author: Carton, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MONIQUE VON CLEEF AND JAMES ALBERT BEARD, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1968
    Decided July 2, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. Herald Price Fahringer, Admitted Pro Haec Vice, argued the cause for appellants (Mr. Leonard Etz, attorney; Mr. William J. Kearns, Jr., of counsel).

      Mr. Alan SiTber, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, County Prosecutor of Essex County, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

Defendants appeal from convictions of (1) conspiring to maintain a building for purposes of lewdness and to commit acts of lewdness with others in private, in violation of N. J. 8. 2A :98-l, 2AA33-2 and 2A:115-1; (2) permitting a building to be used for purposes of lewdness and assignation with reasonable cause to know of such use, in violation of N. J. 8. 2A:133~2(b), and (3) possessing with intent to utter obscene publications, in violation of N. J. 8. 2A :115—2.

Defendant Marianna, or Monique, Yon Cleef was sentenced on the conspiracy charge to a term of 18 months in the County Penitentiary (four months to be served in custody and the balance on probation). Defendant Beard was fined $500 on this charge and placed on probation for 18 months. The sentences were suspended as to both defendants on the remaining charges.

About the middle of October 1963 Detective Lieutenant Magnusson, Obscenity Investigations Specialist of the Essex County Sheriff’s Office, received from a citizen a copy of a publication known as Flair. He gave it to John Hallies, Postal Obscenity Specialist for the New Jersey area and with whom Magnusson collaborated in investigating obscenity matters involving the Hnited States mail.

Since Flair Publications was indicated as located in New York City, Hallies sent the copy of Flair there. Hallies reported to Magnusson that Flair had a post office box in New York City, signed for by a James Beard. Sometime before receiving this copy of Flair, Magnusson had obtained a copy of another similar publication known as La Flume, which he described as “one of the forerunners of the sex-type clubs * ** * probably one of the most active in the country.” Magnusson had learned through New York Postal Inspector Dolan that a photograph of Monique Yon Cleef appeared in this particular edition with a code number of 174 and the following caption:

“N. Y. C.—Exotic Miss, 30 yrs. 36-26-36. Extremely interested in rubberwear, satin, french lingerie, discipline, etc.; Anxious to experiment. Will correspond with all. Write descriptively. Photo appreciated.”

Sometime in the middle of December 1965 a letter came into the hands of Inspector Hallies, addressed to one TS (initials ours), reading as follows:

My new telephone number is 201 484-0840. The charge for consultation is $50.00.
/s/ Superior Monique”

Hallies turned this letter over to Magnusson, who ascertained on December 20 from the New Jersey Bell Telephone Company that the telephone number was registered or listed in the name of “Marianna Von Cleef, 850 Lake Street, Newark.” The premises were owned by her. After a consultation with Inspector Kallies, he called that number and spoke to defendant Von Cleef, pretending that he was TS, the addressee of the letter. He made an appointment to meet her at 850 Lake Street the next dajr for the purpose of receiving “an hour and a half of discipline.” This call was tape-recorded and immediately transcribed.

On December 21, Magnusson, Kallies and three other police officers went to the vicinity of 850 Lake Street at the appointed hour. Magnusson entered the building. The others remained outside in their vehicle until 1:30 p.m. pursuant to a prearranged plan that they enter the premises after half an hour. After being admitted by a workman and inquiring for “Monique,” Magnusson was greeted by defendant Beard, who ushered him up to the second floor where he was told to wait for Monique. He testified that after a short time defendant Von Cleef came into the room saying to him, “Hello. You are Mr. S?” and when he replied, “Yes” she said “Come with me.” She led him up a stairway to the third floor, through a bedroom and into what he described as a “living room or sitting room in the front of the house.” She told him to take off his coat and to make himself comfortable.

Magnusson testified that at this point Miss Von Cleef handed him a copy of a publication called Spankers Monthly, asking him if he was familiar with it, to which he said, “Not specifically this one, but others like it.” Then she said, “Let me get you a drink” and added, “You can read the publication. It will excite you.”

Miss Von Cleef then left the room and came back in three or four minutes with a ten-ounce glass that had about five or six ounces of scotch in it and some water. “She gave it to me and told me ‘You know, this will help you to relax’ and she seated herself on the couch.”

A conversation followed between them about Monique’s career as a professional sadist. During this conversation there was a discussion of flagellation, sadism and tranvestism. She inquired whether he was familiar with the La Plume publication, saying that she was familiar with it and knew the owner who had put her in contact with other people. Replying that he was acquainted with La Plume, he remarked to her: “That’s where I first saw your picture, in La Plume.” Magnusson also testified that he asked her if she did much of this type of thing, to which she replied that she was “very knowledgable” in this area and ‘Ras clients all over the country and flies to a lot of people to take care of this business.” To his statement, “You must really know your business,” she responded she was “quite experienced at this.”

Asked to tell her about himself, he demurred, remarking that he could not say too much because he had to be “discreet.” The following then took place:

“* * * Slie said, ‘How can I help you if you won’t tell me about yourself?' I said, ‘Well, I see what you mean.’
THE COUKT: All right, you may continue.
A Well, I explained that I hadn’t had too much experience at being the servant of a professional sadist, and she asked me, she said ‘Well, when did you first start liking to be whipped? I said—let’s see—I said that I had had an experience with a girl whom I knew and I went out with and we engaged in flagellation, and she would whip me to a point where I would be sexually aroused, and then we would consummate the normal sex act, and Miss Von Oleef at this point said, ‘Well, I won’t have intercourse with you.’ I said, ‘No. I realize that you’re just going to whip me until I have an orgasm, and Miss Von Oleef said, ‘Ves.’
Q Then what occurred, if anything?
A When she asked me about it, when did it first start, I also stated that you can’t find too many people who know about this or who really understand it, and she acknowledged that, ‘Yes, I understand that’, and she made a reference that in Europe this practice is quite common and that she thoroughly understood it.”

The discussion concluded with Magnusson’s inquiry as to how long he could stay and her reply, “Oh, about a half hour or so, depending on how I like you, and so on.” Magnusson stated that Miss Von Cleef then arose from the couch, produced a pair of women’s high-heeled shoes, brought them over and dropped them on the floor saying: “Now take off all yonr clothes and put these on. * * * When I come back, I want to see you on that bed in a kneeling position. * * * All your clothes off. I’m the boss.”

The detective removed his tie, shirt, undershirt and shoes and socks. While defendant was out of the room, he opened a door into another room in which he observed a black object on legs having a hole in it, later identified as a torture box. As he looked out in the hall, he said he also saw Miss Yon Cleef in the process of donning her costume. When she came back into the room she asked why he was not undressed and upbraided him for taking so long. She was attired, he said, in black high-heeled shoes, net stockings and a “tight-fitting rubber apparatus which would resemble a bathing suit.” Saying that he was a little nervous, he proceeded to the lavatory. On the way there he observed a strap about 16 inches long on the bed.

At this point the police officers burst into the room where they found Magnusson and Monique. Magnusson informed defendant she was under arrest and a thorough search of the entire house followed.

On the second floor were found and seized the following items: About 200 boxes containing copies of Flair; a box containing 200 applications for membership in the Flair Club; 20 catalogs listing items for sale in Flair; a mailing list of over 20,000 names; 9 manila envelopes containing pictures of members of the Flair Club and a directory of its members; a Flair Enterprises checkbook; photographs, negatives, drawings and illustrations and other paraphernalia used in the publication of Flair; two filing cabinets and a file drawer containing about 2,000 names and addresses and 4,500 pieces of correspondence; a large quantity of photographs of defendant, some in various stages of nudity, in poses with other males and females; 200 photographs with accompanying stories and a roll of eight millimeter film.

The contents of a storage room on the second floor were also removed, consisting of seven cartons of unopened mail, a large number of forms, blank invoices and catalogs for Flair, a quantity of correspondence addressed to defendant Von Cleef, a “pile” of correspondence addressed to persons with certain code numbers appearing in Flair, invoices, a series of letters addressed to defendant and 15 drawings.

From a room on the third floor called the “tower” were removed the black object which had been described as a “torture box,” a large quantity of red rubber garments, various types of chains, paddles, whips, straps, straightjackets and padded clothing, various types of belts and other restraining devices taken from a dresser drawer, and two photo albums containing more pictures of defendant. Also taken from the tower room was a set of handcuffs attached to lengths of chain fastened to the ceiling and from another small room on the third floor were removed leather and rubber garments and other paraphernalia. In addition, the officers seized a large quantity of magazines and books.

Defendants’ motion to suppress was denied and a considerable number of these items were introduced into evidence and described and commented upon by several witnesses during the trial.

In addition to the testimony of Detective Magnusson, testimony was developed from Postal Inspector Kallies as to the investigation of the publication of Flair and the defendants’ connection with it. Various officers who participated in the arrest of defendants gave essentially corroborative testimony as to the circumstances of the arrest and the events leading up to it. In addition, the State produced Dr. Chernus, a qualified psychiatrist, who testified that many of the publications seized and introduced into evidence were patently offensive because they affronted contemporary community standards, appealed to the prurient interest of those to which they were directed and were utterly without redeeming social value. Even the defense’s expert, Dr. Caprio, although obviously more liberal in his views than Dr. Chernus, acknowledged that some of the printed materials seized were obscene.

The following questions are presented on this appeal and will be considered in the order advanced by defendants:

(1) Was the search and seizure conducted following the arrest of defendants unconstitutional?

(2) Did the State prove violations of N. J. 8. 2A :115-1 (lewdness) and N. J. 8. 2A :133—2 (&) (occupying a building for purposes of lewdness or assignation) ?

(3) Are the publications found on the premises obscene so as to warrant defendants’ convictions for violation of N. J. 8. 2A :115-2 ?

I

Defendants contend first that the search of defendant Yon Cleef’s home and the seizure of her papers and books was unconstitutional because made without a search or arrest warrant and not incidental to a valid arrest. They urge further, that even if the arrests were valid, the search which was made was exploratory and beyond the permissible scope of a search incidental to a valid arrest.

We note that although Detective Magnusson had in his possession at the time he arrested defendants two arrest warrants, these were held to be invalid by the trial judge at the hearing on the motion to suppress. Nevertheless, he ruled that the search was proper because it followed a lawful arrest which was based upon Magnusson’s having reasonable grounds to believe an offense punishable by imprisonment for more than one year, namely, uttering an obscene publication in violation of N. J. 8. 2A :115-2, was being committed. Much of defendants’ brief is devoted to an attack on the basic premise of this ruling of the trial judge. The essence of defendants’ argument in this respect is that probable cause involving a violation of an obscenity statute cannot be ascertained by a law enforcement officer alone; rather, a judicial determination is said to be required. See Marcus v. Search Warrant, 367 U. S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961), and State v. Parisi, 76 N. J. Super. 115 (Cty. Ct. 1962).

We find no necessity for determining the correctness of the trial judge’s ruling in this respect because we are satisfied that under the circumstances in this ease there existed adequate cause for belief that other offenses punishable by more than one year in prison were being committed by defendants. See State v. Doyle, 42 N. J. 334, 348-349 (1964). The facts known to the officer at the time of the arrest, including Miss Von Cleef’s representations as to her past experiences and intentions with regard to Magnusson’s “treatment,” in our view clearly provided probable cause for believing that defendant Von Cleef was knowingly occupying her premises for purposes of lewdness or assignation, in violation of N. J. S. 2A :133—2. Additionally, these facts reasonably justified the belief that defendants were conspiring to maintain the premises for the purpose of lewdness and to commit acts of lewdness in violation of N. J. S. 2A :98—1, 2A :133—2 and 2A :115-1.

Let us briefly review the totality of those facts known to the police when the arrests and resultant search were made. During the course of an obscenity investigation in which Magnusson had been collaborating with the United States Post Office officials, Detective Magnusson had received a copy of the Flair and La Plume publications which he knew catered and were designed to appeal to persons “who were masochistic.” Magnusson had been assigned for eight years to the speical investigation division dealing with obscenity. He had had considerable training in the field of pornography, with special emphasis on sexual aberrations, including those dealing with homosexuality, transvestism, voyeurism, sadism and masochism. He had participated in almost 600 obscenity investigations. Magnusson knew that a James Beard had signed for the post office box in New York for Flair. The New York postal authorities had called his attention to the coded advertisement which appeared in La Plume accompanying the photograph said to be Monique Von Cleef. His telephone call after receipt of the letter from “'Superior Monique” to TS confirmed the fact that the person advertising in La Plume and defendant Yon Cleef were one and the same. He knew that she had agreed to perform an act of sadomasochism. Everything that followed his entry into the building at 850 Lake Street confirmed that agreement or plan. Indeed, it was almost certain that a criminal act would have been completed had the prearranged raid not interrupted the activities.

As our Supreme Court has noted, the specialized training and experience of police officers must be taken into account in assessing the propriety of their actions in ferreting out furtive and ingenious activities. See State v. Contursi, 44 N. J. 422, 431 (1965). Even more so is this true of police experts. Considering Detective Lieutenant Magnusson’s experience in the field of pornography and sexual aberrations, taken in conjunction with the facts known to him at the time of the arrest, we are wholly satisfied that there existed a sufficient basis for a finding of probable cause. We hold, therefore, that the arrests were valid.

Since the arrests were valid, we have no difficulty in concluding that the search and seizure of the various articles produced at the trial were incidental to the arrests and were within permissible limits.

The general rule in cases of this kind is quite clear: “[T]he premises where the arrest was made, which premises were under the control of the person arrested and where the crime was being committed, [are] subject to search without a search warrant.” United States v. Ralinowitz, 339 U. S. 56, 61, 70 S. Ct. 430, 433, 94 L. Ed. 653, 658 (1950). The test is always whether the search was reasonable. Id., 339 U. S., at p. 66, 70 S. Ct., at p. 435, 94 L. Ed., at p. 660.

In the present case the search was extensive, but under the circumstances it was reasonable. The premises were owned by Miss Yon Cleef and the items searched for and seized related to the criminal operation for which the arrest had been made. On these facts, where the crime alleged involved a vast business enterprise using the entire premises owned and controlled by the person arrested, such a search must be deemed valid. See State v. Doyle, 42 N. J. 334, 344 (1964); Annotation, 4 L. Ed. 2d 1982 (1960).

II

The essence of defendants’ second contention is that “an act of punishment when committed by two consenting adults in private is not rendered criminal” by N. J. S. 24:115-1 or 24:133-2(6). As a result, it is argued, defendants’ convictions for conspiring to commit acts of lewdness, in violation of N. J. S. 24 :115-1 and for maintaining premises for the purposes of lewdness, in violation of N. J. S. 24:133-2(5), cannot be sustained.

N. J. S. 24:115-1 provides:

“Any person who commits open lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.”

The statute delineates two separate offenses: (1) public lewdness and (2) private lewdness. In this case conspiracy to commit only private lewdness was charged under this provision of the statute. Under N. J. S. 24:133-2(6) defendants were also charged with permitting and conspiring to permit defendant Von Cleef’s premises to be used for purposes of lewdness and assignation.

Certain general principles may be stated by way of introduction. “Lewdness” has been defined as “the irregular indulgence of lust, whether public or private.” State v. Baldino, 11 N. J. Super. 158, 162 (App. Div. 1951). Public lewdness was a common-law crime requiring commission of the act in a public place; if the act was committed in private, the common law did not reach it. See Schoudel v. State, 57 N. J. L. 209, 210 (Sup. Ct. 1894). Prior to 1906, New Jersey’s criminal statutes simply restated the common law as to public lewdness; there was no provision designed to prohibit lewd acts performed in private. But in 1906 the statute was amended to include those acts committed in private with another person. See State v. Brenner, 132 N. J. L. 607, 610 (E. & A. 1945); State v. Michalis, 99 N. J. L. 31, 33 (Sup. Ct. 1923).

In light of the common-law and legislative background of N. J. S. 2A :115-1, therefore, it would appear that the statute means precisely what it says; i. e., “Any person who * * * in private commits an act of lewdness * * * with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.” As the plain language suggests, the elements of the offense are the commission of a lewd act in private with another person which act tends to debauch the public morals.

Nevertheless, defendants attempt to inject an additional requirement into the offense, namely, that the lewd act be witnessed by one who is not a participant and whose morals are debauched thereby. Defendants would read the statute as if “with another” meant “in the presence of another who is a nonparticipant.” This construction is untenable; the statute explicitly applies to an accused who “commits an act of lewdness * * * with another.” It obviously includes participants. Nor are we persuaded that the clause “grossly scandalous and tending to debauch the morals and manners of the people” adds weight to the argument that the presence of a third person is requisite to charge the statutory offense. The purpose of this language is merely to characterize the gross nature of the offense.

Defendants’ claim that the statute has never been applied to a situation in which the participants witnessed the act is erroneous. In State v. Michalis, supra, defendant was convicted for private lewdness committed “with James Drake.” No mention of a nonparticipating witness appears in the opinion.

Neither State v. White, 129 N. J. L. 200 (Sup. Ct. 1942), affirmed on opinion below 130 N. J. L. 527 (E. & A. 1943), nor State v. Brenner, supra, lend support to defendants’ contention. In White the court was called upon to determine whether an indictment alleging that defendant “[w]as in private guilty of an act of lewdness * * * by engaging in certain acts and practices so obscene and indecent that a minute description of the same would be offensive to the Court * * * wherefore a fuller description of the same is not set forth,” effectively charged the commission of a crime. It simply held that the indictment was defective for failing to include, as required by the statute, an allegation that the act had also been committed “with anotherThe cryptic opinion of the court fails to define the key phrase “with another.” We do not read White to require the presence of more than the participants to constitute the statutory offense. Similarly, in Brennan the court held that adultery and fornication committed in private between two consenting adults did not violate the statute because, and only because, adultery and fornication were not lewd acts if committed in private. Defendants’ reliance upon these cases is, therefor, misplaced.

On the other hand, the clear language of the statute and; its history militate in favor of its applicability to the present case.

Defendants’ contention that an act of punishment by two consenting adults in private is not rendered criminal by N. J. S. 2A:lZZ-2{b) is even weaker than their similar argument with respect to N. J. 8. 2A :115-1. N. J. 8. 2A :133-2 provides, in pertinent part:

“Any person who:
********
b. Occupies any place, structure, [or] building * * * for the purpose of * * * lewdness or assignation, or permits any place, structure [or] building * * * owned or controlled by him to be used for such purpose, with * * * reasonable cause to know that the same is, or is to be, used for such purpose * * *
* * * * * * * *.
Is guilty of a misdemeanor.”

This statute does not contain the phrase “with another” nor does it define the terms “lewdness” or “assignation.” The argument that N. J. 8. 2A:133-2i{b) depends for its definition of “lewdness” upon N. J. 8. %A :115-1 is untenable for the latter statute likewise contains no definition of that term. Instead, as we have seen, “lewdness” has been defined by our case law as “the irregular indulgence of lust, whether public or private.” “Assignation” means “ ‘an appointment of time and place for meeting or interview;—used chiefly of love interviews and now commonly in a bad sense.’ ” State v. Baldino, supra.

The proof was plenary on both charges. The evidence as to what transpired up to the time the officers came upon the scene in Miss Yon Cleef’s parlor, if believed, alone fully supported the conspiracy charges and went far down the path towards proving the others.

Magnusson described sadism as the “inflicting of pain on another human being for sexual gratification, either degradation or corporal flagellation,” and masochism as the “sexual gratification to the receiving of pain and degradation and humiliation.” The performance about to be completed by defendant when she was interrupted by the raiding officers certainly involved elements of sadism and masochism, or sadomasochism, as the two terms are sometimes used together. It hardly requires argument that the act involved was of a lewd character measured by any acceptable definition. Even Dr. Caprio, the psychiatrist who testified on behalf of defendants, acknowledged that an act of flagellation on a stranger which is taken to the point of achieving an orgasm usually must be considered as a lewd act.

The evidence also justified the jury in concluding that this was not simply an isolated erotic episode on the part of defendant Yon Cleef, but was representative of other acts of perversion being carried on by these defendants at the premises as a part of a far-flung commercial enterprise. We now turn to a brief review of that evidence.

There was testimony on the part of Inspector Dolan, who was assigned in New York to investigate obscenity materials going through the mails, that his office started an investigation of the Flair publication as early as April 1965. His investigation disclosed that Albert J. Beard, as president of Elair Enterprises, had applied on November 12, 1964 for a post office box at the Murray Hill Station, describing Flair as a mail forwarding service magazine club. Defendant Von Cleef had obtained Box No. 158 in her name at the Lenox Hill Station in January 1965, and 850 Lake Street in Newark had been given as a forwarding address for that box in October 1965.

Elair Enterprises also made application to First National City Bank to open a checking account. This application recited the concern’s business as “Magazine Flair.” It was signed by Beard as owner. Filed with it was a power of attorney from him designating one M. B. Moore as his attorney authorized to deposit, draw and make checks with respect to the business transacted through that bank. Defendants’ attorney stipulated at the trial that Monique Von Cleef, also known as Marianna Von Cleef, was Maria B. Moore and was the same person named in the power of attorney.

Detective Magnusson explained the mechanics of an operation like Flair or La Plume:

“* * * [Tlhey buy what is referred to commonly as a sucker list. * * *
Now what he does is put out his little brochures. Once he is established in business and he mails them to individuals, this is the way the club is perpetrated and goes on and on and enlarges.
Now, any of the individuals receiving a solicitation from this are invited to scan the publications. They are offered to put an ad in here for a price, and they are given a code number to insure that it is very discreet and confidential. Then, if they wish to reply to any of the ads in this particular publication, they must forward a letter in a plain envelope, using the code number somewhere on the envelope. They put this envelope in another envelope and seal it up, put a stamp on it, and it has to be sent to the operator of this club.
The operator of this club then will open the original envelope, take out the one that is marked for whatever code number is represented on it, and then he will, in turn, forward them on.
Once the operator of this gets the transmission, let’s say, from an individual who answered an ad here, he will send it on to that individual, and now these two people are in. direct contact where they actually no longer need the services of this publication. But it has been our experience that these people not only contact Others; they put an ad in themselves and then start to receive mail. So it just starts to keep growing and growing and growing. It’s an expanding operation. It’s one of the biggest things going on in this country today.”

Produced before the jury were hundreds of application forms of individuals seeking to join the Flair Club, along with a ringed notebook containing a master file of names and addresses of correspondents from many states, sometimes accompanied' by photographs. Alongside the names of some of the'individuals were notations as to prices and the sexual ■activity in which the correspondent had evidenced interest. Making the records complete were filing cabinets containing filing cards constituting the basic record of the individuals 'with whom contact was made.

In addition, there was a large quantity of letters from various individuals addressed to “Monique” and “Mistress Monique,” which Magnusson testified were “solicitations for various types of sexual activity,” in some cases detailing minutely in four-letter language the natural and perverted acts referred to. Samples of these letters were read to the jury. Included among these was a series of letters from .tire individual whose letter sparked the investigation, some addressed to “Mistress Monique” and some to other persons, and in some cases mentioning advertisements appearing in Flair. These letters, written in a special vernacular commonly understood by sadomasochists, leave little doubt as to the character of the activities contemplated. The writer on numerous ocqasions refers to himself as a “slave” and expresses a wish to do anything his “mistress” or “queen” desires. One of the less offensive will serve as an example:

“Let me introduce myself—* * * very docile—friendly submissive to all.
I am interested in all things of the bizarre—bondage—forceful restraint—chastisement—photography—My first love is “French devotion” (females only).
I have liad some experience in the above.
Also an amateur transvestite—(-black nylon lace (sheer) lingerie). Will pose for Polaroid shots with single or several females.

Also exhibited to the jury and marked in evidence were the tools of this exotic trade: chains used as restraining devices, including one bearing a legend on the metal face, “Slave Samuel. Property of Monique.”; several dildos; a leather paddle; a straight jacket; various types of belts; padded clothes and other devices. Detective Magnusson explained the significance of these items and also described the use of the “torture box” found on the premises. In addition, 18 photographs were introduced into evidence picturing defendant Von Cleef in various stages of nudity, brandishing a whip, apparently in the process of administering “discipline” to male or female participants restrained by chains or other bondage.

Finally, there were marked in evidence a series of books found on the premises as the result of the search, the titles of which sufficiently indicate their nature: Buttock Fetishistn, Whip and Lash (by “Will Beatum”), Bound and Transformed, The Autobiography of a Flea, It’s Delightful, The 120 Days of Sodom (by the Marquis DeSade), Lady Susan’s Cruel Lover, Skirted Man, Teenage Discipline, Hermaphrodite in Silks, Dominant Female, and Spankers Monthly.

The foregoing is merely a brief summary of some of the salient evidence described in the 1,000-page record of the trial. Coupled with the proof of defendants’ activities as described by various witnesses, it established beyond question the existence of a system of commercial exploitation of people with sadomasochistic sexual aberrations. It far transcends the situation which appellants would characterize as a simple act involving two consenting adults performed in private. Bather, the record reveals a wide system of solicitation and evidence from which a jury could reasonably infer that lewd acts were performed on the premises for profit.

Ill

Finally defendants claim that their convictions for possession of obscene publications with intent to utter and expose them to the view of others in violation of N. J. 8. 2AA15—2 cannot be sustained. They argue: (1) Spankers Monthly is not obscene; (2) other publications found on the premises were not properly in issue, and (3) the trial court abused its discretion in refusing to grant a continuance to permit defendants to call another expert witness.

Preliminarily, it is necessary to establish a framework for dealing with the first two contentions. The Supreme Court has established three elements which must coalesce in order for a publication to be adjudged obscene:

“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex: (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” A Boole Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U. S. 413, 418, 86 S. Ct. 975, 977, 16 L. Ed. 2d 1, 6 (1966).

Where the material is designed for and directed toward a clearly defined deviant sexual group, the prurient appeal test is satisfied if the material taken as a whole appeals to the prurient interest of that deviant group. Mishkin v. State of New York, 383 U. S. 502, 508, 86 S. Ct. 958, 16 L. Ed. 2d 56, 62 (1966). In close cases, evidence that the material was promoted by assertions of its appeal to prurient interests may be probative. Ginzburg v. United States, 383 U. S. 463, 474-475, 86 S. Ct. 942, 16 L. Ed. 2d 31, 40 (1966).

New Jersey decisions involving N. J. S. 2A :115-2 have also established that mere possession of obscene material without an intent to utter or expose it to the view of others does not violate the statute. See State v. Kohler, 40 N. J. Super. 600, 604-605 (App. Div. 1956). Moreover, proof that defendant was aware of the contents of the material in his possession, commonly referred to as scienter, is indispensable to a conviction. See State v. Hudson County News Co., 41 N. J. 247, 257 (1963); State v. Hudson County News Co., 35 N. J. 284, 294 (1961).

Turning now to defendants’ first argument, that Spankers Monthly is not obscene, it is readily apparent that the publication satisfies the three elements necessary to establish obscenity. The State’s expert, Dr. Chernus, so testified at the trial. It was described as having a dominant appeal to the prurient interests of sadomasochists, being patently offensive to contemporary community standards, and being utterly without redeeming social value. Defendants’ expert, Dr. Caprio, testified to the contrary. Based upon the evidence presented, however, the jury could reasonably conclude that Spankers Monthly is obscene.

The fact that a jury reached such a conclusion does not preclude this court from making an independent examination of the publication; indeed, it has a duty to do so. See Jacobellis v. State of Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964). Our independent examination of this publication convinces us that it is not entitled to protection under the First and Fourteenth Amendments.

Nor can it be argued that defendants did not possess Spankers Monthly with intent to utter or expose it to the view of others. The publication was, in fact, given to Detective Magnusson by defendant Von Cleef. Moreover, her statement to Magnusson that he should read Spankers Monthly because it would excite him negates any claim that she was unaware of its contents. This comment by Miss Von Cleef would appear to be probative also on the question of the magazine’s appeal to prurient interests under Ginzburg v. United States, supra.

Contrary to defendants’ contention, there is no requirement that a trial judge admit into evidence publications adjudged not obscene for purposes of comparison with those in issue. To so hold would obviously result in the introduction of collateral issues making the trial unmanageably complex. Such matters seem better left to the discretion of the trial court in accordance with Buie 4 of the New Jersey Buies of Evidence. One court has already adopted a similar approach. See Books, Inc. v. United States, 358 F. 2d 935, 939 (1 Cir. 1966), reversed per curiam on other grounds 388 U. S. 449, 87 S. Ct. 2098, 18 L. Ed. 2d 1311 (1967).

Defendants’ argument that other publications found on the premises were not properly at issue in the present case is devoid of merit. The elements of the offense claimed by defendant to have been absent, namely scienter and an intent to utter or expose them in the view of another, were plainly supplied by permissible inference. Considering the nature of the business defendants were in, the “services” they rendered, and the use to which Spankers Monthly was put in the presence of Detective Magnusson, it was certainly inferable that defendants knew the contents of the other books and intended to use them as they did Spankers Monthly. Since both experts testified that some of these other publications were obscene according to constitutional standards, the evidence at trial and an independent examination of them supports the jury’s finding and the obscenity convictions on this ground also.

Defendants also argue that the trial judge erred in refusing to continue the case for another day to enable them to call another expert witness. This was a matter for the discretion of the trial judge. There was no abuse of discretion.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    BILL J. GAMBOCZ, PLAINTIFF-APPELLANT, v. LILLIAN APEL (AND SIX OTHERS), DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1968
    Decided July 12, 1968.
    Before Judges Conford, Collester and Labrecque.

      Mr. Lee A. Holley argued the cause for appellant (Messrs. Holley and Kroner, attorneys).

      Mr. Marie D. Lamer argued the cause for respondents {Messrs. Budd, Lamer, Kent & Gross, attorneys).
   The opinion of the court was delivered by

Conrord, S. J. A. D.

Plaintiff brought this action against various police personnel and the municipal court clerk of the Township of Edison for malicious abuse of process and for conspiracy to abuse the processes of the municipal court. The Township was also joined as defendant on the theory of respondeat superior. The Law Division dismissed the action at the conclusion of plaintiff’s proofs. Hence this appeal.

Plaintiff’s ease was partly based upon depositions taken from defendant LaPlaga, an Edison police patrolman, and defendant Ellmyer, Chief of Police. The plaintiff’s material proofs may be substantially summarized as follows, giving plaintiff the benefit of all reasonable inferences.

In August 1965 plaintiff was a candidate for Mayor of Edison, running against the incumbent Mayor Yalencsics. In the middle of that month plaintiff made a complaint to the Middlesex County Prosecutor of allegedly improper use of township workers and facilities by Yalencsics in the manufacture of campaign material, and thereafter he gave deposition testimony in the prosecutor’s office presumably supporting that complaint.

The gravamen of plaintiff’s ease is that LaPlaga and Ellmyer unduly, wrongfully and excessively participated in and promoted the prosecution of a bad check charge against plaintiff in the municipal court by one Marie Keller, not here a defendant, for the ulterior purpose of harassing and oppressing plaintiff in retaliation for his political activities against the incumbent mayor, their superior. The other individual defendants are charged with participating in this improper activity. The testimony of LaPlaga and Ellmyer varied somewhat as to the details of the transactions underlying this controversy.

LaPlaga’s testimony on depositions was as follows. On August 30, 1965 he had been detailed to Marie Keller’s home to investigate a hit-run accident in which she was a victim. When he had finished this business and was about to leave, Mrs. Keller asked him what she could do about a check given her which had been returned for insufficient funds. He replied she could bring it to an attorney or file a criminal complaint against the maker “if she wanted to have any restitution On the thing.” This was what he had been “taught.” Mrs. Keller then handed the check to LaPlaga for appropriate disposition, saying she was willing to file the criminal complaint. Upon receiving the check, LaPlaga was told by Mrs. Keller for the first time that it was made by plaintiff, who he knew was running for mayor.

The next day, August 31, LaPlaga turned the cheek over to Chief Ellmyer at headquarters with an explanation of how he got it. The chief told him to tell Mrs. Keller that if she wished to file a criminal complaint she would have to come in to do so. LaPlaga so advised her, and Mrs. Keller asked to be driven to headquarters because her car was damaged. LaPlaga phoned Ellmyer and received permission to do this, and he then brought her in. On the-way, Mrs. Keller asked how to apply for a position as a school crossing guide, and LaPlaga furnished the information. At headquarters, Ellmyer directed LaPlaga to turn Mrs. - Keller over to the detective bureau for processing the complaint.

Ellmyer’s version of the matter to that point was this. LaPlaga saw him on August 30, not 31, and told him about the hit-run accident and the check, including plaintiff’s identity as the maker. Ellmyer knew, plaintiff was running for mayor. He told LaPlaga he wanted to see the check so that he could determine if it was a “bad check.” The next day, August 31, LaPlaga brought Mrs. Keller to his office, Ellmyer having meanwhile acceded to a request by Mrs. Keller, relayed through the desk lieutenant, for transportation to headquarters. Ellmyer called in Captain Pinter of the detective bureau and turned Mrs. Keller and her check over to Pinter, saying, “I think she got [sic] a complaint.” Pinter took her to the detective bureau.

While at the detective bureau Mrs. Keller gave and signed a statement concerning the matter of the check. Defendant Lt. Miller of the police department thereafter brought Mrs. Keller to the violations bureau of the municipal court. Defendant Apel, court clerk, testified she questioned Mrs. Keller and was told the latter wanted to sign a complaint for a “worthless check” but that she couldn’t wait for it to be typed up. Apel, relying on the availability of the statement given by Mrs. Keller, had her sign a blank form of complaint, so that she could leave, and later filled in the details from the statement and signed it as clerk.

LaPlaga testified he was “called in” to take Mrs. Keller home, and on the way, at her request, stopped in at the records bureau to get her a school-guard job application. He also testified that when he and she were in Ellmyer’s office she had inquired about an attorney for her accident case, and the latter had recommended Joe Ferenczi, who happened to be Mayor Yalencsics’ campaign manager. Ellmyer had instructed LaPlaga to take her to Ferenczi’s office if she wished to go there. He did so, and Ferenczi and Mrs. Keller discussed the accident. Mrs. Keller also asked Ferenczi whether she should accept any money from plaintiff if he offered it, and Ferenczi told her not to if she had signed a criminal complaint. Ferenczi had no further connection with either the accident or the cheek matter.

Defendant Lt. McGinnis of the police department went to plaintiff’s parents’ home in Perth Amboy the same day to arrest plaintiff on a warrant issued pursuant to the complaint. He was there about ten minutes. The details of the visit were adduced mainly through testimony of plaintiff’s mother, whose English was imperfect. McGinnis apparently told her he was seeking plaintiff there (rather than at his Edison office and home) for the reason that “he’s [plaintiff] supposed to be home” (in Perth Amboy) because his father was sick. The mother told McGinnis the father had been sick seven years and that plaintiff wasn’t there. She asked Mc-Ginnis, who identified himself as a police officer, “what is the trouble,” and he responded, “Bill is in big trouble, and the Chief Policeman wanted to talk with him.” Plaintiff’s father, “'very sick,” was in an adjoining bedroom at the time. Another witness testified that Mrs. Gambocz was “crying” during McGinnis’ visit. Later that day McGinnis arrested plaintiff at his home in Edison.

Some time the same day the local press heard of the incident. A Perth Amboy reporter went to Edison police headquarters, requested information and was given a copy of Mrs. Keller’s statement and of the police report. A New Brunswick reporter, making a routine stop at headquarters, was given the story but not the statement. There was resultant damaging publicity over the charge.

That evening plaintiff got Mrs. Keller to make a statement that she would not press the charge. When plaintiff proffered this to Ellmyer the next day the latter said: “It’s out of my hands. It is in the hands of the court.”

Kobert Engel, a cousin of Ellmyer and a county detective attached to the prosecutor’s office, testified that in September 1965 he had occasion to meet Ellmyer. The latter said he was not pleased by the prosecutor’s investigation of plaintiff’s complaint against Yalencsics’ activities (see supra). He asked Engel to request the prosecutor’s investigator “not to make such a big deal out of this thing.” He then said: “We have this Gambocz where we want him * * *. We got a check on him that’s no good * * *. We’ll show him that we can stick him in front of a Grand Jury, too * * *. We’re going to give him a flim-flam like we gave Moyer [apparently a previous political challenger .of the township administration].” In the spring of 1966 Ellmyer told Engel that because the Grand Jury had decided not to indict plaintiff, “they put us in trouble * * *. They put us behind the 8-ball.”

The other testimony in the case concerned damages, a subject not discussed in the briefs.

A succinct summary of the law of malicious abuse of process is set forth in Prosser, Law of Torts, § 115, pp. 876—77 (3ci ed. 1964) :

“The gist of tlie tort is * * * misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. * * * The essential elements of abuse of process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The impiroper purpose usually takes the form of coercion to obtain a collateral advantage, s- * * gue]1 as ^ surrender of property, * * * by the use of the process as a threat or club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.”

Accord: Restatement of Torts, § 682, p. 464 (“The gravamen of the misconduct * * * is the misuse of process, * * * the subsequent misuse of process.”); 1 Am. Jur. 2d, Abuse of Process, §§ 4, 14, pp. 252-53, 261-62 (1962) (and cases cited therein); see also Restatement of Torts, Second, § 136 d., p. 244.

Exemplary cases in New Jersey are Ash v. Cohn, 119 N. J. L. 54 (E. & A. 1937), and Earl v. Winne, 34 N. J. Super. 605 (Cty. Ct. 1955). In the Cohn case defendant, who had won a $500 judgment in a malicious prosecution suit against plaintiff, secured a writ of execution and corruptly directed the court’s sergeant-at-arms to return the writ nulla bona even though plaintiff was known to have land and chattels to which the writ might attach in satisfaction of the judgment. Defendant presented to the court the unsatisfied return and a false affidavit reciting that plaintiff was not a freeholder, and, as was hoped by defendant, the court responded by issuing a capias which defendant executed against plaintiff on a Saturday night when it was known the issuing judge would be unavailable to release plaintiff. “[T]he planned objective was, by means of the execution against the body of the [plaintiff], swiftly to enforce the satisfaction of the execution * * * without recourse to the regular procedure of * * * making a levy upon and sale of [plaintiff’s] goods and chattels * * (at p. 56) Defendant’s scheme was successful; “satisfaction of the execution was thus coercively effected.” There followed plaintiff’s action for abuse of process. The Court of Errors and Appeals, after first outlining the elements of the tort (“The action * * * lies for the improper, unwarranted and perverted use of process after it has been issued * * * [accompanied by] an ulterior motive. * * * [I]f the act be a proper one, the motive is immaterial.” Id., at p. 58 (emphasis added)), held there had been an actionable, tortious abuse of process at two levels: first, defendant’s calculated perversion of the original and properly issued writ of execution by its later perjured return (subsequent abusive act); second, defendant’s also calculated perversion of the capias “by arresting and imprisoning plaintiff at a planned time when they well knew that he could not very well obtain his release and could, therefore, be harrassed [sic] and coerced into satisfying the debt.” (at p. 59.)

In Earl v. Winne, supra, plaintiff had been indicted for criminal libel for certain campaign statements he had made against defendant, then Bergen County Prosecutor. Later plaintiff retracted his statement, allegedly as a result of pressure exerted by defendant by the method of keeping the indictment pending until the retraction was forthcoming. After the retraction the indictment was nolle prossed. The court dismissed the complaint brought, inter alia, for abuse of process, at the end of plaintiff’s proofs, for insufficiency. Although conceding that there was evidence from which a jury could find that defendant had procured the indictment with the ulterior motive of forcing a retraction, the court held that plaintiff had offered no evidence from which a jury could find that defendant, in promotion of the ulterior motive, had used the process as a club or threat by delivering an ultimatum that defendant would nolle pros, the indictment only if plaintiff would retract the libel. Rather, it was held, plaintiff’s retraction was performed voluntarily, gratuitously. As there was no active perverted use of the criminal process after its issuance, there was no cause of action for malicious abuse of process, notwithstanding that the valid process was caused to be issued for an improper purpose, and that the improper purpose was realized. The court said (34 N. J. Super., at pp. 614-16) :

“The gist of the action * * * is the. unlawful use of lawful process after its issuance. * * * An ulterior motive alone is not sufficient. To constitute improper direction of process, the mere ulterior motive in doing an act, proper in itself, does not suffice. There must be such use of it as in itself is without the scope of the process and hence improper. * *
While malicious abuse of criminal process cases more frequently take the form of working upon the fears of a person under arrest for the purpose of extorting money or property from him or compelling him to sign some paper or give up some claim or perform some act in accordance with the wishes of the prosecution, it must always be shown that an unlawful act in the use of the process compelled the wrongful extortion or restraint of the person to give rise to liability."

The foregoing expressions concerning the requirement of further acts by defendant after the issuance of the process appear to be in accord with the standard authorities on the subject and with the great weight of authority. See, illustratively, in addition to the citations, supra, Hauser v. Bartow, 273 N. Y. 370, 7 N. E. 2d 268, 269-270 (Ct. Ap. 1937); Doctor v. Riedel, 96 Wis. 158, 71 N. W. 119 (Sup. Ct. 1897); Wood v. Bailey, 144 Mass. 365, 11 N. E. 567, 575 (Sup. Jud. Ct. 1887); Spellens v. Spellens, 49 Cal. 2d 210, 317 P. 2d 613, 625-627 (Sup. Ct. 1957); McGann v. Allen, 105 Conn. 177, 134 A. 810, 814-15 (Sup. Ct. Er. 1926); Melton v. Rickman, 225 N. C. 700, 36 S. E. 2d 276, 162 A. L. R. 793 (Sup. Ct. 1945); Tranchina v. Arcinas, 78 Cal. App. 2d 522, 178 P. 2d 65 (D. Ct. App. 1947); Brown v. Robertson, 120 Ind. App. 434, 92 N. E. 2d 856, 858 (App. Ct. 1950); Comment: 27 Harv. L. Rev. 593, 594 (1914).

The “further acts” doctrine has been disregarded or rejected in a few significant cases on the theory that the defendant’s improperly motivated origination of the process should suffice for liability Avhere the hoped-for injurious or oppressive effect on the plaintiff has in fact eventuated notwithstanding the absence of subsequent overt oppressive acts by defendant. Jackson v. American Telephone & T. Co., 139 N. C. 347, 51 S. E. 1015, 70 L. R. A. 738 (Sup. Ct. 1905) Malone v. Belcher, 216 Mass. 209, 103 N. E. 637 (Sup. Jud. Ct. 1913); Dishaw v. Wadleigh, 44 N. Y. S. 207 (App. Div 1897), commented on in 11 Harv. L. Rev. 115 (1897). Seer also the dissent in Melton v. Rickman, supra.

Defendants argue they cannot be liable for abuse of process since nothing that any of them did occurred after the issuance of the arrest warrant on the complaint. There was thus no coercive use of the process against plaintiff after the issuance of process, if at all. This seems to be true except to the extent, as plaintiff argues, that McGinnis’ assertedly harassive attempt to serve the warrant at the home of plaintiff’s parents was subsequent to its issuance. As to whether that action can be regarded as coercive or otherwise an abuse of the process, see infra.

Plaintiff challenges the “further acts” doctrine and argues for its abrogation insofar as it would bar recovery here. We have concluded, however, that it is not necessary for us to decide whether the requirement of further acts is or should continue to be the law of this State. We are unable, giving plaintiff every legitimate inference from his proofs, to find any abuse of process by any of these defendants, whether with regard to the institution of the criminal complaint and the issuance of the arrest warrant or as to any later acts of any of the defendants. Moreover, in answer to plaintiff’s plea that defendants should be held liable, on the merits, whether or not liability can be predicated on abuse of process, as such, because their conduct constituted a willful injury to plaintiff, our response is that we can find no tenable theory on which to hold that defendants’ conduct is actionable at all.

We do not, of course, condone LaPlaga’s advice to Mrs. Keller, as he was “taught,” that a criminal complaint is a proper method of securing restitution on a bad check; nor Clerk Apel’s taking a signature on a blank form of criminal complaint. But we find neither of these acts to be, or to be part of, any abuse of process by those persons directed against plaintiff. An irregularity is not necessarily a tort. Further, while there was ample evidence of Ellmyer’s personal gratification at plaintiff’s discomfiture over the bad check charge and of his private interest in seeing plaintiff indicted thereon, we find no evidence of conduct by Ellmyer which can in any sense be taken as abuse of the process attendant upon Mrs. Keller’s complaint against plaintiff.

It seems to us that everything which any of the defendants did in this matter is consistent with an intention thereby to perform their respective duties in the police department and court clerk’s office, and this notwithstanding the solicitude shown by LaPlaga and Ellmyer for Mrs. Keller’s comfort and convenience. That she was transported back and forth to make it convenient for her to file the complaint; that she was taken for advice on her accident case to Mr. Ferenczi; and that she was given information on how to get a school crossing job—all spell out, at most, a desire by Ellmyer, and, possibly by LaPlaga, to be pleasant to one who was prosecuting a complaint against plaintiff. But these acts are not relevant to any improper or ulterior motivation in the filing of the complaint, which on the proofs was a matter entirely of Mrs. Keller’s own volition. Nor did Ellmyer or LaPlaga do anything after the complaint was filed and the warrant was issued to oppress or bring compulsion to bear on plaintiff in respect of this complaint.

McGinnis’ attempt to find plaintiff at his parents’ home to serve the arrest warrant cannot reasonably be inferred to have been an oppressive act in abuse of the warrant. The testimony indicates he thought plaintiff was “supposed” to be there because of his father’s illness. What he told the mother about “Bill” being in “big trouble” was in response to her question as to what was the trouble. It would be sheer speculation to conclude that McGinnis was there to harass or coerce plaintiff or that Ellmyer had sent him there (if at all) for that purpose.

The actions of all of the defendants were taken in the course of their duties, respectively, to prosecute a law violator on a citizen’s complaint (as to the police personnel) and to process a criminal complaint in the municipal court (as to the court clerk). Irregularities in the manner of performance of these duties cannot be equated with “abuse of process” in the tort sense. It would be dangerous, in our view, to expose police and judicial-staff personnel to tort liability in connection with the performance of their official duties on the basis of private animosities or hostile personal or political relationships existing between any of them and the fortuitous subject of their official activities in a particular case.

A fortiori, there is no reasonable basis to permit a jury to find that defendants collectively engaged in any conspiracy to harm the plaintiff.

Judgment affirmed.


author: Labrecque, J. A. D.

text:
    FRANCIS WALSH AND FRANK BERNAT, PLAINTIFFS-APPELLANTS, v. MADISON PARK PROPERTIES, LTD., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1968
    Decided July 12, 1968.

      Before Judges Coneord, Collester and Labrecque.

      Mr. Howard L. Bailen argued the cause for appellants (Messrs. Goldstein & Bailen, attorneys; Mr. Paul O’Bourlce, of counsel and on the brief).

      Mr. Marie D. Lamer argued the cause for respondent (Messrs. Budd, Lamer, Kent & Gross, attorneys; Mr. Lamer on the brief).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiffs Francis Walsh and Frank Bernat appeal from a judgment in favor of defendant following granting of defendant’s motion for involuntary dismissal at the close of their case.

The case was tried before the court and a jury. From the proofs as they existed at the close of plaintiffs’ case, the jury could have found that plaintiffs were members of the Fire Department of the City of Passaic and on March 23, 1965 were detailed (with two other firemen) to duty which involved the inspection of fire escapes and other safety equipment in buildings in the City of Passaic. In the performance of their duty they were required to inspect defendant’s building at 376 Paulison Avenue, Passaic. After making the purpose of their visit known to the wife of the superintendent of the building, they made a visual check of the outside fire escape prior to proceeding with their inspection.

The fire escape consisted of a series of iron balconies on the front of the building which were connected to one another by iron ladders. The connection to the ground was by way of an iron ladder which normally was held in an elevated position by a counterweight which was joined to it by a wire rope which passed over a pully above. In normal operation, when the balance between the ladder and the counterweight would be overcome by pulling on the ladder or by the weight of a person standing on it, the ladder would be lowered until it reached the ground. When released the ladder would normally return to the raised position. If the ladder could not be moved and continued to stick, it was the duty of the inspector to report it to the Eire Prevention Bureau.

When the visual check revealed nothing amiss Walsh and Bernat, following normal procedure, proceeded to pull on one of the rungs of the hanging ladder with a “pike pole” for the purpose of attempting to draw it down to ground level. When it failed to move and a further visual inspection revealed no apparent defect, they concluded, allegedly relying on past experience, that the ladder was stuck because of paint or rust. They thereupon proceeded to put up an extension ladder next to it and, while Walsh steadied the ladder, Bernat climbed up and first attempted to loosen the stuck ladder by shaking it. When it did not immediately move Bernat put his left foot on one of its rungs. When he did so the ladder started to move and descended at such a rate of speed that Bernat was forced to “ride” it to the sidewalk level. As he stepped away from it onto the sidewalk the pulley and its supporting bracket came down, causing both plaintiffs to be injured. The pulley and bracket presumably had broken away, or come loose from their point of attachment at the fourth floor level.

At the conclusion of plaintiffs’ case defendant’s motion for involuntary dismissal was granted on the ground that (1) the defendant, as landowner, was obligated to give protection only against known defects; (2) proof was lacking that defendant had knowledge of any defect which could have occasioned plaintiffs’ injuries; (3) res ipsa loquitur was not applicable; (4) the statutory obligation to keep fire escapes in tenement houses in good repair, N. J. 8. A. 55:3-8, did not apply for the benefit of plaintiffs. Plaintiffs appeal from the concomitant judgment.

Initially, we note that the trial judge made certain findings of fact in connection with his consideration of defendant’s motion, made pursuant to B. B. 4:42-2(&), for dismissal/ The trial judge was not called upon to make factual findings, but rather, to determine whether, accepting plaintiffs’ evidence as true and giving them the benefit of all favorable inferences to be drawn therefrom, reasonable minds could differ as to whether liability had been established. Bell v. Eastern Beef Co., 42 N. J. 126 (1964). We assume that in making his “findings” the trial judge was referring to such inferences as the jury could have drawn from its favorable consideration of plaintiffs’ proofs.

The questions presented are: (1) What is the status of a fireman assigned to inspect the fire escape apparatus on premises and what is the degree of care owing to him while on the premises in such capacity? (2) Assuming that his status is that of a business invitee, so that the landowner would be liable to him for ordinary negligence, did the facts call for application of res ipsa loquitur? (3) Wholly aside from any obligation owing to him as a fireman-inspector, may liability be predicated upon the owner’s alleged violation of N. J. 8. A. 55:3-8, then'in effect?

As we read his oral conclusions, the trial judge was of the opinion that plaintiffs occupied the status of firemen engaged in the performance of their general duty of fighting fires, under the rule laid down in Krauth v. Geller, 31 N. J. 270 (1960), and since there was no proof that defendant knew (or was chargeable with knowledge) of the defect which caused plaintiffs’ injuries, there had been no breach of duty. We hold that he'was in error in so ruling.

It is well settled that as to those risks which are inevitably involved in fire fighting there is no liability on the part of an owner of premises to a fireman injured thereby. Krauth v. Geller, supra; Jackson v. Velveray Corp., 82 N. J. Super. 469 (App. Div. 1964). Thus the risk from smoke, flame and the like, or from the collapse of a floor, ceiling, or wall of a burning building, without more, involves hazards which a fireman must ordinarily anticipate. Jackson v. Velveray Corp., supra, at p. 475. However, a fireman is not deemed as a matter of law to have voluntarily assumed all hidden unknown extrahazardous dangers which would not be reasonably anticipated or foreseen, Campbell v. The Pure Oil Co., 15 N. J. Misc. 723, 727, 194 A. 873 (Sup. Ct. 1937), and liability may be imposed upon a landowner for failure to use an available opportunity to warn of a hidden peril, or negligence with respect to conditions creating undue risks of injury, i. e. risks beyond those inevitably involved (inherent) in fire fighting. Krauth v. Geller, supra, 31 N. J., at p. 274; Jackson v. Velveray Corp., supra, 82 N. J. Super. 476, at pp. 474-476.

We find it unnecessary to determine whether the facts sub judice come within the general rule applicable to firemen or the exception thereto referred to above, because plaintiffs occupied a status somewhat different from that of firemen engaged in fighting a fire. Their legal status was not to be determined by their title but by the nature of the work they were required to perform at defendant’s premises. We find their status more closely akin to that of a building inspector or the like. As such they were business invitees to whom the obligation of reasonable care was owing. 65 C. J. S., Negligence, § 63 (109) p. 861 (1966); 38 Am. Jur. § 126, pp. 786-87 (1941). While their presence on the premises did not depend upon the permission or express invitation of the owner, the latter by operating its premises in a manner which called for this service (as a tenement house requiring fire escapes) impliedly invited them there for the purpose of performing their duty of making a safety inspection. They were there for a purpose associated with defendant’s business. Restatement (Second,), Torts, § 345, comment c at p. 227 (1965). The landowner, by its agent, had knowledge of their presence and was under the duty of exercising reasonable care for their safety-. It was liable (with certain exceptions to be referred to) for defects or conditions rendering the premises unsafe of which it knew, or should have known in the exercise of reasonable care. McCormack v. Windsor, 9 N. J. Misc. 543, 154 A. 765 (Sup. Ct. 1931) (involving building inspector); Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 128 A. L. R. 1013 (Sup. Ct. 1940) (building inspector). See also Glassbrook v. Manhi Realty Corp., 279 App. Div. 711, 108 N. Y. S. 2d 652 (App. Div. 1951) (census taker); Swift & Co. v. Schuster, 192 F. 2d 615 (10 Cir. 1951) (meat inspector); Miller v. Pacific Constructors, 68 Cal. App. 2d 529, 157 P. 2d 57 (Dist. Ct. App. 1945) (temperature inspector); Jennings v. Industrial Paper Stock Co., 248 S. W. 2d 43 (Ct. App. Mo. 1952) (public health inspector); Henryetta Construction Co. v. Harris, 408 P. 2d 522 (Okla. Sup. Ct. 1965) (highway paving inspector); Robey v. Keller, 114 F. 2d 790 (4 Cir. 1940) (member of building committee).

However, defendant’s duty to exercise reasonable care did not encompass an obligation to affirmatively guard against defects in apparatus which plaintiffs were in the process of inspecting pursuant to the duty which brought them to its premises. The need for the services of persons occupying the status of building or safety inspectors is premised upon the possibility that violations of safety or building codes may reasonably be expected to be encountered. It is the possibility of such violations that creates the need for the inspector’s services. Thus an employee of a contractor engaged to repair a water tower may not recover for injuries sustained (due to the defective condition of the tower) while engaged in making an inspection of the tower for the purpose of determining what repairs are necessary, Hammond v. City of El Dorado Springs, 362 Mo. 530, 242 S. W. 2d 479, 31 A. L. R. 2d 1367 (Sup. Ct. 1951); and a contractor employed to level the uneven condition of a sidewalk may not recover for injuries occasioned by his stumbling over one of the very obstacles he was engaged to remove. Likewise, one hired to replace a roof may not recover for injuries from a fall due to the defective condition of the roof he is replacing. Broecker v. Armstrong Cork Co., 128 N. J. L. 3 (E. & A. 1942). We see no reason in logic to distinguish between one who comes upon the premises to make repairs and one who, as here, comes there for the purpose of making an inspection to determine what repairs, if any, may be necessary.

The cited rule does not, of course, preclude a landowner’s liability to one coming upon.the premises to make an inspection or effect a repair, for injuries which result from a risk separate and distinct from that created by the portion of the premises, or the apparatus which is to be inspected or repaired. McCormack v. Windsor, supra, 9 N. J. Misc., at pp. 543-44 (building inspector hit by ladder dislodged by wind); Farrell v. Diamond Alkali Co., 16 N. J. Super. 163 (App. Div. 1951) (plaintiff, engaged as steam fitter, injured by exposure to chrome dust in plant); Miller v. Pacific Constructors, supra, (plaintiff was at dam to inspect safety of concrete rather than safety of structure which collapsed and injured him). See also Annotation, 31 A. L. B. 2d 1375, 1381-85 (1953).

Here there was no direct proof as to what defect caused plaintiffs’ injuries. Considering the testimony in the light most favorable to them, the jury could have found that the ladder failed to move because the pulley failed to turn (probably due, according to Bernat, to rust or paint). When Bernat stepped on the ladder and thus added to the weight suspended from the pulley—or thereafter, when the ladder started to move causing the counterweight to be added to the load carried by the pulley—the bracket which held the pulley either broke or became, separated from its attachment and both bracket and pulley fell to the ground. It would thus seem clear that, whatever the defect, it involved a portion of the apparatus which plaintiffs in the performance of their duty, were required to inspect for safety. Krauth v. Getter, supra, 31 N. J., at pp. 273—274. The risk of injury from a defect therein was inherent in the job they were performing. See Jackson v. Velveray Corp., supra, 82 N. J. Super., at p. 475. The risk was one assumed, in its primary sense, Meistrich v. Casino Arena Attractions, Inc., 31 N. J. 44 (1959), and as to plaintiffs, defendant was under no duty to affirmatively guard against it.

Plaintiffs argue that the facts called for application of res ipsa loquitur and thus precluded granting of the motion. Not so. Assuming that the proofs showed such exclusive control as justified its application (which we do not find), res ipsa loquitur would have done no more than dispense with plaintiffs’ obligation of establishing the specific negligence of defendant which brought about the deficiency in the apparatus which caused a portion of it to fall. Since we have determined that there was no duty owing to plaintiffs because of their special position as inspectors of the apperatus, the issue of negligence vis a vis the pulley or bracket was immaterial.

We perceive no merit to the remaining points raised by defendant. We find it unnecessary to determine whether N. J. S. A. 55 :3-8 was enacted for the benefit of firemen. Defendant’s statutory duty to maintain the fire escape in good repair did not compel a denial of defendant’s motion to dismiss. Plaintiffs were not using the fire escape for its usual and normal purpose, i. e., to escape from a burning building or assist others in doing so, but were on the premises for the sole purpose of determining whether the fire escape was in good repair. They assumed the risk that it might not be.

The judgment of the Law Division is accordingly affirmed.

       Since repealed by Sf. .7. 8. A. 55:13A-28 (5). As to currently operative statute, see Hotel and Multiple Dwelling Safety Law of 1967, N. J. 8. A. 55:13A-3 ef seq.


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

text:
    CORPORATE DEVELOPMENT SPECIALISTS, INC., PLAINTIFF-APPELLANT, v. WARREN-TEED PHARMACEUTICALS, INC., A SUBSIDIARY OF ROHM & HAAS COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted after Remand June 18, 1968
    Decided July 15, 1968.

      Before Judges Coneord, Collester and Labrecque.

      Mr. Mark D. Lamer argued the cause for appellant (Messrs. Budd, Lamer, Kent & Gross, attorneys).

      Mr. Michael F. Spicer argued the cause for respondent (Messrs. Jamieson, Walsh, McCardell & Moore, attorneys).
   The opinion of the court was delivered by

Coneord, S. J. A. D.

In this action by a New Jersey corporation for breach of contract against a Delaware corporation with principal place of business in Ohio, we remanded for the taking of testimony to supplement the affidavits on the basis of which the Law Division had granted a motion to dismiss the action for lack of jurisdiction over defendant, and for findings of fact thereon. 99 N. J. Super. 493 (Law Div. 1968). The remand has been executed, additional testimony having been taken and fact-findings made. We herewith determine the appeal on the basis of the entire record, as thus expanded, and the original and supplemental briefs filed by the parties.

We incorporate our former opinion herein by reference, to avoid repetition of those facts established prior to the remand and the limited exposition of the applicable law set forth therein.

The origination of the transaction giving rise to this action is material to our determination of the appeal, and we relate the undisputed facts pertaining thereto developed on the remand.

Plaintiff, a New Jersey corporation with principal office in Newark at the time the contract in suit was negotiated, was in the business of sale, merger and acquisitions of corporations in the health and allied fields. Prior to January 14, 1966 Mr. Hirschberg, head of the plaintiff corporation, had had some discussions with defendant’s people in reference to selling defendant a business. Thereafter Mr. Workman, associated with defendant, telephoned Hirschberg and arranged to meet him in New York City, where, on the date mentioned, they discussed defendant’s interest in selling Phar-Med, a small company it owned situated in Michigan, and the possibility of plaintiff effecting such a sale.

Workman tried to reach Hirschberg at Newark by telephone January 27, 1966, but was told he was in Los Angeles, and called him there. The sale of Phar-Med was discussed again. Hirschberg said plaintiff would require a retainer of $500 a month for three months while attempting to find a purchaser, with the understanding it would be paid an additional $3,500 if it were successful. This arrangement was agreed to, and was confirmed by a letter from defendant dated January 28, 1966 (presumably from Columbus, Ohio) to plaintiff’s Newark office.

From January 28, 1966 through May 27, 1966, there was voluminous correspondence between the parties relating to the matter, all of this being conducted between the respective offices of the parties in Columbus, Ohio and Newark, New Jersey. In the course of plaintiff’s efforts to find a purchaser, it had correspondence with 22 firms, all of this being to and from the Newark office. All of plaintiff’s work in attempted performance of the contract was done at Newark, including a search through some 2,000 names in plaintiff’s files of potential prospects for the purchase of a small pharmaceutical enterprise.

The trial judge found that there was no “agreement or understanding” between the parties as to where it was contemplated that plaintiff would perform the retainer contract. As to this we disagree. We conceive there is every probability from the proofs that defendant realized at all times that all or most of plaintiff’s efforts to perform the contract would be expended at or out of its Newark office, and we so find. The fact that on May 1, 1966 plaintiff opened a branch office in New York City (which later became its main office) does not derogate from the foregoing.

Prom at least October 1962 to the time of the defendant’s transaction with plaintiff defendant had employed from three to six full-time salesmen operating for it in New Jersey. Testimony by two of these salesmen showed the following. Defendant gives these men a five-day training program. One-such program was conducted in New Jersey; others have-been given out of the State. Training materials are sent the men by defendant addressed to their homes in New Jersey. The home office provides the men with a business card giving their name, home address and telephone number, and also the name of defendant, with its Columbus address, as well as the name of its parent, Eohm & Haas (a foreign corporation authorized to do business in New Jersey). Defendant reimburses the men for telephone calls made in connection with Warren-Teed business and pays their hotel and gasoline expenses. Their compensation is by straight salary plus commission. The salesmen solicit business from physicians. Defendant furnishes the men with reprints of advertisements of its products to use in their solicitations. It is inferable from the proofs, and we so find, that these men are exclusive representatives of defendant in the state and handle no other accounts. All orders obtained by the salesmen are subject to acceptance at the home office, but rarely is an order rejected. The company fills the order by mailing the product directly to the customer in New Jersey.

Defendant’s gross sales nationally from 1964 to 1966 ranged from about $6,600,000 to $7,056,000 annually. Gross sales in New Jersey ran from about $90,000 to $101,000 annually. The New Jersey salesmen accounted for about $55,000 of this. Defendant places advertisements in national periodicals circulating in New Jersey and conducts direct promotional mailing to the New Jersey trade.

Rohm & Iiaas, the defendant’s parent, has some common officers and directors with defendant. Otherwise their respective business operations are entirely separate and distinct.

We approach the question whether the service of process on defendant by mail out of the State in the manner permitted by R. R. 4:4-4(d) and the exercise of in personam jurisdiction over it by this State in this action is offensive to federal due process on the facts stated above and in the remand opinion.

Our cited practice rule purports to vest our courts with jurisdiction over foreign corporations to the outer limits permitted by due process. Roland v. Modell's Shoppers World of Bergen Cty., 92 N. J. Super. 1 (App. Div. 1966). Those limits have not yet been staked out by the United States Supreme Court by concrete criteria readily applicable to all cases, whether in terms of the relationships and contacts of the foreign corporation with the forum state, of the connection of the cause of action involved with any of those relationships, or otherwise. That court has to date provided no more specific guideline as to the requirements of federal constitutional due process than these expressions in International Shoe Co. v. State of Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945): “* * [D]ue process requires only that [the foreign defendant] have certain minimum contacts [with the forum] such that the maintenance of the suit does not offend Traditional notions of fair play and substantial justice’ ” (at p. 316, 66 S. Ct., at p. 158); “Those demands [of due process] may be met by such contacts of the corporation with the state of' the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there” (at p. 317, 66 S. Ct., at p. 158). See also McGee v. International Life Ins. Co., 355 U. S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957) (noting the steady trend “toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents,” at p. 222, 78 S. Ct., at p. 201); Hanson v. Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), with its cautionary note; Perkins v. Benquet Consol. Min. Co., 342 U. S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952) and J. W. Sparks & Co. v. Gallos, 47 N. J. 295 (1966).

Chief Justice Traynor of the California Supreme Court has in Fisher Governor Company v. Superior Court, 53 Cal. 2d 222, 1 Cal. Rptr. 1, 347 P. 2d 1, 3 (Sup. Ct. 1959), provided a useful catalogue of some of the considerations which may pertinently be weighed in the assessment of due process in this area. Those so listed which are or may be relevant here are: (a) the interest of the state in providing a forum for its residents; (b) the relative availability of evidence and the burden of prosecution and defense in one place rather than another; (c) the ease of access to an alternative forum; and (d) the extent to which the cause of action arose out of defendant’s local activities. To these must be added, for present purposes: (a) the substantiality of business activities of defendant in the State and how systematic and continuous they are; see Essential Const. Co. v. Royal Concrete Fireproofers, 84 N. J. Super. 289 (App. Div. 1964); cf. Sanders Associates, Inc. v. Galion Iron Works & Mfg. Co., 304 F. 2d 915 (1 Cir. 1962), as well as (b) the independence or exclusivity of its selling agents in the state in relation to the defendant, Fisher Governor Company v. Superior Court, supra; and (c) whether any isolated or casual activities of the defendant have caused expectable consequences of significant concern in the state, see Haldeman-Homme Mfg. Co. v. Texacon Industries, Inc., 236 F. Supp. 99 (D. C. Minn. 1964).

In the present case the significant issues argued on the remand are: (a) whether the nature and volume of defendant’s sales and advertising activities in this State are sufficient alone to vest jurisdiction, the cause of action sued upon not being related thereto; (b) whether the factors of the contemplated performance of the contract in this State and plaintiff’s status as a domestic corporation justify assertion of jurisdiction; (c) whether the combination of the defendant’s sales “presence” here and the contemplated performance by a New Jersey corporation-plaintiff of the contract here, in the light of any other recognized and applicable criteria, is sufficient in totality to justify assertion of jurisdiction.

We have found no reported case essentially like this one in all material respects. We have already in the remand opinion determined that the fact alone that the cause of action maintained did not arise out of defendant’s sales activities in New Jersey is not per se a sufficient basis to deny the assertion of jurisdiction. (99 N. J. Super., at p. 497.)

Returning to the statement of issues projected above, we consider first to what extent jurisdiction may be posited on defendant’s sales and related commercial activities in New Jersey. Restatement of Law, 2d, Conflict of Laws (1967 Proposed Official Draft), § 47, deals with jurisdiction over foreign corporations doing business in the state under two subsections: (1) where the cause of action arises from the business and (2), where it does not. These read:

“(1) A state has power to exercise judicial jurisdiction over a foreign corporation which does business in the state with respect to causes of action arising from the business done in the state.
(2) A state has power to exercise judicial jurisdiction over a foreign corporation which does business in the state with respect to causes of action that do, not arise from the business done in the state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.”

Comment (a) thereunder defines “doing business” in a manner more flexible than traditional concepts developed before the appearance on the scene of the “minimum contacts” notion of due process. The definition reads:

“a. What constitutes doing business. Doing business is doing a series of similar acts for the purpose of thereby realizing pecuniary profit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts.”

It would appear clear that defendant’s activities in New Jersey through its sales agents meet the Restatement definition. What is less clear, however, is whether that business is so “substantial” (it is certainly fully continuous) as to make it “reasonable,” within the meaning of Restatement, 2d, §47 (2), for New Jersey to exercise jurisdiction in respect of a non-related cause of action. No answer is found in the leading case for the proposition that jurisdiction may be asserted in respect of a non-related cause of action where the foreign corporation is conducting some corporate activity in the forum state, Perkins v. Benquet Consol. Min. Co., supra. There a Philippines mining corporation was held suable in Ohio, within due process limitations, when its president was temporarily conducting a “continuous and systematic,” but limited part of its executive and financial management in that state because of the interruption of its mining business in the Philippines incident to World War II (342 U. S., at pp. 445, 447-448, 72 S. Ct. 413). These activities were regarded as “sufficiently substantial and of such a nature” as to permit (but not compel) Ohio to assert jurisdiction, if that state chose to do so (Id., at p. 447, 72 S. Ct. 415).

In the instant case, by contrast with Perkins, we have in the forum state the continuous and systematic conduct of a part of the regular business of the defendant—solicitation of sales of products—but not the presence of the executive offices (or indeed any corporate offices). Defendant argues that its sales in New Jersey are not “substantial,” within the apparent adoption of that adjective as a prerequisite by the authorities cited, for purposes of sustaining jurisdiction of a non-related cause of action. It appears to be recognized that, generally speaking, local contacts must be greater where the suit is on an unrelated cause of action than

on one arising from the business done in the state. See Arrowsmith v. United Press International, 320 F. 2d 219, 233, 6 A. L. R. 3d 1072 (2 Cir. 1963). However, the concept of substantiality is clearly not an absolute, but rather a relative one. The notion is one of sufficient substantiality (given continuity) of the forum business to make it reasonable to exert jurisdiction as against the countering influence of non-relation of the cause of action. This, however, must be measured in the light of the attendant circumstances and any other factors exerting an influence toward justification for assertion of jurisdiction. See infra. New Jersey sales were about 1.4% of national gross. Those effected by New Jersey salesmen were about .8%. However, the New Jersey territory can fairly be regarded as an integral segment of a seemingly nationally dispersed sales operation, with the probability that while no single state segment thereof is essential to defendant’s business, all are, in the aggregate.

Jurisdiction was rejected in the following illustrative “non-related cause of action” situations: Fisher Governor Company v. Superior Court, supra (local sales agent was independent and non-exclusive; plaintiff a non-resident); L. D. Reeder Contractors of Ariz. v. Higgins Industries, 265 F. 2d 768 (9 Cir. 1959) (defendant had “factory representatives” in state who were independent contractors, not servants or agents; plaintiff a non-resident). Jurisdiction was deemed to meet due process in these “non-related” cause of action cases: Sanders Associates, Inc. v. Galion Iron Works & Mfg. Co., supra (notwithstanding defendant’s sales agent was an independent distributor, but relying partly on fact that performance of contract by plaintiff in forum state was with assistance of defendant); Lehn & Fink Products Corp. v. Milner Products Co., supra, n. 2; Jennings v. McCall Corporation, 320 F. 2d 64, 67 (8 Cir. 1963) (dictum); Volkswagen Inter americana, S. A. v. Rohlsen, 360 F. 2d 437 (1 Cir. 1966) (close control by defendant over resident distributor).

We proceed to the second issue mentioned above—the significance of the factors of the contemplated performance of the contract in suit in New Jersey and plaintiff’s domiciliary status here'.

Restatement of Law 2d, Conflict of Laws (1967 Proposed Official Draft), § 49 reads:

“(2) A state has power to exercise judicial jurisdiction over a foreign corporation which has done, or has caused to bé done, an act in the state as to any cause of action not in tort [tort situations are covered in subsection (1) of this section! arising from the act unless the nature of the act and of the corporation’s relationship to the state makes the exercise of such jurisdiction unreasonable.”

The commentary on the foregoing is covered in the Reporter’s Note to § 36. The comment on subsection (3) of § 36 says, in partial explanation:

“A state is naturally interested in all acts done within its territory. There will usually be judicial jurisdiction over an individual who does, or who causes io he done, in the state an act, even though it is not claimed to be tortious, as to causes of action arising from the act. This is true for the reason, among others, that a heavy burden may be imposed upon a local inhabitant if he is compelled to litigate without the state a claim based upon an act done within the state, whether the act is a tort, a breach of contract or something else. (Emphasis added.)
sfc * * ❖ ❖ # # sjt

Further:

“Whereas a state may exercise judicial jurisdiction over a nonresident individual who does a tortious act within its territory, there will be rare occasions when a state may not exercise judicial jurisdiction over the perpetrator of some other sort of act. Such jurisdiction will exist unless the state’s interest in, and relationship to, the actor and the act is so slight as to make the exercise of such jurisdiction unreasonable.
Whether an exercise of judicial jurisdiction on the basis of an act done, or carrsed to be done, in the state would be reasonable depends upon the facts of the ease. The principal factors to be considered are the nature and quality of the act, the extent of the relationship of the state to the defendant and to the plaintiff and the degree of inconvenience which would result to the defendant by being forced to stand suit in the state on the particular cause of action.”

In the Reporter’s Note to subsection (2) is a supporting illustrative reference, inter alia, to the Arizona statute which provides for the exercise of judicial jurisdiction over “a * * * person * * * which [sic] has caused an event to occur in this state out of which the claim * * * arose.” Rule 4(e) (2), Rules of Civil Procedure, 16 4m. B. S. We add, in more pointed reference to the precise type of “event” caused by defendant in this State, Tennessee’s recent “long-arm” statute (Tenn. Pul. Acts 1965, ch. 67) which vests jurisdiction over non-residents as to any claim for relief arising from “* * * (e) Entering into a contract for services to be rendered or for materials to be furnished in this State,” discussed in 18 Vanderbilt L. Rev. 1484, 1500 (1965); and Minnesota’s 1961 statute which allows jurisdiction in an action on a contract “to be performed in whole or in part by either party in Minnesota.” Minn. Stat. Ann. § 303.13, subd. (1), (3) 1961, discussed in Note, 50 Minn. L. Rev. 946 (1966).

The Minnesota provision quoted was held constitutionally applied in Paulos v. Best Securities, Inc., 260 Minn. 283, 109 N. W. 2d 576 (Sup. Ct. 1961), in relation to a stock purchaser’s action against a New York seller, the sale having been effected by telephone and mail. There, performance by the plaintiff in Minnesota by mailing the payment for the stock was regarded as satisfying the statute. In Haldeman-Homme Mfg. Co. v. Texacon Industries, Inc., supra (236 F. Supp. 99), the same statute was held not offensive to due process in relation to an action against a Texas seller of a going business, where the contract called for its partial performance in Minnesota by the making by the purchaser of post-sale audits of the business done which could affect the purchase price. The court also referred to the fact that the sale contemplated the moving of the business to Minnesota, “with all the attendant effects on that state’s economy and citizens” (at p. 102) (but the base sale price was only $18,000).

The Restatement, 2d, section quoted above and the Arizona and Minnesota statutes evidence the conception that a foreign corporation entering into a contract contemplating significant activities or effects in another state is prima jade reasonably subjected to the jurisdiction of that state in an action by a citizen thereof on a claim arising out of the contract. We think plaintiff in the instant case makes a respectable showing for subsumption of jurisdiction here under that doctrine, even apart from the factor of the weight of the contacts represented by defendant’s unrelated sales activities here. Defendant, by the negotiation of the contract here involved, did put into motion the machinery of plaintiff’s research organization in Newark, involving the culling and analysis of its some 2,000 card-indexed prospects in the health and allied fields to find potential purchasers of the Phar-Med business, and the likelihood of extensive communication toward that end by plaintiff with such prospects by mail and telephonic communication effected in and out of the Newark office. It would seem not at all unreasonable for New Jersey to afford its corporate citizen a remedy in its own courts against an asserted foreign defaulter on a contract entailing such local effects.

While the record does not indicate what witnesses outside its own organization defendant will have to produce at the trial in this case, it would seem that the whole trial can be conducted within a short span of time and that the relatively close proximity between Ohio and New Jersey in terms of modern travel will minimize any burden on the defendant. Obviously the burden will not exceed that which would exist were defendant sued in Delaware, where it is domiciled.

We deem it unnecessary to explore the significance of defendant’s relationship to its parent corporation Rohm & Haas. That probably is not weighty, the activities of the two corporations being wholly distinct.

We conclude that the combined effect of defendant’s commercial penetration of New Jersey to the extent indicated above, of the relation of the contract sued upon to significant effects envisaged in its negotiation to take place in this State, of the interest of this State in affording a forum to one of its citizens, and of the relative convenience and inconvenience to the parties of litigating this claim in New Jersey rather than in Ohio or Delaware—conduces to the view that acceptance by this State of jurisdiction in this case is consonant with the criteria of substantial justice, fair play and reasonableness which underlie due process. The motion to dismiss should not have been granted.

Judgment reversed.

       See Note, 56 Columbia L. Rev. 395, 404-408 (1956).

       Compare Lehn & Fink Products Corp. v. Milner Products Co., 117 F. Supp. 320 (D. C. S. D. N. Y. 1953), where local jurisdiction was sustained on the basis of 1% local sales (plus a “desk-space” office, local sales manager and a warehouse).

       Query: Could defendant restrict its amenability to suit on non-related causes of action to Ohio if its sales were dispersed over 49 other states in none of which, alone, its locally generated business could be described as “substantial”?

       Actions arising out of torts involve entirely extraneous considerations. See Roland v. Modell’s Shoppers World of Bergen Cty., supra., passim.