text:
    BRIDGE PARK CO., A PARTNERSHIP CONSISTING OF SIDNEY H. PALEY AND ALLEN TUCKER, PLAINTIFFSAPPELLANTS, v. BOROUGH OF HIGHLAND PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 22, 1970
    Decided January 28, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Joseph Gordon argued the cause for appellants (Messrs. Gordon & Kanengeiser, attorneys).

      Mr. Philip Blacker argued the cause for respondent.
   Per Curiam.

Plaintiff is a partnership which owns a tract of land in defendant borough upon which are constructed garden apartments. The apartment building is made up of 11 apartments, each consisting of six rooms and a bath. Plaintiff has owned this property since the construction of the apartment complex in 1961.

On April 22, 1969 plaintiff executed a declaration pursuant to N. J. S. A. 46 :8A-1 et seq. (L. 1963, c. 168). This act, also known as the Horizontal Property Act, authorizes the creation of a “council of co-owners,” N. J. S. A. 46 :8A-2 (c), through which the occupants of apartments may administer their own affairs. The act contemplates ownership of the apartments outright by the tenants, and common ownership of the “general common elements” of the apartment premises. N. J. S. A. 46 :8A-6.

In the declaration made in this case, it was proposed that "each of the 11 apartments would be owned by the individual tenant after he paid a purchase price of $15,000; each “owner” would then have a one-eleventh interest in the general common elements. No sales were consummated, however, because on May 29, 1969 plaintiff received a letter from the borough attorney of defendant which impliedly suggested that the declaration of the acts to be performed pursuant thereto were contrary to the provisions of “the applicable ordinances of the Borough of Highland Park.”

Actually, the borough attorney referred to the zoning ordinance of the borough wherein there is contained a definition of “garden apartment.” Under this definition a garden apartment is stated to he “a building or series of buildings under single ownership * * (Emphasis added). Obviously, the definition was formulated intentionally so as to exclude horizontal property regimes and condominiums.

After receipt of the letter plaintiff instituted a proceeding in the Chancery Division, seeking a declaratory judgment and injunctive relief with respect to the zoning ordinance, insofar as it attempted to control the ownership of property. After issue was joined, plaintiff moved for summary judgment, which was denied. A cross-motion for summary judgment filed by defendant was granted. In denying plaintiff’s motion the trial judge grounded his conclusion on the fact that plaintiff had failed to seek a variance from the terms of the zoning ordinance from the board of adjustment of defendant borough.

The zoning power has been granted to municipalities by the Legislature in Chapter 55 of Title 40 of the Revised Statutes. In establishing the parameters of the zoning power, the Legislature has provided in N. J. S. A. 40:55-30:

Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority, subject to the provisions of this article, shall be deemed to be within the police power of the State. * * *
The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lots that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of buildings and structures and land for trade, industry, residence, or other purposes. * * *

A quick reading of this section discloses no power granted to a municipality to regulate the ownership of buildings or the typos of tenancies permitted. It is obvious that each phrase in the statute refers either to the type of construction or the use permitted on real property within the confines of a municipality.

Defendant attempts to characterize condominium ownership as a “use” of land — i. e., since the property in question is to be “used” as a condominium, the municipality may regulate or prohibit such “use.” It is apparent, however, that after change of ownership as planned, the same buildings will be on the premises in question and the use to which they are put will also remain the same. We conclude that the word “use,” as contained in the statute above, does not refer to ownership but to physical use of lands and buildings. A building is not “used” as a condominium for purposes of zoning.

In view of our conclusion that the attempted regulation of ownership of property under the guise of the zoning power is beyond the power of defendant borough, we find it unnecessary to meet plaintiff’s arguments as to preemption and restraint on alienation.

The judgment of the Chancery Division is reversed.


source: Caselaw Access Project

author: Goldmann, P. J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SHERWIN H. RAYMOND, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 25, 1971
    Decided February 2, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Messrs. Glickman & Valentine, attorneys for appellant.

      Mr. Geoffrey Gaulkin, Hudson County Prosecutor, attorney for respondent (Mr. Edwin H. Stern, Chief Assistant Prosecutor, and Mr. Howard Pfeffer, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant and four others were indicted in September 1968 for abortion (N. J. S. A. 2A:87-1) and conspiring to commit abortion (N. J. S. A. 2A:98-1 and 2). After the trial began defendant pleaded guilty to the latter charge, the abortion indictment being dismissed on the State’s motion. Defendant received a suspended State Prison sentence of 1-3 years and was fined $1,000. This appeal followed.

Defendant had prior to trial moved to dismiss the indictments on the ground that the delay between his arrest in February 1966 and the grand jury’s return of true bills prejudiced his case. This motion was denied. He also moved to suppress the evidence obtained at the time of the arrest, and this too was denied. At the time he pleaded guilty, defendant said that he had no legal defense insofar as guilt was concerned, but mentioned that there might be a technical defense, namely, the constitutionality of the abortion law then being tested in the higher courts. The trial judge then pointedly inquired whether defendant realized that if he were presently to challenge the constitutionality of the statute, the judge would have to sustain its validity. Defendant’s answer was that he so understood.

The facts leading up to defendant’s arrest were developed at the hearings on the motion to suppress and to dismiss the indictments. Briefly, two Union City detectives received information from a young woman that an abortion had been performed on her in a multi-story motel. Since the only motel of that description known to the detectives was located in Worth Bergen, they contacted the police there. A detective was dispatched to the Worth Hudson Hospital where the girl had gone. She told him the same story, recalling that the first two digits of tire motel room where she had been aborted were 41; that the abortionist used several rooms, for operating and as a waiting room, and that there were women waiting to be aborted. She said that the arrangements for her abortion had been made with defendant, and gave his address.

Detectives from North Bergen accompanied the girl to another hospital that was equipped to examine her. On their way to that hospital the girl pointed out the motel where she had been aborted. At the hospital a doctor confirmed the fact that an abortion had taken place. On receiving this information the deputy chief of police, with the advice of a local magistrate, decided to raid the motel. The raiding officers went there and were told that a business firm had rented Rooms 412, 407 and 409. As they left the elevator on the fourth floor they were seen by a man who was leaving Room 409 and who at once crossed the corridor and went into Room 412, closing the door behind him. The police knocked on the door of 412 and, receiving no answer, were about to enter when the door was opened. They found three women and three men quietly sitting in the room. It was claimed that they were having a party. A detective then entered Room 409, which was described as very hot and which contained beds that had been slept in. The tinkling of metal could be heard from an adjoining room over the sound of a television set. On entering that room the police saw defendant in the process of performing an abortion. He was allowed to continue in the interest of the woman’s safety, but the police photographed what took place.

Defendant waived a preliminary hearing on a complaint charging him with abortion —■ this in connection with the woman on whom an abortion was being performed in Room 407.

Defendant’s first and most crucial point is that he did not waive his right to raise the three constitutional arguments he now presents merely because he pleaded guilty to the conspiracy charge. Those arguments are directed to the unconstitutionality of the abortion statute, an illegal search and seizure, and the denial of a speedy trial. He refers us to United States ex rel. Rogers v. Warden of Attica State Prison, 381 F. 2d 209 (2 Cir. 1967), and United States ex rel. Molloy v. Follette, 391 F. 2d 231 (2 Cir. 1968), cert. den. 391 U. S. 917, 88 S. Ct. 1812, 20 L. Ed. 2d 658 (1969), where the courts held that the federal remedy of habeas corpus was not foreclosed by a guilty plea. These were cases involving a motion to suppress evidence on the ground of illegal search and seizure, made prior to the plea of guilty. However, New York had a statute (66 McKinney’s Consol. L., § 813-c) stating that if a motion to suppress evidence is denied, the order could be reviewed on appeal from the conviction notwithstanding the fact that the judgment was predicated upon a guilty plea. New Jersey has no such statute or rule. This court has held that where a defendant pleads guilty upon the advice of counsel, and no coercion or any impropriety can be shown, the plea will preclude any question of illegality in the seizure of evidence or certain other constitutional guarantees with respect to the criminal prosecution. State v. Humphreys, 89 N. J. Super. 322, 326 (App. Div. 1965), followed in State v. Marshall, 91 N. J. Super. 346, 351-352 (App. Div. 1966).

The consequences of a guilty plea have been examined in a number of recent United States Supreme Court cases. Such a plea is in itself considered a conviction, and several federal constitutional rights are waived when the plea is entered, e. g., the privilege against self-incrimination, the right to trial by jury, the right of confrontation. Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Of course, the plea must be voluntary and made with a full understanding of its consequences. Brady v. United States, 397 U. S. 742, 90 S. Ct. 1463, 1468-1469, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U. S. 759, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970); State v. Herman, 47 N. J. 73, 76-77 (1966).

Our reading of the transcript of the plea convinces us that defendant voluntarily retracted his plea of not guilty to the conspiracy indictment and pleaded guilty, well understanding the consequences of so doing. At that moment he knew that the trial court had denied his motion to dismiss as well as his motion to suppress, and therefore understood his legal position. By pleading guilty he waived any of the constitutional rights he now claims.

The constitutionality of our abortion statute has, of course, been upheld in State v. Moretti, 52 N. J. 182 (1968), cert. den. 393 U. S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968). Cf. Gleitman v. Cosgrove, 49 N. J. 22 (1967), and State v. Baird, 50 N. J. 376 (1967) (Judge Goldmann, then temporarily assigned to the Supreme Court, joining in the concurring opinion of Chief Justice Weintraub).

The search and seizure were clearly legal because incident to a lawful arrest. When the local police officers went to the fourth floor of the motel and proceeded to arrest defendant and search the suite, they did so because they had reasonable cause to believe that a high misdemeanor — abortion (N. J. S. A. 2A:87—1) — was in the process of being committed or had been committed. See State v. Doyle, 42 N. J. 334, 345-346 (1964); State v. Carter, 54 N. J. 436, 446-447 (1969). As in Doyle, the police were informed about an illegal abortion and they proceeded directly to the premises occupied by defendant following a medical examination of the young lady at the hospital. The search did not extend beyond the area under the possession and control of defendant and his co-defendants. Cf. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

There was no inordinate delay between arrest and indictment. R. 3 :25-3 (formerly R. R. 3 :11-3 (c)) allows a defendant to move to dismiss the complaint when there is an unnecessary delay between arrest and indictment. Defendant never made such a motion. It was only after he was indicted that he moved to dismiss the case on that ground. At the hearing there was some indication that the delay was at least in part for defendant’s benefit, and this would explain his failure to move for a dismissal under the rules. Whatever the reasons for the delay in presenting the case to the grand jury, defendant has failed to show that there was a purposeful and oppressive delay, nor has he persuasively shown just what adverse effect the delay may have had so as to prejudice his cause.

The conviction is affirmed.


author: Per Curiam.

text:
    PRESS PUBLISHING COMPANY, A DIVISION OF ABARTA CORP., A PENNSYLVANIA CORPORATION t/a ATLANTIC CITY PRESS, PLAINTIFF-APPELLANT, v. ATLANTIC COUNTY ADVERTISER, INC., A NEW JERSEY CORPORATION, t/a ATLANTIC CITY ADVERTISER; MAX RAUCHWARG; HELEN RAUCHWARG; AND DAVE FALCIANO, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1971
    Decided January 29, 1971.
    Before Judges Lewis, Matthews and Mintz.

      Mr. Chaim, S. Sandler argued the cause for appellant.

      Mr. David Jerchower argued the cause for respondents.
   Per Curiam.

The judgment is affirmed substantially for the reasons expressed in the opinion of Judge Horn in the Chancery Division, 108 N. J. Super. 75.


text:
    LARAINE FANTASIA, PETITIONER-APPELLANT, v. HESS OIL & CHEMICAL CORPORATION, NOW HESS OIL & CHEMICAL DIV., AMERADA HESS CORPORATION, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 1, 1971
    Decided February 5, 1971.
    Before Judges Goddmann, Leonard and Mountain.

      Mr. John M. Strichelc argued the cause for appellant (Messrs. Waters & McPherson, attorneys).

      Mr. James A. Robottom argued the cause for respondent (Messrs. Haskins, Robottom & Hack, attorneys).
   Per Curiam.

We affirm essentially for the reasons stated in the opinion of County Judge Arnold, reported at 110 N. J. Super. 360 (1970).


author: Kolovsky, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN COVINGTON, JR., a/k/a DR. JOHN J. ROBERTS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1970
    Decided January 27, 1971.

      Before Julges Contorb, Kolovsky and Cartox.

      Mr. George M. Dominguez, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley O. Van Ness, Public Defender, attorney).

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

Kolovsky, J. A. D.

The issue presented on this appeal involves the interplay between the worthless check statute, now N. J. S. A. 2A :111-15 to 17, and the statute making it a misdemeanor to obtain money or property by. false pretenses, now N. J. S. A. 2A :111—1.

An indictment returned by the Essex County Grand Jury charged that on May 14, 1968, and contrary to the provisions of N. J. S. 2A:111-1, “John Covington a/k/a Dr. John J. Roberts [and] Barbara Delany a/k/a Barbara J. Roberts, * * * intending to cheat and defraud Pan American World Airways * * * did * * * unlawfully, knowingly and designedly falsely represent and pretend” to Pan American World Airways (Pan-Am) that they “had opened a checking account in the name of J. R. Enterprises, with the First National State Bank of New Jersey, and had established sufficient credit through said checking account for the payment of a check in the amount of $412.50, whereas in truth and in fact” as they knew they had not established sufficient credit with the bank for the payment of the check; that by means of said false representations and pretenses, Pan-Am being deceived thereby, defendants obtained three tickets for a trip from Newark to Nassau.

Thereafter defendant Covington retracted his prior plea of not guilty and pleaded guilty to the indictment. He was sentenced to a term of two to three years in State Prison to run concurrently with the sentence he was then serving in a federal penitentiary.

Defendant appeals, contending in the words of the only point in his brief that:

The judgment of conviction and the sentence imposed upon the defendant are illegal in that defendant was indicted, pled guilty and was sentenced for obtaining money by false pretenses under N. J. S. 2A :111—1, when the criminal acts charged were encompassed by the more specific statute dealing with the overdrawing of checking accounts, N. J. S. 2A:111-15.

If defendant be correct in his contention, then the maximum sentence to which he may be subjected for the criminal act charged is that provided in N. J. S. A. 2A:111-15, “a fine of not more than $1000 or * * * imprisonment for not more than 1 year or both,” and the sentence imposed, 2 to 3 years in State Prison, although within the maximum authorized for a violation of N. J. S. A. 2A:111-1 (see N. J. S. A. 2A:85—7), is illegal.

Defendant’s argument is bottomed on State v. Morse, 109 N. J. Super. 160 (App. Div. 1970) in which the court said,

Noting the magnitude and uniqueness of check frauds, * * • and that the elements of the crime of obtaining money under false pretenses, as alleged here, and uttering a worthless check are identical, we conclude that the Legislature consciously and deliberately intended that one uttering a worthless check in an amount greater than $200 should be indicted under the specific statute [N. J. S. A. 2A:111-15] and not the more general one [N. J. S. A. 2A:111-1] that had been previously enacted, [at 165]

See also State v. Strickland, 112 N. J. Super. 425 (App. Div. 1970); but cf. State v. Gullo, 112 N. J. Super. 476, (App. Div. 1970).

With all due deference and respect to the views thus expressed by another part of this court, we cannot concur therein. In our view, the mere fact that a worthless check is the modus operandi used in obtaining money or property by false pretenses does not bar a prosecution under N. J. S. A. 2A :111—1. The two statutes are an example of the very common situation in which criminal statutes overlap in prohibiting the same basic act and in which “the proper prosecuting authority in the sound exercise of the discretion committed to him may proceed under either act.” State v. States, 44 N. J. 285, 292 (1965); see State v. Fary, 16 N. J. 317, 322-323 (1954); State v. Reed, 34 N. J. 554 (1961); State v. White, 105 N. J. Super. 234, 236-237 (App. Div. 1969), certif. den. 54 N. J. 242 (1969); State v. Milano, 94 N. J. Super. 337, 339-340 (App. Div. 1967); see also, State v. Drake, 79 N. J. Super. 458, 461-463 (App. Div. 1963), in which the court rejected the claim that the enactment of N. J. S. A. 43:21-16 (a) penalizing one who makes a false statement or representation to obtain or increase unemployment benefits precluded defendant's prosecution under N. J. S. A. 2A :111—1 for obtaining money under false pretenses.

As the court said in State v. States, supra:

The mere fact that two statutes overlap in prohibiting the same act does not mean that the later law automatically repeals the earlier one pro tanto, or that an alleged offender can only be prosecuted for the more serious offense. Repeals by implication are not favored and it is a cardinal rule of statutory construction that both laws should be given effect if reasonably possible. It is not sufficient merely to show that a subsequent act covers some of the eases encompassed by the earlier one. The legislative intention to repeal must be manifest; the language must admit of no other reasonable interpretation. [44 N. J. at 291]

We fiad no incompatibility between the two statutes under consideration here. The history of the legislation and an analysis of the provisions of the two statutes, and particularly those relating to the differing nature and character of the proofs necessary to sustain conviction and the penalties imposed, convinces us that the enactment of what is now N. J. S. A. 2A .111-15 did not and was not intended by the Legislature to impliedly repeal so much of the general statute proscribing the obtaining of money or property under false pretenses (N. J. S. A. 2A:111-1) as includes the act of doing so through the use of worthless checks.

Determination of the legislative intent requires that we focus on 1919 when the Legislature enacted the worthless check statute (L. 1919, c. 72), which, as later amended, now appears as N. J. S. A. 2A:111-15 to 17 inclusive.

At that time the statute making it a misdemeanor to obtain money or property by false pretenses was to be found in Comp. Stat., § 186 at 1800, and provided:

Any person who, knowingly or designedly, by color of any false token, counterfeit letter or writing, or false pretense or pretenses shall obtain from any person money, wares, merchandise, goods or chattels or valuable thing with intent to cheat or defraud any person of the same, shall he guilty of a misdemeanor.

The provisions of the present statute, N. J. S. A. 2A:111-1, are essentially the same:

Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other tiling of value by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.

Proof of defendant’s actual intent to defraud was in 1919 and still is essential to sustain a conviction under N. J. S. A. 2A:111-1 and its predecessor statutes. State v. Greco, 29 N. J. 94, 98, 103 (1959); State v. Fladger, 94 N. J. Super. 205 (App. Div. 1967). Such proof may consist of circumstantial as well as direct evidence of the “words, acts and conduct of the accused,” State v. Allen, 100 N. J. Super. 407, 419 (App. Div. 1968), dissenting opinion adopted by the Supreme Court, 53 N. J. 250 (1969).

However such proof is not to be found in the fact that a check delivered by defendant was not honored on presentation to the bank on which it was drawn. The statutory presumption found in the “worthless check” statute, discussed infra (N. J. S. A. 2A:111-16), is “not applicable to the prosecutions under N. J. S. 2A :111-1; * * * [in such prosecutions it is] incumbent upon the State to establish affirmatively an intent to cheat and defraud on the part of defendant.” State v. Fladger, supra, 94 N. J. Super. at 208.

It is against this background that the Legislature adopted the “worthless cheek” act, L. 1919, c. 72, an act which, in the words of its introducer’s statement, was “intended to make the law of New Jersey uniform with several other states which have passed the above statute.” (Senate Bill No. 47, 1919).

The 1919 act provided:

1. Any person who, with intent to defraud, shall make or draw, or utter or deliver, any check, draft or order for the payment or money, upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering that the maker, or drawer, has not sufficient funds in, or credit with, such bank or other depositary for the payment of such check, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor, and punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or both fine and imprisonment.
2. As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within five days after receiving notice that such check, draft or order has not been paid by the drawee.
3. The word ‘credit’ as used herein shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.
4. This act shall take effect immediately.

Amendments to the act adopted in 1930 (L. 1930, c. 121) and in 1965 (L. 1965, c. 184) (1) made the act also applicable to one acting as an agent or as an officer of a corporation; (2) authorized use of a certificate of protest as presumptive evidence instead of requiring the attendance of a witness from the drawee bank; (3) eliminated the five-day-grace period provision, and (4) made the act applicable only to cases of checks in the amount of $200 or more. (The offense, in ease of checks less than $200, was made a disorderly persons offense. See N. J. S. A. 2A:170-50.4 to 50.6 inclusive.)

The statute presently in force appears as N. J. S. A. 2A:111-15 to 17, inclusive, and reads as follows:

2A.111-15. Overdrawing credit or checking account

Any person who, for himself or as agent or representative of another person, or as an officer or agent of any corporation, or as a member of a partnership, with intent to defraud, makes, draws, utters or delivers a check, draft or order for the payment of money in an amount of $200.00 or more, upon any bank or other depository, knowing at the time of so doing that the maker, or drawer, has no funds or insufficient funds in, or credit with, such bank or other depository for the payment of such instrument, in full, upon its presentation, although no empress representation is made in reference thereto, is guilty of a misdemeanor and shall be punished by a fine of not more than $1,000.00, or by imprisonment for not more than 1 year, or both. [Emphasis added]

2A:111-16. Issuing bad check as evidence of intent to defraud

The making, drawing, uttering or delivering of a check, draft or order as stated in section 2A:111-15 of this title shall be prima facie evidence of intent to defraud, and the certificate of protest of nonpayment of same shall be presumptive evidence that there were no funds or insufficient funds in or credit with such bank or other depository and that the person making, drawing, uttering or delivering the instrument knew that there were no funds or insufficient funds in or credit with such bank or other depository.

2A :111-17. “Credit” defined

The work “credit” as used in sections 2A:111-15 and 2A:111-16 of this title shall be construed to mean an arrangement or understanding with the bank or depository for the payment of the check, draft or order.

Although an intent to defraud is an essential element of both the offense described in N. J. S. A. 2A:111-1 and that described in N. J. S. A. 2A:111-15, they define distinct albeit overlapping offenses. Not only the penalties imposed but also the nature and character of the proofs required to convict differ in each case. It was the latter consideration which primarily motivated the legislatures of the several states which adopted worthless check statutes. As was said by one of the drafters of the North Carolina bad cheek statute,

The problem was to frame an act which would be effective by avoiding the great practical difficulty of proving actual fraudulent intent in order to convict. *' * * [5 N. Car. L. Rev. 185 (1927)]

See also, Willis v. State, 205 Md. 118, 106 A. 2d 85, 88 (Ct. App. 1954).

This is accomplished under the New Jersey worthless check statute by the presumption embodied in N. J. S. A. 2A:111-16. That presumption entitles the State, in case of a prosecution under N. J. S. A. 2A:111-15, to go to the jury even if the defendant comes forward with proof tending to negate an intent to defraud, unless the trial court determines in the factual context of the particular ease that the evidence is insufficient as a matter of law to support a conviction. State v. Pollack, 43 N. J. 34, 42-43 (1964); see also, State v. DiRienzo, 53 N. J. 360, 378 (1969).

The very issue presented to us was before the Court of Appeals of Maryland in Lyman v. State, 136 Md. 40, 109 A. 548 (1920). In that case, defendant had been convicted of obtaining property by false pretenses, a violation of section 122 of the Code. He argued that since the legislature had adopted a worthless check statute in 1914 (section 123 of the Code) “there can be no prosecution under section 122 where the giving of a worthless check is involved, but in all such cases the prosecution must be under section 123.” The court rejected defendant’s contention.

To summarize, we conclude that N. J. S. A. 2A :111-1 and N. J. S. A. 2A :111-15 merely overlap and that the prosecution may elect under which statute it will proceed where the facts fit both. Cf. State v. Reed, 34 N. J. 554, 572-573 (1961); State v. Johnson, 67 N. J. Super. 414, 422-3 (App. Div. 1961).

Apposite is what this court said in State v. White, 105 N. J. Super. 234 (App. Div. 1969), in rejecting the contention that defendant could not be prosecuted under N. J. S. A. 2A:96-3 but could only be prosecuted under N. J. S. A. 2A:115-3.2:

When [N. J. S. 2A:96-3 is] compared with N. J. S. 2A :115-3.2, it appears plain that the respective statutes deal with separate and distinct crimes and the defendant could have been indicted under either. The nature and character of the proofs to sustain conviction are not the same; neither are the penalties. It is fair and reasonable to assume that the Legislature intended to provide for a contingency that the State’s proofs might not be sufficient to convict under N. J. S. 2A:115-3.2 but would be adequate to support a conviction under N. J. S. 2A:96-3. State v. Bott, 53 N. J. 301 (1909), and State v. Serrano, 53 N. J. 356 (1960), are plainly distinguishable, [at 236-237]

Further, “relevant practical factors as well as considerations of fair play, and the reasonable expectations of the Legislature and the public relating to control of the conduct proscribed, are permitted to influence the discretion of the proper authority as to the course to be followed.” State v. States, supra, 44 N. J. at 292.

Here, there can be no doubt but that the election made by the prosecutor was the proper one. As defendant himself conceded when he entered his plea of guilty and at the time of sentencing, his offense involved more than the mere issuance of a check on an account with insufficient funds. The presentence report reveals that defendant, falsely representing himself to be Dr. John Roberts, opened an account in a Newark bank with a check for $105,000 drawn on a Washington hank; that he returned the next day with his purported wife and had the funds transferred into separate accounts, on one of which was drawn the check given to Pan-Am for the airplane tickets to Nassau. The bubble burst when the $105,000 check was returned by the Washington bank “as being fraudulent.”

The judgment is affirmed.


author: Osborne, J. S. C.

text:
    VERNON BOYCE, PLAINTIFF, v. EDITH DOYLE AND EDWARD J. MARCH, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 25, 1971.

      Mr. Mark L. Stanton for plaintiff (Messrs. Stanton & Recht, attorneys).

      Mr. Philip J. Maiorca for defendant Edith Doyle (Mr. Henry O. Habick, attorney).

      Mr. James D. Buller for defendant Edward J. March.
   Osborne, J. S. C.

This is a motion for summary judgment on defendant March’s counterclaim against the plaintiff Boyce. The narrow legal issue to be resolved is whether an infant who has disaffirmed a release executed daring his minority must return the consideration he received, where that consideration consisted of money now dissipated.

On July 26, 1967, when plaintiff was 19 years old, he was injured while a passenger on a motorcycle driven by defendant March which collided with an automobile driven by defendant Doyle. On August 2, 1967 plaintiff, who was then self-supporting, executed a release in favor of March in consideration of payment of $450. On ^November 6, 1967 he instituted suit. The case proceeded to trial as to liability only in January 1971 and the jury returned a verdict in favor of plaintiff against defendant Doyle, but against plaintiff in favor of defendant March. Defendant March now seeks entry of judgment on a counterclaim against plaintiff in the amount of $450, the consideration given for the execution of the Telease by plaintiff.

There can be no doubt but that contracts not of necessity may be voided by an infant either before or a reasonable time after he obtains his majority. R. J. Goerke Co. v. Nicolson, 5 N. J. Super. 412 (App. Div. 1949); Carter v. Jays Motors, Inc., 3 N. J. Super. 82 (App. Div. 1949); Sacco v. Schallus, 11 N. J. Super. 197, 201 (Ch. Div. 1950). But see Bancredit, Inc. v. Bethea, 65 N. J. Super. 538 (App. Div. 1961) (an automobile may be a “necessity” to an infant and thereby bind him to a contract). Thus the institution of suit while plaintiff was still a minor and the continuous prosecution of the case, culminating in a trial more than three years later, operated as a recission of the release executed while plaintiff was an infant.

Fow, however, after plaintiff has rescinded his release, proceeded to trial and lost on the merits as to defendant March, he asserts that he is not obligated to restore to the other party the consideration he received. In effect, plaintiff asserts that he was entitled to a conditional recission of the release, having advised the court that if he won on the merits he would rescind his release, but if he lost on the merits he would be entitled to affirm that same release. Under these facts this position is untenable, particularly in view of the fact that, having recovered a judgment as to liability against defendant Doyle, plaintiff is now assured of some compensation for the very injuries for which he accepted the consideration for the release.

The court recognizes that the majority rule followed in most jurisdictions is that an infant is not obligated to return the consideration received by him where, during his minority and before disaffirmance, he has wasted, squandered, destroyed, used or otherwise disposed of such consideration. For is the infant liable, in such a case, to return the equivalent of the consideration or otherwise to account for its value. 42 Am. Jur. 2d, Infants, § 101. However, the soundness of this rule has come under increasing attack. See e. g., Porter v. Wilson, 106 N. H. 270, 209 A. 2d 730, 13 A. L. R. 3d 1247, 1249 (Sup. Ct. 1965).

It appears that New Jersey follows the minority rule that an infant must restore the other party to the status quo to the extent of the benefits the infant has received, if the other party is free from fraud or bad faith. Cf., Pemberton B. & L. Ass’n v. Adams, 53 N. J. Eq. 258 (Ch. 1895).

The court in Pemberton would not permit the infant defendant to rescind a mortgage commitment without returning the money he had received.

[The infant], after coming of age, retained the possession of this property, and claimed and enjoyed all the benefits of a conveyance thereof, and now raises this defense of infancy without offering to return the consideration money. Under these circumstances his liability continues even though there has been no fraud, [at 259]

The infant in Pemberton had purchased property with the money borrowed from a bank, and to that extent the case is distinguishable in that he had not completely squandered the proceeds prior to obtaining his majority. The consideration for the release in the present instance is not so easily traceable.

Subsequent New Jersey decisions have embraced the philosophy enunciated in Pemberton. In Carter v. Jays Motors, Inc., 3 N. J. Super. 82 (App. Div. 1949), defendant urged reversal of a judgment entered against him on the grounds that the infant involved had not made restitution of an automobile. While the court found against defendant because of his failure to counterclaim for the automobile, it quoted approvingly from Levine v. Mallon Oldsmobile Co., Inc., 127 N. J. L. 197 (Sup. Ct. 1941) (dictum) :

The law is of course clear that where a contract to purchase is by the infant alone, he may avoid it and recover back money paid on account, subject perhaps to a counterclaim for damages to or partial destruction of the property, [at 198]

In R. J. Goerke Co. v. Nicolson, 5 N. J. Super. 412 (App. Div. 1949), the infant defendant had opened a charge account and made purchases but misrepresented her age, stating that she had obtained her majority. The infant had not returned the articles purchased and the court estopped her from asserting infancy as a defense, reasoning that “an infant will not be permitted to use as a sword her plea of infancy which in fact was given to her as a shield.” (At 416)

Finally, in Sacco v. Schallus, 11 N. J. Super. 197 (Ch. Div. 1950), the court extended the proposition to its logical conclusion. In reaching a determination that an adult dealing with an infant was entitled to dissolve a partnership and to an accounting, but was not entitled to recover additional contributions to the capital structure, the court broadly stated that:

* * * [Rleeovery by an infant cannot be had without a restoration to the other party of the consideration received, or an allowance from such recovery as compensation for the benefit conferred upon the infant seeking to void the contract, [at 201]

This language is apposite to the present circumstances. Though there has been no evidence of fraud or misrepresentation on the part of plaintiff, and while the proceeds cannot directly be traced, he received a benefit of immediate consequence upon signing the release. The court has permitted the infant to utilize the shield and rescind his release, but will not permit him offensively to assert his right to retain the consideration for that release now that he has elected to rescind and has recovered a judgment against the co-defendant. This I consider to be the thrust of the decisions in this State as well as the better rule.

Defendant March’s motion for summary judgment on the counterclaim is granted. Counsel has also asked for interest from the time of plaintiff’s release to the present. Under the circumstances that part of defendant’s motion is denied.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL JOSEPH ALLEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided December 7, 1970.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Charles P. Allen argued the cause for appellant (Messrs. Dietrich and Mancino, attorneys).

      Mr. Steven D. Altman, Assistant Prosecutor, argued the cause for respondent (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney; Mr. Peter J. Schwartz, Assistant Prosecutor, on the memorandum).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant appeals, pursuant to leave granted, from an order denying his motion, made be-lore trial, to suppress certain evidence seized in a warrant-less search.

On June 7, 1968 police entered a dwelling house in New Brunswick and arrested five men who were present for violations of the narcotics laws. On learning that defendant was the lessee of the premises, the police arrested him on the following Monday, June 10, and charged him with violating N. J. S. A. 24:18-4, possession of narcotic drugs (marijuana and hashish), as well as a local ordinance, not involved in this case, prohibiting the use of a house by disorderly persons for the illegal use of drugs. The statutory violation resulted in an indictment; the ordinance violation is pending disposition of that indictment.

Defendant pleaded not guilty to the indictment and moved to suppress the evidence seized by the police. The denial of that motion brought about this appeal.

At the hearing on the motion New Brunswick Detective-Sergeant James, an officer especially assigned to narcotics investigation, testified that he was called back to duty by police headquarters at about 10 p.m. on June 7, 1968 to investigate "activity” at 1 Neilson Street, New Brunswick. He was advised that there was what appeared to be a party in process at that place. After asking for the assistance of another officer, he and Officer Thomas went to the area to “surveille” the house. He said he heard music coming from the house when he was a block away. He and Thomas "set up” some lo' from the building and observed several people arrive, stay a short while, and then leave. He recognized one person whom ho had once arrested in a narcotics raid. Deciding to enter, James knocked on the front door several times, “hit the door a little harder and it opened” — the door was ajar, he said. He called, “Is anybody here,” two or three times and, receiving no answer, he and Thomas entered.

James testified that they walked into the living room and, finding no one there, went into another room where they saw a piece of aluminum foil containing a brown cake-like substance which looked like hashish. The officers continued to look around the first floor, but found no one. Since the music was coming from the second floor, they called upstairs and, receiving no answer, decided to check. There they found five men (defendant was not present) lying on the floor under the influence of drugs. The officers observed marijuana cigarette butts (“roaches”) in the ashtrays and a greenish vegetable matter in a jar on the floor, which later was found to be marijuana. The arrests followed. On learning that defendant was the one to whom the apartment had been rented, they filed a complaint against him and arrested him three days later.

On cross-examination James said that the complaint he received on the night in question was “information that there was possibly a pot party going on” at 1 Heilson Street. Asked if this could be characterized as a noise complaint, as he had testified on direct examination, his answer was, “Well, the complaint was noise also hut the other information that I received is the reason that they called me.” He admitted that he made no attempt to obtain a search warrant. Asked if he had probable cause to believe that there might be narcotics in the house which would entitle him to obtain a search warrant, his nonresponsive answer was that they had had the premises under surveillance some five or six months previously. James conceded that ordinarily, on a noise complaint, the normal police procedure was to send a radio car to the address and advise the persons to tone the noise down. In this instance, however, James and Thomas had the house under surveillance for 20 to 30 minutes. Hone of the several persons who left the place was arrested. Although it was decided to radio for help, he did not ask the officers to obtain a search warrant.

In his letter opinion the motion judge dismissed defendant’s argument that there were both grounds and time to obtain a search warrant, stating: “It is quite apparent that the police had nothing to go on excepting mere suspicion. Therefore, whether they had enough time is of no consequence.” The question, he said, was whether the police were justified in entering under the circumstances. He noted that their primary mission was to abate the noise problem, notwithstanding their suspicion as to narcotics and the presence of Detective-Sergeant James. Thus, he found that since the officers had been unable to get a response to their knocking and the door was ajar, they had a right to enter. Further, since the hashish was in plain view as they went into the second room of the first floor, the officers then had a right to go upstairs to attract the attention of the occupants, and while there they could seize the marijuana which was in plain view.

Defendant argues that (1) he had the requisite standing to complain of an illegal search and seizure by reason of his leasehold interest in the invaded premises; (2) the State had the burden of showing necessity for a warrantless invasion of a private home; (3) the judge erred in applying the law to the facts, and (4) a warrantless search and seizure, absent an emergency, is illegal where there is time and opportunity to obtain judicial approval.

The State has provided us with no authorities or specific responses to the points raised and argued by defendant. It contends, quite simply, that the officers were there to investigate a noise complaint, although at the same time their suspicions were aroused to a possible violation of the narcotics laws. From experience they realized something was amiss: “Certainly there was cause to believe someone might be injured or unconscious as there was no answer at the door.” This simplistic contention will not wash.

There is no question that a defendant may bring a motion to suppress if he has either a “proprietary, possessory or participatory interest” in the place where the evidence in question was found. State v. LaDuca, 89 N. J. Super. 159, 163 (App. Div. 1965).

Similarly, it is clear, as defendant argues, that the burden of proof in a warrantless search situation is on the State. Chimel v. California, 395 U. S. 752, 762, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Gaudiosi, 97 N. J. Super. 565, 571 (App. Div. 1967).

The motion to suppress should have been granted. We agree with the judge that insofar as the presence of drugs on the premises was concerned, the officers had nothing more to go on than mere suspicion, and this is not enough to establish probable cause for their entering upon the premises without a warrant and proceeding to make a search and seizure. The judge found noise abatement to be the rationale for the entry. We are not convinced, however, that this was so. From the very moment James, as a special narcotics investigator, was called to duty by headquarters and told (so he said) that there was information of a possible pot party going on, to the extended surveillance conducted by the officers, it is clear that the focus of attention was not at all upon noise, but the possibility of uncovering narcotics activity. If noise were truly the reason for the officers’ presence outside of 1 Neilson Street, there was no need whatever for waiting up to 30 minutes before entering. James, as has been noted, testified that when there was a noise complaint, a radio ear would be dispatched to the site to abate the noise. The officers could have acted immediately upon arriving at 1 Neilson Street, if their true purpose was to put a quietus on the loud music.

As was said in State v. Doyle, 42 N. J. 334, 342 (1964), the right to arrest must pre-exist a search; an officer cannot search in order to arrest, nor arrest because of the product of the search. Further, a search undertaken merely for the purpose of uncovering evidence with which to arrest is unlawful even if the desired evidence is obtained. We have here a classic example of a search grounded on mere suspicion, a suspicion which the officers hoped would turn up some incriminating evidence. Probable cause, or a reasonable basis to believe, is the proper standard for judging a warrantless search case like this, and not mere suspicion. Noise coupled with visitors is an extremely shaky foundation for a warrantless search. This is precisely the situation in which the Fourth Amendment’s interposition of a magistrate between the citizen and the police is most necessary. See McDonald v. United States, 335 U. S. 455, 69 S. Ct. 191, 93 L. Ed. 153 (1948).

Only in a few “specifically established and well-delineated situation” may a warrantless search of a dwelling house withstand constitutional scrutiny. These exceptions will exist if there is consent, or if the police involved were responding to an emergency, or if they were in hot pursuit of a fleeing felon, or if the goods were in the process of destruction, or if they were about to be removed from the jurisdiction. See Vale v. Louisiana, 399 U. S. 30, 34-35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970). And, of course, when an individual is arrested, only his person and the area within his immediate control may be searched — i. e., that area from which he might gain possession of a weapon or destroy evidence. Chimel, above, 395 U. S. at 763, 89 S. Ct. 2034. In Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1947), the police were informed of possible narcotics violations and then went to a hotel room where, standing outside, they smelled opium smoke and subsequently entered the room. The order denying suppression of the evidence was reversed, the court saying:

* * * No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to bypass the constitutional requirements, [at 15, 68 S. Ct. at 369]

None of the exceptions noted in Vale was present here. In our view, the noise abatement reason for the entry and search served as nothing more than a smoke screen. If there was any strong reason for the police to believe, after half an hour’s surveillance, that there was drug activity on the premises, they should have sought a search warrant. The only argument on which the State can possibly rely is that the evidence might have been destroyed. That argument has no appeal here, for they waited 30 minutes before entering.

Cases in which entries have been upheld presented far more compelling fact circumstances than the case before us. In State v. Owens, 102 N. J. Super. 187, 199 (App. Div. 1968), mod. as to other grounds, 54 N. J. 153 (1969), cert. den. 396 U. S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1969), an entry was upheld where the “distraught behavior” of one principal and the “violent behavior” of defendant were enough to permit the reasonable inference that a baby’s life might be in danger. And in Doyle, above, there was “strong basis” for belief by the officers that an abortion, a relatively unusual crime, which is not the subject of many random surveillances, was being committed. 42 N. J. at 345. See also, People v. Gallmon, 19 N. Y. 2d 389, 290 N. Y. S. 2d 356, 227 N. E. 2d 284, 285 (Ct. App. 1967), where “shouting, screaming and clapping hands” had been heard by police officers and hotel managers for several evenings before entry.

We have no dispute with the Supreme Court warning, in Owens, above, that judicial review of police action, taken in the face of a fast-moving, excited situation, must be a common-sense and realistic fashion. United States v. Ventresca, 380 U. S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). However, this case does not present such a “fast-moving” situation. Whatever the argument the State prefers, the police behavior was proscribed: there was no right to enter without a warrant if they were hunting for narcotics, and there was no general right of entry and exploration if the police were there only to abate noise, an argument, as noted above, that is seriously diluted by their half-hour wait.

The denial of defendant’s motion to suppress is reversed.


text:
    TRENTON AVIATION, INC., PETITIONER-APPELLANT, v. FRANK GERARD, DIRECTOR, DIVISION OF AERONAUTICS, DEPARTMENT OF TRANSPORTATION, STATE OF NEW JERSEY, AND U. S. STEEL COMPANY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1970
    Decided February 1, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. William J. Walsh argued the cause for appellant (Messrs. Scott, Fox & Walsh, attorneys).

      Mr. Roger L. Hillman, Deputy Attorney General, argued the cause for respondent, Frank Gerard, Director, Division of Aeronautics (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).

      Mr. William T. Sutphin argued the case for respondent, U. S. Steel Corporation (Messrs. Stryker, Tams & Dill, attorneys).
   The opinion of the court was delivered by

Leonard, J. A. D.

Plaintiff appeals pursuant to R. 2:2-3 (a) (2) from the failure and refusal of the Director of the Division of Aeronautics, Department of Transportation (hereafter Director) to hold a public hearing prior to his issuance of a Fixed Base Operator’s License, No. 0-53, to the United States. Steel Corporation, Aircraft Division (hereafter U. S. Steel). This license authorized U. S. Steel to conduct the type of operation known as “Aircraft Maintenance or Repair Shop” at the Mercer County Airport, Trenton, N. J. (hereafter airport).

Plaintiff presently is one of four fixed base operators located at the airport and has been so engaged for the past seven years.

Since 1961 U. S. Steel has maintained aircraft engine and airframe maintenance facilities at the airport for the maintenance, servicing and repair of its own aircraft. However, having decided that it should engage in the business of servicing aircraft owned by others, it made application on July 31, 1970 to the Division of Aeronautics, Department of Transportation for a fixed base operator’s license.

Plaintiff’s president, John P. Becker, asserts that on September 9, 1970 he personally advised the Director that his company objected to the license sought by H. S. Steel and was told to put his position in writing. Accordingly, the next day at or about 8:30 a.m. Becker hand-delivered a letter to the Director’s office setting forth these objections and requesting a hearing before the license was issued. That morning the Director was engaged elsewhere and he did not arrive in his office until after 11 a.m. Consequently he did not see plaintiff’s letter until after the license had been mailed to IT. S. Steel. He stated that he would attempt to retrieve it from the mailroom prior to delivery and apparently he made an effort to do so but was unsuccessful.

Thereafter, considerable discussions and conferences took place among the Director, counsel for plaintiff and a representative of the Attorney General as to whether a hearing would be held concerning the issuance of the license to U. S. Steel. As a matter of fact, the Director did schedule a hearing for October 27, 1970. However, a dispute arose between the parties as to the scope of that hearing. Plaintiff insisted that the inquiry be as to whether the license should be granted to IJ. S. Steel in the first instance. Thus, it requested a stay of the operative features of the license pending the hearing. On the other hand, the Director insisted that the license was “lawfully and legally” issued, refused the requested stay and stated that the purpose of the hearing would be to determine whether the license should be “revoked, amended or annulled.” In any event the hearing was not held and plaintiff instituted its original action in the Superior Court, Chancery Division for injunctive relief, followed by the present appeal.

The single issue before us is whether a hearing is required prior to the issuance of a fixed base operator’s license by the Division of Aeronautics, Department of Transportation.

Title 6 of the New Jersey Statutes Annotated, among other things, created the State Department of Aviation, the State Aviation Commission and the office of State Director of Aviation. N. J. S. A. 6 :1-22. (In 1966 the functions, powers and duties of the Department of Aviation were transferred to and vested in the Department of Transportation. N. J. S. A. 27.1A-3). Their powers and duties are prescribed in full by subsequent subsections of the statute. N. J. S. A. 6:1-31 provides:

It shall be the duty of the commission to hold public hearings on matters affecting aeronautics; to conduct investigations, inquiries and hearings concerning matters covered by the provisions of this chapter; * * *. (emphasis added)

The term “aeronautics” is defined in N. J. S. A. 6:1-21 (a) as follows:

“Aeronautics” means avigation of or transportation by aircraft; air instruction; the operation, repair or maintenance of aircraft, aircraft power plants and accessories; and the design, construction, repair, maintenance, operation or management of airports, landing fields, landing strips and other avigational facilities, (emphasis added)

Subsection (j) definies “fixed base operator” in the following manner:

Fixed base operator means any person engaged in giving, offering to give, advertising, representing or holding himself out as giving, to the public, with or without compensation or other reward, air instruction and any person engaged in the following types of operation: flying club; dusting, spraying and seeding by aircraft; aircraft maintenance or repair shop, banner towing and intrastate air carriers, * * (emphasis added)

N. J. S. A. 6 :1-44 provides for the commission’s licensing of, among others, fixed base operators, by rules, regulations and orders “adequate to protect the public health and safety and the safety of those participating in aeronautical activities; * *

Under the above statutes it clearly appears that the granting of a fixed base operator’s license is a “matter affecting aeronautics.” Thus, we conclude that these statutes mandate that a hearing be held prior to the issuance of such a license. They have been so construed in Penna. R. R. Co. v. N. J. State Aviation Comm., 2 N. J. 64 (1949).

In that case the court, after reviewing the pertinent sections of Title 6, held;

the power to license airports conferred by the act under review is quasi judicial, for its exercise is expressly conditioned upon the ascertainment of the operative facts from evidence adduced at a public hearing, (at 68) (emphasis added)

The court further noted that “[T]he right to a hearing may arise by implication from the legislative expression.” (at 71).

The Director argues that Penna. R. R. Co., supra, is not applicable because it concerned an issue of whether the intended location of the airport was a potential threat to public safety, whereas in the instant case, the only issue is competition to the objector. This contention lacks merit. The purpose of this act (N. J. S. A. 6:1-20, et seq.) is:

to provide complete and effective regulation of all aeronautics and persons engaged therein in order to promote the safety not only of the * * * people of the State but also in the interest of assuring safety for the participants themselves. (Statement accompanying act, Ch. 48 of the Laws of 1938). See N. J. S. A. 6:1-44.

The complete and effective regulation of the repair and maintenance of airplane engines and frames and the other occupations delineated under the definition of “fixed base operator” (N. J. S. A. 6:1-21(j)) is as necessary to the promotion of the safety of the public and of those participating in aeronautical activities as is the regulation of all the other activities included under the definition of the term “aeronautics” (N. J. S. A. 6:1-21 (a)). Without safe airplanes there cannot be safe flying.

A hearing will afford all interested parties, including competitors now operating similar facilities at the airport, an opportunity to present proofs. In this way the safety features of the proposed fixed base operation and the public welfare will be more thoroughly protected than would be the case if the issuance of the license is solely supported by information received in answer to a questionnaire supplemented by the agency’s investigation and inspection.

The hearing mandated herein shall be conducted in accordance with the provisions of N. J. S. A. 6:1—52 and N. J. S. A. 52:14B-9 and 10 and the Director shall make detailed findings of fact and conclusions of law as therein directed.

Reversed.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY (TOWNSHIP OF WILLINGBORO), PLAINTIFF-RESPONDENT, v. BOSTON JUVENILE SHOES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1970
    Decided February 2, 1971.

      Before Judges Lewis, Matthews and Mum.

      Mr. Alton 8ilverman argued the cause for appellant.

      Mr. Sanford 8oren argued the cause for respondent.
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant was convicted of violating an ordinance of the Township of Wiliingboro, which requires anyone who exhibits a sign to pay an annual licensing fee of $5. Originally, defendant was convicted in the Willingboro Municipal Court and fined $25 plus $5 costs. The conviction was affirmed by a trial de novo in the Burlington County Court and the same fine was imposed.

Defendant operates a shoe store in the Willingboro Plaza. The store is located in a courtyard of the plaza which is completely hidden from the general public unless one enters the courtyard area. To reach the store, it is necessary to travel a minimum of 800 feet over a parking area which is the property of the shopping center.

During the period in question defendant had placed at least three signs on his premises:

(1) A canopy sign reading “Stride-Rite Shoes.” This sign hangs in front of the store directly over a walkway, suspended from a canopy under which shoppers pass.

(2) A sign painted on the glass door of the store which reads, “Boston Juvenile Shoes, Stride-Rite Shoes.” This sign is defendant’s trademark.

(3) At least one, and perhaps more, temporary window signs made of paper, roughly 2x3 feet, bearing a single word “SALE.” This sign is fastened on the window and is used only during two months of the year.

The sections of the ordinance most pertinent to this appeal read as follows:

a. “Sign” shall mean and include every sign, billboard, ground sign, wall sign, roof, sign, sign painted on the exterior surface of a building structure, illuminated sign, projecting sign, temporary sign, flag, pennant and badge, and shall likewise include any announcement, declaration, demonstration, display illustration or insignia used to advertise or promote the interest of any person, firm or corporation when the same is placed either indoors or out of doors in such a way that the same is in view of the general public.
(b) “Sign” shall not mean or include any flag, badge or insignia of any public, quasi-public, civic, charitable or religious group, nor shall it mean or include the flags of the United States of America or the State of New Jersey.
17-3 PERMIT REQUIRED.
No sign which exceeds two square feet in area shall be erected, maintained, removed, altered or repaired until a permit for the same has been issued by the township building inspector.
17-4.2. Licensing Fee. In addition to the aforementioned application fee, there shall be an additional annual licensing fee of five ($5.00) dollars payable on the second day of January of each calendar year for each sign permitted to exist in a business or industrial zone by the terms of this chapter.
17-10-3 Special Sales. The building inspector shall be and hereby is empowered to issue permits for temporary free-standing signs designed to promote special sales or other special promotion activities within the community. Each applicant shall be permitted to erect only one such sign on each permit granted and said sign shall not exceed 32 square feet in area. No more than four said permits may be issued to any one person, firm or corporation during any calendar year, unless said person, firm or corporation maintains more than one business location in the township. No sign erected pursuant to a permit issued under this section may be lawfully maintained for any period in excess of two weeks from the date on which the permit is issued. The permit fee for all signs issued pursuant to this paragraph shall be two ($2.00) dollars, rather than the permit fee prescribed for all other signs by section 17—4 of this chapter.

The township maintains that the sign ordinance here under review may be justified as a reasonable exercise of the police power because, it is said, regular inspections are necessary to insure the continued safe conditions of the signs. Specifically, it is urged that inspection of a hanging sign may reveal a situation in which the sign may be about to fall down; similarly, an inspection of the window signs will insure that they do not completely cover the glass area so as to hamper efforts to discover and control a possible fire.

Defendant, on the other hand, attacks the legality of the ordinance as an invalid exercise of the police power. It claims that the ordinance is too vague; that it is broad and overreaching, and that it is beyond the power of the municipality.

This ordinance does not purport to be an exercise of the zoning power granted to municipalities by the Legislature. Bather, it is intended to be a regular ordinance which has as its aim control over the use of signs within the municipality. It is well settled that a municipality may only exercise those powers expressly granted to it, or which may be expressly implied therefrom. Sinclair Refining Co. v. County of Bergen, 103 N. J. Super. 426 (App. Div. 1968). In State v. Steiner, 7 N. J. Misc. 1056, 147 A. 746 (Sup. Ct. 1929), the court recognized the power of municipalities requiring a permit for the erection of a sign, because a sign is a “structure” within the meaning of N. J. S. A. 40:48-1(13). That statute grants to municipalities the power to regulate construction, erection, alteration and repair of buildings and structures of every kind within the municipality.

Under N. J. S. A. 40:67-1(d), municipalities are granted the right to prevent or regulate the “construction of any

* * * sign * * * erection or projection in, over or upon any street or highway * * *.” A similar power is repeated in N. J. S. A. 40:175-10 which refers to cities.

A search of our laws uncovers no general or specific statute from which a reasonable implication may be drawn which could confer the power claimed by the township in this case.

•Willingboro argues that under the provisions of N. J. 8. A. 40:69A~29 and 30, which are part of the Eaulkner Act, broad powers are granted to municipalities which have opted a form of government under that act, and accordingly the ordinance here in question is sustainable when one looks to section 29. Indeed, the revised ordinance of the Township of Willingboro refers to N. J. 8. A. 40:69A-29 and 30 as the source of power for the ordinance here in question.

N. J. S. A. 40:69A-29 is not a “general law” within the statutory definition. Hutt v. Bobbins, 98 N. J. Super. 99, 106 (1967). It does not, in its general terms, confer a blank police power upon municipalities choosing a form of government under the Faulkner Act.

We conclude that the regulatory features of the ordinance here under review are beyond the power of the Township of Willingboro. Because the terms of the ordinance in question are so vague and broad, we find it impractical to attempt to segregate those portions which might be valid from those which are clearly invalid.

In view of our conclusion reached herein, we deem it unnecessary to pass upon the other issues raised by appellant.

The judgment of conviction is reversed.


author: Kilkenny, P. J. A. D.

text:
    RICHARD VISOTCKY, CARMINE J. PERRAPATO, JOSEPH KOBYLARZ, BENJAMIN ATTARDI, JOHN J. PRELICH, JR., PLAINTIFFS AND ALEXANDER CHABORA, PLAINTIFF-RESPONDENT, v. CITY COUNCIL OF THE CITY OF GARFIELD, BOARD OF EDUCATION OF THE CITY OF GARFIELD, WENDY MIKO, GERALD DE MURO, EDWARD WALENCIAK, MICHAEL FLOWA, TRIFONIO RIZZO AND RALPH W. CHANDLESS, DEFENDANTS AND ANTHONY BARCKETT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 19, 1971
    Decided February 3, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Ralph W. Chandless argued the cause for appellant (Mr. Edward Plechota, attorney).

      Mr. Vincent P. Rigolosi argued the cause for respondent.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

Defendant Anthony Barckett appeals from those parts of the final judgment entered in the Law Division on March 24, 1970 whereby it was adjudged that the appointment of plaintiff Alexander Chabora as a member of the board of education of the City of Garfield was valid and that the appointment of defendant Anthony Barckett as a member of said board was invalid.

The facts are not in dispute. On December 16, 1969 Theodore Vagell resigned as a member of the board of education. On December 22, 1969 the then Mayor Gotthold Rose, whose term of office as mayor was expiring at noon on January 1, 1970, appointed defendant Barckett to fill the vacancy caused by the resignation of Vagell. Garfield is a “Type I” school district, pursuant to N. J. S. A. 18A:9-1 and 2(b), having previously been governed by Title 18, chapter 6, of the Revised Statutes. As such, the mayor has the sole power of appointment of members of the local board of education. Barckett subscribed to an oath of office on December 31, 1969 before a notary public, which was presumably filed on December 31, 1969, with the City Clerk according io an unsigned verification in the record before us.

On January 5, 1970 the new mayor, Eichard Visotcky, who had assumed office at noon on January 1, 1970, appointed plaintiff Chabora to the board of education to fill the vacancy caused by the resignation of Vageil. Chabora took his oath of office the same day.

Plaintiffs challenged the validity of Barckett’s appointment by the outgoing mayor to the board of education, claiming that it was “illegal” in that (1) it was contrary to the provisions of N. J. S. A. 18A:12-2, because Barckett, at the time of his appointment as a member of the board, was a teacher in the Garfield school system and under contract with the board to teach in the local schools, and (2) the resignation of Vageil had never been accepted or otherwise acted upon by the board of education or other proper authorities at the time of Barckett’s appointment.

Barckett was employed as a teacher by the board of education at the time of his appointment and was under a written contract with the board to teach in the local system for the then current year. He continued to teach in Garfield until June 30, 1970, and was paid and accepted his salary for his services under the teaching contract. His attorney wrote a letter dated February 4, 1970 to Judge Trautwein, who heard the matter in the Law Division, expressing his client’s willingness to “give up the teaching job,” but this was conditioned upon its being “determined that he is disqualified unless he gives up the teaching job.” He continued to teach in Garfield, as noted above.

Judge Trautwein decided that Barckett’s appointment to the board of education, by whom he was employed under contract, was invalid from its inception, “nunc pro iunc.” He found that there was “such a patent inconsistency and danger built into a person serving as a teacher in a school system in a town and also serving on a Board of Education, who is his employer, and I believe this statute [N. J. S. A. 18A:12-2] was violated in this instance.”

Common sense dictates the conclusion that being a school teacher and a member of a hoard of education in the same school district is patently incompatible. “The members of the board of education of a municipality are public officers holding positions of public trust. They stand in a fiduciary relationship to the people whom they have been appointed or elected to serve.” Cullum v. Board of Education, North Bergen Tp., 27 N. J. Super. 243, 248 (App. Div. 1953). A teacher’s position is also one of public service, hut the teacher is an employee whereas the board of education is the employer. There are many potential conflicts of interest between the two. “It is no answer to say that the conflict in duties outlined above may never in fact arise. It is enough that it may * * Jones v. MacDonald, 33 N. J. 132, 138 (1960). The widespread differences throughout our State in matters of salary negotiations, with resultant “job actions” by teachers and injunctions obtained by boards of education against teacher activities, remind us vividly of the conflicts between teachers and hoards of education. A teacher’s self-interest can readily run counter to a board member’s loyalty to the public. We entertain no doubt that an individual may not properly act contemporaneously as a teacher and a member of the board of education in the same school district. The positions are incompatible and represent intolerable potential conflicts of interest.

N. J. S. A. 18A:12, Article I, entitled “Qualifications,” lends support to the conclusion that one may not qualify as a member of a board of education, if he is at the same time bound by a contract with the board. Section 1 of this Article sets forth the qualifications of citizenship: two years at least of residence preceding appointment or election, and ability to read and write. Section 2 of the same statutory Article dealing with “Qualifications” provides:

No member of any board of education shall be interested directly or indirectly in any contract with or claim against the board.

The heading of this section reads: “Inconsistent interests prohibited.” Certainly, defendant teacher was directly interested in his contract with the board of education.

It is noteworthy that L. 1960, c. 93, § 1 is listed as a source of N. J. S. A. 18A:12-1 and 2. The 1960 statute combined sections 1 and 2 in one paragraph, thus indicating the several qualifications required. The separation into sections under the same Article indicate an attempt at clarity. We read into N. J. S. A. 18A :12-1 and 2 the need for all the qualifications expressed therein.

Defendant argues that his acceptance of board membership vacated his teacher’s position rather than prevented his appointment to the board. Reliance is placed upon De Feo v. Smith, 17 N. J. 183, 190 (1955), where it was held that, “The acceptance of the second office ipso facto vacates the first.” In that case the issue was whether defendant’s appointment as chosen freeholder vacated his office as member of the county board of taxation. The Supreme Court held that the duties of the offices were such that the public interest might be disserved by the common holding of both offices. Accordingly, acceptance of the second and incompatible office was deemed to vacate the first office.

The instant case is distinguishable from De Feo v. Smith. Here, defendant teacher was bound by his teaching contract for the school term and was not legally free to abandon one public job for another. Secondly, he kept his former position as a teacher and enjoyed the emoluments flowing therefrom. While he offered to resign as a teacher, the offer was conditioned upon an adverse determination and never effectively carried out.

We find no substantial merit in the contention that judicial determination of disqualification was necessary before plaintiff Chabora could be duly appointed to the board of education. Barckett’s appointment was invalid from its inception. The subsequent judicial declaration was expressly made "nunc pro tunc.”

The judgment is, in respect to the issues involved herein, affirmed.


author: Sullivan, P. J. A. D.

text:
    EAST BRUNSWICK BOARD OF EDUCATION, PLAINTIFF-APPELLANT, v. EAST BRUNSWICK EDUCATION ASSOCIATION, ET AL., DEFENDANTS-RESPONDENTS. IN THE MATTER OF THE EAST BRUNSWICK EDUCATION ASSOCIATION, ET ALS., CHARGED WITH CONTEMPT.
    Superior Court of New Jersey Appellate Division
    Argued January 25, 1971
    Decided February 5, 1971.

      Before Judges Sullivan, Collestek and Labeecque.

      Mr. Bichará 8. Cohen, attorney pro se, argued the cause for appellant (Messrs. Cohen, Hoagland, Cohen & Keefe, attorneys).

      Mr. Louis J. Alfonso, Assistant County Counsel, argued the cause for respondent County of Middlesex.

      Mr. Stephen SJcillman, Assistant Attorney General, argued the cause for respondent State of New Jersey (Mr. John B. Wefing, Law Assistant, on the brief; Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

This appeal stems from a 1970 strike by teachers employed by the Borough of East Brunswick Board of Education (Board). The Chancery Division, on application of the Board, entered a restraining order respecting the strike. Thereafter, an order to show cause in contempt was entered against the teachers for failure to return to work. Appellant Richard S. Cohen, attorney for the Board, was designated by the court to prosecute the contempt proceedings. Of the 60 defendants charged with contempt, 40 were tried and 38 were convicted. Pinos totalling $4,350 were assessed and paid to the Clerk of the Superior Court. See In re Newark Teachers’ Ass’n, 95 N. J. Super. 117 (App. Div. 1967).

Cohen then applied to the trial court for the allowance of a counsel fee and expenses in connection with the contempt proceedings to be paid by either the State of New Jersey or Middlesex County. The trial court held that it had no authority under R. 1:10 to allow a counsel fee but would direct the Board to reimburse appellant for all reasonable costs incurred by him.

This appeal by Cohen challenges the correctness of the aforesaid ruling. He argues that an attorney should not be required to render his professional services gratis; that his situation is analogous to the assignment of counsel in a criminal case, and that he is entitled to an allowance for his services on the reasoning of State v. Rush, 46 N. J. 399 (1966), to be paid by either the State or the county.

We do not see how any allowance can be made to defendant. R. 1:10 makes no provision for the allowance of a counsel fee to designated counsel. The State cannot be ordered to pay a counsel fee in the absence of enabling legislation. Nor can it be ordered that the fines collected be subject to the expenses incurred in connection with the contempt proceedings. In re Newark Teachers’ Ass’n, supra.

We likewise conclude that Rush does not support appellant’s argument that the county or State be required to pay him a counsel fee. Rush recognized the duty owed the court by an attorney to assist the court in the business before it. The reason Rush departed from this principle was the vast increase in assignments in criminal cases, with a resultant burden on attorneys which was “more than the profession alone should shoulder. * * *” A contempt proceeding is not analogous. Cf. State in the Interest of Antini, Jr., 53 N. J. 488 (1969).

We can see possible inequity in the present situation. Consideration might well be given to amendment to R. 1:10 to provide some means for compensating designated counsel. One solution would be to designate the Attorney General or county prosecutor to prosecute contempt proceedings, thereby avoiding the problem of counsel fees. We are told that this practice is being followed by some judges.

Contempt proceedings are maintained to vindicate the authority of the court and to deal with a challenge to government itself. Therefore, in a contempt proceeding under R. 1:10, the sheriff’s office, as an adjunct of the court, is required to servo the court’s orders and process without fee, cf. N. J. S. A. 22A :4-9, unless the court sees fit to impose costs on the person or persons found guilty of contempt. N. J. S. A. 2A:10-5; N. J. Dept. of Health v. Roselle, 34 N. J. 331, 345-346 (1961).

The judgment of the trial court is modified so as to delete therefrom the provision that Ihe board of education reimburse appellant for all reasonable costs, and as modified is affirmed.

Wo costs.

       At oral argument of the appeal, Mr. Cohen stated that his expenses consisted of fees due the sheriff’s office for service of court orders; that the sheriff’s office had advised him of the dollar amount of such charges, but had not submitted any bill because it did not know on whom the responsibility to pay rested.


text:
    ISAAC BACON AND HEDVIG BACON, HIS WIFE, AND HEDVIG BACON AND ISAAC BACON, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. ALLEN LEE MILLER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 25, 1971
    Decided February 5, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. Joseph B. O’Neil argued the cause for appellant (Messrs. Shapiro, Brotman, Eisenstat & Oapizola, attorneys).

      Mr. Burchard V. Martin argued the cause for respondents (Messrs. Taylor, Bischof, Williams & Martin, attorneys; Mr. G. Paul Orawshaw, on the brief).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Although defendant Allen Lee Miller is the named appellant, in actuality the Unsatisfied Claim and Judgment Fund Board (the Board) appeals from an order denying defendant’s motion to vacate an order directing payment of judgments in favor of plaintiffs and against Miller out of the Unsatisfied Claim and Judgment Fund (the Fund).

The facts are not in substantial dispute. On August 29, 1966 a vehicle owned and operated by Miller (who was uninsured) failed to stop before entering a through street and collided with one driven by plaintiff Hedvig Bacon in which plaintiff Isaac Bacon was a passenger. The contact between the two ears took place approximately in the center of the intersection and the cars thereafter went over the curb onto the sidewalk, the Miller vehicle striking three pedestrians who were standing at the corner.

Both plaintiffs, as well as the three pedestrians, suffered injuries for which they subsequently brought suit. There was a trial as to liability in the County Court, resulting in a verdict holding Miller solely responsible. Sometime thereafter a settlement was negotiated for the injuries sustained by the three pedestrians, all minors, for a total of $19,000. Following the settlement judgment was entered and two orders, the last one dated November 14, 1967, directed payment of the $19,000 total out of the Fund.

Fourteen months thereafter plaintiffs’ case was tried as to damages, resulting in judgments which totalled $3,755. They thereupon moved, on notice to the Board, for an order directing payment from the Fund. On the return day of the notice no one appeared representing defendant or the Board. Although N. J. S. A. 39:6—69 and 73 restricted payments from the Fund to $20,000 for each accident, we are not clear as to whether the court was advised that $19,000 had already been paid out of the Fund in settlement of the claims of the three pedestrians. The court thereupon entered an order directing payment out of the Fund of the full amount of plaintiffs’ judgments.

However, payment was not made and some three months later a motion was made to set aside the order for payment on the ground that the Fund’s liability did not extend beyond $1,000, the balance allegedly available after payment of the amounts of the prior settlements. The trial judge denied the motion, holding that there had been two accidents within the contemplation of the statute.

Both sides concede that the sole question presented is whether defendant was involved in one or two accidents. Defendant contends that there was hut one accident, while plaintiffs argue that the striking of the pedestrians was a second separate accident. On the basis of the facts herein-above referred to, we conclude that there was but one accident within the intendment of the statute, and that the liability of the Fund to all persons injured could not exceed the sum of $20,000. N. J. S. A. 39 :6-69 and 73.

There can be no question but that the statute creating the Unsatisfied Claim and Judgment Fund Board is remedial legislation, to be liberally construed to advance the remedy, due regard being had to the protection of the Fund against fraud and abuse, and to the fulfillment of the essential legislative policy. Giles v. Gasserl, 23 N. J. 22, 34 (1956); Robson v. Rodriquez, 26 N. J. 517 (1958). However, while liberality of construction of remedial legislation is desirable, we are not free to ignore the plain meaning of the language employed by the Legislature. Wormack v. Howard, 33 N. J. 139, 142 (1960). In line with our duty to interpret the statute we are required to give effect to such language in order to properly effectuate the legislative design. Dixon v. Gassert, 26 N. J. 1, 9 (1958). Of a certainty, the language used does not reflect an intention to make every claimant completely whole, but is intended to provide some measure of relief to those persons who come within the class intended to be protected. Corrigan v. Gassert, 27 N. J. 227, 233 (1958).

The issue here presented does not appear to have been passed upon by the courts of this or any of our sister states. For the most part, the parties rely upon cases involving clauses fixing the maximum liability of insurance carriers as to damages arising from one accident.

Plaintiffs, however, cite two cases involving liability under the Unsatisfied Judgment Fund provisions of the Highway Traffic Act of Newfoundland as supporting their contention that there were two accidents here. We find neither case to be apposite. In Carroll v. Furlong, 37 Mar. Prov. 69, [1955] 3 D. L. R. 279 (Newf. Sup. Ct. 1955), the accident occurred when defendant, while drunk, collided with three separate cars over a space of one-quarter of a mile. While the court there found that there were three accidents, it went on to state that “If one ear were struck and driven onto another * * * I can see the argument for a single accident.” In United Towns Electric Co. v. Bishop, [1955] 5 D. L. R. 782 (Newf. Sup. Ct. 1955), defendant drove his car across the center line of the highway to the left side and struck an oncoming car. He then returned to his side of the highway only to leave it again and strike a car which was stopped 40 feet behind the first one. Here, however, defendant did not straighten out after the accident but continued on an uninterrupted course onto the sidewalk.

Plaintiffs also rely heavily upon Liberty Mutual Insurance Co. v. Rawls, 404 F. 2d 880 (5 Cir. 1969). There, as defendant was proceeding along the highway at a very high rate of speed pursued by two deputy sheriffs, he struck the left rear of an automobile travelling in the same direction, knocking it off the highway. His automobile continued on, veered across the center line and thereafter collided head-on with an automobile travelling in the opposite direction. The court there noted that the “only reasonable inference” was that defendant had control of his vehicle after the initial collision. Here, as noted, defendant’s vehicle went out of control following the initial collision. Anchor Casualty Co. v. McCaleb, 178 F. 2d 822 (5 Cir. 1950), on which plaintiffs also rely, is likewise inapposite (assuming it has not been overruled by St. Paul-Mercury Indemnity Co. v. Rutland, 225 F. 2d 689 (5 Cir. 1955)). There the court was dealing with an oil well which “blew in” while being drilled, releasing a tremendous gas pressure and erupting intermittently for approximately 50 hours. The eruption blew sand, oil and mud onto different properties in the area, depending upon the direction of the wind. Here the entire transaction could hardly have involved more than two seconds or covered a space of more than 18-25 feet.

Our conclusion that defendant was involved in but one accident appears to accord with the majority view, regardless of whether based upon the “causation” test, the “time and space” test or the “popular meaning” test. See St. Paul-Mercury Indemnity Co. v. Rutland, supra; Truck Insurance Exchange v. Rhode, 49 Wash. 2d 465, 303 P. 2d 659, 55 A. L. R. 2d 1288 (Sup. Ct. 1956); Hyer v. Inter-Insurance Exch., 77 Cal. App. 343, 246 P. 1055 (D. Ct. App. 1926); Denham v. LaSalle-Madison Hotel Co., 168 F. 2d 576 (7 Cir. 1948), cert. den. 335 U. S. 871, 69 S. Ct. 167, 93 L. Ed. 415 (1948); see also Annotation, 55 A. L. R. 2d 1300 (1957). The facts in Truck Insurance Exchange v. Rhode, supra, bear a strong resemblance to those before us in that there defendant drove his automobile over the center line of the highway and collided with the first of three motorcycles which were proceeding about 75 feet apart in echelon formation in the opposite direction. With the first collision the automobile turned counterclockwise and collided with the second motorcycle, then continued its turn and collided with the third. While each collision involved contact with a different part of defendant’s automobile, it was clear that, as here, defendant’s car was out of control from the time of the first contact.

We have reviewed the remaining points advanced by plaintiffs and find them to be without merit. They urge that we should adopt the “effect upon the injured person” rationale, i. e., that an “accident” occurs each time a person sustains an injury or injuries, as representing the statutory intention, arguing that it is the better reasoned test and that to apply it would be to encourage safe driving by making a negligent uninsured responsible for all injuries he causes. We disagree. Had the Legislature intended this interpretation, it would have had no reason to fix a limit on the compensation allowable for injuries sustained by any one person, and a separate limit on the aggregate damages for injuries sustained by all persons in one accident. Further, it is self-evident that our holding as to the extent of the liability of the Fund in no wise lessens the responsibility of an uninsured for all the injuries he causes.

Since defendant was involved in but one accident, and hence the aggregate recovery from the Fund was limited to $30,000, the order for payment out of the Fund should have been limited to $1,000, divided pro rata between the two plaintiffs. Cf. Clarke v. Brown, 101 N. J. Super. 404 (Law Div. 1968).

While we recognize the seeming injustice sustained by plaintiffs here by reason of the delay in reducing their claim to judgment, we are not unmindful of the possibility that had the claims of the three pedestrians been reduced to judgment instead of settled, they might well have substantially exceeded $19,000. Situations of this kind place a heavy burden on the Board and its representatives to act fairly as between claimants, and we have no reason to believe that such was not the case here.

The judgment of the Salem County District Court is accordingly reversed and the case remanded for further proceedings in accordance with this opinion.

Sullivan, P. J. A. D.

(concurring). I fully agree that there was but one accident. However, I am troubled by the fact that at the time the court entered orders for payment out of the Fund of the settlement judgments in favor of the pedestrians, the Board was aware of plaintiffs’ claims arising out of the same accident which had already been established as to liability and were only awaiting a trial as to the amount of damages. At first blush, it would appear that the Board should have sought to have the court withhold payment of the judgments totalling $19,000 in favor of the pedestrians until the amount of plaintiffs’ claims, which almost certainly would have exceeded $1,000, had been determined. At that time, the $30,000, the limit of the Fund’s liability, could have been prorated and these plaintiffs could have been awarded their fair share of the available Fund monies. However, this issue was squarely passed upon in Clarke v. Brown, 101 N. J. Super. 404 (Law Div. 1968), where it was held that a claimant recovering a judgment against an uninsured driver was entitled to immediate payment out of the Eund to the extent that Eund monies were available, and that payment could not be withheld even though there were other claims for damages arising out of the same accident still pending, and there was a strong probability that the total amount of judgments against the uninsured driver would exceed the Fund’s liability. This holding follows the general rule as to insurance coverage and limits of liability thereunder.

The rule seems a harsh one, and yet to withhold payment would deny a diligent or prudent claimant who has reduced his claim to judgment his legal rights. It would also seriously interfere with the ability of the Board to settle claims. On this basis the Board’s handling of the instant matter was probably correct, although I am not happy about it.