plaintiff contends that the judgment effecting equitable distribution pursuant to N. J. S. A. 2A:34-23 (effective September 13, 1971) was violative of a separation agreement, later incorporated into a judgment of May 20, 1969, whereby the parties had made their own disposition of their respective assets. Plaintiff contends that he is entitled to specific performance of that agreement and that therefore the judgment ordering equitable distribution under the new statute (N. J. S. A. 2A:34-23) is ineffective to impair his “vested rights” under the prior separation agreement and the releases delivered to him by defendant pursuant thereto.

Plaintiff also contended that N. J. S. A. 2A:34-23 is unconstitutional but now concedes that his contention in that respect has been definitively concluded against him bjr the decisions in Painter v. Painter, 65 N. J. 196 (1974), and Rothman v. Rothman, 65 N. J. 219 (1974).

The judgment ordering equitable distribution was entered after a “Dual Judgment of Divorce” in favor of each of the parties pursuant to the “new” ¿Divorce Act embodied in N. J. S. A. 2A:34-1 et seq.

The separation agreement between the parties, confirmed by the judgment of May 20, 1969, was specifically enforceable so long as it was “just and equitable.” Schlemm v. Schlemm,, 31 N. J. 557 (1960); Berkowitz v. Berkowitz, 55 N. J. 564 (1970). We conclude that the enactment of N. J. S. A. 2A:34-23 does not affect that standard of enforceability.

However, in the entry of the judgment here appealed from, there has been no inquiry or determination whether the prior agreement was “just and equitable” or, if the agreement was not of such quality, in what respects the provisions thereof should be modified. (The incorporation of the separation agreement into the prior judgment was pro forma only, the judge specifiealfy stating that he had made no finding of fact.) Accordingly the judgment in the instant case is reversed and the matter is remanded for findings of fact and conclusions of law as to whether the separation agreement was “just and equitable” and, if not, what disposition will meet that standard. If, on the other hand, a finding is made that the separation agreement was “just and equitable,” then the parties should be held to their prior bargain.

We do not retain jurisdiction.


author: Per Curiam.

text:
    BAYSHORE SEWERAGE COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF NEW JERSEY, AN AGENCY OF THE STATE OF NEW JERSEY, TOWNSHIP OF HAZLET, A MUNICIPAL CORPORATION OF NEW JERSEY, HAZLET TOWNSHIP SEWERAGE AUTHORITY, A PUBLIC AUTHORITY OF NEW JERSEY AND BAYSHORE REGIONAL SEWERAGE AUTHORITY, A PUBLIC AUTHORITY OF NEW JERSEY, AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 22, 1971---
    Decided November 7, 1974.
    Before Judges Kolovsny, Lynch and Ai/loorn.

      Mr. William, B. Holzapfel argued the cause for appellant (Mr. Francis R. Perkins, on the brief).

      Mr. Morton J. Goldfein, Deputy Attorney General, argued the cause for respondents Department of Environmental Protection of the State of New Jersey and State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey; Mr. Joseph M. Clayton, Jr., Deputy Attorney General, of counsel and oil the brief).

      Mr. John E. Holobinko argued the cause for respondents Township of Hazlet and Hazlet Township Sewerage Authority (Messrs. Roberts, Madden & Holobinko, attorneys).

      Mr. Clark C. Vogel argued the cause for respondent Bay-shore Regional Sewerage Authority (Messrs. Stout, O’Hagan & Hertz, attorneys).
   Per Curiam.

The judgment is affirmed essentially for the reasons set forth in the opinion of Judge McGowan which is reported at 122 N. J. Super. 184 (Ch. Div. 1973).


text:
    SERVICE ARMAMENT CO., A NEW JERSEY CORPORATION; NRA MEMBERS FOR A BETTER NRA, INC., A NEW JERSEY CORPORATION; HOWARD RAYMOND: GOODMAN-SHAW, INC., A NEW JERSEY CORPORATION; RUTGERS GUN AND BOAT CENTER, INC., A NEW JERSEY CORPORATION; NESHANIC DEPOT ANTIQUES, INCORPORATED, A NEW JERSEY CORPORATION; HOMESTEADER’S BLACK POWDER GUN CLUB OF BOUND BROOK, NEW JERSEY, AN UNINCORPORATED ASSOCIATION, PLAINTIFFS-RESPONDENTS, v. WILLIAM F. HYLAND, ATTORNEY-GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1971 —
    Decided November 11, 1974.

      Before Judges Coffoed, Michels and Moegaf.

      Mr. David S. Baime, Deputy Attorney General, argued the cause for appellant (Mr. William F. Hyland, Attorney General of New Jersey, attorney pro se; Mr. Carl W. Swanson, Jr., Deputy Attorney General, of counsel and on the brief).

      Mr. Charles J. Irwin argued the cause for respondents (Messrs. Irwin & Post, attorneys; Mr. Charles A. Rosen, on the brief).
   The opinion of the court was delivered by

Michels, J. A. D.

This appeal raises the novel issue of whether replicas of antique muzzle-loading black powder pistols, revolvers and rifles which do not fire fixed ammunition are exempt from the provisions of the New Jersey Gun Control Law (L. 1966, c. 60; N. J. S. A. 2A:151—1 et seq.). Plaintiffs, four New Jersey corporations engaged in the sale of replicas of Civil and Revolutionary War muzzle-loading black powder firearms, a New Jersey sportsmen’s organization of over 300 members, an individual collector of antique firearms from the Revolutionary War period, including replicas thereof, and an unincorporated association of approximately 15 collectors and shooters of Civil War muzzle-loading firearms, instituted this declaratory judgment suit, naming the Attorney General of New Jersey as a defendant and seeking (1) a declaration that replicas of antique muzzle-loading black powder pistols, revolvers and rifles which do not fire fixed ammunition are exempt from the provision of the Gun Control Law by virtue of N. J. S. A. 2A:151-18 (L. 1966, c. 60, § 15), and (2) an injunction against enforcement of the criminal sanctions of the Gun Control Law-based upon the Attorney General’s recent interpretation that replicas of antique firearms were not exempt from the law.

In the Law Division Judge Sehoch interpreted the exemption for antique and ornamental firearms created by N. J. S. A. 2A:151-18 to include replicas of antique firearms, as well as antique firearms themselves, regardless of the date of their manufacture, and entered summary judgment for plaintiffs. The Attorney General appeals, contending that it was not the Legislature’s intention to exempt operable replicas of antique firearms from the regulatory provisions of the Gun Control Law. ECe argues that the court below (1) incorrectly placed inordinate weight on the prior administrative interpretation of tire statute and enforcement of same with respect to replicas of antique firearms, and (2) improperly derived a legislative intent to exempt replicas from the failure of the Legislature to act in response to such administrative interpretation. We stayed the judgment below pending appeal, which stay was continued by the Supreme Court, thereby continuing the enforcement of the Gun Control Law based upon the Attorney General’s recent interpretation of the exemption set forth in his memorandum of July 18, 1973 to the county prosecutors and New Jersey State Police.

A brief review of the context in which the issue arises is helpful to its resolution. The New Jersey Legislature enacted a comprehensive “Gun Control Law” in 1966 (L. 1966, c. 60; N. J. S. A. 2A:151-1 et seq.), the constitutionality of which was upheld by our Supreme Court in Burton v. Sills, 53 N. J. 86 (1968), app. dism. 394 U. S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969). The 1966 act, Which repealed and amended sections of the existing statutory provisions regulating firearms, provided for, among other things, the licensing of manufacturers and wholesale and retail dealers of firearms, and established permit and identification requirements for the acquisition of firearms. The regulatory provisions of the act were “designed to prevent criminal and other unfit elements from acquiring firearms.” Burton v. Sills, supra at 93. The Legislature^ however, created an exemption from the regulatory provisions of the act for certain firearms. N. J. S. A. 2A:151-18 provides :

This chapter does not apply to antique firearms which are incapable of being fired or discharged or which do not fire fixed ammunition, or those manufactured before 1898 for which cartridge ammunition is not commercially available, and are possessed as curiosities or ornaments or for their historical significance or value.

Shortly before the Gun Control Law came into effect a special meeting was called in Trenton for the purpose of informing firearms dealers and others involved with firearms in New Jersey of the full implications of the act. On behalf and with the knowledge of then Attorney General Arthur J. Sills the dealers were advised that replicas of muzzle-loading black powder pistols, revolvers and rifles were exempt from the provisions of the Gun Control Law. Attorney General Sills, in an affidavit submitted to the Supreme Court (on the motion for a stay), specifically stated:

3. I was elosley involved in the drafting and presentation of the aforesaid Gun Control Act and participated in numerous discussions concerning the intent and enforcement of the Act both before and after its implementation.
❖ * -'fi
5. *' * * It was my opinion during the term of my administration that said replicas were exempt from the Act and were intended to be exempt from the Act by the draftsmen and legislators. Therefore, the Gun Control Act of 1966 was always enforced during my administration with my knowledge and direction to exempt such replicas.

The construction placed upon the “antique firearm” exemption by then Attorney General Sills was consistently and uniformly followed, and the statute enforced in the light of such construction for the next seven years, including the period from 1970 until July 18, 1973, during which George E. Kngler, Jr., was Attorney General of New Jersey. This is not disputed by the present Attorney General. In fact, he admits that “[t]he policy of exemption with respect to replicas was acknowledged in November, 1972, when the Division of Criminal Justice submitted a Report on the Proposed New Jersey Penal Code * * * to the New Jersey Criminal Law Revision Commission.” The Report in pertinent part provides:

The Code continues the present exemption for antique firearms, Section 2C:39-6e. Recently, firearms, intended to duplicate antique weapons and capable of being fired, have been manufactured. The provision permits persons to carry such firearms. They do not fire fixed ammunition and consequently are exempted under the section but they are still lethal weapons which should not be carried by persons either in their automobiles or on thoir person, especially when loaded.

It is also undisputed that the Legislature did not interfere with the uniform construction and enforcement of the Gun Control Law to exempt from its application replicas of muzzle-loading black powder antique firearms during this entire seven-year period.

On July 18, 1973 then Attorney General Kugler, in response to an inquiry from the Bergen County Prosecutor, advised all county prosecutors and the State Police that the earlier opinion of the Attorney General’s Office concerning the application of the “antique firearms” exemption to replicas was incorrect and that replicas of antique firearms were not exempt from the licensing provisions of the Gun Control Law. Thereafter, on August 15, 1973 the Superintendent of the Division of State Police individually notified firearms dealers in Few Jersey, including plaintiffs, that only persons with either a firearms dealer’s license, a valid Few Jersey Eirearms Purchaser Identification Card (in the ease of long guns), or a Permit to Purchase a Pistol or Revolver may purchase or receive a replica of an antique firearm in Few Jersey. In addition, the dealers were notified that they are required to record in the Federal and State Eirearms Ledger all replicas of antique firearms presently in stock and all future deliveries of such replicas, and to complete a certificate of eligibility for each long gun and a registration form for each hand gun transferred.

The firearms which are involved in this action are replicas of antique muzzle-loading black powder pistols, revolvers and rifles of the Revolutionary and Civil War periods. They fire a solid projectile or metal ball' or bullet by the action of black powder ignited by a spark from a flintlock, matchlock or other similar ignition device; they do not fire fixed or cartridge ammunition. These replicas, like the operable “genuine” or “authentic” antique firearms which are sought to be copied or duplicated, are “firearms” within the meaning of the Gun Control Law of 1966 (see N. J. S. A. 2A:151 — 1(a)) and would be subject to the regulatory provisions thereof unless exempted or excluded from said provisions by the “antique firearms” exemption set forth in N. J. S. A. 2A:151-18.

N. J. S. A. 2A:151-18 exempts three categories of antique firearms from the application and operation of the Gun Control Law of 1966: those which (1) “are incapable of being fired or discharged,” (2) “do not fire fixed ammunition,” and (3) were “manufactured before 1898 for which cartridge ammunition is not commercially available.” The replicas with which we are concerned do not fire fixed ammunition. However, they are operable, that is, capable of being fired or discharged. Obviously, their exempt status, assuming “antique” comprehends a replica of an antique, depends upon a finding that they are within the scope of the second category, i. e.} antique firearms which do not fire fixed ammunition.

The Gun Control Law did not contain a definition of the term “antique firearms,” and we are unable to glean a defini tion from the limited legislative history of the act. Thus, we look to tlie accepted principles of statutory construction to determine whether replicas of antique firearms are within the scope and meaning of the term “antique firearms” contained in N. J. S. A. 2A:151-18. Our object is to ascertain the legislative intent.

It is a cardinal principle of statutory construction that in the absence of an explicit indication of a special meaning, the words of a statute are to be given their ordinary and well understood meaning. Fahey v. Jersey City, 52 N. J. 103, 107 (1968); Safeway Trails, Inc. v. Furman, 41 N. J. 467, 478 (1964), cert. den. 379 U. S. 14, 85 S. Ct. 144, 13 L. Ed. 2d 84 (1964); Kingsley v. Hawthorne Fabrics, Inc., 41 N. J. 521, 526 (1964). See also, N. J. S. A. 1:1 — 1. Webster’s Third New International Dictionary (Unabridged 1971), at 96, defines the word “antique” as an adjective as follows:

1: existing since ancient or former times: among the oldest of its class. * * *2: of or belonging to earlier periods: ANCIENT. * * * 3: exhibiting the style or fashion of ancient or former times: OLD-FASHIONED, ARCHAIC. *=¡"*g:*!f*b: having the appearance of age: suggesting the crafts of an older period. * *

and as a noun as:

1 a: a relic or object of ancient times or of an earlier period than the present b: a work of art, piece of furniture, or decorative object made at a much earlier period than the present and according to IT. S. customs laws at least 100 years old. * * *

When the term “antique” is used to modify a noun such as the noun- “firearm,” it may be used to denote that which has existed • since early or former times, thereby creating a classification of firearms having a distinct characteristic of age, as argued here by the Attorney General. However, as the dictionary indicates, “antique” may also be used to denote that which exhibits the style or fashion of ancient or former times, or gives the appearance of age or of a craft of an older period, as argued by plaintiffs. It is not uncommon to refer to replicas, reproductions or copies of so-called genuine or authentic antique articles by the generic term “antique,” even though such articles are not actually aged. The different connotations of the word “antique” therefore create a colorable basis from which to conclude that as an adjective it is ambiguous as used in N. J. S. A. 2A:151-18.

Moreover, that portion of N. J. S. A. 2A:151-18 which exempts antique firearms manufactured before 1898 for which cartridge ammunition is not commercially available accentuates the ambiguity inherent in the term “antique firearms,” and suggests that the Legislature contemplated the possibility that the term “antique firearms” could include firearms manufactured after 1898, as well as before, and provided that those manufactured after 1898 would be exempt if ihev did not fire fixed ammunition. There is no indication in the statute as to how much later than 1898 a firearm could be manufactured and still fall within the exemption as thus understood. It is therefore possible to reason with some degree of persuasiveness that a firearm could have been manufactured relatively recently and still be within the actually intended purview of the exemption. The Colt Patent Firearms Manufacturing Company, for example, is presently manufacturing and offering for sale the “1851 Navy” revolver, a black powder muzzle-loading firearm which does not use fixed ammunition. These firearms were manufactured from 1851 until 1873, when their manufacture was discontinued. In 1970 Colt resumed production, using the 1851 blueprints. The present model is identical to the prior production models. The “1851 Navy” revolvers manufactured between 3851 and 1873 would certainly qualify as “antique firearms” within the statutory exemption, and there is a sound basis to infer that the identical revolvers presently being manufactured by Colt were intended to be exempt as well.

The term “antique firearms”, as shown above, is sufficiently ambiguous to justify the trial judge’s reliance upon the contemporaneous construction and actual enforcement of the statutory exemption by the Attorney General. It is clear that the contemporaneous and practical construction of a statute over a period of years by the agency charged with its enforcement without interference by the Legislature in the interim is evidence of its conformity with the legislative intent and may be given substantial weight by the court. In Pringle v. Department of Civil Service, 45 N. J. 329 (1965), our Supreme Court held:

* * * The principle is well established that resort may be had to long usage, contemporaneous construction and practical interpretation in construing statutes, to ascertain the meaning of technical terms, to confirm a construction deduced from the language, to explain a doubtful phrase or to ascertain the meaning of a phrase if obscurely expressed. * * * [at 332-333]

Similarly, in Jersey City Housing Authority v. Department of Civil Service, 87 N. J. Super. 146 (1965), the Appellate Division stated:

It has been the practice of the Department to certify employees from a municipal re-employment list to a municipal housing authority. This practical construction of the statute by the Department over a period of years without interference by the Legislature is evidence of its conformity with the legislative intent and strongly inclines the courts to concurrence therein, [at 149]

In Offhouse v. State Board of Education, 131 N. J. L. 391 (1944), app. dism. 323 U. S. 667, 65 S. Ct. 68, 89 L. Ed. 542 (1944), reh. den. 323 U. S. 814, 65 S. Ct. 114, 89 L. Ed. 648 (1944), our former Supreme Court commented:

Contemporary exposition may be considered, and is ordinarily accorded great weight, where the language of a municipal regulation is of doubtful import and is not made plain by the context. The meaning attributed to the rule soon after its adoption by the authority charged with its enforcement is generally the best construction; and it will be accepted unless clearly wrong, especially where it has received the acquiescence of those affected by its terms, [at 395]

See also, Automatic Merchandising Council v. Glaser, 127 N. J. Super. 413, 420 (App. Div. 1974); Walsh v. Department of Civil Service, 32 N. J. Super. 39, 48 (App. Div. 1954); State v. Clark, 15 N. J. 334, 341 (1954), and 2A Sutherland, Statutory Construction (4 ed. 1973), § 49 at 228 et seq.

The Attorney General does not dispute the existence of this principle of statutory construction, or the fact that for the seven-year period, from the enactment of the Gun Control Law in 1966 until July 1973, the act was interpreted and enforced by the Attorney General’s Office (both Attorneys General Sills and Bugler) to exempt from its application replicas of antique muzzle-loading black powder firearms. The Attorney General argues, however, that this principle is inapplicable here because (1) the Attorney General’s prior interpretation was neither reduced to writing nor the product of an adversary proceeding and was plainly wrong, and (2) an inference that the Legislature intended to exempt replicas cannot be drawn from its failure to enact the Senate and Assembly bills referred to above, or otherwise amend the exemption from the Gun Control Law.

We are satisfied that there is no requirement that an administrative interpretation of a statute must be in writing or the product of an adversary proceeding, for the court to give weight to such interpretation in construing the statute. While we agree with the Attorney General that the contemporaneous and long-standing construction of a statute by an administrative agency has no relevancy and should not be given any weight where the statute is not ambiguous and the interpretation conflicts with the court’s view of the plain meaning of the language used and the statutory purpose (see Safeway Trails, Inc. v. Furman, supra 41 N. J. at 483; Kingsley v. Hawthorne Fabrics, Inc., supra 41 N. J. at 528; United Stations v. Getty Oil Co., 102 N. J. Super. 459, 473 (Ch. Div. 1968), aff’d o. b. 54 N. J. 150 (1969)), such is not the situation here. As we have pointed out above, resort to the well recognized principle of statutory construction was clearly justified from the ambiguity in the term “antique firearms.” The construction of the exemption by then Attorney General Sills contemporaneous with the passage of our Gun Control Law, and its continued uniform enforcement in the light of that construction for the next seven years, was not plainly wrong or unreasonable in the circumstances. There is a real question as to whether our Legislature intended to subject these replicas to the stringent regulatory and licensing provisions of the Gun Control Law. If they were to be subject to such control, their utility would be substantially diminished if not totally destroyed. These replicas, much like the genuine or authentic antique, are of limited value and usefulness as a functional firearm. If the few isolated instances in which replicas of antique firearms have been used in the commission of crime now require that such firearms be included within the purview and scope of the Gun Control Law, then that determination should be made by our Legislature. Furthermore, the interpretation of the exemption by then Attorney General Sills is consistent with the federal policy expressed in the national Firearms Act of 1954 (26 U. S. C. A. § 5841 et seq.) which was amended in 1968 to specifically exempt from its application, “antique firearms” of “any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898.” 26 U. S. C. A. § 5845 (g).

Finally, we agree with the Attorney General that no inference of legislative intent to exempt replicas from the Gun Control Law may be drawn by the failure of the Legislature to enact the two particular bills referred to above. The mere introduction of these two bills which would have limited the antique firearms exemption to firearms manufactured before 1898 is in no way conclusive in determining the legislative intent with respect to the enactment of the 1966 Gun Control Law. See J. C. Chap. Prop. Owner’s, etc., Ass’n v. City Council, 55 N. J. 86, 95 (1969); Fraser v. Robin Dee Day Camp, 44 N. J. 480 (1965). Thus, to that extent, the court below was incorrect in attaching significance to the failure of the Legislature to pass these two bills. However, the compelling factor is that the Legislature did not interfere with the construction placed upon the exemption by the Attorney General contemporaneously with its enactment and consistently followed for the next seven years by the law enforcement authorities until changed by then Attorney General Kugler in July 1973.

Accordingly, we hold that the “antique firearms” exemption created by N. J. S. A. 2A:151-18 exempts from the Gun Control Law of 1966 replicas of antique muzzle-loading black powder pistols, revolvers and rifles which do not fire fixed ammunition regardless of when manufactured. The summary judgment entered in favor of plaintiffs below therefore is affirmed.

      The effective date of the Gun Control Law (L. 1966, c. 60), approved June 6, 1966, was 60 days after enactment.

       We note that two bills were introduced in the Legislature during this period: Senate No. 451 on April 10, 1969 and Assembly No. 1117 on May 14, 1970. Each bill proposed a new comprehensive scheme of firearms regulation, and each limited any exemption from its application to weapons which do not fire fixed ammunition and to early cartridge fire arms for which cartridge ammunition is not currently manufactured or commercially available, provided the weapons have been manufactured before 1898 and are possessed as curiosities or ornaments. These bills were never enacted into law, and to date N. J. S. A. 2A:151-18 stands as approved on June 6, 1966.

       The prior legislation regulating firearms did not contain an exemption similar to that enacted hy the 1966 Gun Control Law. The 1927 “Supplement to an act entitled ‘An act for the punishment of crimes’ (Revision-of 1898)” merely excluded or exempted from its application “antique pistols unsuitable for use as firearms and possessed as curiosities or ornaments.” (L. 1927, o. 321, § 18).


author: Ciolino, J. S. C.

text:
    COOPER DISTRIBUTING CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. ARNCO ELECTRONICS, A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    October 25, 1974.

      Mr. S. M. Chris Franzblau for plaintiff (Messrs. Beckerman, Franzblau & Cohen, attorneys).

      Mr. Warren Kaps for defendant (Messrs. Stein & Rosen, attorneys).
   Ciolino, J. S. C.

Plaintiff brought suit and asked this court to enjoin defendant from selling Amana products at less than the fair trade price established pursuant to N. J. S. A. 56:4 — 1 el seq. The principal questions presented to this court for determination in this matter are (1) whether a distributor of a commodity may fair trade, and (2) if a fair trade program is promulgated, whether it can be promulgated in selected counties or a particular geographical area which comprises less than the entire State.

In the case before the court plaintiff is not the owner of the trade-mark. Defendant alleges that at the very least, if the court is to find that a distributor is to have the right to fair trade, he must get the approval of the owner of that trade-mark and he must also be the exclusive distributor.

Plaintiff is a distributor of Amana products, more particularly freezers, refrigerators, combinations and compactors, dehumidifiers and component and repair parts thereof, and generally for all products coming within the “white goods” category which are from time to time made available by Amana. In accordance with a distributor franchise agreement with Amana Refrigeration, Inc. of Amana, Iowa, dated April 1, 1971, the “distributor’s territory for purposes of concentration of sales effort and appropriate stocking of products shall be: Hew Jersey — Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Passaic, Somerset, Sussex, Union; Hew York — Orange, Rockland, Sullivan; Pennsylvania — Pike”.

It has been stipulated as follows: that Amana products are trade-marked items in open and free competition in this general area; that these Amana products have been sold by defendant; that prior to the subject sales in this litigation defendant received notice from plaintiff of fair trade prices established by plaintiff, which prices plaintiff intended to have maintained in the subject area; that the sales made by defendant of these goods were below the fair trade prices as per the aforementioned notification; that plaintiff has a franchise agreement with Amana which existed during the time period involved in this suit and was in existence when notice was served upon defendant; that defendant purchases its Amana products from Key Appliances, New York City, N. Y., a buying cooperative, and that those producís are then shipped to defendant in New Jersey.

I find that plaintiff is a franchised distributor who sells only to retail dealers and not to end users of the products. The southern counties of the State are served by another franchised distributor located in Philadelphia, Pa.

It was shown that as a general rule plaintiff sells only in his trade area; however, at times plaintiff does sell outside of that area and also in the area wherein the Philadelphia distributor maintains its franchise. Plaintiff does not attempt to enforce its fair trade agreement in any county except in those covered by its agreement. No proofs were offered as to whether or not the franchise distributor of southern New Jersey has any fair trade agreement in this State. I find that there is no written authorization between Amana and plaintiff as to any fair trade agreement; however, proofs at trial revealed that officers and executives of Amana were made aware of plaintiff’s fair trade policy and enforcement of same in the State of New Jersey and that this policy was continued after such information was made available to them. There were no facts presented which indicated that plaintiff’s fair trade program was being enforced against wholesalers, but rather the facts revealed that only retail sales were affected by plaintiff’s program.

Defendant, who has been in the appliance business since the early 1960’s, has what it considers three different approaches to merchandising their products. It has what has been described as a wholesale business, that is, sales to trade people who usually have a state sales tax number and to whom no state sales tax is charged. It has a limited retail business, and it has what it calls commercial accounts. These commercial accounts established in 1971 are described as sales to entities.

The manner in which these sales to various entities occurred was that defendant solicited business organizations and requested them to distribute identification cards called Arnco Buyers’ Cards to their employees. These cards were then used by the employee to identify himself at defendant’s place of business, and upon presentation of the Buyers’ Card the wholesale price was given to that customer. If the card was not presented, then the regular retail price was used. These cards were presented with the employee’s signature upon them, but no employment verification was required prior to making the purchase at the wholesale price. Sales made with the Buyers’ Card, that is, the commercial account sales to employees, also included a sales tax charge to the buyer. These sales are not charged to the business entity but rather to the employee-shopper, and it is these sales which defendant has characterized as sales to a business entity.

I am satisfied that defendant’s commercial accounts and method of sale to employees of business entities by the use of an Arnco Buyers’ Card constituted a retail sale. These were sales not to a business organization but rather to an end consumer. It was the consumer who was billed and charged a sales tax and not his employer. Clearly, the consumer could well be someone who was not an employee but merely one who displayed an Arnco card. This was brought clearly to the attention of the court through the testimony of a shopper who purchased from defendant by use of an employee card when that shopper in fact was not the employee represented by the document. I therefore find that the commercial account sales constitute retail sales.

At the outset, the court wishes to settle the question of the constitutionality of the New Jersey Fair Trade Act. The ease of Sony Corporation of America v. Value-House, Inc., 121 N. J. Super. 461, 465 (Ch. Div. 1972), upheld the constitutionality of this act, stating, “If there is to be a change in our law, it must come either from the Legislature or our highest court.” Texas Co. v. DiGaetano, 39 N. J. 120 (1963); Lionel Corp. v. Grayson-Robinson, 15 N. J. 191 (1954).

I

It has been shown that plaintiff is a franchised distributor of Amana products and that it maintains an inventory of these products, as well as parts inventory, to service Amana retailers. Plaintiff is an Amana franchise distributor in the northern New Jersey metropolitan area and has sought Lo establish a uniform minimum resale price for all Amana retailers in its area, and has enforced its minimum retail schedule in court.

There was a review of the Pair Trade Law in the States of New Jersey, New York and Pennsylvania in the case of Norman Morris Corp. v. Hess Bros., 243 F. 2d 274 (3 Cir. 1957). All three states basically have the same Pair Trade Act, which derived initially from a California statute. The court emphasized that the provisions of the Pair Trade Act inure to the benefit of those persons affected by the reduction in the value of goodwill and said, “[A]n exclusive distributor for a large geographic area would be affected quite seriously by the value of the good will inherent in the trade-mark.”

Plaintiff alleges in its complaint that it instituted a fair trade program in the area of its distributorship, which encompasses 11 counties in the northern part of New Jersey, and that it is the primary distributor of Amana products in the area; however, it does not claim to be the owner or the producer of the trade-marked products, nor does it claim that it has any written authorization by Amana to initiate fair trade price mínimums, although it has indicated, as previously referred to in this opinion, that it has the verbal authorization of Amana to do so. While it is understood that the purpose of the Pair Trade Act is to protect the goodwill inherent in the trade-mark brand from a reduction in value by uneconomic practices, and that the person most often affected would be the owner or producer, a distributor for a large area would be affected quite seriously by a lessening of the value of the goodwill inherent in the trademark. The Court of Errors and Appeals stated" in Schenley Products Co. v. Franklin Stores Co., 124 N. J. Eq. 100 (1937) :

* * * To assert that the contract must be made by or on behalf of the owner of the trade-mark or brand, or by or on behalf of the producer of the commodity bearing the trade-mark or brand is to import into the statute that which is clearly not within its provisions and that which is unnecessary to its operation, [at 103]

One of the purposes of the Fair Trade Act is to protect the good will of a trade-mark from practices which in one way or another lessen the value of the commodity in the public eye. This being so, its provisions inure to the benefit of those persons affected by the diminution of the value in the good will. This is, not limited to the producer or the owner of the trade-mark; it also encompasses a distributor for a large geographic area, as he, too, would be affected by the value of the good will inherent in the trademark. In view of the foregoing, I am of the opinion that price maintenance contracts made under the Fair Trade Act by a distributor of products sold under the trade-mark of a manufacturer or producer are valid, even though set by a distributor.

II

Can a distributor establish fair trade policy which is not in effect throughout the entire state? Plaintiff’s franchise agreement provides that its area of distribution and concentration will be 11 counties in Hew Jersejr and certain counties in FFew York and Pennsylvania. It is clear from the franchise agreement that Amana reserves to itself “the right to make sales to (a) any national, state or local government or any agency or subdivision thereof; (b) for export; (e) to another manufacturer; (d) under trade-marks other than Amana or Deep Freeze or for private label; (e) for commercial use; (f) for national accounts; (g) for governmental projects; (h) to associate distributors; and (i) to genera] contractors, sub-contractors, ox developers of business or home building projects.” It is also uncontradicted that Amana has given its distributorship of its products in the southern part of the state to a distributor originating in the City of Philadelphia.

There was testimony by the president of plaintiff corporation that in addition to plaintiff distributing Amana products in the II counties set forth in its franchise agreement, there was also distribution by a Garden City, New York outlet, Key Appliances, by defendant, and also perhaps by Amana Corporation of New York. As has been shown, plaintiff attempts only to enforce its fair trade program within the 11 counties assigned to it, and I question what effect this has upon uniformity not only throughout the entire State hut in the counties in question when there is this multiple supply of. Amana products into the area. A manufacturer or other person entitled to operate under the Fair Trade Act must subject all retailers selling this commodity to restrictions which are uniform; otherwise, discrimination results between classes of consumers and classes of retailers. Except as may he provided by the Legislature, the fixed price must apply to all consumers alike, and this can he accomplished only by binding all retailers to maintain the same minimum price schedule. The rationale nnder the act is to provide for equality and state-wide uniformity and to eliminate the potential of distributors in small geographic areas from each promulgating their own price schedule. Underlying the enactment of the Fair Trade Law was a desire to protect the manufacturer’s good will from price cutting and the purpose of maintaining resale prices, and such purpose cannot be achieved if multiple price setting is permitted. Here the manufacturer, Amana, has failed to exercise the power given by the statute to fix prices, and as a result of its failure to act, a situation of multiple price fixing has occurred. The minimum resale price established, pursuant to contract made under the Pair Trade Act, must be uniform throughout the State, and uniformity cannot be obtained unless the manufacturer or distributor effectively binds all retailers selling the products in an effort to maintain an established price. See Frank Fischer Merchandising Corp. v. Ritz Drug Co., 129 N. J. Eq. 105 (Ch. 1941) where the Court said:

s * * The statute is state-wide in its application and the court cannot draw the line where competition begins in one section of the state and ends in another. The execution of one contract with a retailer in this state no matter where he is located is sufficient to bind all other retailers throughout the state, and this being so, it cannot be said that the statute calls for a distinction as to the competitive areas where the manufacturer or distributor has failed to bind all retailers to maintain the minimum price fixed by him. [at 109-110]

Because of the overlapping of supply and the multiple sources of distribution of Amana products into this State, the question of geographical limitation upon the factual picture as presented in this case must fail.

In view of the foregoing, I find that a distributor may establish fair trade prices in accordance with the Fair Trade Act of the State of New Jersey. However, I also find that the fixing of prices in an area encompassing less than the entire State must fail because it lacks uniformity. Therefore, the relief sought by plaintiff for injunction and damages, as against the defendant, must be denied. In view of these conclusions, it is unnecessary to consider the other defenses raised.

The court has considered the counterclaim of defendant and finds that it has failed to prove its cause of action and therefore the relief they seek thereunder is also to be denied.


author: Susser, P. J. D. C.,

text:
    RINGWOOD SOLID WASTE MANAGEMENT AUTHORITY, A PUBLIC BODY CORPORATE AND POLITIC, PLAINTIFF, v. BOROUGH OF RINGWOOD, A PUBLIC BODY CORPORATE AND POLITIC; FRANK E. FAHY, JOHN W. WICHTERMAN, RICHARD J. STRAUB, WILLIAM HANNON, DONALD KIRK, ROBERT J. MORAVSIK, JOHN FEDELE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    October 24, 1974.

      Mr. John M. Running, attorney for plaintiff.

      Messrs. Corrado, Corcoran & Sokalski, attorneys for defendants (Mr. Terence P. Corcoran, appearing).
   Susser, P. J. D. C.,

Temporarily Assigned. Plaintiff seeks to restrain the Borough of Kingwood from passing an ordinance which would abolish the Kingwood Solid Waste Management Authority (Authority), and for judgment declaring the proposed ordinance invalid.

The matter was first heard on the return day of an order to show cause seeking to temporarily restrain the borough from passing the ordinance. It was subsequently heard on motion for summary judgment to declare the ordinance abolishing the Authority as illegal and of no effect.

The facts giving rise to this litigation are not in dispute.

On October 9, 1970, pursuant to the provisions of the Solid Waste Management Authority’s Law (N. J. S. A. 40:66A-32 et seq.), the Borough of Ringwood by ordinance created a public body corporate under the name of Ring-wood Solid Waste Management Authority. Pursuant to the provisions of the enabling act, the mayor and governing body of Kingwood appointed live persons as members of the Authority and took all other essential action required under the statute to effectively organize and create the Authority. N. J. S. A. 40:66A-35(a), (e), (d).

The Authority, after its organization, received a grant from a private corporation of approximately 200 acres of land located in the Borough of Kingwood and proceeded to conduct its business as a solid waste management authority. It has entered into an agreement with the borough to permit municipal disposal of solid waste on lands owned by the Authority; has filed applications with the various state agencies in connection with the operation and proposed operation of landfill garbage disposal sites on lands owned by the Authority; has made payments in lieu of taxes to the borough for the lands owned by it, and in connection with the conduct of its business has incurred debts and also has bills due and owing to it.

In 1973 and 1974 the borough entered into extensive negotiations with the neighboring boroughs of Kinnelon, Butler, Bloomingdale, Riverdale, Pompton Lakes and the Township of Pequannoek having as its aim the creation of a regional solid waste management authority to be known as the Lake-land Regional Solid Waste Management Authority. Prom these negotiations an agreement emerged which provided for the formation by the concerned municipalities of a regional authority under the provisions of N. J. S. A. 40:66A-32 et seq., and more specifically under the provisions of N. J. S. A. 40:66A-35(b). The regional agreement provided, among other things, that the participating municipalities would enact parallel ordinances creating such regional authority.

On August 28, 1974 at a public meeting the Ringwood Borough Council introduced and passed on first reading an ordinance which would permit it to join in this pact for the purpose of conducting a regional solid waste management authority (Ordinance No. 1974^33).

N. J. S. A. 40:66A-35(e) provides

No governing body which may create or join in the creation of any solid wasté management authority pursuant to this section shall thereafter create or join in the creation of any other solid waste management authority. No governing body of any municipality within a district shall create or join in the creation of any solid waste management authority except upon the written consent of the solid waste management authority and in accordance with the terms and conditions of such consent.

The term "district” referred to above is defined in the act as "the area within the territorial boundaries of the municipality or municipalities which created or joined in the creation of a solid waste management authority.” Thus, by the creation of the Ringwood Solid Waste Management Authority on October 9, 1970 Ringwood had become a municipality within a waste management district and was subject to the provisions of N. J. S. A. 40:66A-35(e).

Because of this statutory prohibition, and since the governing body had committed itself to becoming a party to the Lakeland Regional' Waste Management Authority, it introduced simultaneously with Ordinance 1974-33 a companion ordinance (Ordinance 197-4-32) repealing the 1970 Ordinance which created the Eingwood Solid Waste Management Authority. Ordinance 1974 — 32, which repealed the ordinance creating the Eingwood Solid Waste Management Authority, and ordinance 1974r-33, which authorized the Borough of Eingwood to join in and become a party to the regional pact, were passed on first reading and were scheduled to be discussed at a public meeting on September 25, 1974, at which time the borough council was to vote on final passage.

This complaint was filed after first reading of the proposed ordinances in August 1974 and prior to the final passage of the ordinance which was scheduled for a public meeting on September 25. The thrust of the complaint is twofold: first, by order to show cause to restrain the borough from adopting Ordinance 1974^32 an ordinance to repeal the ordinance which created the existing Eingwood Solid Waste Management Authority, and second, for a judgment determining that Ordinance 1974-32 is contrary to law, illegal and void.

We shall first deal with the order to show cause which seeks to restrain the governing body of Ringwood from acting to pass Ordinance 1974h-32 at final public hearing on September 25. This matter was argued on September 20, and for the reasons stated below, a restraint was denied.

Court should not interfere with the legislative processes. The governing body of Eingwood had as yet not acted. It is true that the ordinance had received a first reading, but there still remained a period of gestation prior to enactment as law. It is improper to assume as fact that the Eingwood governing body would, after a subsequent public hearing, finally pass the ordinance. It would be an invalid interference with the public right to be heard at public meeting on September 25. To restrain would represent a too hasty judicial interference with legislative processes and a violation of the historic constitutional separation of powers.

The law in this area is quite settled. A court cannot prohibit a legislative branch from meeting and passing an ordinance. Harrison Land Co. v. Crucible Steel Co., 82 N. J. Eq. 414, 420 (Ch. 1913). The application for restraint is premature because the ordinance has not been passed. Neptune v. Asbury Park, 7 N. J. Misc. 5, 143 A. 867 (Sup. Ct. 1928). This court cannot and should not speculate as to the final language of the ordinance which may be passed by the governing body nor can it interfere with its ultimate decision, which conceivably could be non-passage, Passaic Jr. Chamber of Commerce v. Passaic Housing Authority, 45 N. J. Super. 381, 392 (App. Div. 1957); Cape May and Schellerger’s Landing v. Cape May, 35 N. J. Eq. 419 (Ch. 1882); New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 481, 17 S. Ct. 161, 41 L. Ed. 518, 524 (1896).

In the consideration of legislation governing bodies have discretionary powers to exercise, and the courts should not interfere with the legislative discharge of these powers even though they may be invalid when finally exercised. However, once legislation is passed, the courts can then set aside legally invalid legislation. Bond v. Mayor, etc. Newark, 19 N. J. Eq. 376, 383 (Ch. 1869).

Eor these reasons the restraint was denied and ah order submitted accordingly. Nevertheless, the complaint, though premature, was retained so that if the borough council, after public meeting and final reading, did pass the proposed repealer ordinance, this court might then rule on its validity.

On September 25, after public hearing, the borough governing body passed Ordinances 1971^33 and 1974-32 on final reading and thereafter (since there was no dispute as to the facts) the question of the validity of ordinance 1974^32 was argued before the court on September 27.

The Solid Waste Management Authorities Law N. J. S. A. 40:66A-32 ei seq., contains no provision for the dissolution of a solid waste management authority once it is created by a municipality or municipalities. Whether with this state of the law a municipality may solely by its own ordinance rescind the ordinance creating the authority is a matter of first impression in this State and requires legal construction of the statute and those statutes in pari materia with it.

The sense of a law is gathered from its object, nature of the subject matter, the whole of the context and acts in pari materia, Hackensack Water Co. v. Ruda, 3 N. J. 139 (1949). Our Legislature, having been concerned with the environmental impact of garbage and solid waste materials disposal, passed a number of enabling acts which permitted municipalities either singly or in conjunction with other municipalities or counties, either singly or within regional groupings, to provide vital services for the disposal of garbage and solid waste materials.

The device has been in nearly all instances in the form of an independent authority with perpetual succession. Except for the nonprofit aspect, these authorities are very much similar to a public utility in that they have a specifically defined geographic area of operation, with complete freedom from competition in the sphere in which they operate.

It is quite clear that the Legislature intended the creation of various independent authorities as a means by which these entities would provide essential services in certain g-imsf-governmental areas, i. e., parking, water, sewerage, disposal, incinerator plants, housing, redevelopment and solid waste disposal.

Here we are primarily concerned with a statute which has within it no provision, proeedurally or otherwise, by which a municipality may dissolve the legal entity which it created.

This statute therefore is to be construed as a whole with reference to the system of legislatively created authorities of which it is a part. Maritime Petroleum Corp. v. Jersey City, 1 N. J. 287 (1949).

A study of the various acts passed by the Legislature from 1946 through 1974 clearly indicates a legislative intent that no authority once created and organized may subsequently be dissolved except with the consent and active participation of the authority itself. The only execptions are in the cases of county authorities where the county can dissolve the authority it created and take over its obligations. County Improvement Authorities Law, N. J. S. A. 40:37A-47; First Class County Recreation Authority Law, N. J. S. A. 40:37B-4, and New Jersey Industrial Pollution Control Financing Law, N. J. S. A. 40:37C-4(d).

Usually, the provisions for dissolution give the creating governmental body the right to dissolve the authority prior to the appointment of its members, but generally after the members have been appointed the governmental body creating the authority cannot dissolve it except with the consent of the authority, with a prerequisite that there be no debts or obligations outstanding. County and Municipal Sewerage Authority Law, N. J. S. A. 40:14A-4(h); County-Municipal Water and Sewerage Disposal Authorities Law, N. J. S. A. 40:14B-13, and Municipal Port Authorities Law, N. J. S. A. 40:68A-38.

Obviously, it was the intention of the Legislature to give these creatures of statute an independence of their own so that they might properly function within their appropriate sphere. Practically all of the various authorities have the right to bond •— a very necessary power for it to secure the facilities needed in connection with its operation, and a power that obviously and realistically could not be exercised in the existing market place without built-in restrictions regarding its dissolution. Hence, no dissolution without the authority’s consent and while it has debts.

In addition to what has been stated regarding the restrictions on dissolution, the autonomy of authorities has been further buttressed by giving to them perpetual succession, with the power of condemnation and many of the inherent powers and functions of an operating utility. See Authorities, supra.

In some few instances the Legislature has gone so far as to make no provision for a dissolution of the authority. County Sewerage Authorities Law, N. J. S. A. 40:36A; Incinerator Authorities Law, N. J. S. A. 40:66A; Port Authorities Law, N. J. S. A. 40:68A. The Solid Waste’s Management Act is almost word for word a replica of the 1948 Incinerator Authorities Law. The Incinerator Authorities Law and the Solid Waste’s Management Act passed some 20 years later both have no provision for dissolution. Are we to assume a legislative oversight in 1948 was compounded again 20 years later, or it is more logical to accept this as part of a legislative pattern for purposes of bonding?

Even assuming such legislative oversight, the fact of non-action in this area ■— no provision for dissolution of the Authority by the creating governmental body •— preempts the municipality from filling the void by its own prescribed act.

The powers of a municipality to act under a grant of authority from the Legislature has previously been before the courts. In Beyer v. Mt. Holly Tp. Comm., 6 N. J. Super. 409 (Law Div. 1949), the town of Mt. Holly enacted a re-pealer ordinance as to the salaries of the members of the previously created Mt. Holly Sewerage Authority. In speaking of the power of the municipality to act where its right to act had been provided by the State Legislature, then Judge William Brennan stated:

It is true that a grant of power to enact an ordinance usually implies the power to amend, change or repeal the ordinance . . . But this is generally as to ordinances passed pursuant to a general grant of discretionary or regulatory authority when the power to legislate on the subject imports the power to pass more than one ordinance respecting it . . . But the general rule admits of an exception where the amending or repealing ordinance relates to an ordinance enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time prescribed by the Legislature. In such case the implication is excluded that the municipal legislative body was given any further jurisdiction over the subject than to do the one act.

The fact that municipalities have been granted broad police powers over matters of local concern and interest, N. J. S. A. 40:48-1, 40:48-2, and N. J. Const. (1947), Art. IV, § VII, par. 11, ordains liberal construction of the powers, does not change the present situation. “A municipality may be foreclosed from exercising power it would otherwise have if the state has sufficiently acted in a particular field.” Chester Tp. v. Panicucci, 62 N. J. 94, 99 (1973).

“A succession of Supreme Court decisions lias confirmed that the police powers delegated to municipalities in N. J. S. A. 40:48-2 is coterminous with the police powers of the State Legislature, unless there is a state preemption or the subject matter necessarily lends itself to general and uniform, rather than local, legislative control, even in the absence of preemption.” [Lehrhaupt v. Flynn, 129 N. J. Super. 327, 331 (Ch. Div. 1974)]

Inganamort v. Fort Lee, 62 N. J. 521, 536 (1973); New Jersey Builders Ass’n v. Mayor, E. Brunswick Twp., 60 N. J. 222, 226-227 (1972); Summer v. Teaneck, 53 N. J. 548, 552 (1969); Moyant v. Paramus, 30 N. J. 528, 542 (1959); Fred v. Old Tappan Mayor and Council, 10 N. J. 515, 519 (1952).

Here the State preempted the municipality from acting beyond the powers which were delegated to it by the enabling statute. If the Legislature intended the creating governing body to exercise control over the authority, it would not have designated the authority as “a public body politic and corporate constituting a political subdivision of the State.” N. J. S. A. 40:66A-38. All of the powers of the authority granted to it under the statute, such as bonding, acquiring property, etc., are done in the name of the authority and not in the name of the creating governmental body. Once the authority was created, the Legislature specifically limited the power of the creating body to but one function, appointing its members.

Throughout the statute a differentiation is made as to the authority and the locality N. J. S. A. 40:66A-42, 43. Implicit from this construction is the distinction the Legislature draws between the authority and the local governing body; they are separate and distinct entities whose interrelationship, if any, is based on the enabling statute.

By attempting to abolish the Ringwood Solid Waste Management Authority through a repealer ordinance, the borough has gone beyond the scope of powers granted it by N. J. S. A. 40:66A-32 et seq. Those powers were limited solely to creating the Authority by ordinance and to appointing its members. To this extent, once the municipality acted, it could proceed no further. The ordinance passed by the Borough of Ringwood (No. 1972-32) repealing the ordinances creating plaintiff authority is null and void.


author: Kole, J. A. D.

text:
    ROCCO DI TOLVO, PLAINTIFF-APPELLANT, v. BERNADETTE DI TOLVO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Submitted October 15, 1974 —
    Decided November 7, 1974.

      Before Judges Cautox, Chants and Kole.

      Messrs. Ozzard, Rizzolo, Klein, Mauro and Savo, attorneys for appellant (Mr. Michael V. Camerino, on the brief).

      Mr. Frank J. Stanley, III, attorney for respondent (Mr. Robert E. Powers, on the brief).
   The opinion of the court was delivered by

Kole, J. A. D.

Plaintiff husband was granted a no fault divorce by reason of 18 months separation, by judgment of May 21, 1973. lie was ordered to pay $81 a week for alimony and support of his children, as follows: $21 a week for alimony and $20 a week for each of three children, or an aggregate of $60 a week for the three, children. The payments were to be made through the probation department of the county. Only two of the provisions of the judgment need be referred to in order to determine this appeal.

The judgment provided that, in addition to the support and alimony specifically awarded, the husband shall pay 50% of his net salary raises to defendant wife as additional alimony and shall advise the probation department every six months of his net salary raises, if any. If further awarded the wife 20% of the net recovery, if any, received by the husband by reason of a personal injury action that had been instituted against third parties. The husband had sustained such injuries in an automobile accident while the parties were married. Prior to the filing of the divorce complaint both spouses had instituted a negligence action against the claimed tortfeasors in the automobile accident matter. The husband sued for damages for personal injury, medical expenses, loss of earnings and property damage. His wife joined in the action to recover for loss of her husband’s services and consortium.

The tort litigation was settled for $7,500 after the judgment of divorce was entered. The wife consented to the settlement. After a hearing before a Law Division judge, that court allocated the $7,500 settlement, in the presence of counsel for both husband and wife, in such manner that ''&}&% of the $7,500 was allocated to the wife for her per quod claim, with the balance being allocated to the husband.

Plaintiff husband appeals, first, from the part of the judgment which automatically increases the alimony award to the wife by one-half of any pay increase he receives. We conclude that the court erred in ordering alimony to be increased in this fashion.

Alimony is an allowance in periodic installments and takes into account many factors other than the amount of money earned or to be earned by the husband. Painter v. Painter, 65 N. J. 196, 213 (1974); Chalmers v. Chalmers, 65 N. J. 186, 192 (1974); Rothman v. Rothman, 65 N. J. 219, 229 (1974); Capodanno v. Capodanno, 58 N. J. 113, 118-119 (1971); Greenberg v. Greenberg, 126 N. J. Super. 96, 99-100 (App. Div. 1973). Orders for alimony or support operate for the present and may always be altered or modified upon a change of circumstances, in which a salary increase of the husband may be only one factor. Chalmers v. Chalmers, supra; Bartok v. Bartok, 52 N. J. Super. 266 (App. Div. 1958); Hallberg v. Hallberg, 113 N. J. Super. 205 (App. Div. 1971); Turi v. Turi, 34 N. J. Super. 313, 323 (App. Div. 1955); Testut v. Testut, 32 N. J. Super. 95 (App. Div. 1954), 34 N. J. Super. 95 (App. Div. 1955).

In effect, what the court did was to make an automatic percentage distribution of the husband’s increase in future earnings by way of an equivalent increase in alimony. It thus confused the concept of equitable distribution with that of alimony and support, leaving no room for the usual proceeding involving a modification of an alimony award, which requires an application and a court hearing before the change is made. The effect of this part of the court’s judgment is to authorize the probation department to amend the judgment as to alimony without court approval when the department has evidence of an increase in the husband’s salary. Cf. Plath v. Plath, 99 N. J. Super. 394 (App. Div. 1968). The advance determination by the court, of an automatic increase in alimony is contrary to established principles relating to alimony and the modification thereof. Moreover, it makes it difficult, if not impossible, for the court to enforce such an increase in later proceedings in aid of litigants’ rights under R. 4:79-9.

With respect to alimony and support, the appropriate procedure is for the court to establish a, fixed dollar award. That amount is subject to modification upward or downward upon application of either party to the court, either directly or through the probation department, when changed circumstances are established. The requirement in the judgment that the husband report his earnings to the probation department, however, is unassailable. It gives that department, as well as the wife, the information necessary to determine whether and when a subsequent application for modification should be made. We note in this case that a consent order was entered on March 27, 1974 amending the judgment to delete $20 a week for the support of one of the children who left to reside with his father.

Plaintiff husband also appeals from that portion of the judgment which awards defendant wife 20% of the recovery in the negligence action. We have concluded that the judgment in this respect shoxrld be affirmed, with some modification.

The‘statute here involved, N. J. S. A. 2A:34-23, as amended by L. 1971, c. 212, authorizes the court, incident to the grant of divorce, to distribute equitably “the property, real and personal, which is legally and beneficially acquired” by .the spouses or either of them during the marriage. Thus, regardless of its source, any personal property -in which a spouse acquires an interest during the marriage may be distributed, in whole or in part, by the court to the other spouse irrespective of who in fact has title to the property or interest. The period of acquisition of property available for distribution begins with the marriage and ends when the divorce complaint is filed. Painter v. Painter, supra, 65 N. J., at 217-218.

Painter held that the -Legislature used the word “acquired” in a “comprehensive sense” to include property title to which is received by gift or inheritance “or indeed in any other way.” Id. at 215. It refused to presume a legislative intent to import community property state concepts by indirection in the equitable distribution provisions of the 1971 act, saying that “we think it preferable to accept the statute literally as-written, giving to the word 'acquired’ the more comprehensive meaning as set forth above.” Id. at 217.

In view of this expansive view of property acquired during marriage with respect to the equitable distribution provisions of the statute, we may resort appropriately to the general statutory 'definition of “personal property” in N. J. S. A. 1 :l-2 in resolving the issue before us. That provides that persona] property “includes * * * choses in action * * * and everything except real property as -herein defined which may be the subject of ownership.”

Thus, a cause of action for personal injuries and consequential damages by reason of an accident occurring during marriage is personal property acquired or owned by the injured person. It is also property owned by his spouse, to the' extent of the latter’s interest therein. See Tinker v. Hobbs, 80 Ariz. 166, 294 P. 2d 659 (Sup. Ct. 1956); Carver v. Ferguson, 254 P. 2d 44 (D. Ct. App. 3rd Dist. Cal. 1953), involving, however, community property statutes. The damage claim of the injured person for injuries, loss of earnings and medical expenses belongs to him; the per quod claim respecting loss of consortium is that of his spouse. See Patusco v. Prince Macaroni, Inc., 50 N. J. 365 (1967).

Accordingly, at the time the divorce complaint was hied, the husband was the owner of the main aspect of the chose in action. The wife’s interest was only in that portion of any recovery which would compensate her for her per quod claim. Since she agreed to the settlement of the negligence action, we are not faced with the problem of whether, after the divorce, the spouse with the per quod claim would have any degree of control of the action or its settlement. However, we think not. Such control would inject unnecessary complexities in the management of a cause of action that is primarily that of the injured spouse.

We note that, since there is no statutory provision to the contrary, a claim for damages in tort for personal injuries cannot be made the subject of assignment before judgment. Goldfarb v. Reicher, 112 N. J. L. 413 (Sup. Ct. 1934), aff’d o.b. 113 N. J. L. 399 (E. & A. 1934); U. S. Cas. Co. v. Hyrne, 117 N. J. L. 547 (E. & A 1937); Weller & Lichtenstein v. Jersey City Ry. Co., 68 N. J. Eq. 659 (E. & A. 1905). See N. J. S. A. 2A:25-1. What we hold in this case in no way changes this basic principle. Nor does it in any wise modify the other usual incidents and rights with respect to an automobile negligence action. See Patusco v. Prince Macaroni, Inc., supra; 4A Collier on Bankruptcy (14 ed.), § 90 at 390. The new divorce act does not affect these aspects of the tort action. We merely hold that for purposes of equitable distribution incident to a divorce, a spouse’s chose in action for personal injuries and the other spouse’s per quod claim constitute property subject to such distribution. See Painter, supra, 65 N. J. at 216, fn. 5.

Under these circumstances, therefore, the judge granting the divorce may make an equitable allocation of any future recover}' on the entire chose in action, irrespective of the value of each spouse’s claim that would normally be measured in the negligence action itself. That allocation or distribution supersedes and takes the place of any award which may later be made in the negligence action or by way of settlement thereof. The matter is no different from the division by way of equitable distribution incident to a divorce of property owned, for example, as tenants by the entirety. Whether, and the extent to which, distribution of this type of property should be made is a matter involving the exercise of appropriate discretion of the court that adjudicates the matrimonial action, in accordance with the criteria set forth in Painter, supra, 65 N. J. at 211.

We do not reach or pass on the extent to which, if at all, generally a spouse’s contingent, as opposed to a vested, interest in property at the time the divorce action is instituted is subject to equitable distribution under the new statute. This issue has arisen in connection with rights in pension plans, profit-sharing trusts or the like. See Tucker v. Tucker, 121 N. J. Super. 539, 548-551 (Ch. Div. 1972). Again, we leave to another day the issue of whether other choses in action, such as a workmen’s compensation claim or disability benefits arising during marriage, similar in some respects to a personal injury negligence action, are property which may be distributed as an incident to divorce.

It is true that a chose in action for personal injuries arising during marriage may be considered an expectancy in the sense that a recovery thereon may never come to fruition after the divorce judgment. Nevertheless, we are satisfied that this does not preclude the matrimonial court from effecting an equitable distribution of the proceeds of the action if and when they do materialize. Cf. Trowbridge v. Trowbridge, 16 Wis. 2d 176, 114 N. W. 2d 129 (Sup. Ct. 1962); Storm v. Storm, 470 P. 2d 367 (Sup. Ct. Wyo. 1970); Meeks v. Meeks, 228 Ga. 607, 187 S. E. 2d 296 (Sup. Ct. 1972).

Painter refused to follow the laws of the community property states when it held that property acquired by gift or bequest during marriage is distributable. Accordingly, the law in those states as to the community or noncommunity aspect of choses in action for personal injuries or recoveries thereon may not provide an appropriate guide for us here. Moreover, many of the cases in those states do not arise in a divorce context but rather in other factual and legal settings involving community property rights. Additionally, they often fail to distinguish the chose in action from moneys actually recovered ihereon during the marriage.

Nevertheless, we note that there appears to be a split of authority in the community property states on the question here involved. The majority of these states adhere to the plain meaning of the statutes and find that the cause of action is property acquired during the marriage. However, some jurisdictions hold, either by statute or decision, that damages for personal injuries are separate property because not produced by the toil of the spouses. In New Mexico the basic justification for the minority view is that the cause of action for injuries is the injured person’s separate property because, having brought his body to the marriage, he is entitled to keep it whole. See 4A Powell on Real Properly, § 626 at 727-728; Soto v. Vandeventer, 56 N. M. 483, 245 P. 2d 826 (Sup. Ct. 1952); Annotation, “Spouse’s cause of action for negligent personal injuries as separate or community property”, 35 A. L. R. 2d 1199 (1954). Texas has recently taken a similar position to that of New Mexico in a nondivorce setting, substantially adopting the New Mexico view but adding some additional reasons.

In Graham v. Franco, 488 S. W. 2d 390 (Tex. Sup. Ct. 1972), an action by a husband and wife against third parties for injuries sustained in an automobile accident, the court overruled what appeared to be prior law. It held that a chose in action for personal injuries, pain or suffering of one spouse was not “property” under the Texas common law, nor was it property “acquired” by any community effort under its community property law. The court stated that if it were property, under the common law or otherwise, its character was separate or personal to the spouse injured. It reasoned that in using the word “property” the Texas constitution had in mind property which could be given, bought and sold, and passed by will or inheritance; and that a chose in action arising out of the injuries to the spouse was none of these. The right of the spouse to recover for these items of damage was considered to be a replacement, insofar as practicable, and not an acquisition of an asset by the community estate. Accordingly, the court held that the contributory negligence of the husband did not bar recovery by the wife for that portion of her claim. However, as to the part of the tort claim relating to loss of earnings and medical expenses, the court held that these matters did constitute community property and that the contributory negligence of the husband did bar recovery therefor.

Considering the injuries, pain and suffering of the injured spouse as an injury to his personal security rather than as property, has some surface appeal. We are satisfied, however, that under the construction of the 1971 amendment to the divorce act given by Painter, the appropriate rule with respect to this type of chose in action is that which we here adopt. Additionally, it comports with our present practice in negligence actions in permitting a lump sum award to the injured spouse, without the necessity, as in Texas and Hew Mexico, of separately determining whether only part of that award — e.g., loss of earnings or earning capacity — should be considered marital property for distribution purposes.

Our review of the record below satisfies us that there was substantial credible evidence justifying the award of 20% of the recovery in the negligence action to the wife as a matter of equitable distribution of this marital property. The court properly took into account that this was the only asset of the marriage; the related matter of alimony and support which it could reasonably award defendant and the children, and that she “did live through” the results of her husband’s accident. We note that during her testimony defendant claimed that the accident resulted in a change in plaintiff’s attitude towards her and the ensuing divorce action. Under all of the circumstances the distribution constituted an appropriate exercise of the court’s discretion.

For the foregoing reasons, that part of the judgment awarding defendant 20% of the recovery on the tort claim is affirmed. The 20% will apply to the balance of the entire $7,500 recovered, after deduction of costs, expenses and legal fees. Defendant wife, will not be entitled, in addition, to the per quod recovery ordered by the Law Division judge. That portion of the judgment which provides for an automatic increase in alimony when the husband’s earning rise is reversed. The balance of the judgment is affirmed, except to the extent that it appears to permit the wife’s percentage of the claim awarded in the negligence action to be increased by the amount of her per quod recovery. The property damage portion of the negligence award, just as the balance thereof, is properly part of the recovery against which the 20% allocation is to be applied.

      New Mexico considers the loss of earnings and medical expenses, as well as loss of services of the wife, part of the community property. Soto v. Vandeventer, supra.


text:
    PISCATAWAY APARTMENT ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS APPELLANT, v. THE TOWNSHIP OF PISCATAWAY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 19, 1973 —
    Decided March 13, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. M. Roy Oake argued the cause for the appellant.

      Mr. Frederick C. Mezey argued the cause for the respondent (Mezey & Mezey, attprneys).
   Per Curiam.

A review of the entire record convinces us that the plaintiff has not sustained the burden of establishing that the sanitary sewer rates here challenged were unreasonable or unfairly discriminatory in their application to multi-family (apartment) dwellings. This quite apart from any questions as to the standing of the plaintiff to initiate and maintain this proceeding in lieu of prerogative writ, as to the quantum and quality of proof of the alleged assignments of the claims for overpayment, or as to whether there was a waiver by the owners of the claimed overpayments occurring prior to the commencement of this proceeding.

In brief, the hypotheses and the formula proposed by plaintiff to demonstrate the asserted inequity and unreasonableness of the rate and, at the same time, to serve as the base upon which sewer charges should be assessed to cover both operational expenses and capital charges, at best were unconvincing. They were1 presented by plaintiff’s witness Aurnhammer, a licensed civil engineer, planner and land surveyor, whose experience with sewer was limited almost entirely (85% to 90%) to the design and construction supervision of sewers in land development projects for private developers, and who was without any experience whatever in rate structuring or in the determination or fixing of rates for any publicly operated sewer system.

Founded upon a number of arbitrary benefit-cost allocations of capital and operating expenses devised by Mr. Aurnhammer, the formula was also of dubious practical application or use. Indeed, during cross-examination, Mr. Aurnhammer conceded (as did counsel for the plaintiff at oral argument) that in his experience he was unaware of a single sewer system operated by a municipality or other public agency which had previously adopted or was presently utilizing the same or any similar formula in the structuring or assessment of rates for use of the system. N. J. S. A. 40:63-7. Compare, Landy v. Bellmawr Sewerage Auth., 61 N. J. Super. 396 (App. Div. 1960); see, generally, Airwick Industries, Inc. v. Carlstadt Sewerage Auth., 57 N. J. 107 (1970), appeal dismissed 402 U. S. 967, 91 S. Ct. 1666, 29 L. Ed. 2d 132 (1971).

The plaintiff’s other expert, an accountant with minimal experience and familarity with municipal or other public agency accounting, also could not cite a single instance in ■which a formula the same or similar to that proposed by Mr. Aurnhammer had been or was being utilized by any Mew Jersey municipality. More significantly, he failed to underwrite either the soundness or the workability of it — confining himself to a certification simply of the correctness of the arithmetic involved in the computations made by Mr. Aurn-hammer; and this on the assumption that the latter’s basic data were valid and accurate.

It may very well be that a sanitary sewer rate or charge fixed according to actual usage determined by metering the flow of sewage of each user or determined by close approximation from measured water consumption adjusted for customary and known variables, would be more nearly equitable methods or bases. However this may be, we express no opinion thereon. We note only that, even in this area, plaintiff’s proofs were lacking. Thus, despite the fact that, under the plaintiff’s hypotheses, it was essential to establish an asserted differential in average water consumption between a one family dwelling and a single dwelling unit in a multi-family dwelling, the supporting evidence consisted of no more than conclusory computations, assertedly founded upon a single sampling of water-meter readings from a selected area or areas, during one three-month period — which readings and usage figures themselves (although promised) apparently were never produced or disclosed to the court during the course of the trial.

In light of the foregoing, the judgment in favor of the plaintiff must be reversed, and the complaint dismissed. Whatever may be the merits of the counterclaim on which the defendant had judgment against the plaintiff on account of the connection charges, said judgment could operate only as a set-off pro tanto to any recovery awarded to this plaintiff against the defendant, inasmuch as the plaintiff is not now and was not at any time the owner of any of the lands and buildings against which such charges were assessed and upon which there may be a lien. N. J. S. A. 40:63-8. See, Airwick Industries, Inc. v. Carlstadt Sewerage Auth., 57 N. J. 107 (1970), appeal dismissed 402 U. S. 967, 91 S. Ct. 1666, 29 L. Ed. 2d 132 (1971). Consequently, the judgment in favor of the defendant and against the plaintiff on the counterclaim likewise must be reversed and the counterclaim dismissed, without prejudice however to the reassertion of the claim against the proper parties, in an appropriate proceeding.

Accordingly, the judgment for plaintiff on the complaint and the judgment for the defendant on the counterclaim, respectively, hereby are reversed.