author: Lynch, J. S. C.

text:
    ARAM AJAMIAN AND BERTHA HOFFMAN, PLAINTIFFS, v. THE TOWNSHIP OF NORTH BERGEN AND MILTON J. MUSS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided August 30, 1968.

      Mr. Aram Ajamian, Pro se, and for plaintiff Bertha Hoffman.

      Mr. Robert W. Bazzani, attorney for defendants.
   Lynch, J. S. C.

Plaintiffs Aram Ajamian and Bertha Hoffman, in the amended complaint filed in this action in lieu of prerogative writ, allege that they are the “owners” of a tenement house known as No. 2525 Hudson Boulevard, in North Bergen Township, New Jersey. They seek a review of the action of defendant township, through defendant, Muss, its acting building inspector, when, on November 9, 1966, he served an order upon plaintiff Aram Ajamian directing that the said tenement house be vacated within a period of 24 hours for the reason that it was “unfit for human habitation or occupany.” It is further alleged that pursuant to said order defendant township, through its officials, evicted the tenants from the building. No hearing was afforded plaintiff by defendant’s officials.

Plaintiff claims that the action of defendants was illegal and unconstitutional because: (a) he was never afforded a hearing before their action in vacating the building and therefore was denied due process of law; (b) that under section 10 of the North Bergen Building Code and the National Building Code, which was adopted by defendant township, he was entitled to such a hearing; (c) the National Building Code applies only to buildings erected after its adoption on February 16, 1966, and the subject building was constructed many years before, and (d) there were in fact no violations of any law or ordinance of defendant township.

Defendants’ contentions may be summarized as follows: (a) plaintiffs are not the “owners” of the building in question; (b) the condition of the building, as revealed by several inspections by its various officials, was a “public nuisance” which, under the township’s “police power,” it had the right to abate summarily and without hearing; (c) since the National Building Code adopted by defendant (section 107) afforded plaintiffs an appeal to the board of appeal from any action of the building inspector, an opportunity fox a hearing was thereby afforded, and since such appeal was not taken, any right to a hearing was waived, and (d) in any event, such a hearing has been afforded before this court, which heard the testimony of the several township officials who made the inspections of the building, as well as testimony on behalf of plaintiffs.

When the matter came on for trial, defendants persisted in their contention, as asserted in their answer, that plaintiffs were not “owners” of the property and therefore had no status to assert violation of rights herein. After the taking of some testimony the matter was adjourned to permit plaintiff Aram Ajamian to establish title. Finally, he conceded that Bertha Hoffman was not an owner of the property. Defendants produced a title searcher who testified that nowhere in the record title was Aram Ajamian revealed as an owner. The latter, however, made two alternative contentions. He said the property had been owned by his brother Harry Ajamian (whose name did not appear in the chain of title), who died intestate in 1954, leaving six sisters and brothers, of whom Aram was one. Therefore, it was said by plaintiff, he was the owner of a one-sixth interest by descent. Inconsistently and alternatively, he contended that he held several unrecorded deeds from the record owners and that he owned the property in his own name. He produced said deeds, dated at various times in the last several years, but on which the acknowledgment, oddly, was taken on June 20 and 21, 1968, during the period in which the trial herein was interrupted, as above mentioned, to permit plaintiff to establish his ownership.

The proofs offered by plaintiff in support of his claim of title are not persuasive. However, for several years defendant township, in its efforts to correct the conditions existing in the building, had treated Aram Ajamian as owner, had filed a complaint in the municipal court against him wherein he was found guilty as owner and fined $100, and the notice to vacate of November 9, 1966 was served upon him. In addition, it is uncontradicted that Aram Ajamian has been acting at least as agent for the record owners and has collected the rents on the property for several years. The court therefore holds that defendant township is estopped to deny that plaintiff has sufficient status to prosecute this suit.

Evidence was taken before the court on four trial days. The testimony supports the following findings of facts, which are hereby made.

The premises involved consist of a six-family tenement house. The rents charged ranged from $90 per month for the basement apartment, to $125 per month for an apartment on the first floor, although there is some testimony by plaintiff Aram Ajamian that the rents were paid on a weekly basis. In any event, those rents approximated $615 per month.

On July 8, 1966 defendant Muss, then acting building inspector, accompanied by Health Officer Me Closkey, Electrical Inspector Bruno and Plumbing Inspector Easton, examined the premises. The basement apartment, part of which had a concrete floor, smelled from human and animal waste, with droppings on the floor. A young girl was eating at a table on which roaches crawled. The toilet was covered with human excretion and the sink was taped “as though to stop a leak.” As a photograph in evidence reveals, the metal ceiling in the kitchen was torn open in several places, exposing the wooden lath beneath. Rat droppings were under the kitchen stoYe. This basement apartment was adjacent to the boiler room, which was filled with pieces of furniture, debris and wooden boxes. Pfom it came the stench of “old human waste.” The doorway from the boiler room to the apartment was propped up with a piece of wood. A metal fire door was jammed open and was not operable. In a “filthy” bed the mother of the family lay ill. The door from her bedroom to the hallway was missing, a blanket being stretched across the opening in its stead. This basement and its apartment may be described as “filthy,” as the photographs in evidence reveal.

The building had many children in it. On the front stoop a wooden post holding up the roof was missing. If one leaned against the remnant of the column, the post would fall down upon anyone who might happen to be beneath it.

In the rear was a garage. Down to its roof came the fire escapes. The east face of the garage tilted out of plumb and eventually fell down. Its rear wall had been struck by cars, was also out of line, and had a good-sized crack in it. Later on, this was partially repaired. In the north alleyway the risers on the side stairs had broken away, rendering it unsafe to use.

In the “Morrison” apartment on the first floor (rent $125 per month) there was a leak over the kitchen sink and paint .and paper peeled off the wall over the stove and sinks. In the bedroom the floor was rotted around the radiators, probably from water leaks. The ceilings were a “checkerboard” of cracks, all over. The toilet was “covered with excreta” and the smell from the basement permeated to this floor above.

On the stairway leading to the second floor the handrail of the bannister was broken, so that it was “shaky” if weight was put upon it. In place of rails the bannister, rope was woven back and forth, and as one moved on the steps he could feel them deflect under the weight.

ia the “McLaughlin” apartment on the second floor a section of the ceiling had come down over the kitchen sink, exposing three to four feet of wooden lath. The ceiling was still wet and part of it had “bellied.”

The stairway to the third floor was “better” than that to the second. The fire escape ladder to the roof was “quite shaky.” If a hand were put to it, it would vibrate but not fall down.

Electrical Inspector Bruno testified that 30-ampere fuses had been used in the meter board. They had “blown,” indicating either a short circuit or overloaded circuit. These fuses were oversize. The risers to the apartments could carry only 15 amperes. Thus, the use of 30-ampere fuses allowed the overload, permitting the insulation in the wires to “bake to a crisp.” “Zip chord” outlets were used, some loose and some nailed to the baseboards. They were frayed and, in some cases, their insulation was broken. Each apartment showed more appliance load than the wiring could carry on an overloaded fuse. At the cellar steps there was an open outlet box, with wiring exposed, which could be reached by any of the children in the building with possible fatal results. All of these conditions presented conditions hazardous to fire.

The foregoing conditions on July 8, 1966, described by Building Inspector Muss, were corroborated by the testimony of the Plumbing and Sanitary Inspector Easton and Bruno. After the inspection defendant township’s officials confeiTed with plaintiff. He pleaded for time to correct the conditions. On July 8, 1966 Health Officer Me Closkey, referring to “our oral agreement,” wrote to plaintiff ordering him to vacate the basement and first-floor apartments as being in violation of the North Bergen Sanitary Code, article 13, section 4. This order was ignored. In August new inspections were made, but the conditions remained the same. On August 15, 1966 Inspector Muss wrote to plaintiff demanding that the building be vacated as “unfit for human habitation.” This was not complied with. Another letter was sent by Muss on August 16, with particular reference to the garage wall which he demanded be removed and rebuilt, and that the alley steps and front porch be repaired. Ultimately, the garage wall was repaired, but not rebuilt. Nothing appears to have been done to the alley steps. Through August other inspections were made. Conditions remained the same, but plaintiff asked for more time to take care of the building. Finally, a complaint was filed in the municipal court, returnable October 31, and plaintiff was fined $100. He asked for a permit to “repair” the garage. It was refused for two reasons: (a) “repair” was not sufficient, rebuilding was necessary (in a short time the garage collapsed), and (b) plaintiff was claiming that he was not the owner of the property but agent for Bertha Hoffman and, in Muss’ words, she was a “phantom” whom plaintiff Ajamian never produced.

Finally, in November 1966 inspections revealed that conditions were substantially the same as they had been. But with the weather getting cold and the revelation that the heating system was not working, that the tenants were using their gas stoves to provide heat, and plaintiff’s persistence in not correcting the unsanitary and unsafe conditions, the situation was emergent. Action was necessary. The notice to vacate was served on November 9, 1966 and the building was vacated. It is this action which plaintiff seeks to nullify here.

The court finds that this building, in the conditions described, constituted a “public nuisance.” In Boden v. City of Milwaukee, 8 Wisc. 2d 318, 99 N. W. 2d 156 (Sup. Ct. 1959), such a nuisance was defined:

“We approve of the statement of the Florida supreme court, ‘It is generally recognized that anj'thing which is detrimental to health or which threatens a danger to persons or property within the city may be retarded and dealt with by the municipal authorities.’ City of Miami Beach v. Texas Co., 1940, 141 Fla. 616, 194 So. 368, 374, 128 A. L. R. 350. We also deem apposite the following declaration by a Texas court: ‘For a nuisance to be a public one, it need not affect the whole community; but it is public if injury or annoyance affect the people of some local neighborhood, or are occasioned to such part of the public as come in contact with it.’ Stoughton v. City of Ft. Worth, Tex. Civ. App. 1955, 277 S. W. 2d 150, 153.” (Emphasis added)

By N. J. S. A. 40:48-2.3 it is declared to be the policy of this State that the occupation of any building which is dangerous, unsafe, insanitary or otherwise unfit for human habitation is inimical to the welfare and injurious to the health and safety of the people of the State, and that public necessity exists for the closing of such a building. This building was clearly detrimental to the health and safety of its occupants and to anyone who would come in contact with it, or might be within the area of exposure to its unsanitary condition.

Plaintiff offered in evidence section 10 of an ordinance adopted August 23, 1923, which purported to set forth the procedure required when the building inspector determined that a building was unsafe. As plaintiff points out, that section provides for a hearing before the township committee before an order to vacate may be made. Since it is conceded by defendants that no such hearing was granted, that ordinance may not be used as a basis to justify defendants’ actions herein. Defendants also assert that they acted pursuant to the National Building Code, which was adopted by North Bergen in 1966, but that ordinance by its terms (section 100.3) limits its “scope” only to buildings “hereafter erected.” Since the subject building was erected many years before 1966, it cannot be said that the National Building Code may be used as authority for the summary action taken herein. Nor can defendants rely on plaintiff’s failure to appeal to the board of appeal, provided by section 107.6 of that code, as constituting a waiver of a right to a hearing.

However, defendants contend that they had a common-law right to summarily abate the nuisance here present with or without statutory or ordinance authority. In any event, they point to R. S. 26:3-46, 47, 49 and 50, which, in substance, give a local board of health the power to abate such a nuisance as existed here, even without an ordinance. Lastly, they specifically refer to article 13, section 4 of the Sanitary Code, adopted January 16, 1923, which reads as follows:

“Sec. 4. Whenever it shall be decided by this Board that any building or part thereof is unfit for human habitation by reason of its being so infected with disease or by reason of its being in a condition dangerous to health or life or to be likely to cause sickness among the occupants, and notice of such decision shall have been affixed conspicuously on the building that it is unfit for human habitation and the owner shall have been served with the notice or the agent or lessee, in cause [sic] the owner cannot be found within the State, requiring that all persons therein shall vacate such building or part thereof, [sic] shall within ten days thereafter be vacated, or within such time as in said notice may be specified.”

The latter section was specifically referred to in the notice of July 8, 1966, sent by Health Officer McCloskey to the plaintiff, wherein he was ordered to vacate the basement apartment and the entire first floor of the building.

The court finds that defendants had the authority to summarily vacate the building, both under the authority of R. S. 26:3-46, 47, 49 and 50, as well as article 13, section 4 of the Sanitary Code. It also finds that the right of summary abatement was warranted under the exercise of the common-law right to abate a public nuisance.

In vacating the subject premises defendants performed an act within “the police power.” That power includes “everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance.” Lawton v. Steele, 152 U. S. 133, 136, 14 S. Ct. 499, 500, 38 L. Ed. 385 (1894); Thornton v. Chase, 175 Misc. 748, 23 N. Y. S. 2d 735 (Sup. Ct. 1940); 14 A. L. R. 2d 74; 39 Am. Jur. Nuisances, § 184, p. 455.

As said in Weil v. Ricord, 24 N. J. Eq. 169 (Ch. 1873):

“Among the objects sought to be secured by municipal government, there is none more important than the preservation of the public health, and, therefore, the imperative obligation rests on the government of every city, promptly to abate or remove all nuisances by which the public health may be affected. It is no less its duty to provide, in like manner, for the comfort and convenience of the inhabitants within its limits. To these ends, such governments are clothed with police powers. These being among the powers which are of the most importance to the inhabitants, those by which the public peace, health, comfort, and convenience, and the general welfare are secured or promoted, are not only respected, but maintained by the courts, which, as a matter of public policy, will not interfere with or disturb municipal bodies in the legitimate exercise of those powers. It is only when those bodies transcend their limits, in that respect, that the aid of the courts can be successfully invoked to restrain them, or to visit upon them the injurious consequences of their acts. The necessities of the community oft-times require the promptest and most positive action. There are times when public health is the object of paraimrant concern, and the law wisely lodges in municipal bodies, the discretion and power adequate to such emergencies, a power and discretion whose existence is, at all times, necessary to secure the public health, comfort, and convenience.” (at p. 173; emphasis added)

See also 62 C. J. S. Municipal Corporations, § 281.

The right to abate a public nuisance is a common-law right which preexisted the enactment of the Federal Constitution; hence it is not within the prohibition of the provisions of that instrument and exists in the absence of statute. 39 Am. Jur., Nuisances, § 183, p. 454; Manhattan Manufacturing and Fertilizing Co. v. Van Keuren, 23 N. J. Eq. 251 (Ch. 1872). In the latter case, it was said:

“At common law, it was always the right of a citizen, without official authority, to abate a public nuisance, and without waiting to have it adjudged such by a legal tribunal. His right to do so depended upon the fact of its being a nuisance. If he assumed to act upon his own adjudication that it was, and such adjudication was afterwards shown to be wrong, he was liable, as a wrong-doer, for his error, and appropriate damages could be recovered against him. This common law right still exists in full force. Any citizen, acting either as an individual or as a public official under the orders of local or municipal authorities, whether such orders be or be not in pursuance of special legislation or chartered provisions, may abate what the common law deemed a public nuisance. In abating it property may be destroyed and the owner deprived of it without trial, without notice, and without compensation. Such destruction for the public safety or health, is not a taking of private property for public use, without compensation or due process of law, in the sense of the Constitution. It is simply the prevention of its noxious and unlawful use, and depends upon the principles that every man must so use his property as not to injure his neighbor, and that the safety of the public is the paramount law. These principles are legal maxims or axioms essential to the existence of regulated society. Written constitutions pre-suppose them, are subordinate to them, and cannot set them aside. They underlie and justify what is termed the police power of the state. By virtue of that power, numerous and onerous restrictions and burdens are imposed upon persons and property which, for other purposes or on other grounds, would be prohibited by the constitutional limitations sought to be applied in this suit. Cooley on Const. Lim. 572; Potter's Dwarris on Statutes 444.” (at p. 255)

See also 39 Am. Jur. Nuisances, §§ 185, 185, 187, pp. 455, 457, 462; North American Cold Storage Co. v. City of Chicago, 211 U. S. 306, 29 S. Ct. 101, 53 L. Ed. 195 (1908), and 14 A. L. R. 2d 74.

In City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368 (Sup. Ct. 1940), where an ordinance authorized health officials to condemn a building as unfit, it was held that the effect of the ordinance was to declare the building a public nuisance. Cf. Boden v. City of Milwaukee, supra. Thus, where article 13, section 4 of the North Bergen Sanitary Code authorizes the closing of a building as being “unfit for human habitation by reason of its being so infected with disease or by reason of its being in a condition dangerous to health or life or to be likely to cause sickness among the occupants,” it, too, declares a building within its terms a public nuisance. Such abatement for public safety or health is not a taking of private property for public use without compensation or due process of law, in the sense of the Constitution. It is simply the prevention of its noxious and unlawful use and in that context the safety of the public is the paramount law. As said in the leading case of Health Department of City of New York v. Rector, &c. of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710 (Ct. App. 1895):

“Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private properry for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. 1 Dill. Mun. Corp. (4th Ed.) § 141, and note 2; Com. v. Alger, 7 Cush. 83, 84, 86; Baker v. City of Boston, 12 Pick. 184, 193; Clark v. Mayor, etc., 13 Barb. 32, 36. The state, or its agent in enforcing its mandate, takes no property of the citizen when it simply directs the making of these improvements.” (at p. 836; emphasis added)

See also Manhattan Manufacturing and Fertilizing Co. v. Van Keuren and Thornton v. Chase, supra.

This is not to say that one whose property has been summarily taken, vacated or destroyed is not entitled to a hearing at some stage in the proceedings. Nor is it to to say that the determination of public officials that a building or its condition is a public nuisance is final and conclusive as to that fact so as to preclude a hearing to the property owner on that question. To ascribe to such determination the quality of conclusiveness or finality, without a hearing on the issue, is indeed a denial of due process of law. But no hearing is necessary, within the constitutional requirement of due process, if the determination of the officials is not held to be conclusive, and so long as a hearing is, at some time, afforded as to the fact vel non of nuisance. North American Cold Storage Co. v. City of Chicago, supra; Lawton v. Steele, supra; 39 Am. Jur., Nuisances, § 187, p. 462; Manhattan Manufacturing and Fertilizing Co. v. Van Keuren, supra, and Hutton v. City of Camden, 39 N. J. L. 122 (Err. & App. 1876).

As said in City of Newburgh v. Park Filling Station, 273 App. Div. 24, 75 N. Y. S. 2d 439 (App. Div. 1947):

“ ‘Where property of an individual is to be condemned and abated as a nuisance, it must be that somewhere between the institution of the proceedings and the final result the owner shall be heard in the courts upon that question, or else that he shall have an opportunity, when calling upon those persons who destroyed his property to account for the same, to shoto that the alleged nuisance was not one in fact.’ Health Department of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 47, 48, 39 N. E. 833, 838, 27 L. R. A. 710, 45 Am. St. Rep. 579. It is sufficient to satisfy the constitutional safeguards of the owner, if he does not have a hearing in advance of the order, that he have the right to present his defense after the order is made. The Board has the power thus to act to protect the public health, without notice to the owner, even though there is no emergency requiring speedy action and though the Board has ample time in which to give notice to the owner and have a hearing on the question whether the nuisance exists. North American Cold Storage Co. v. City of Chicago, 211 U. S. 306, 29 S. Ct. 101, 53 L. Ed. 195, 15 Ann. Cas. 276.” (at p. 441; emphasis added)

By this action in lieu of prerogative writs, plaintiff is “calling upon” defendants, who vacated the property, “to account for the same.” He has been afforded the opportunity in this court “to show that the alleged nuisance was not one in fact.” Here he has had his hearing. The essential weakness in plaintiff’s argument that he was entitled to a hearing before defendants vacated the building lies in his failure to recognize the distinction between those cases where “conclusiveness” or “finality” is claimed for the determination of the officials, and those where no such quality is ascribed to them. The distinction is well illustrated in the two New Jersey cases of Manhattan Manufacturing and Fertilizing Co. v. Van Keuren and Hutton v. City of Camden, supra. In the former case the court refused to enjoin the abatement of an alleged nuisance before a hearing but expressly stated that its action would not foreclose a later adjudication as to whether, in fact, a nuisance existed. As the court said:

“In the present case the complainants deny that their business or works are a nuisance. The defendant avers that they are, and affidavits are offered on both sides in support of these assertions. In the view I take of the case, the defendant acts at his pent. His own adjudication of the fact of a nuisance will not protect him, as would the judgment of a court. It was said at the argument that actions had been commenced against him for the recovery of damages, and are now pending. It is unnecessary for me now, and in my judgment would be improper, to express an opinion upon the question to be determined in such actions. It is sufficient to say that the affidavits to show the offensive and noxious odors emitted and pervading at times the vicinity of the works, are numerous and explicit. They are sufficient to prove that the commissioner’s conclusion as to the character of complainant’s business and works, was not entirely without evidence to support it. The correctness of the conclusion is not now to be determined.” (at p. 256; emphasis added)

In Hutton v. City of Camden, however, the plaintiff Camden contended that the determination of its board of health that a nuisance existed was conclusive and not subject to further judicial review. The city had sued the property owner for $213.30, the cost of abating the alleged nuisance. The lower court rejected proof offered by defendant that there was not a nuisance in fact. On appeal the Court of Errors and Appeals reversed, saying that the lower court considered the resolution of the health board as “absolutely conclusive”; that “that ended the matter,” and that it was “in point of law, final, and to import absolute verity.” The court distinguished Manhattan Manufacturing and Fertilizing Co. v. Van Keuren, pointing out that in that case “con-elusiveness” was not ascribed to the official determination as to the fact of nuisance.

Plaintiff, however, claims that he was entitled to a hearing before the officials acted. In Egan v. Health Department, 20 Misc. 38, 45 N. Y. S. 325 (Sup. Ct. 1897), plaintiff was the owner of a tenement house. Defendant ordered that the tenants vacate the premises because the building was “unfit, and not reasonably capable of being made fit, for human habitation, by reason of want of proper ventilation, and by reason of want of repair and defects in the drainage and plumbing, and because of the existence of a nuisance on the premises which is likely to cause sickness among its occupants, and that the occupancy of said building is dangerous to life and detrimental to health.” The suit sought to enjoin the health department from enforcing its order. The court said, after trial: “The unsanitary condition of the building was obvious, the facts had been reported to the board by its officers who were charged with the duty of personal inspection, and at least two of the commissioners had themselves personally examined the property.”

The court further said:

“The plaintiff contends, however, that she was entitled to notice of the proceedings, and to be heard upon the question before it was found against her, and that, as she had neither, she has been deprived of her property without due process of law, in violation of constitutional guaranty, and is therefore entitled to the protection of the court against an unwarrantable invasion of her right. This claim, however, is unsupported by authority. Health Dept. of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 39 N. E. 833 [27 L. R. A. 710]; People [ex rel. Copcutt] v. Board of Health of City of Yonkers, 140 N. Y. 1, 35 N. E. 320 [23 L. R. A. 481]; Fire Dept. [of City of New York] v. Gilmour, 149 N. Y. 453, 459, 44 N. E. 177.
It rests upon the mistaken assumption that the determination of the health authorities is final and conclusive. The jurisdiction of the board depends upon the existence of the nuisance, and that is always open to judicial inquiry, even thoitgh the property owner may have had a hearing before the board on the subject. Health Dept. v. Rector, page 48, 145 N. Y., and page 848, 39 N. E., where the whole subject is elaborately discussed. Even the act under which the defendant proceeded in this case does not assume to do more than to declare that the orders of the health board are to be treated as ‘prima facie just and-legal.’ While the judgment of the board upon the question is entitled to great weight, and will not be disturbed if it is within the bounds of reason, its reasonableness is still open to inquiry in any judicial proceeding, either civil or criminal, in which it may be called in question. But where sufficient grounds exist for action, the latter may be summary and loithout ‘due process of law,’ as that phrase is commonly understood. Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878 [7 L. R. A. 134].

In the case cited the court, after reviewing the cases upon the subject, says (page 237, 119 N. Y., and page 880, 23 N. E.):

‘These authorities sufficiently establish the proposition that the constitutional guaranty does not take away the common-law right of abatement of nuisances by summary proceedings without judicial trial or process.’
*!*:*;**
In other words, the dej)rivation of which the plaintiff complains continues only so long as the conditions emist which justified the order in the first instance, and the plaintiff, therefore, is not aggrieved, on constitutional or other grounds, by the operation of repressive measures essential to the abatement of the nuisance, for such repression can continue only so long as the occasion for it emists.
$$$$$$ 4t
The first step is the order such as was made in the first instance in this case. It is injunctive in form, and in contemplation of law suspends the occupation of the property while the grounds for complaint emist. The owner may remedy the evil, and when he shall have done so he will be relieved from the order. Should this not be done or be impossible, the board may follow up the first order by a second one, which by statute is predicated upon the former, declaring the mischief irremediable and condemning the building. Where the owner does not assent to the removal, the hoard must avail itself of the remedy by which the condemnation is legally accomplished, and the amount of compensation to be made to the property owner is ascertained, and in that proceeding the existence of the jurisdictional facts, namely, ‘the necessity of such destruction,’ must be tried and determined on the demand of the owner.
We have thus, when the action of the board is to be conclusive upon the rights of the owner, ample provision for notice and a judicial hearing before such action becomes final; and, if the decision of the court is adverse to the board, the property owner is free from the operation of the second order, and, as we have seen, may disburden himself of the first by remedying whatever evils may justify its continuance. As the power conferred upon the board is necessary for the protection of the public health, and must, therefore, be susceptible of immediate and untrammeled exercise, as the exigency of the case may require, the statute is quite as considerate of private right as it should be, and fully meets the demands of justice. It is clearly constitutional, and the court will refrain from interfering with its operation except in eases where an abuse of authority is manifest.” (at p. 326 et seq., emphasis added)

See also North American Cold Storage Co. v. City of Chicago, supra; Lawton v. Steele, supra; City of Salem v. Eastern Railroad Company, 98 Mass. 431 (Sup. Jud. Ct. 1868); City of Newburgh v. Park Filling Station, supra; Shedrick v. Board of Health of Consol. Dist., 204 Misc. 545, 121 N. Y. S. 2d 83 (Sup. Ct. 1953). As said in City of Salem v. Eastern Railroad Company:

“Although notice and opportunity to be heard upon matters affecting private interests ought always to be given when practicable, yet the nature and object of these proceedings are such that it is deemed to be most for the general good that such notice should not be essential to the right of the board of ■ health to act for the public safety. Delay for the purpose of giving notice, involving the necessity either of public notice or of inquiry to ascertain who are the parties whose interests will be affected, and further delay for such hearings as the parties may think necessary for the protection of their interests, might defeat all beneficiad results from an attempt to exercise the powers conferred upon boards of health.” (at p. 443; emphasis added)

The court further held that:

“* * * in a suit to recover expenses incurred in removing a nuisance, when prosecuted against a party on the ground that he caused the same, but who was not heard, and had no opportunity to be heard, upon the questions before the board of health, such party is not concluded by the findings or adjudications of that board, and may contest all the facts upon which his liability is sought to be established.” (at p. 447)

But the right to summarily abate a nuisance is not without limitations. The right is based upon necessity, and the necessity must be present to justify its exercise. 39 Am. Jur., Nuisances, § 184, pp. 455-7; State, Avis, Prosecutor v. Borough of Vineland, 56 N. J. L. 474 (Sup. Ct. 1894); Hutton v. City of Camden, supra. The remedy must be confined to what is necessary to abate the nuisance, and no more injury must be done to the rights of individuals than is necessary to accomplish the abatement. 39 Am. Jur., supra; 25 Am. Jur., Health, § 40, p. 317. Thus, had defendants here attempted to destroy this building, undoubtedly the threat would be enjoined pending a hearing, as was done in Vanderhoven v. City of Rahway, 120 N. J. L. 610 (Sup Ct. 1938) and Rosenberg v. Sheen, 77 N. J. Eq. 476 (Ch. 1910), which cases are cited by plaintiff in support of his argument. Defendants have, from the very beginning of this controversy, expressly abjured any intent to destroy the building.

The limitations above mentioned are nothing more than the application of the rule of reason to officials’ actions in abating a nuisance, considering the method employed and the nuisance to be abated. It is in that context that some decisions require that an “emergency” exist before summary abatement may be effected. What are the circumstances of the particular case and how drastic is the method which is employed to abate? In the case of a threatened destruction of a building the injury to the owner, if no nuisance in fact exists, is irreparable once the building is destroyed. That was the situation in Vanderhoven v. City of Rahway and Rosenberg v. Sheen, supra. In those cases there was no imminent, continuing threat to health or safety which required summary action. The “necessity” did not exist. Here unsanitary and unsafe conditions had persisted from July 8 to ¡November 9, 1966. Every moment of continuous exposure of the occupants to the unsanitary conditions and to the hazards of fire constituted a danger to their health and safety. The method used — to vacate and remove the occupants from the risk — was reasonable and was not more than was necessary to accomplish the end sought.

Plaintiff had been given ample opportunity to correct the unsanitary and. unsafe conditions existing in the building. Despite several notices to correct the conditions he remained adamant and did practically nothing. Finally he was charged and found guilty in the municipal court. The fact that defendants had been patient in seeking compliance did not remove the necessity to finally vacate the premises. Further delay would only compound the evil and might defeat the beneficial results of an attempt to save the occupants of the building from further exposure to the unsanitary and unsafe conditions existing as of November 9, 1966. See City of Salem v. Eastern Railroad Company, supra; 25 Am. Jur., Health, § 38, p. 315.

A direction by health authorities to correct conditions which constitute a nuisance is not a denial of due process. This is at least so when the requirement of the order is not unreasonable. Health Department of City of New York v. Rector, &c. of Trinity Church, supra. “The improvement of work must, in itself, be a reasonable, proper, and fair exaction, when considered with reference to the object to be attained.” Id., 39 N. E., at p. 836.

As said above, this is not a case wherein the defendants have ordered the destruction of plaintiff’s building, as in Vanderhoven v. City of Rahway and Rosenberg v. Sheen, supra. Nor is it a ease where defendants have absolutely prohibited plaintiff from the use and enjoyment of the premises, as, for example, in Weil v. Ricord, supra. As said in Manhattan Manufacturing and Fertilizing Co. v. Van Keuren, supra:

“It may be lawful to purge premises of a nuisance, and unlawful to burn or destroy them. How much force, or what kind, may be permissible in abating it, is obviously a different inquiry from the permissibility of any.”

In Weil v. Ricord it was held that defendant authorities had a right to summarily abate a nuisance while the premises were being conducted as such, but that they had no right to “absolutely prohibit” future use of the premises when the business therein conducted was not in fact a nuisance. In those cases where complete destruction of the building is ordered or absolute prohibition of future use is ordered there results irreparable harm against which equity would grant an injunction. Weil v. Ricord is authority for the proposition that where interruptions of a business are “reasonably necessary to enable [the authorities] to abate any nuisance,” such reasonable interruptions may be accomplished in a summary fashion without notice or hearing. All plaintiff had to do here to regain the use and financial avails of this tenement house was to comply with directions of defendant authorities by correcting the conditions which the court here finds to have been in fact a nuisance. That is an interruption reasonably necessary to abate the nuisance for the time. Much like a person who is in civil contempt, plaintiff here had “the keys in his own pocket.” The abatement here effected by vacating the building thus was not a “taking” without due process. It was simply the prevention of its unlawful and noxious use. Manhattan Manufacturing and Fertilizing Co. v. Van Keuren; Health Department of City of New York v. Rector, &c. of Trinity Church, and Thornton v. Chase, supra. The deprivation of which plaintiff complains continues only so long as the conditions exist. He may remedy the conditions, or not. If upon trial it were to be proved that, the place was not in fact a nuisance, defendants, having acted summarily at their peril, would be held responsible. This court-has determined that the subject building, in the condition described, was in fact a public nuisance, and the defendants’ actions were justified.

Judgment for defendants.

       Plaintiff, Aram Ajamian, is an attorney of the State of New York, but not of New Jersey. He has appeared pro se and, with permission of the court, has appeared as attorney for plaintiff Bertha Hoffman. This circumstance has tended to obscure plaintiff’s factual and legal arguments as he has attempted to prosecute this action under New Jersey law and procedure. The original complaint heroin was filed on December 7, 1906, and was so prolix and obscure that it was stricken by the court pursuant to a letter opinion dated December 29, 1966. In that opinion the court gave plaintiffs leave to file an amended complaint within ten days thereafter and specifically pointed out, by way of advice, the elements which should be alleged in the amended complaint. At the same time plaintiffs were given leave, upon filing of the verified amended complaint, to renew their application for ad interim relief. They failed to do so for the reason, as asserted in plaintiffs’ trial brief, that they were under the impression that an amicable adjustment had been made between them and the building inspector. In any event, an amended complaint was filed, but since plaintiffs did not renew their application for ad interim relief, this court was unaware of its filing and it was not brought to the court’s attention until the matter, in the ordinary course, was noticed for pretrial on May 10, 1968. The amended complaint is scarcely an improvement over the original complaint in terms of clarification of issues. In any event, the pretrial order was dictated by the court in an effort to accomplish that end. At trial it was conceded that Bertha Hoffman has no interest in the property and as to her the complaint was dismissed. Reference, to “plaintiff,” therefore, is to Aram Ajamian. As to his status, see below.

       While it is true that the statute provides for a hearing before such a building may be vacated, it also provides, by N. J. S. A. 40:48-2.11, that the statute does not impair any existing powers to prevent violations thereof, but is in addition and supplemental to any powers conferred by any other law.


source: Caselaw Access Project

author: McGann, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. NEIL RICHARD NEUMANN, DEFENDANT.
    Monmouth County Court
    Decided September 24, 1968.

      Mr. Thomas L. Yaccarino, Assistant County Prosecutor, for the State (Mr. Elliott L. Katz on the brief).

      Mr. Burton L. Fundler, for defendant (Mr. Michael B. Kirschner on the brief; Messrs, Mime, Nowels, Fundler, Cornblatt and Magee, attorneys).
   McGann, J. C. C.

This matter comes before the court on motion by the Monmouth County Prosecutor pursuant to N. J. S. 2A :151-45 to revoke a permit to carry a revolver previously issued to Neil Richard Neumann. The uncontroverted facts leading up to the action by the State are these:

On March 8, 1968 a call came to the Asbury Park Police Headquarters in which the caller stated that he had just been in the Sunset Lounge Tavern on Kingsley Street where a man was sitting at the bar with a “gun on his hip.” In response to the call Officers Montepara and Moyna were dispatched to the tavern. They arrived at about 12 :50 a.m. Upon gaining admittance they found about six or seven people in the bar in addition to the bartender. Neumann was seated at the bar in his shirtsleeves with a drink in front of him. He was wearing a Colt .38-caliber revolver in a pull-away holster fully exposed on his left hip. It was loaded.

When questioned by the police Neumann first said he was a police officer of the Long Branch police. He produced an I.D. card indicating he was a member of the Long Branch Police “Reserves.” It developed that he was not then a member of the “Reserves” although he previously had been.

He then produced his permit to carry a concealed weapon.

Neumann has had such a permit since June 1961. His original application (and all subsequent renewal applications) sets forth as the reason for the permit the fact that he is a pharmacist and requires a gun for protection in connection with the operation of his drug store in the Clill'wood section of Matawan Township — both because there are narcotics on the premises and because night deposits of business receipts are made in a local bank.

It is undisputed that Neumann is of good general repute, that he was a small-arms specialist with the United States Army during his military service, and that he suffers none of the statutory disabilities. N. J. S. 2A :151-33 and 2A:151-44.

On the evening in question Neumann had closed his drug store in Cliffwood at 10:15 p.m. and made a night deposit in the local bank. He had an appointment to meet with his accountant and another man to discuss a business deal. He drove to the Sunset Lounge Tavern and arrived there some time between 11 and 11:30 p.m. He had had one drink and was on his second when the police came into the tavern.

N. J. S. 2A :151-45 provides, inter alia, that

“Any permit may be revoked by a judge of the county court of the county wherein the permit was issued, after hearing upon notice and upon a finding that the holder thereof no longer qualifies for the issuance of such permit. The county prosecutor of any county * * * may apply to such judge at any time for the revocation of such permit.”

The prosecutor moved for revocation on notice to the permit holder. A full hearing was held. Briefs were subsequently submitted.

With certain exceptions not applicable to this case, it is a crime to carry a pistol or revolver without a permit, N. J. S. 2A :151-41. N. J. S. 2A :151-45 provides, inter alia, that “A permit issued under section 2A :151-44 of this chapter shall be sufficient authority for the holder thereof to carry a revolver or pistol in all parts of the State." (Emphasis supplied). Neumann argues that since he is a person of good character, has never been convicted of a crime (N. J. S. 2A :151-44), is not a narcotics user, drunkard or mental defective, nor physically defective or disabled by sickness (N. J. S. 2A :151-33(a) and (6)), that his permit is carte Blanche to carry his weapon anywhere in the State at any time.

This court holds otherwise. The permit was issued and reissued based upon Neumann’s applications setting forth a particular, limited need, viz., protection in the operation of his drug store and in making night deposits of business receipts. Before the permit could issue the county judge must be satisfied “of the need of the applicant to carry a pistol or revolver” N. J. S. 2A :151-44. The county judge was apparently satisfied of the existence of the “need” and the permit was issued solely to meet this “need.” To argue that such “need” encompasses carrying the weapon all over the State at all hours is to fly in the face of the salutary purpose of the legislation. Burton v. Sills, 99 N. J. Super. 516 (Law Div. 1967), affirmed 99 N. J. Super. 459 (App. Div. 1968). The permit was issued for the limited purpose expressed in the application. The “need” was a self-imposed condition on the permitted carrying of the weapon. He violated that condition. His violation is grounds to revoke the permit.

Neumann also overlooks the statutory requisite that a permit be issued only to one who has demonstrated “sufficient maturity * * * in the handling of firearms,” N. J. S. 2A :151-44, and may not be issued “to any person where the issuance would not be in the interest of the public health, safety or welfare,” N. J. S. 2A :151-33(d). These are continuing conditions for retaining such a permit after its issuance. Failure to continually meet these requirements is ground for revocation. It would be difficult to conceive of a more irresponsible act, or one more inimical to public health, safety and welfare, than the wearing of a fully loaded firearm, completely exposed and available to the reach of any person in the immediate vicinity of the wearer in a public bar in the early hours of the morning. Such might have been the custom in the lawless West of a bygone day; it is intolerable in our present day society

The gun permit previously issued to Neil Eichard Neumann under date of December 12, 1967, is hereby revoked. Counsel for Neumann shall forthwith upon receipt of a copy of this opinion have the permit delivered to the court. The prosecutor will prepare and submit an appropriate order.


author: Kentz, J. J. & D. R. C.

text:
    THE STATE OF NEW JERSEY IN THE INTEREST OF J. M.
    Juvenile and Domestic Relations Court, Union County
    Decided August 8, 1968.

      Mr. Richard A. Mink, Assistant Prosecutor, for the State {Mr. Leo Kaylowitz, Union County Prosecutor, attorney).

      Mr. II. Douglas 8tine, assigned attorney, for the juvenile.
   Kentz, J. J. & D. R. C.

This is a proceeding in the nature of post-conviction relief. The sole question now before the court is whether the determination of the United States Supreme Court in In Re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), applies both prospectively and retroactively. There is no reported decision in New Jersey on this subject.

The pertinent facts which give rise to this proceeding are as follows. The juvenile was apprehended on the morning of October 27, 1966 by the manager of a supermarket for allegedly shoplifting a carton of cigarettes selling at that time for $3.25. The juvenile was then 17 years old. He was placed in the Union County Juvenile Detention Center on the same date and held on the basis of a parole warrant. A hearing was scheduled for November 3, 1966 and notice was sent to the juvenile’s mother notifying her of this fact. Included in this notice was the following statement: “You have the right to retain and be represented by counsel.”

The hearing was held on the scheduled date. The complaint was read to the juvenile and he admitted the offense charged. He was not represented by counsel nor did he or his mother request the court to assign an attorney to represent him. Under the practice then existing, based on the law applicable at that time, the juvenile was not advised that the court would assign an attorney to represent him if he so desired and could not afford to retain his own attorney.

While the dollar amount involved in the offense was small, the juvenile had a record of court appearances and adjudications dating back several years. He had already been inearcerated for a period of time in the New Jersey State Home for Boys at Jamesburg and in the New Jersey Reformatory for Males at Annandale. In view of this record, the court was of the opinion that the best interests of the juvenile and society would be served by further incarceration and thus committed him to an indefinite term at the New Jersey Reformatory for Males at Bordentown.

On November 22, 1967 the juvenile filed, pro se, a “Petition for Writ of Habeas Corpus,” citing In Re Gault, supra, as the basis for the application. Because of the nature of the relief sought, the matter was treated as being in the nature of post-conviction relief under R. R. 3 :10A, a new proceeding which has supplanted the older remedy of habeas corpus in criminal matters as a means of collaterally attacking a judgment of conviction. R. R. 3:10A-3. The matter was referred to this court by the assignment judge pursuant to R. R. 3:10A-3, and an attorney was assigned to represent the petitioner pursuant to R. R. 3:10A-6(a).

An amended petition for post-conviction relief was filed on May 21, 1968, in which the petitioner alleges a number of grounds for relief cognizable under R. R. 3:10A—2(a). However, at oral argument the main force of his contentions was directed against the absence of counsel at the hearing on the complaint. Because of this, and because I feel that the discussion of this point will be dispositive of the petition, this opinion will he limited to that issue.

Petitioner does not allege any irregularities under the law applicable at the time of the hearing; rather he asserts that Gault declared that procedure as being contrary to due process and that Gault should be retroactively applied to cover his hearing on November 3, 1966. As stated before, this presents a novel question in New Jersey. The issue has arisen in other jurisdictions and the results have varied. Retroactive application has been denied in Cradle v. Peyton, 208 Va. 243, 156 S. E. 2d 874 (Sup. Ct. App. 1967), hut granted in Application of Billie, 103 Ariz. 16, 436 p. 2d 130 (Sup. Ct. 1968); Steinhauer v. State, 206 So. 2d 25 (Fla. D. Ct. App. 1967); Marsden v. Commonwealth, 227 N. E.2d 1. (Mass. Sup. Jud. Ct., 1967); State ex rel. LaFollette v. Circuit Court of Brown County, 37 Wis. 2d 329, 155 N. W. 2d 141 (Sup. Ct. 1967). See also Dorzen and Rezneck,, “In Re Gault and the Future of Juvenile Law,” 1 Family L. Q. 1, 28-31 (1967).

In Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Supreme Court held that adult criminal defendants had the right to have the court assign counsel to represent them where they could not afford to retain their own attorney, even in noncapital cases. The unqualified right to counsel prescribed by the Sixth Amendment to the United States Constitution was made applicable to state court proceedings through the Due Process Clause of the Fourteenth Amendment. This decision has been applied retroactively. See State v. Kramer, 98 N. J. Super. 539 (Law Div. 1967), and cases cited at page 549.

In Gault, the Supreme Court held that juveniles also had the right to be represented by counsel. Justice Fortas, speaking for the majority stated:

“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” (387 U. S., at p. 41, 87 S. Ct., at p. 1451)

The court, while noting Gideon, did not specifically apply that decision to juvenile matters; rather, it chose to base its decision solely on the Due Process Clause of the Fourteenth Amendment.

The present case is factually distinguishable from both Gideon and Gault. In Gideon defendant requested an attorney to be assigned and was refused by the court. Here the juvenile did not request that an attorney be appointed to aid him. In Gault, though the parents knew they could have retained counsel, they were not specifically so advised by the court. Here the notice of hearing sent to the mother of the juvenile stated that she could retain and be represented by counsel. The issue, then, is whether the failure of the court to advise the juvenile and his mother that an attorney would be assigned if they were unable to afford their own can now give grounds for a voidance of the former hearing on the basis of a retroactive application of Gault.

The question of retroactive application of judicial decisions has recently and exhaustively been researched by other courts in New Jersey, so we may benefit by their analysis.

In State v. Blanchard, 98 N. J. Super. 22 (Law Div. 1967), the court stated:

“Even in cases involving issues of constitutional dimension, there can be no automatic application of the principle of retroactivity which would warrant, a new trial for every convicted defendant because the current view of law demonstrates that he had been deprived of a constitutional guarantee. The Constitution neither prohibits nor requires retrospective effect of new judge-made law. Linkletter v. Walker, 381 U. S. 618, 629, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965).” (at p. 31)

In State v. Johnson, 43 N. J. 572 (1965), affirmed 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the court said:

■ “Retroactive application of any new rule will cause some degree of inconvenience in the administration of justice. Society does have an interest in preventing its courts from being burdened with a flood of relitigation. * * * Furthermore, retroactive application of a new rule of law undermines the authoritative, nature of final judicial decisions. Society reasonably expects that when a man is convicted of a crime by a method not considered unfair according to the rules of law then in effect, that conviction will stand. Therefore, unless some countervailing considerations of ‘the deepest sentiments of justice’ compel otherwise, a new rule of criminal law should not be applied retroactively.” (at pp. 583-584)

In speaking of retroactivity, the Supreme Court in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), said:

“The criteria guiding resolution of the question implicate (a) the purpose to he sened by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (e) the effect on the administration of justice of a retroactive .application of the new standards.'’ (388 U. S., at p. 297, 87 S. Ct., at p. 1970)

In criminal matters collateral attack upon a judgment of conviction is permitted -when grave doubts are east upon the reliability of the determination of defendant’s guilt. See State v. Blanchard, supra, 98 N. J. Super., at page 30, and cases therein cited; State v. Johnson, supra, 43 N. J., at page 585. And as the above cases indicate, Gideon is applied retroactively because the absence of counsel during judicial proceedings has the clear capacity to result in the conviction of a guiltless man.

Just as an adult defendant in a criminal action must bo found guilty before he can be penalized, a juvenile in a juvenile proceeding must be adjudged delinquent (guilty) before the court can infringe upon his freedom by institutionalization or otherwise. It would seem compelling that there should be no distinction made as to the need for a reliable guilt-finding process, whether the proceeding be in the adult criminal court or the juvenile court. See State in the Interest of Carlo, 48 N. J. 224, 236 (1966). And as the court stated in Gault:

“A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ ” (387 U. S., at p. 36, 87 S. Ct., at p. 1448); (footnote citations omitted)

Tor these reasons I am of the opinion that just as Gideon has been necessarily applied retroactively in criminal proceedings, Gault must be so applied in juvenile proceedings where the juvenile was not advised by the court that an attorney would be assigned to represent him if he could not afford to retain his own counsel.

An order will be entered releasing the petitioner in the custody of the appropriate authorities for transportation from the institution in which he is presently confined and placement in the Union County Detention Center. A preliminary detention hearing shall be scheduled as provided in R. R. 6:8-3 (c). The juvenile shall then be advised of his right to counsel and that the court will assign counsel if he cannot afford to retain his own attorney. In this and all subsequent proceedings the matter will be handled as if this were the initial hearing on the complaint. Cf. State ex rel. La Follette v. Circuit Court of Brown County, supra.


author: Per Curiam. Conford, S. J. A. D.,

text:
    PAUL J. FINLEY, PLAINTIFF-APPELLANT, v. JOHN W. WILEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 17, 1968
    Decided September 18, 1968.

      Before Judges Conford, Labrecqub and Haeperst.

      Mr. Benjamin H. Ghodash argued the cause for appellant (Messrs. Krieger, Ghodash & Politan, attorneys).

      Mr. Albert M. Neiss argued the cause for respondent (Messrs. Neiss & Badowitz, attorneys).
   Per Curiam.

Plaintiff appeals from a judgment in favor of defendant following a jury verdict of no cause for action, and from denial of his motion for a new trial.

Plaintiff sued for personal injuries sustained when an automobile operated by defendant crashed into the rear of a "cab over tractor” (tractor) being driven by him. The accident occurred on Tonnele Avenue at a point where there were two traffic lanes in each direction divided by a center line. Tonnele Avenue was heavily travelled and ccbeset with intersecting streets and traffic lights.” The speed limit was 40 miles an hour. The accident occurred at about 5:15 p.m. on October 2, 1964. It was raining at the time and the road was wet and “very slippery.” Plaintiff testified that previous to the crash he had been proceeding southerly in the slow lane at about 30 miles an hour. As he was driving along he was struck in the rear without warning.

Defendant had been proceeding south in the fast or inside lane. He testified that as he approached a tractor-trailer (unidentified) which was proceeding in the slow lane, the latter swung into the fast lane. Thinking the driver of the 'tractor-trailer intended to make a left turn, he first applied his brakes, then swung around the rear of the tractor-trailer into the slow lane .in an attempt to pass to the right. When: he was able to see ahead in the slow lane he for the first-dime saw plaintiff’s tractor 50 feet in front - of him, moving at about 10 (later said to be 15) miles per hour. H.e again -applied his brakes but they locked and, without warning, his car-skidded into the rear of plaintiff’s tractor. The driver of the tractor-trailer made no left turn, apparently having intended only to pass plaintiff. • ;■ -

The only eyewitnesses to the accident were the respective drivers. At the conclusion of the case plaintiff’s motion .for withdrawal from the jury’s consideration of the .defense of contributory negligence was opposed by defendant on the ground that if the jury believed plaintiff was in fact travel-ling 10 miles an hour in the slow lane, they could find such conduct to be contributory negligence. Plaintiff’s motion was denied and the case was submitted to the jury in a charge which required it to make separate and specific findings as to negligence and contributory negligence. In response to written interrogatories the jury found no negligence on defendant’s part and contributory negligence on plaintiff’s part. The entry of judgment was followed by a motion for a new7 trial on the ground that the verdict was contrary to the weight of the evidence. Denial of the motion was based upon the trial judge’s conclusion that he could not say that the jury’s finding of contributory negligence was so against the weight of the evidence as to make it clearly and convincingly appear that the verdict was the result of mistake, partiality, prejudice or passion.

Plaintiff assigns as error (1) the court’s ruling on his motion for a new trial, (2) the court’s denial of his motion to exclude contributory negligence as an issue, and (3) the inclusion in the charge of the "sudden emergency” rule.

In passing upon plaintiff’s challenge to the court’s denial of his motion for a hew trial, we are mindful that our appellate power is sharply circumscribed and we may not disturb the order appealed from unless, having due regard to the better opportunity of the trial judge to observe the witnesses and judge credibility, Hartpence v. Groulef, 15 N. J. 545, 549 (1954), it clearly and convincingly appears that there has been a manifest denial of justice under the law. Kulbacki v. Sobchinsky, 38 N.J. 435, 452 (1962). If reasonable minds might accept the evidence as adequate to support the jury’s findings, we may not disturb the action of the trial court. However, where it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice ox passion, it cannot serve to support the'j’hdgrh'eht, Hager v. Weber, 7 N. J. 201, 210 (1951), and it becomes our duty to act. Cf. Fisch v. Manger, 24 N. J. 66, 80 (1957).

As noted, in response to the court’s direction, the jury found specially that defendant was free of negligence, and that plaintiff was guilty of contributory negligence. In his opinion denying the motion for a new trial the trial judge made no finding as to whether the jury’s verdict on the issue of defendant’s negligence was contrary to the weight of the evidence but premised denial of the motion on his conclusion that there was evidence to support the finding that plaintiff was guilty of contributory negligence.

In the absence of any finding by the trial judge on the issue of defendant’s negligence, we have reviewed the transcript in its entirety and find it to be devoid of facts which reasonable minds might accept as an adequate basis for the jury’s finding that defendant was free of negligence. Kulbacki v. Sobchinsky, supra, at p. 452. Notwithstanding the fact that it was raining and the roadway was (to use his own words) “very slippery,” he had been, for reasons not explained, operating his car on a busy highway at the height of the rush hour in the fast lane at a speed which approached the maximum permitted. When he came upon the unidentified tractor-trailer it was blocking his view of the slow lane ahead. When it pulled into the left lane when it was 60-70 feet ahead of him, he, after braking, swerved to the right into the slow lane, only to be confronted with plaintiff’s tractor. That his vision was obstructed both before and as he pulled into the slow lane is conceded in his own testimony, particularly that part in which he said, “My vision was blurred — was obstructed, * * * and until the trailer completely passed me, cleared me I couldn’t see the — till the trailer —■ until the box trailer completely cleared my vision I didn’t see the plaintiff’s tractor.”

The driver of an automobile is not entitled to operate his vehicle upon a public street blindfolded. Hammond v. Morrison, 90 N. J. L. 15, 16 (Sup. Ct. 1917). The exercise of reasonable care requires that when his vision is obstructed he immediately take action to restore it and in the meantime, stop or slow down if that is required. He may not proceed ahead on the assumption that the road will clear. Levine v. Scaglione, 95 N. J. Super. 338, 341 (App. Div. 1967). See also Robinson v. Mutnick, 102 N. J. L. 22, 25 (Sup. Ct. 1925); Osbun v. De Young, 99 N. J. L. 204, 208 (E. & A. 1923); Anderson v. Public Service Corporation, 81 N. J. L. 700, 705 (E. & A. 1911). Here the obstruction to defendant’s vision was not, as in the majority of cases, a sudden impairment of vision caused by the sun or by oncoming headlights but the presence of a large box trailer — a condition he had observed when 200 feet away — which blocked his view of traffic ahead in the slow lane. By reason of it, he was not in a position to ascertain, before moving into the slow lane, that the movement could be made with safety, as required by N. J. S. A. 39 :4-88(b) and N. J. S. A. 39 :4—126.

The defendant urges that he was confronted with a sudden emergency which afforded an excuse for his failure to exercise greater care and caution at the time. Not so. On the issue of the existence of an “emergency” the record reveals no more than that the unidentified tractor-trailer was driven into the left lane, apparently for the purpose of making a left turn. Such a movement posed no more than an ordinary everyday traffic condition with which he should have been prepared to cope.

Defendant’s characterization of the movement of the tractor-trailer as a “sudden swerve” added nothing to the picture. So far as appears from the record it pulled into the fast lane safely and continued on. Defendant made no attempt to describe the swerve in terms of being too wide or too sharp. He made no mention of any hind of “swerve” to the investigating police officer at the scene and there is no reference in the police report (which was received in evidence) to any claim by him that the driver of the tractor-trailer had been guilty of any violation in pulling into the left lane.

If by the use of the adjective “sudden” defendant meant fast or rapid, it was conceded by him that the speed of the tractor-trailer was less than his own. If by it he meant “without warning,” this contention is belied both by the testimony of the investigating officer, and by the police report’s rendition of what he told the officer at the scene. The officer testified that upon inquiry as to what had happened defendant told him that an unidentified tractor and trailer “put his directional signals on and crossed over into the inside lane.” The narrative in the police report recited that “an unidentified tractor, and trailer with left directional signals on changed from the outside to inside lane.” (Emphasis added.) It further recited, “Driver No. 1 [defendant], said the accident happened while he was in the process of changing lanes because he thought the unidentified tractor and trailer was going to make a left turn off of Rt. No. 1 & 9. Upon seeing vehicle No. 2 [plaintiff], he applied his brakes and skid [sic] into the rear of vehicle No. 2.” At the trial, defendant did not deny making the statements referred to but confined himself to saying that he could not recollect seeing the directional lights flashing.

Wholly aside, the alleged negligence of the driver of the tractor-trailer bore no relationship to the manner in which defendant had been driving before the former started to move into his lane. Defendant’s admitted familiarity with Tonnele Avenue should have impelled him to be on the lookout for such traffic movements ahead of him. He had just passed the ramp leading from the Lincoln Tunnel and was approaching 29th Street, beyond which was the .Route 3.traffic circle. All of these presented the prospect of traffic movements which could affect his driving, and required him to.be on the alert for signals and the movements of vehicles ahead, of.him. The lessened visibility due to the rain, and the slippery condition of the roadway required commensurate care. If, as argued, he was finally confronted-with the-, alternative .of striking the tractor-trailer .or pulling into- the slow.lane at the risk of striking plaintiff, it was not because of any emergency — at least not one. which his negligence did not help to create. Courtney v. Garden State Lines, 120 N. J. L. 294, 296-97 (E. & A. 1938); Bailey v. Branin, 279 F. 2d 344, 347-348 (3d Cir. 1960). Our consideration of the foregoing facts, particularly the testimony of the. police officer (who was to all appearances disinterested) and the police report, satisfies us that they could not afford.a reasonable. basis for the jury’s finding that defendant was free, of negligence or that his negligence was.not a substantial factor in bringing about the collision which followed.

Plaintiff, while conceding that the law .of. sudden emergency was correctly set forth in the instruction, argues that it should not have been charged .at all. We agree. As noted.above, the facts testified to by defendant did not. establish. the existence of such an emergency as was a prerequisite to the instruction. Eurther, we entertain grave doubt whether a sudden emergency charge should ever be given in an ordinary automobile accident case. There is a modern view that it is argumentative, unnecessary and confusing, and should be eliminated. See Comment, Illinois Pattern Jury Instructions, Civil § 12.02, p. 80 (1961) and cases cited therein. In Prosser, Torts (3d ed. 1964) § 33, pp. 172—73, he cautions that:

“The ‘emergency doctrine’ is applied only where the situation which arises is sudden and unexpected, and such as to deprive the actor oí reasonable opportunity for deliberation and considered decision.”

And further:

“A further qualification which must be made is that some ‘emergencies’ must be anticipated^ and the actor must be prepared to meet them when he engages in an activity in which they are likely to arise. Thus under present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles in the street, or of other vehicles at intersections, just as one who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to negligence.”

Here, under the proofs, defendant was faced with no more than an everyday traffic problem for which he should have been prepared. The ordinary rules of negligence were applicable and afforded a sufficient gauge by which to appraise his conduct. Massotto v. Public Service Coord. Transport, 71 N. J. Super. 39, 49-51 (App. Div. 1961). The giving of the additional charge tended to be argumentative' in its effect and served to unduly emphasize one phase of the proofs. We are satisfied that it played a significant part in the jury’s finding of no negligence, and in the denial of justice which resulted. Cf. Levine v. Scaglione, supra, pp. 340-42.

We hold, contrary to plaintiff’s contention, that the evidence bearing on his alleged contributory negligence, though scant, was sufficient to justify the trial court’s submission of that issue to the jury. Jacobsen v. Hala, 255 Iowa 918, 125 N. W. 2d 500 (Sup. Ct. 1963); Markiewicz v. Greyhound Corporation, 358 F. 2d 26 (7 Cir. 1966), certiorari denied Contract Carriers, Inc. v. Markiewicz, 385 U. S. 828, 87 S. Ct. 64, 17 L. Ed. 2d 65 (1966). It remains to be determined whether we should not, as did the trial judge, sustain the verdict on the basis that the jury’s finding of contributory negligence could be reasonably supported by the proofs. We are satisfied that the issue of defendant’s negligence and plaintiff’s contributory negligence were so closely related and intertwined that we can not say that the mistake, partiailty, prejudice or passion, which prompted the jury’s finding of no negligence did not play a part in its finding that plaintiff was eontributorily negligent. R. R. 4:61-1 (a). Cf. Ferry v. Settle, 6 N. J. 262, 265-66 (1951); Kress v. City of Newark, 8 N. J. 562, 576 (1952); Greenberg v. Stanley, 30 N. J. 485, 504-08 (1959). There should therefore be a new trial as. to both issues. We find it unnecessary to pass upon plaintiff’s contention that, in the alleged absence of any causal relation between the collision and his alleged slow speed, the jury’s finding of contributory negligence should have been set aside as a manifest denial of justice.

Reversed and remanded for a new trial as to all issues.

Conford, S. J. A. D.,

(dissenting). I agree with the court’s conclusion that the evidence permitted a jury finding of contributory negligence by the plaintiff. The trial judge’s opinion thoroughly documents the view that excessive slowness on a highway can constitute negligence. I disagree with the conclusion that the jury could not reasonably have found the defendant free from negligence and that its decision to that effect necessarily imports mistake, bias, etc., which fatally taints its special verdict that plaintiff was eontributorily negligent.

•Defendant testified that at a time when he was overtaking the tractor-trailer at 35-40 miles per hour and 60-70 feet behind it, that vehicle “swerved suddenly to the left” in front of him. Thereupon he “immediately applied the brakes, although not suddenly, because of the slippery condition of the road.” This slowed his forward movement somewhat. On cross-examination he testified that although he slowed, he gained on the tractor-trailer, reaching a point 10-15 feet' behind it, and then, not being willing to hazard a left turn into oncoming traffic, he took the “natural route of escape”' — ■ i. e., a turn into the right lane. He saw nothing in that lane because his view thereof was blocked by the tractor-trailer.

It may well be that the considerations mentioned in the majority opinion are strongly persuasive of the defendant’s negligence. But I do not deem defendant’s attempted testimonial justification of his actions as so worthless that the acceptance thereof by the jury should impel a decision that its appraisal of plaintiff’s slow-driving as negligence proximatoly causative of the accident was necessarily the product o£ mistake or bias in favor of defendant. In that regard I would think the course of wisdom, as well as precedent, in, these circumstances, would be to respect the trial judge’s estimate of the situation as reflected by his disposition of the motion lor a new trial.

I do not regard the charge on the emergency doctrine to have constituted error, or if error, to have been prejudicial, in the light of all the proofs.

I would affirm the denial of the motion for a new trial and the judgment for defendant.


author: Per Curiam.

text:
    ANDREW ZAKUTANSKY, PLAINTIFF-APPELLANT, v. CITY OF BAYONNE, KIWANIS CLUB OF BAYONNE AND ST. ANDREW’S ROMAN CATHOLIC CHURCH OF BAYONNE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 16, 1968
    Decided September 23, 1968.

      Before Judges Gaulki;/ Collestee and Labeecque.

      Mr. Leon Mirojf argued the cause for plaintiff-appellant.

      Mr. James P. Dugan argued the cause for the City of Bayonne.
   Per Curiam.

The trial court granted Bayonne’s motion for summary judgment and plaintiff appeals. We find it impossible upon this record to reach the merits of the controversy between the parties and we reverse.

Plaintiff’s present.counsel admits that the complaint filed by his predecessor was inadequate and defective. Present counsel tried to remedy the inadequacies and defects with affidavits, most, of which were filed after judgment was entered, but that proved as vain as it was improper. Bayonne’s pleadings did. nothing to clarify the issues. The result was. a hopeless hodgepodge.

Plaintiff tells us that by his complaint he meant to challenge Bayonne’s conduct and management of one or more of its parks, its construction of athletic fields and other structures thereon, and -its grant of permits for the use of the park and athletic fields to numerous private organizations which charge admission fees or otherwise use.portions of the parks to the exclusion of the public, all allegedly in violation of the law,. particularly N. J. S. A. 40 :61-22.2; 40 :61-4, 5; 40 :184-29, 30, 31, 32.

Plaintiff’s complaint. was totally inadequate to project these issues. It did not ask for declaratory judgment declaring the actions, of Bayonne illegal but merely challenged two permits granted by Bayonne in 1967, one to the Bridgemen of St. Andrew’s Roman Catholic Church for a drum and bugle competition and the other to. the Bayonne Kiwanis Club for a circus. Although the complaint alleged that the permits were in violation of the above-mentioned statutes, it stated no facts which brought the permits within the ambit of any one of them.

No purpose would be served by describing the papers thereafter filed. Suffice it to say, as too often we have been compelled to say, that' this is another case in which imprecise pleadings have led to error. See Hewitt v. Hollahan, 56 N. J. Super. 372, 377 (App. Div. 1959).

Since the record did not properly present the essential facts to the trial court (and indeed did not present many of the essential facts at all) the court should not have granted summary judgment. Since we' do not know upon what facts plaintiff really relies and which of these, facts Bayonne really disputes, we cannot say at this point whether the taking of testimony is necessary. Had the court stricken plaintiff’s complaint on the ground of its inadequacy we would have affirmed. Since the trial court, instead of doing so, entered judgment for the reasons stated in its opinion published in 98 N. J. Super., at p. 14, we must reverse. Upon the remand which we shall order, the Chancery Division should consider the law as well as the facts anew, uninfluenced by the opinion in 98 N. J. Super. 14.

We are advised that there is pending another action instituted by plaintiff against. Bayonne challenging two later permits-issued to said Bridgemen of St. Andrew’s Roman Catholic Church and the Bayonne Kiwanis Club to carry on the same activities as were challenged in the case at bar. (Chancery Division, Hudson County, Docket No. C-2471-67.) We believe that the resolution of these tangled and duplicitous proceedings will be best accomplished by remanding the case at bar to the trial court for consolidation with the ease there pending. ■ A -new complaint, .properly framed, should be filed in the Chancery Division which should state the facts (not conclusions) constituting all of plaintiff’s grievances against ■ Bayonne and ask for a declaratory judgment thereon. It is so ordered.


author: Labrecque, J. A. D.

text:
    IN THE MATTER OF THE APPEAL OF THE CITY OF EAST ORANGE FROM THE ASSESSMENT OF PROPERTY IN THE TOWNSHIP OF LIVINGSTON, COUNTY OF ESSEX, FOR THE YEAR 1961. CITY OF EAST ORANGE, RESPONDENT, v. TOWNSHIP OF LIVINGSTON, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 18, 1968
    Decided September 25, 1968.

      Before Judges Coxeord, Com,ester and Labrecque.

      Mr. 7larold Friedman argued the cause for appellant Township of Livingston (Messrs. Clapp & Eisenberg, attorneys.) .

      Mr. Jack Okin argued the cause for respondent City of East Orange.
   The opinion of the court was delivered by

Labrecque, J. A. D.

The Township of Livingston appeals from a judgment of the Division of Tax Appeals (Division) reducing the aggregate assessment levied upon lands owned by the Oily of East Orange comprising the portion of the East Orange Water Reserve located in Livingston.

The lands in question are fully described in In re Appeal of East Orange, 80 N. J. Super. 219 (App. Div. 1963), certification denied 41 N. J. 200 (1963). In that case the aggregate assessment for 1957 of $1,734,000 (which had been reduced by the Division to $1,238,110) was further reduced to $1,216,085 (based upon a 50% ratio). By virtue of the “Freeze” Act, N. J. S. A. 54 :2-43, the same figures were carried over to 1958 and 1959. There was no appeal from the 1960 assessment of $1,711,500 but the same assessment for 1961 was reduced by the Division to $1,181,900, and is now before us.

Under N. J. S. A. 54 :4-3.3 public water supply lands are taxable in the taxing district where located “without regard to any buildings or other improvements thereon, in the same manner and to the same extent as the lands of private persons * * The method to be followed in the assessment of such properties has been fully set forth in a number of decisions, particularly City of Newark v. West Milford Township, 9 N. J. 295 (1952) and, more recently, In re Appeal of East Orange, supra, and need not be repeated here. The sole question with which we are concerned is the true value as of October 1, 1960 of the 1,485.59 acres of raw undeveloped land and its translation, by the use of a proper ratio, into the assessment for 1961.

At the hearing in the Division East Orange rested its case primarily on the testimony of its expert Franklin Hannoch, who had also testified in the 1957 appeal. Livingston relied on the testimony of its expert John O. Lasser, who had not testified in the 1957 case. Both were well qualified. For purposes of convenience the tract was subdivided into seven classifications based on elevation. The following is a breakdown of per acre values assigned by each expert for each classification, including also Hannoch’s values as given in the 1957 case:

VALUE PER ACRE IN DOLLARS
Class Elevation Acres Hannoch (1957 case) Hannoch (1961) Lasser (1961)
1 streams, etc............. 60.9 0 500 500
2 less than 170 ft........... 217.69 500 500 500
3 between 170-175 ft...... 92.9 750 500 800
4 between 175-180 ft........ 47.7 1,000 1,200 1.500
5 between 180-185 ft..... 42.35 1.500 1,600 2,000
.6 above 185 ft. (wooded) . . . 894.05 2,000 2,000 3,000
.7 above 185 ft. (cleared) . . . 100.00 2.500 2,500 3.500

The Division adopted llannoch’s $2,363,825 valuation in toio and fixed the assessment at 50% thereof or $1,181,900. Although the petition of appeal had challenged the correctness of the 50% assessment ratio claimed by Livingston (the petition recited that it was actually 44.84%), there was no specific finding by the Division on that issue.

Initially, East Orange contends, in substance, that in the absence of either a change in the property or a subsequent revaluation, our decision in the 1957 appeal is controlling. Not so. Each annual assessment is a separate entity, distinct from the assessment of prior or subsequent years. Borough of Hasbrouck Heights v. Div. of Tax Appeals, 54 N. J. Super. 242 (App. Div. 1959). While tax history is evidential and often resorted to on review of an assessment, Aetna Life Insurance Co. v. City of Newark, 10 N. J. 99, 103-04 (1952), the ultimate test is whether or not the assessment is based upon true value. In re Kresge-Newark, Inc., 30 N. J. Super. 489 (App. Div. 1954). The mere fact that, in genera], the tax assessor of Livingston had not changed assessments on other unimproved properties in the township since the 1957 revaluation did not preclude a finding that the true value of the subject property had increased since that time, although it would have a bearing on the ratio to be applied in fixing the assessment on the subject premises. Further, the fact that East Orange did not appeal the 1960 assessment does not estop it from challenging the 1961 assessment or contending that the 1957 assessment controls. In re Mutual Benefit Life Ins. Co., 35 N. J. Super. 113, 116 (App. Div. 1955). Cf. Bayonne v. Murphy & Perrett Co., 7 N. J. 298, 311-12 (1951).

As noted, the hearing before the Division presented a hoad-to-head confrontation between Hannoeh for East Orange and Lasser for Livingston. Ordinarily, the weight to be accorded such expert testimony is a matter left to the reasonable judgment of the Division and its conclusions as to valuation will not be disturbed when found to be supported by substantial evidence. Passaic v. Gera Mills, 55 N. J. Super. 73, 89 (App. Div. 1959), certification denied 30 N. J. 153 (1959). On appeal it our duty to review the evidence and render such decision as we deem proper in the light of that evidence, but not to disturb the judgment of the division unless the evidence is persuasive that it erred. Delaware, Lackawanna & Western R. R. Co. v. City of Hoboken, 10 N. J. 418, 426 (1952); Aetna Life Insurance Co. v. City of Newark, supra, at p. 104 (1952).

In substance, Livingston argues that in adopting outright the valuations testified to by Hannoch, and basing its judgment thereon, the Division was in error. We agree.

Hannoch’s 1961 valuation was $44,895 less than his valuation (exclusive of the 35% "discount,” see In re Appeal of East Orange, supra, 80 N. J. Super., at pp. 228-29) in the 1957 case — and this notwithstanding the fact that he had given no value to the Class 1 lands in 1957 whereas in 1961, pursuant to our holding in In re Appeal of East Orange, supra, he appraised them at $500 per acre for the 60.9 acres. Further, the Division’s finding of true value here ($2,363,-825) was $112,395 less than the value of $2,476,220 found by it for 1957 (or $72,395 less than such value as later corrected on appeal), and the assessment of $1,181,900 which is before us is $34,185 less than the assessment of $1,216,085 arrived at by us in the 1957 appeal. Significantly, Hannoch’s values for the two years referred to were the same for the three largest classifications (2, 6 and 7), totalling 1,241.74 out of the 1,485.59 acres involved. As to the remainder, he reduced his per acre value for 92.9 acres of third class lands from $750 for 1957 to $500 for 1961 while increasing it for Classes 4 and 5, which totalled approximately 90 acres, by an average of $150 per acre.

The weight to be given to an expert’s opinion of the value of land depends in great part upon the facts and reasoning which constitute the foundation for his opinion. Delaware, Lackawanna & Western R. R. Co. v. City of Hoboken, 16 N. J. Super. 543, 562 (App. Div. 1951), reversed on other grounds 10 N. J. 418 (1952). Our examination of Hannoch’s testimony satisfies ns that his opinion of value was based upon an erroneous conception of his duty as a valuation expert. His primary concern, as gleaned from his testimony and the argument of counsel for East Orange at the trial, appears to have been to arrive at what he regarded as an equitable assessment for the water reserve rather than a determination of its true value in accordance with the statutory standards. He proceeded upon the theory that since there had been no official revaluation in Livingston since 1957, the assessments fixed for that year should govern unless there was some “change” in the property in issue. Notwithstanding the mandate contained in City of Newark v. West Milford and In re Appeal of East Orange, he disregarded or discounted the increased prices at which comparable properties were selling — prices which would have justified higher per acre values — because he considered that the increase in the value of lands comparable to the subject premises would affect marketable property only. lie testified:

“The sales in the market actually don’t influence the value of this property because it isn’t capable of following the market * *

and that:

“The subject property * * * could not enjoy an increase in value as related by these sales, [referring to sales cited by him] because of its more or less dedicated use as a water reserve * *

While conceding that there had been “recent” sales of land in Livingston at levels higher than were shown prior thereto, he averred that since the subject property was not on the market but was more or less dedicated to use as a water reserve, it could not enjoy any increase in value as evidenced by such sales. This was confirmed by his written report in which he stated:

“The subject land has a dedicated use which requires that it remain in its present raw state. As such U is not benefited by land sales which may increase in value by reason of uses influenced by market conditions.” (emphasis added)

And further:

“It should be restated in this report that the subject land of 1,500 acres reserved as it is for special use and kept out of the market can and, in our opinion, does make for higher prices of other lands in Livingston available for market sale. Such price increases cannot be applied to the subject land tohich is not available for market activity, and it should be noted that were 1,500 acres of land pressed into the market the price level of all lands in Livingston would drop sharply.” (emphasis added)

Hannoch’s approach to value violated the legislative mandate of N. J. S. A. 54 :4-3.3 and the valuation tests laid down in City of Newark v. West Milford Township, supra, 9 N. J., at p. 308, and our decision in In re Appeal of East Orange, supra, 80 N. J. Super., at pp. 229, 230. Just as we held in the latter case that the fact that the property had potentiality for use as a water reserve called for no special increment to such valuation as might otherwise be arrived at, neither is its value to be depreciated because, by reason of its continued dedication to water supply purposes, its owner is not, in fact, in competition with other landowners for the increased prices being paid in the market place for comparable vacant lands.

Hannoeh also disregarded a number of sales of nearby comparable property on the ground that these took place during the period of transition from raw unimproved land to lands covered by approved subdivision maps. The Division apparently agreed with this reasoning. However, Lasser testified that even after making an allowance for the factor of preliminary map approval, the prices realized gave unmistakable indication of a substantial upward trend in land values in the area during the period under comparison. The record supports Lasser’s opinion.

We conclude that because based upon the complete acceptance of Hannoch’s testimony, the conclusions of the Division are equally vulnerable. It follows that the ¡Judgment fixing the assessment at $1,181,900, based upon a common level of 50%, for the year 1961 must be set aside.

While ordinarily it would be the better course to remand the matter to the Division for new findings as to value, Rek Investment Co. v. Newark, 80 N. J. Super. 552, 562 (App. Div. 1963), we deem it the better course here to make our own findings as authorized by R. R. 4 :88-13. It is highly in the public interest that a final 1961 assessment should be fixed without the further delay which a remand, with the attendant possibility of a further appeal, would entail. Since the judge of the Division found, and we agree, that only the 1961 assessment was appealed to the Division, we are here concerned with that year only, although we are told that the parties have stipulated that the decision herein is to apply to the tax years 1962 and 1963 as well. In proceeding to our determination of value we are mindful that as a practical matter there must be stability in assessments and that values for purposes of taxation should possess a measure of permanency which render them secure against general temporary inflation or deflation. New Brunswick v. State of N. J. Div. of Tax Appeals, 39 N. J. 537, 541 (1963); Hackensack Water Co. v. Division of Tax Appeals, 2 N. J. 157, 163 (1949).

We find and determine that the subject premises are located for the most part in Livingston’s prime (R-1) residential zone, although a small portion, not more than 15 acres, is located in the R-2 zone and an even smaller portion in the R-3 zone (in the latter two zones smaller building lots are permitted). In the R-1 zone one-family residences, public buildings and public and institutional uses are authorized. Institutional uses are defined in the zoning ordinance as “churches, or other places of worship, schools teaching academic subjects, hospitals and other similar quasi public nonprofit uses.” Thus, we are not restricted to residential property in our analysis of comparable sales but may consider sales for all permitted uses in arriving at our determination of true value.

We find that between October 1, 1956 and October 1, 1960 the true value of available vacant land in Livingston has increased. This increase is demonstrated by a steady rise in the prices being paid for vacant lands available for development (under the existing code buildings may not be constructed on lands less than 176 feet above sea level). The increase in sales price has not been confined to lands which have had subdivision approval or whose sale has been contingent upon obtaining such approval, although these factors played a part in the comparatively higher prices brought by properties in those categories.

Coming to consideration of the true value of the lands in Classes 1 and 2, we note that both experts agreed upon a value of $500- per acre and we adopt that figure. Applying it to the admitted acreage yields a true value of $30,450 for Class 1 and $123,845 for Class 2.

As to the 92.9 acres comprising Class 3, we find Lasser’s testimony to be more credible and fix the true value at $800 per acre or $74,320. As noted, Hannoch’s 1957 value was $750 per acre.

Hannoch impliedly conceded that there had been an increase in the value of the 47.7 acres comprising Class 4. His 1961 figure was $1,200 per acre as compared with $1,000 in 1957. Lasser’s figure was $1,500 per acre. We find the true value to be $1,200 per acre or $57,240. As to the 42.35 acres in Class 5, which are somewhat more desirable, we find the true value to be $1,800 or $76,230. We note here that Hannoch’s opinion of value also represented an increase over his figure for 1957.

The remaining area, consisting of Classes 6 and 7, totals 994.05 acres located at elevations which exceed 185 feet. We find and determine that the true value of the wooded portion thereof totalling 894.05 acres, is $2,400 per acre or a total of $2,145,720. Since both experts conceded that the remaining 100 acres have an additional value of $500 per acre by virtue of their being cleared, we fix the true value thereof at $2,900 per acre or a total of $290,000. Thus we find the total true value of the subject lands to be $2,797,805.

Eemaining to be determined is the ratio to be applied to the foregoing true value in order to bring it to the same standard of value as other property in the township. It is clear that assessments, at least in the case of vacant lands, have not kept pace with true values. As noted, East Orange contended in its petition of appeal that the ratio of assessment to true value of 44.84 represented the common level. Ilowever, at the oral argument counsel for the parties agreed upon a ratio representing the average of those set forth in the Tables of Equalized Valuations promulgated by the Director of the Division of Taxation on October 1 of 1961, 1962 and 1963. We find this to be 44.38. Applying it to the true value of $2,797,805, we fix the assessment for the year 1961 at $1,241,665.

By reason of the foregoing, we find it unnecessary to pass upon the remaining contentions raised.

The judgment of the Division is accordingly reversed and the case remanded for the entry of judgment fixing the assessment for the year 1961 at $1,241,665.