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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JOHN J. CUSICK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1970
    Decided April 29, 1970.
    Before Judges Goldmann, Lewis and Matthews.

      Mr. Arnold, B. Levin, Assistant Prosecutor, argued the cause for appellant (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).

      Mr. Philip J. Blanda, Jr. argued the cause for respondent (Messrs. Blanda and Blanda, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

The State, pursuant to leave granted, appeals from a County Court order granting defendant’s motion to suppress evidence because obtained without a warrant.

At about 1 a.m. Officer Moon was on patrol duty when defendant passed him, driving at a high rate of speed westbound on Route 36 in Middletown Township. The officer immediately took up pursuit and clocked defendant travel-ling at 73 m.p.h. in a 50-mile speed zone. Defendant’s vehicle changed lanes three times without signalling, weaved slightly, rode the white dotted line separating the lanes, and nearly hit another car by cutting in front of it. Moon finally stopped defendant’s vehicle some three miles after first observing it and asked defendant to exhibit his driver’s license and vehicle registration. He produced a proper registration, but the driver’s license exhibited by him had expired. Moon testified that defendant’s speech was slurred, he had a strong odor of alcohol on his breath, and swayed from side to side as he stood on the highway while Moon examined the license and registration. Moon placed defendant under arrest for driving while under the influence of alcohol, a violation of N. J. 8. A. 39:4^50(a). Officer Mulvey arrived on the scene and, while he stood with defendant, Moon searched defendant’s car for any bottle of liquor from which defendant might have been drinking. In the course of doing so he found a revolver underneath the driver’s seat.

In response to questions put on cross-examination, Moon said defendant had been courteous, made no menacing gestures, was polite and cooperative, and willingly produced the driver’s license and registration.

In granting defendant’s motion to suppress, the judge said that he did not think there was any reasonable ground to suspect there would be a bottle in the car and so no ground for a warrantless search.

The State thereafter moved for a rehearing. The motion was denied and the earlier decision reaffirmed. In the course of the colloquy the judge observed that driving while under the influence of alcohol was not a crime, liquor was not contraband, and the search was not one for an object which might be dangerous to the arresting officer.

The constitutional guarantee against warrantless searches and seizures, which finds expression in the Fourth Amendment to the United States Constitution, embodies the test of reasonableness. It is only the unreasonable search and seizure that is condemned. State v. Carter, 54 N. J. 436, 448 (1969). In our view, there was probable cause to justify Officer Moon’s arresting defendant for drunken driving, and the subsequent search did not violate the Fourth Amendment.

Although drunken driving is not a crime, it is a serious traffic olfense. We hold that it is not unconstitutional for a police officer to search for alcohol as an incident to an arrest for drunken driving. In State v. Boykins, 50 N. J. 73 (1967), Chief Justice Weintraub, by way of dictum, held reasonable a search for intoxicating liquor following an arrest for driving while under the influence of alcohol. He said:

Surely not every traffic violation will justify a search of every part of the vehicle. See, generally, annotation, 10 A. L. R. 3d 314 (1966). A traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership. People v. Prochnau, [251 Cal. App. 2d 22] 59 Cal. Rptr. 265 (Ct. App. 1967) ; Draper v. State of Maryland, 265 F. Supp. 718 (D. Md. 1967) ; or if the officer has reason to Relieve the driver is under the influence of liquor or drugs, he may search the car for alcohol or narcotics, State v. Parker, 81 Idaho 51, 336 P. 2d 318 (Sup. Ct. 1959) ; People v. Jackson, 241 Cal. App. 2d 189, 50 Cal. Rptr. 437 (Dist. Ct. App. 1966). The State argues before us that the search here made could be justified on the latter ground. It could, if the officer had testified that the driver’s behavior or condition had suggested he was under such influence but the record is silent in that regard, [at 77; emphasis added]

Cf. State v. Campbell, 53 N. J. 230, 233-237 (1969); and see Annotation, 10 A. L. R. 3d 314, 332 (1966); United States v. Thompson, 420 F. 2d 536, 540-541 (3 Cir. 1970).

Although a search is not justified as an incident to every traffic violation, State v. Boykins, above, it is clear that a search is justified in those instances where its purpose is to gather things connected or related to the traffic violation fox which the arrest was made. A search of a car where the driver was arrested for a faulty directional signal would be unreasonable; however, a search for intoxicating liquor incidental to a justifiable arrest for drunken driving is reasonable, for such a search is directed towards and may in fact produce evidence related to the offense for which the arrest was made.

Reversed and remanded for a full trial.

Matthews, J. A. D.

(concurring). The presence of intoxicating liquor in a motor vehicle is not a violation of any law, nor is such liquor contraband in this State. Considering the provisions of N. J. S. A. 39 :^50.1 through 39:4-50.5, the presence or absence of an intoxicating beverage in a motor vehicle, when a motorist is stopped by the police fox apparent operation while under the influence of liquor, as was the case here, is immaterial to subsequent proof of the charge. Intoxication may be established by lay evidence. State v. Pichadou, 34 N. J. Super. 177, 180 (App. Div. 1955); State v. Burger, 74 N. J. Super. 208, 214 (App. Div. 1962). In view of the obiter quoted from State v. Boykins, 50 N. J. 73, 77 (1967), however, I find myself obliged to concur. Cf. Carianni v. Schwenker, 38 N. J. Super. 350, 359 (App. Div. 1955).


source: Caselaw Access Project

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

license: Public Domain

text:
    JUAN DATIL RAMOS, PLAINTIFF-RESPONDENT, v. JUNE STRELECKI, DIRECTOR OF MOTOR VEHICLES, DEFENDANT-APPELLANT. JUAN DATIL RAMOS, PLAINTIFF-RESPONDENT, v. JACOB CRUZ, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1970
    Decided April 29, 1970.

      Before Judges Golumann, Lewis and Matthews.

      Mr. James J. Cosby, Jr., argued the cause for appellant.

      Mr. James A. Mullen, Jr., argued the cause for respondent Cruz (Messrs. Kisselman, Devine, Deighan Montano, attorneys).

      Messrs. Stransky, Poplar & Nickerson, attorneys for respondent Ramos.
   The opinion of the court was delivered by

Goldmanw, P. J. A. D.

Defendant Director of Motor Vehicles appeals from a Law Division judgment entered upon a jury verdict awarding plaintiff $9,000 in his action to recover for injuries suffered in a “hit-and-run” automobile accident under the provisions of the Unsatisfied Claim and Judgment Fund Law, N. J. S. A. 39:6-78.

The incident occurred on Christmas afternoon 1965 as plaintiff started to cross a street in Camden, U. J. He was unable to identify the automobile that hit him or the driver. Accordingly, he instituted suit in October 1966 against defendant Director. After answer filed, the depositions of defendant Cruz and one Colon were taken in July 1967. In the course of his deposition Colon identified the vehicle which struck plaintiff as one driven by Cruz. Shortly thereafter, on November 20, 1967, plaintiff instituted suit against Cruz, alleging he was the driver of the offending vehicle.

Counsel for defendant Director then sought and obtained an order consolidating the two matters for trial. Following this, he moved for summary judgment, seeking dismissal of the- ease against the Director on the ground that plaintiff first had to exhaust his remedies against the known identified defendant. The motion was denied, the trial judge voicing concern that plaintiff might possibly be exposed to inconsistent judgments if the Director were dismissed at that juncture, i. e., Cruz might be held not to have been the hit-and-run driver in the second suit and later, in the action against the Director, another jury might decide that Cruz was in fact the driver. These possible inconsistent verdicts would leave plaintiff without a remedy. There was no attempt to seek leave to appeal from the interlocutory order denying the motion.

The consolidated cases proceeded to trial against both the Director and Cruz. At the close of all the evidence counsel for the Director, who had actively participated in the trial, again moved for a dismissal, contending that plaintiff could not proceed against the identified known defendant, Cruz, and the Director in the same action. This motion, too, was denied, the trial judge indicating that to release the Director at that point in the proceedings would be highly prejudicial to defendant Cruz. Plaintiff’s counsel, in turn, submitted a written request that the jury be charged that it could not consider the issue of plaintiff’s contributory negligence because defendants had presented no evidence to that effect. The trial judge denied the request and in the course of his charge instructed the jury on the issue of plaintiff’s contributory negligence. Eollowing the return of a $9,000 verdict against the Director only, the Director unsuccessfully moved for a new trial. This appeal followed.

It is first argued that the Director’s liability should not have been submitted to the jury with the issue of Cruz’ liability. The decision in Schaeffer v. Strelecki, 107 N. J. Super. 7 (App. Div. 1969), decided a month after the filing of the notice of appeal in this case, is clearly dispositive of that contention. In that case plaintiffs first sued defendants Balderose, alleging them to be the tortfeasors in the automobile accident in question. Defendants denied that their ear was involved and, although there was some evidence that seemed to involve them in the accident, they were successful in having the case dismissed against them on a motion for summary judgment. Plaintiffs thereupon instituted suit against the Director pursuant to the hit-and-run provisions of the Unsatisfied Claim and Judgment Eund Law. The Director defended the action in a full trial as to liability, the only real issue submitted to the jury being whether the accident involved a known driver (Mrs. Balderose) or an unknown one. The jury found in the Director’s favor, thus finding, in effect, that Mrs. Balderose had been driving the offending car. Plaintiffs’ motion for a new trial having been denied, they appealed. They then applied to the judge who had granted summary judgment in the Balderose case for relief pursuant to R. R. 4:62-2(f) [now R. 4:50-l(f)]. Denial of that motion resulted in a second appeal. This court reversed and remanded the case for a new consolidated trial as to all parties. After quoting from what another Part of the Appellate Division had said in Dietz v. Meyer, 79 N. J. Super. 194, 200-201 (1963),' the court said:

We accordingly hold that where genuine doubt exists as to the identification of the person (owner or driver) responsible for the operation of an automobile in a “hit and run” accident resulting in personal injury or death, the plaintiff shall not be required to exhaust his remedy against the assumed driver and owner before recourse to suit against the Director, but, provided he is otherwise eligible to do so, may implead the latter as a defendant in the alternative in the suit against the assumed owner or driver, or both. Thereafter, liability shall be determined at a single trial. We are satisfied that this method of procedure best comports with the liberal construction to be given to the Unsatisfied Claim and Judgment Fund Law, Giles v. Gassert, 23 N. J. 22, 34 (1956), the spirit of our modern practice, and the requirements of substantial justice. (107 N. J. Super, at 13]

The court further said that “where there is probable cause to entertain doubt as to the identity of the tortfeasor, the overall interests of the Director will be better served by permitting her to be made a party to the action at its inception.” Ibid.

Farnham, v. Strelecki, 101 N. J. Super. 1 (App. Div. 1968), on which, the Director relies, is not to the contrary, nor is Nash v. Iamurri, 76 N. J. Super. 167 (Law Div. 1962), referred to in Farnham. Plaintiff conld have, in good faith, not instituted suit against defendant Cruz based on a reasonable determination that he was not the driver of the hit-and-run vehicle, and proceeded against the Director only. Cruz was not identified as the possible known defendant until more than 1)4 years after the happening of the accident. The two cases were consolidated for trial on application by the attorney for the Director himself, and because of this consolidation she was able to participate in the action and to protect her interest.

It is to be observed that if the Director had been permitted to be relieved at the close of the evidence and Cruz had been found not liable by the jury, as he was, there would then have to be a second trial against the Director. Such a procedure would be in direct conflict with our judicial policy against multiplicity of litigation.

It is also to be noted that if the Director felt that the consolidated actions would be prejudicial to her or otherwise contrary to the legislative purpose evinced by N. J. S. A. 39:6™78, she could have sought leave to appeal from the denial of her motion for summary judgment. Further, and at an earlier stage of the proceedings, she should not have applied for a consolidation of the actions, but rather have sought a stay of the action against her until the suit against Cruz was determined. This is basically what happened in Nash v. Iamurri, above.

The Director attempts to distinguish Schaeffer v. Strelecki, above, on the ground that in that ease there did not exist any real issue of plaintiffs’ contributory negligence, whereas in the present case that issue was strongly contested. It is argued that the jury, by its decision, in effect ignored the issue of plaintiff’s contributory negligence because it was "distracted” by the fact that it would have to decide whether Cruz or an unknown driver was involved in the accident, thereby ignoring the possibility that plaintiff could have been contributorily negligent. There is nothing in the record to indicate that the jury ignored this issue. Hot only did the Director have a full opportunity to argue contributory negligence but, additionally, the trial judge charged the jury as to the law applicable to that issue. The jury unanimously found that Cruz was not involved in the accident. Its vote in finding an unknown driver responsible was 10-2. The only basis for the two dissenting votes would be either on the issue of contributory negligence rathe amount of damages to be awarded, and since there was no real dispute as to the nature and extent of plaintiff’s injuries or damages, the dissenters must have cast their negative vote on the basis of plaintiff’s contributory negligence.

The Director also argues that the verdict was against the weight of the evidence. She concedes that a jury verdict is not to be set aside on that ground unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion, and that in applying the rule due consideration must be given to the opportunity of the jury to pass upon the credibility of the witnesses, citing Massotto v. Public Service Coord. Transport Co., 71 N. J. Super. 39, 53 (App. Div. 1961). The issue presented to the jury was entirely factual, and its function was to analyze and assess the testimony as to its credibility and weight. The record supports its determination.

Affirmed.


author: Pee Ctjeiam.

text:
    RICHARD J. FITZMAURICE, PLAINTIFF-RESPONDENT, v. VAN VLAANDEREN MACHINE COMPANY, ETC., DEFENDANT-APPELLANT, AND PETER VAN VLAANDEREN, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued December 15, 1969
    Decided April 30, 1970.

      Before Judges Kilkenny, Labsecque and Leonard.

      Mr. Albert G. Besser argued the cause for appellant (Messrs. Uannoch, Weisman, Stern &. Besser, attorneys).

      Mr. Charles B. Villanueva argued the cause for respondent (Messrs. Van Riper, Belmont & Villanueva, attorneys).
   Pee Ctjeiam.

Defendant Van Vlaanderen Machine Company appeals from a judgment of the Law Division awarding damages of $37,000 to plaintiff under an employment contract. The action was dismissed as to the codefendant Peter Van Vlaanderen.

Plaintiff was a business consultant specializing in marketing and sales. Defendant manufactured printing presses as well as other machinery. Sometime around November 1965 it entered into discussions which, eventually, led to its retention of plaintiff as a management consultant.

The terms of the agreement between the parties were set forth in a letter, dated February 15, 1966, addressed by plaintiff to Peter Van Vlaanderen, the company’s vice-president. It recited:

This letter is to confirm our understanding in which you have agreed to engage me to provide business diagnosis and interim management for one year at $52,000.00. Fee to be paid monthly in advance. Out of pocket expenses to be reimbursed monthly. Extraordinary expenses, e g. travel, to be agreed upon in advance.
Apart from my normal practice, I have agreed to release you from this contract three months from this date if at that time you do not find my work profitable. If this should occur, it is agreed that my fee will be $15,000.00 plus expenses. Otherwise the contract is to continue for one year. (Emphasis added.)

It was accepted by Peter Van Vlaanderen on behalf of the company on March 7, 1966.

The parties worked under this agreement until May 16, 1966, when Peter Van Vlaanderen telephoned plaintiff and told him his work was of no benefit to the company, its officers were unsatisfied and “we want to call it off.” By then defendant had already paid plaintiff $15,000 plus his expenses. Plaintiff thereafter commenced the present action.

Defendant urges that (1) the contract between the parties was one for personal satisfaction, and therefore defendant was not required to show a reasonable basis for its decision to terminate its relationship with plaintiff; (2) the court erred in charging the jury that the burden rested upon defendant to prove that the contract was not profitable; (3) the court erred in failing to recharge the jury when questions it propounded to the court indicated that the jury was confused, and (4) the court wrongfully excluded testimony as to the purpose behind the contract’s provision that $15,000 was to be due plaintiff if the contract was abrogated three months after its inception.

Defendant argues that the contract was one of personal satisfaction, which permitted it unilaterally to cancel. Not so. The contract created an employment relationship covering a one year period, but subject to termination, at defendant’s option, three months after its date if defendant did not find plaintiff’s servicies to be profitable. The right to dissolve the contractual relationship was thus a conditional one. A personal satisfaction contract, so called, generally involves a subject matter which concerns the personal taste, fancy or feeling of another, who is thus made the sole judge of the quality of the performance. 17 Am. Jur. 2d, Contracts § 366, p. 808 (1964). However, contracts which promise per form anee in the form of results to the satisfaction of another are in a different category and as to them, the New Jersey rule is that the party claiming dissatisfaction must act honestly and in good faith. Grobarchik v. Nasa Mortgage and Investment Co., 117 N. J. L. 33, 34 (Sup. Ct. 1936) ; Williams v. Hirshorn, 91 N. J. L. 419 (Sup. Ct. 1918). Gerisch v. Herold, 82 N. J. L. 605, 607-608 (E. & A. 1911). This comports with the majority rule. See 17 Am. Jur. 2d, Contracts § 366, at 808-809 (1964). See also 5 Williston, Contracts (3d ed. 1961) § 675A, at 206-207; § 675B, at 210.

The contract here evidenced an intent that the continuation of plaintiff’s relationship with defendant was not to be subject to the sole and unbridled discretion of defendant’s officers but was to be cancellable only if they found plaintiff’s services not to be “profitable.” Whether or not such services were profitable would appear to be measurable by commercial standards. Defendant’s decision thereon was, of course, subject to the test of good faith and reasonableness. Urban Farms, Inc. v. Seel, 90 N. J. Super. 401 (App. Div. 1966); Cooper v. Singer, 118 N. J. L. 200 (E. & A. 1937). Such a construction gives due weight to the language employed by the parties, considered in the context of their dealings, imposes the least hardship upon either of the parties and cannot be said to be unfair or unreasonable. Tessmar v. Grosner, 23 N. J. 193, 201 (1957); Schnakenberg v. Gibraltar Savings and Loan Ass’n, 37 N. J. Super. 150, 155-156 (App. Div. 1955). Thus the jury was properly instructed that the test was whether defendant’s conclusion that plaintiff’s services were not profitable, on which it based its termination of the agreement, could fairly and reasonably have been reached under the- proofs adduced.

Defendant urges that if the trial judge intended to charge that defendant carried only the burden of establishing a reasonable basis for its conclusion that its relationship with the plaintiff was not profitable, that object was nullified by his later instruction that “the burden of proving that the contract was not profitable rests with defendant.” It argues that this inconsistency compels a new trial. Davidson v. Fornicola, 38 N. J. Super. 365, 371 (App. Div. 1955), certif. den. 20 N. J. 467 (1956). However, so long as the law is stated clearly and intelligently, the ultimate test is how and in what sense, under the evidence and circumstances of the trial, ordinary jurors would have understood the instructions as a whole. The fact that some expressions, standing alone, may be said to be erroneous affords no ground for reversal where the charge as a whole presents the law fairly and clearly. Ellis v. Caprice, 96 N. J. Super. 539, 546 (App. Div. 1967), certif den. 50 N. J. 409 (1967). The acid test is, would the jury be misled? Middleton v. Public Service Co-Ordinated Transport, 131 N. J. L. 322, 323 (E. & A. 1944).

Our consideration of the charge in its entirety convinces us that the law applicable was accurately stated and the jury was not misled. The excerpt cited by defendant is found towards the end of the charge, in that portion thereof in which the court was illustrating its instruction as to the burden of proof. Immediately thereafter the jury was cautioned, “Your burden and the issue which you should determine is whether or not the defendant had reasonable and fair grounds upon which * * * the company was to make the termination * * We must assume that the jury was guided by the court’s instructions. Clark v. Piccillo, 75 N. J. Super. 123, 133 (App. Div. 1962).

The absence of any objection from defendant’s able trial counsel confirms our conviction that the charge was not misleading. At the argument of the motion for a new trial there still was no complaint concerning it. We need not reiterate the necessity of a prompt objection to the charge, B. 1:7-2 (formerly B. B. 4:52-1), especially in eases such as this one. Where an inconsistency in the charge is alleged counsel owes it to the court to point it out so that the court may be afforded the opportunity to clear it up and thus avoid the possibility that a retrial may become necessary.

Defendant argues that the court erred in charging that the burden of establishing facts justifying defendant’s termination of the contract rested with defendant. Not so. Plaintiff did not obligate himself to perform to the satisfaction of defendant, but rather agreed to render business diagnosis and management services for the term of one year. Only upon the establishment of a contingency, i. e., the failure of defendant to find his work to be profitable, did he agree to release defendant from its obligation. Where a party seeks to avoid a contractual obligation by reason of the happening of an event or condition stipulated in a contract, the burden of establishing the occurrence of the condition rests upon the party asserting it. B. R. 4:9-2, now B. 4:5-8(b). See 110-112 Van Wagenen Avenue Co. v. Julian, 101 N. J. Super. 230, 237-239 (App. Div. 1968), certif. den. 52 N. J. 490 (1968); Hulbert v. Collins, 22 N. J. Super. 217 (App. Div. 1952); 5 Willis ton, Contracts (3d ed. 1961) §§ 667-667A, at 144 et seq. Moreover, proof of the happening of such an event amounted, in effect, to a separate affirmative defense, a defense “which is good even if the allegations of the complaint be proven * * Cella v. Both, 113 N. J. L. 458, 463 (E. & A. 1934). Inasmuch as defendant asserted, both in the pretrial order and in its opening to the jury, the unprofitability of retaining plaintiff by way of avoidance of its obligations under the contract, this amounted, in effect, to an affirmative defense as to which the burden of proof rested upon defendant. B. B. 4:8-3, now B. 4:5-4; N. J. Mtge and Invest. Co. v. Dorsey, 33 N. J. 448 (1960); Nat'l Prem. Budget Plan Corp. v. Nat’l Fire Ins. Co., 97 N. J. Super. 149, 205 (Law Div. 1967), aff’d 106 N. J. Super. 238 (App. Div. 1969); Morrone v. Morrone, 44 N. J. Super. 305, 313 (App. Div. 1957).

Defendant further argues that even if it be found that the charge was correct the court should have recharged the jury because questions it propounded to the court during its deliberations evidenced that it was “confused.” After 2y2 hours of deliberating the jury submitted the following questions to the court: “If the defendant does not seem to have satisfactorily assumed the burden of proof that no profit was made by result of the relationship, is there any degree of profit? In other words, does employment for one day before termination have as much validity as three months?” The trial judge had determined to further charge the jury but because he was presiding at another trial he had not done so when the jury reached its verdict approximately one hour later. After assurance by the jury that it no longer required the answers to its questions, the 10-2 verdict for plaintiff was received.

While we do not condone the court’s delay in responding to the jury’s questions, we find no error in the omission to recharge. We are not at all clear that the jury was confused. Assuming that it (or one or more of its members) may have been confused at some time during its deliberations, we are satisfied that defendant suffered no prejudice thereby. Cf. Springdale Parle v. Andriotis, 30 N. J. Super. 257, 265 (App. Div. 1954). It is to be assumed that the jury followed the court’s charge in arriving at its verdict. Clark v. Piccillo, supra, 75 N. J. Super., at 133. There was ample credible evidence upon which it could have based its verdict. Dolson v. Anastasia, 55 N. J. 2, 4-9 (1969); Kulbacki v. Sobchinsky, 38 N. J. 435, 444-447, 452 (1962).

We find defendant’s fourth point to be without substance. It complains of tbe exclusion of a question put to its vice-president on direct examination. The exclusion was proper. The jury was concerned only with the contract the parties had made. The interpretation of that contract was for the court rather than the parties. Further, defendant suffered no prejudice from the exclusion of the specific question to which the court’s ruling was directed.

We have considered the remaining points raised and find them to be without merit.

The judgment is affirmed.


author: Collesteb, J. A. D.

text:
    THOMAS MULLIGAN, APPELLANT, v. E. NORMAN WILSON, DIRECTOR OF LAW AND PUBLIC SAFETY, CITY OF HOBOKEN, A MUNICIPAL CORPORATION, CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY, AND DEPARTMENT OF CIVIL SERVICE, STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 6, 1970
    Decided May 1, 1970.

      Before Judges Coneobd, Collesteb and Kolovsky.

      Mr. Mitchell MelniTcoff argued the cause for appellant (Mr. Lee A. Holley, attorney).

      Mr. Philip S. Carchman, Deputy Attorney General, argued the cause for respondents, Civil Service Commission and Department of Civil Service (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
    No one appeared on behalf of respondent E. Norman Wilson, Director of Law and Public Safety, City of Hoboken.
   The opinion of the court was delivered by

Collesteb, J. A. D.

Thomas Mulligan appeals from an administrative decision of the Department of Civil Service (Department) refusing to certify him as eligible for appointment as a police officer of the City of Hoboken.

On April 26, 1968 the Department announced that a competitive examination for the position of patrolman in the police department of the City of Hoboken would be held on June 8. On May 13 appellant filed his application to take the examination. Because Mulligan was unable to comply with the minimum height requirement of 5'7" prescribed by the Department the Director of Law of Hoboken notified the Department that the city was willing to accept him for appointment even though he was one inch short of the height requirements. On June 12 the Department notified the Director that at the time of the examination Mulligan’s height was 5'5.1" [nearly two inches short]; that it was not its policy to consider waivers for deficiencies of this magnitude, and that it would not waive the minimum height requirement. Thereafter the Department notified appellant it would not consider him as a candidate for the position under Civil Service Buie 26, now N. J. A. C. 4:18-14(b) (1). Appellant brought an action in the Chancery Division challenging the ruling and the court transferred the case to this court for review pursuant to B. B. 4:88-8, now B. 2:2-3.

Appellant’s first point is that there is no statutory authority for the height limitation imposed and that absent a specific delegation of power by the Legislature the Department had no authority to prescribe such a requirement. He further argues that rules and regulations adopted by the Department also do not provide for such a height requirement. We are satisfied that appellant reads the Civil Service Act and the rules and regulations too narrowly.

Art. New Jersey Constitution (1947), Art. VII, § I, par. 2, provides that civil service appointments shall be made according to merit and fitness to be ascertained, as far as practicable, by a competitive examination. To attain this objective the Legislature enacted the Civil Service Act, N. J. S. A. 11:1-1 ei seq., creating the Department of Civil Service, headed by the Civil Service Commission. To implement the powers delegated by the statute the agency was authorized to adopt rules and regulations to carry into effect the provisions of the law.

Under the rules and regulations the chief examiner and secretary of the department is charged with the responsibility of directing the testing of applicants and to establish minimum qualifications required for the satisfactory performance of the duties and tasks of the position. Civil Service Buies 2 and 11, now N. J. A. C. 4:3—8(13). The examination may include tests of physical qualifications of the applicant. N. J. S. A. 11 :23-6. N. J. S. A. 11:23-2 provides that the Department may refuse to certify an applicant who lacks any of the established preliminary requirements for the position or is physically unfit to perform the duties thereof.

While it is true, as alleged by appellant, that neither the Civil Service Act nor the rules and regulations adopted by the Department specifically fix the height requirements for police officers, we are satisfied that properly construed the statute and rules grant the Department such authority. The grant of an express power by the Legislature is always attended by such incidental authority as is fairly and reasonably necessary or appropriate to make it effective, and authority granted to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent. Cammarata v. Essex County Park Comm'n, 26 N. J. 404, 411 (1958).

Since the Department is directed to conduct competitive examinations based on merit and fitness, including tests of physical qualifications for a position, we conclude that it is implicit in the provisions of the statute and the rules that the chief examiner and secretary has the authority to fix minimum physical qualifications for the position, including height requirements.

Appellant’s second point is that the minimum height requirement of 5'7/r fixed by the Department is arbitrary and capricious because it bears no relationship to the performance of the duties of a police officer. In the field of civil service employment, administrative agents who are authorized to make such decisions are invested with a broad discretion and courts will not interfere with their actions unless they are clearly arbitrary and unreasonable. Flanagan v. Civil Service Department, 29 N. J. 1, 9 (1959).

In fixing the height requirement the chief examiner and secretary unquestionably considered the nature of the work involved in arriving at a determination to establish a minimum height at 5'7". It seems obvious that the physical stature of a police officer may be an essential factor in determining whether he is capable of performing the duties of the position and that an undersized person might not be able to adequately fulfill the responsibilities imposed upon him. The Department has provided us with a summary of the height requirements of police officers in 139 jurisdictions (county and municipal) in the 50 States, compiled by the International Association of Chiefs of Police. It reveals that in only one jurisdiction (Cheyenne, Wyoming) is the height requirement less than 5'7", namely, 5'6". In 22 jurisdictions the requirement is 5'7" (the standard adopted in New Jersey) while 113 jurisdictions require applicants to be at least 5'8" in height. We are satisfied that the action of the Department fixing 5'7" as a minimum height requirement was not unreasonable or arbitrary.

Appellant also argues that the height requirement is arbitrary because the Department waives the requirement for some applicants but refused to do so in his case. The argument is frivolous. It appears that the Department will consider waiving the height requirement at the request of a municipality, under certain conditions, where the deficiency is not more than one inch. This is not evidence that enforcement of the height requirement is arbitrary, capricious or discriminatory as to appellant, whose height deficiency was almost two inches.

Appellant’s final point that the height requirement fixed for police officers violates the equal protection clause of the Federal Constitution lacks merit. It is not arbitrary; it treats all applicants in a like manner, and it has a reasonable relation to the object of the Civil Service legislation — fitness of the applicant for the position. See Robson v. Rodriquez, 26 N. J. 517, 522-526 (1958).

Affirmed.


author: Halptsen, J. A. D.

text:
    VERONICA MULKERIN AND JOSEPH MULKERIN, PLAINTIFFS-RESPONDENTS, v. SOMERSET TIRE SERVICE, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 20, 1970
    Decided May 1, 1970.

      Before Judges Sullivan, Cakton and Haleekn.

      Mr. John B. Stone argued the cause for appellant (Messrs. By an, Saros, Davis & Stone, attorneys).

      Mr. Thomas F. Dwyer argued the cause for respondents (Messrs. Sauer, Boyle and Dwyer, attorneys).
   Halptsen, J. A. D.

Plaintiff Veronica Mulkerin fell in the driveway of defendant’s service station and sustained serious injuries. In this suit against defendant the jury awarded her damages of $48,000, and her husband $5,500 on his per quod claim.

Defendant’s motion for a new trial was denied but the court remitted $10,000 of Mrs. Mulkerin’s verdict and directed that unless she accepted the reduced verdict a new trial on damages would be ordered. No change was made in Mr. Mulkerin’s verdict. Mrs. Mulkerin agreed to the remittitur and judgments were entered for Mrs. Mulkerin for $38,000, and Mr. Mulkerin for $5,500. Defendant appeals from these judgments, and Mrs. Mulkerin cross-appeals from the court’s action in remitting $10,000 of her verdict.

In seeking a reversal defendant contends it breached no duty owing plaintiffs hence the jury’s verdict was against the weight of evidence. We disagree. The jury could reasonably conclude from the evidence that Mrs. Mulkerin was a business invitee on defendant’s premises, who fell and was injured because of its negligent installation and maintenance of underground lines which resulted in a depression two to three feet wide, 66 feet long, and depressed about one to two inches, extending across the driveway of its property.

Although the incident occurred during a heavy snow storm, and despite defendant’s uncontradicted proof that it frequently caused its driveway to be plowed during the storm, the jury could find that ice and snow accumulated in the depression causing Mrs. Mulkerin to fall. The testimony of Mrs. Mulkerin as to where and what she fell on, coupled with the expert’s opinion of faulty construction and maintenance, created a classic jury question as to whether defendant exercised ordinary care to render its premises reasonably safe for use by its patrons. The record fails to disclose a miscarriage of justice as defined in Dolson v. Anastasia, 55 N. J. 2 (1969). On the contrary, the record amply supports the jury’s conclusions on liability and the court’s denial of a new trial on that issue.

Defendant also contends that the opinion testimony of plaintiffs’ expert was based on speculation and contrary to the weight of evidence, and that the instructions to the jury were incomplete and went beyond fair comment. We have carefully examined these contentions and find them without substance.

Einally, we turn to plaintiffs’ cross-appeal. Before discussing the merits, we will dispose of defendant’s contention that since Mrs. Mulkerin accepted the court’s remittitur she is now precluded from raising it by cross-appeal. This narrow issue, to our knowledge, has never been squarely decided in 'New Jersey. We have concluded that she is not barred from raising the issue.

Remittitur is the action taken by a court to reduce a jury’s verdict because it determined the verdict is excessive. It gives plaintiff the choices of accepting the reduced verdict or suffering a new trial on damages. The philosophy is to encourage the use of remittitur whenever applicable. Fritsche v. Westinghouse Electric Corp., 55 N. J. 322 (1970). As expressed by Justice Proctor, “We think it deserving of mention that in the future both trial and appellate courts that are confronted with excessive verdicts should, if possible, resort to an order of remittitur. * * * Utilization of this device avoids the unnecessary expense and delay of a new trial.” (at 330-331)

When a plaintiff accepts a remittitur he generally does so because it avoids delay, expense, the risk of a new trial on damages or an appeal. However, if defendant appeals, the objectives of the court and plaintiff have been frustrated. Since plaintiff, because of defendant’s appeal, must go through an appeal after he has accepted the remittitur, why should he, in all fairness, be deprived of the right to review the court’s action? Why should defendant get the benefit of the reduced verdict and be able to appeal on all issues without risking a restoration of the jury’s verdict? No sound reason for such benefits to defendant exist. On the contrary, defendants may hesitate to appeal and more readily agree to pay the remittitur. We realize there are contrary views. See the majority and dissenting opinions in Corabi v. Curtis Publishing Company, 262 A. 2d 665 (Pa. Sup. Ct. 1970), dealing with a conditional acceptance of a remittitur by a plaintiff. See also the annotation in 16 A. L. R. 3d 1327, wherein cases from other jurisdictions on the problem are discussed. We are in accord with the view that a plaintiff who accepts remittitur may not appeal, but where defendant has appealed, plaintiff may cross-appeal, as expressed in Plesko v. City of Milwaukee, 19 Wis. 2d 210, 120 N. W. 2d 130 (Sup. Ct. 1963).

Turning to the merits of the cross-appeal, we have concluded that the jury’s verdict of $48,000 for Mrs. Mulkerin should be reinstated and the remitted judgment set aside. A brief summary of Mrs. Mulkerin’s admitted injuries will demonstrate the basis for our conclusion. She was 57 years old when the accident occurred. She had painful contusions and a slight shortening of her right leg. She suffered a transcervical fracture of the right femur, which had to be pinned and resulted in a condition known as asepetic necrosis. Such condition is marked by a breakdown of bony tissue and a failing of the blood supply. To alleviate the condition it would require hospitalization for a prosthesis: that is, an operation to replace her entire hip with a metal device. She now has a permanent and distinct limp when walking. She was employed at the time of the accident earning approximately $5,000 a year. Up to time of trial she had lost approximately $11,000 in earnings, with an estimated work expectancy until she reached retirement age of 65. Medical expenses incurred by Mr. Mulkerin approximated $2,500. Considering all these factors, and giving due weight to the trial judge’s opportunity to see and hear the witnesses, and get the “feel of the case,” we find that the court’s action in remitting $10,000 of the jury’s verdict was error. In light of defense counsel’s argument before us, as corroborated by the record, we have the impression that he never seriously questioned the extent of Mrs. Mulkerin’s injuries.

If the remittitur was imposed by the court to mould the amount of Mrs. Mulkerin’s verdict because of the foreman’s statement that they gave her “wages for six years $30,000; pain and anguish $18,000,” the court’s action cannot be sustained. He made a substantive determination that was solely the jury’s province. State v. Harris, 78 N. J. Super. 232, 238 (App. Div. 1963). At best, any attempt to say what the jury had in mind on the issue of wages would be pure speculation. See Poland v. Parsekian, 81 N. J. Super. 395, 402 (App. Div. 1963), certif. den. 41 N. J. 520 (1964).

Eor the reasons expressed the jury’s verdict of $48,000 for Mrs. Mulkerin is reinstated and the judgment of remittitur for $38,000 set aside, and a judgment on her behalf entered for $48,000. In all other respects the judgments entered below are affirmed.

      The recording of the terms of the remittitur and the judgments entered leaves the court records in some confusion. However, since the intent of the court and the understanding of the parties is clear that a remittitur was intended, we will treat with the merits. See Bitting v. Willett, 89 N. J Super. 196 (App. Div. 1965), remanded 47 N. J. 6 (1966). Tor future guidance it is suggested that when the court directs a remittitur and plaintiff agrees thereto, plaintiff should file his acceptance in writing. The order denying the new trial should recite the amount of the judgment as remitted and the plaintiff’s acceptance thereof. Tim court clerk should then enter judgment in the reduced amount.


author: CoNSODims, J. C. C.

text:
    JOYCE DeMEO, PLAINTIFF, v. LOUIS DeMEO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 27, 1970.

      Mr. Robert J. Citrino, Jr., argued the cause for plaintiff (Messrs. Citrino, Car ella and Balsam, attorneys).
    No appearance for defendant.
   CoNSODims, J. C. C.

(temporarily assigned). Plaintiff charged extreme cruelty predicated on the addiction of defendant to heroin, the familial condition resulting therefrom endangering her health and impairing her well-being with little likelihood of change in the future. Proof conformed to the pleadings.

Heroin is but one of the derivatives of opium by way of morphine, itself an opium derivative. Each of these is as dangerous as the other in relation to human beings although the effects of any one on different persons may differ somewhat.

The instant case seeks a finding that addiction to heroin, an opium-derived drug, is extreme cruelty per se. On the broadness of such a finding we have no case law.

Our only drug addiction case, Melia v. Melia, 94 N. J. Super. 47 (Ch. Div. 1967), held on its facts that voluntary and continued addiction to heroin with resultant attrition of sexual powers and finally refusal of sexual intercourse was a ground for divorce as extreme cruelty. Its judgment was circumscribed as to drug and as to one effect only. 8 Journal of Family Law, 278 (Univ. of Louisville, 1968).

Addiction to opium (and so morphine) derived drugs saps the vitality and initiative of the user, diminishes physical and mental energy, creates character disorders and psychoneuroses, induces inadequate personalities, produces spoiled, complaining, selfish, neurotic weaklings, makes of marriage a transitory episode which in the male stimulates the emergence of resentment and disgust for all women and in the female the ultimate elimination of conventional social values, the rejection of marital ties and adoption of mores that reject society and its disciplines.

There can be no doubting of the corroborated testimony of an unaddicted spouse that some or all of the results of opium derived drugs affect the health of the aggrieved party and that such make his or her life one of such discomfort and wretchedness as to create an incapacity to discharge the marital duties within our definition of the statutory ground of extreme cruelty. N. J. S. A. 2A:34-2(c); Friedman v. Friedman, 37 N. J. Super. 52 (App. Div. 1955).

Generally, see The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse (1967); Nyswander, The Drug Addict as a Patient (1956); Hesse, Narcotics and Drug Addiction (1946); Kalb, Drug Addiction (1962); Kron and Brown, Mainline to Nowhere (1965).

Judgment of divorce.


author: Mountain, J. S. C.

text:
    BRYAN CONSTRUCTION CO., INC., PLAINTIFF, v. EMPLOYERS’ SURPLUS LINES INSURANCE COMPANY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 23, 1970.

      Mr. Joseph J. MacDonald for plaintiff (Messrs. Harrison, Hartman <& MacDonald, attorneys).

      Mr. Harold I. Braff for the defendant, Employers’ Surplus Lines Insurance Company (William H. Covert, on the brief; Messrs. Braf, Litvalc and Hrtag, attorneys).

      Mr. William J. Cleary, Jr., for defendant Aetna Casualty and Surety Company (Messrs. Lamb, Blalce, Hutchinson and Dunne, attorneys).

      Mr. Gerald W. Conway for defendant Employers Mutuals of Wausau (Messrs. Schretber and Lancaster, attorneys).

      Mr. Stanley Teich for defendants Arthur J. O’Connor, James J. Laifey and Thomas A. Laffey, t/a O’Connor-Laffey & Co., and Wohlreich and Anderson, Ltd. {Messrs. Lied, Teich and Berlin, attorneys) .

      Mr. Ralph V. Mancini for defendant County of Union.

      Mr. John B. Stone for defendant, Joseph Allan {Messrs. Ryan, Saros, Davis and Stone, attorneys).

      Mr. John Budd for defendant Ingvald Moe {Messrs. Budd, Lamer, Kent, Gross and Picillo, attorneys).

      Mr. Louis Auerbacher, Jr., for defendant Eeliance Insurance Company.
   Mountain, J. S. C.

Plaintiff entered into a contract with the County of Union to construct an automobile parking building and juvenile detention center in Elizabeth, New Jersey. To protect itself against certain risks incident to the project it sought and obtained policies of insurance from Employers’ Surplus Lines Insurance Company (Employers), Aetna Casualty & Surety Company (Aetna) and Employers Mutual Liability Insurance Company of Wisconsin, generally or often referred to as Employers Mutuals of Wausau (Wausau). After completion or near completion of the structure, alleged defects of a serious nature appeared in the design and construction of the building. On or about June 1, 1961 suit was instituted by the County of Union against plaintiff, as general contractor, as well as against the architect, engineer and corporate surety on plaintiff’s performance and completion bond. The complaint alleged negligence, improper construction and a failure to adhere to proper standards. Plaintiff turned to each of the three carriers mentioned above, demanding that they agree to indemnify it as to any liability that might arise from the suit and that they provide a defense to the action. Each carrier disclaimed, contending that the asserted coverage did not exist. Thereupon plaintiff instituted this suit seeking, among other things, a declaratory judgment as to the interpretation of each policy — specifically, as to whether the asserted coverage did or did not exist. After answers had been filed plaintiff moved for judgment on the pleadings or for partial summary judgment against each of 'the three carriers, as well as for other incidental relief. The motions for summary judgment go only to the issue as to the interpretation of the three policies. Other issues projected in the complaint are not involved. Defendant Wausau thereupon filed a cross-motion for summary judgment on the basic coverage issues.

It will be convenient to consider Wausau’s motion first. The policy in question is long and complicated. It consists of a basic document of six printed pages to which are appended a declarations sheet, two pages of schedules containing descriptions of the insured hazards and various premium data, followed by 16 separate endorsements. The effective date of all endorsements is the same as the effective date of the policy. Plaintiff complains that the result is a composite document filled with ambiguities and well nigh incomprehensible. There is no doubt that it is difficult to read but I do not find it incomprehensible.

Two points deserve mention. In the first place, it is important to bear in mind the difference between complexity and ambiguity. This was a complex underwriting transaction; it did not lend itself to simplicity of expression or format. Complexity born of necessity is not to be confused with ambiguity, whether accidental or artful. Secondly, this type of policy, consisting of a basic printed document extensively modified by endorsements both enlarging and limiting the scope of coverage, seems to lend itself to liability underwriting where an undertaking presents a variety oí risks and hazards with respect to which protection is sought. The basic document is in effect modified and tailored by endorsements to conform to the precise underwriting requirements. 1 Long, The Law of Liability Insurance, § 10.03.

Coming now to the terms of the policy itself, the applicable insuring agreement in the basic document affords broad coverage with respect to property damage liability, the insurer agreeing “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.” With respect to contractual liability coverage (Endorsement No. 4), it agrees “[t]o pay on behalf of the insured all sums which the insured, by reason of the liability assumed by him under any written contract designated in the schedule, shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.”

Turning from the insuring agreements to the exclusions, we find in the basic document that the policy does not apply “(h) * * * to injury to or destruction of * * * (4) any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises; * * *.” (Emphasis supplied). In the endorsement describing the contractual liability coverage there is an identical provision appearing in paragraph (i) under the heading “Exclusions.”

Endorsement No. 1 contains a provision which specifically replaces subparagraph (h) of the exclusions contained in the basic document. It reads as follows:

Broad Form Property Damage Coverage
It is agreed that exclusion H of Che policy and (H) of the contractual liability coverage endorsement are replaced by the following:
Under coverage B of the policy and E of the contractual liability-coverage endorsement.
1. To injury to or destruction of property owned or occupied by or rented to the insured, property held by the insured for sale or property entrusted to the insured for storage or safekeeping, or
2. Except with respect to liability under sidetrack agreements covered by this policy or the use of elevators or escalators at premises owned, rented or controlled by the insured, to injury to or destruction of
(I) property while on premises owned by or rented to the insured for the purpose of having operations performed on such property by or on behalf of the insured,
(II) tools or equipment while being used by the insured in performing his operations,
(III) property in the custody of the insured which is to be installed, erected or used in construction by the insured,
(IV) that particular part of any property, not on premises owned by or rented to the insured,
(A) upon which operations are being performed by or on behalf of the insured at the time of the injury thereto or destruction thereof, arising out of such operations, or
(B) out of which any injury or destruction arises, or
(O) the restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured,
(V) property which is being transported by the insured by motor vehicle or team, including the loading or unloading thereof.
3. To injury or destruction of any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises. [Emphasis supplied]

Paragraph (IV) (0) above clearly and explicity covers the claim made by the County of Union and in and of itself would seem dispositive of the ease.

There should also be considered, however, the effect to be given the provision, applicable both in respect of the coverage described in the basic document and that afforded by the contractual liability coverage endorsement, that excludes “injury or destruction of work completed by or for the named insured, out of which the accident arises.” This exclusionary provision is said now to be in common use in contractors5 liability policies and it appears not to have been directly considered by any of our courts. It has, however, been examined in other jurisdictions where it has been generally accorded, the meaning attributed to it by Wausau.

The identical provision was before the California District Court of Appeal in Liberty Building Co. v. Royal Indemnity Co., 177 Cal. App. 2d 583, 2 Cal. Rptr. 329 (1960). Plaintiff had constructed dwellings which thereafter in certain respects proved defective. The persons who had purchased the dwellings presented claims to the plaintiff and started suits. Plaintiff called upon the defendant for indemnification against liability and to provide a defense to the lawsuits. The latter refused. In sustaining the carrier’s position the court said,

This Exclusion menus that if the insured becomes liable to replace or repair any “goods or products” or “premises alienated” or “work completed” after the same has caused an accident because of a defective condition, the cost of such replacement or repair is not recoverable under the policy. However, if the accident also caused damage to some other property or caused personal injury, the insured’s liability for such damage or injury becomes a liability of the insurer under the policy, and is not excluded. For example, if a contractor builds a house and as a result of an improper mixture of the stucco, water is absorbed into the walls and the stucco cracks and falls off and a child is injured by the falling stucco, the injury to the child would not be excluded under Exclusion (f) but the replacement cost of the stucco would be excluded. Also, if the water absorbed into the walls should reach the interior walls and injure a valuable painting hanging there, the damage to the painting would be recoverable under the policy while the damage to the walls would not.”

In Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396 (Sup. Ct. 1962) a similar issue was presented. Plaintiff had installed a complete heating and air conditioning system in an office building. Because of defective installation a part of the system sustained damage and had to be replaced. Defendant disclaimed responsibility under a policy which insured the plaintiff against property damage but contained a provision excluding from coverage damage or destruction of “[a]ny goods or products manufactured, sold, handled, or distributed by the Insured or work completed by or for the Insured out of which the accident arises.” The court sustained the position of the carrier, holding that the damage came within the exclusion as having occurred with respect to work completed by the insured. The court went on to point out that the language of the exclusion was clear and unambiguous.

McGann v. Hobbs Lumber Co., 150 W. Va. 364, 145 S. E. 2d 476 (Sup. Ct. 1965) also presented a case remarkably like the one we are considering. The insured constructed a building. After completion a wall collapsed, requiring that it be replaced. The builder’s policy afforded broad property damage coverage, limited, however, by an exclusion substantially identical to that contained in the Wausau policy. The court held for the carrier upon the ground that the building represented work completed by the insured, and hence damage to it caused by the negligence of the insured fell squarely within the exclusion. Almost identical on its facts is Vobill Homes, Inc. v. Hartford Accident & Indem. Co., 179 So. 2d 496 (La. Ct. App. 1965). Suit had been brought against the insured for defects in a residence it had built which were allegedly due to its negligence in the manner of construction. The homeowner who had purchased the residence sought as damages the cost of repairing the defects. The builder turned to his carrier, which had issued a contractor’s liability policy of the usual type, but again excluding from coverage injury or damages to work com-' pleted. In sustaining the carrier’s position the court said:

* * * it has uniformly been held that a liability policy with an exclusion clause such as the present does not insure any obligation of the policyholder to repair or replace his own defective work or defective product. rCiting cases]
The interpretation to this effect of the exclusion clause has also consistently been recognized by other decisions which did allow coverage for damages to other property or for other accidental loss resulting from the defective condition of the work-product (even though recovery for the injury to the work-product itself was excluded by the clause in question).

See also, Home Indemnity Company v. Miller, 399 F. 2d 78 (8 Cir. 1968); Volf v. Ocean Accident and Guarantee Corporation, 50 Cal. 2d 373, 325 P. 2d 987 (Sup. Ct. 1958); Hauenstein v. St. Paul Mercury Indemnity Co., 242 Minn. 354, 65 N. W. 2d 122 (Sup. Ct. 1954); 7A Appleman, Insurance Law and Practice, § 4508.

In accordance with these authorities, with which the court is in complete agreement, Wausau’s motion for summary-judgment is granted and plaintiff’s motion addressed to Wausau is denied.

The Aetna Policy

An endorsement to this policy has the effect of including in the policy as exclusions the following:

(IY) That particular part of any property, not on premises owned by or rented to the insured,
(c) The restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured.
3. To injury or destruction of any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises.

In view of what has been said above with respect to the Wausau policy it is clear that the presence of these exclusionary provisions requires the denial of plaintiff’s motion addressed to Aetna.

The Employers Policy

This policy was issued under the Surplus Lines Law, N. J. S. A. 17:22-6.40 et seq.

An exclusion in the policy provides that coverage does not apply—

(e) to claims made against the insured.
(i) tor repairing or replacing any defective product or products manufactured, sold, handled or distributed by the insured or any defective part or parts thereof nor for the cost of such repair or replacement ;
(ii) for the loss of use of any such defective product or products or part or parts thereof;
(iii) for improper or inadequate performance, design or specification, but nothing herein contained shall be construed to exclude claims made against the insured for personal injuries or property damage (other than property damage to a product of the insured) resulting from improper or inadequate performance, design or specification;

Although, by no means as clear as the exclusionary language in the other two policies, these provisions may very well import the same meaning and on motion for summary judgment must he given that meaning most favorable to the person against whom the motion is made. Plaintiff’s motion against Employers is likewise denied.


author: Tumulty, J. S. C.

text:
    UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, PLAINTIFF, v. CONCORD INSURANCE CO., LENOX FINANCE CO., ETHEL ODERMAN AND CALVIN JOYNER, DEFENDANTS.
    Superior Court. o£ New Jersey Law Division
    Decided April 14, 1970.

      Mr. Martin L. Sisselman, Esq., for plaintiff (Messrs. ■fames & Addas, attorneys).

      Mr. Sheldon A. Siegel, Esq., for defendant Concord Insurance Co. (Messrs. Goldberger, Siegel & Finn, attorneys).

      Mr. Murray G. Simon, Esq., for defendant Lenox Finance Company, Ethel Oderman and Calvin Joyner (Messrs. Simon, Denstman & Noonan, attorneys).
   Tumulty, J. S. C.

This action comes before the court on a motion by the defendant Concord Insurance Company (Concord) for an order striking the complaint for reasons that will be set forth at length below. In order to determine the merits of this motion, it is necessary to set forth the facts preceding it. The question of law herein appears novel.

On or about December 24, 1968 Ethel Oderman was involved in an accident with Calvin Joyner. Prior to the accident Joyner had taken out a liability insurance policy with Concord for one year, effective January 19, 1968. The policy was financed by the Lenox Finance Company (Lenox), paid by it to Concord on behalf of Joyner. Sometime before the accident the premiums were not received by Concord and the policy was cancelled as of December 16, 1968, six days before the accident.

Mrs. Oderman subsequently brought suit in the county district court for damages sustained. When Joyner asked his carrier, Concord, to defend, it refused, claiming that the cancellation relieved it of this obligation. Mrs. Oderman, upon learning of the disclaimer, filed a notice of intention to make a claim with the Unsatisfied Claim and Judgment Fund Board (Fund), pursuant to N. J. S. A. 39:6-65. As a result, the present action was instituted by the Fund in the Superior Court, Law Division, for a declaratory judgment to determine whether it or Concord was the proper party to defend Joyner in the county district court suit. The Fund also brought a second count against Lenox for negligence in processing the finance payments, and for indemnification, of any adverse judgment it might suffer as the result of such negligence. This count charges that Joyner made each monthly payment to Lenox as it came due, and only because of Lenox’s failure to forward it to Concord was there a lapse in the payment of the necessary premiums.

The motion before the court is in response to the declaratory judgment action of the plaintiff Lund. Defendant Concord is seeking to strike the complaint on the following grounds:

A. The Fund has no standing to bring this type of action;
B. It has other recourse, namely, to deny payment after a judgment is rendered, on the grounds that the judgment debtor was insured at the time of the accident;
C. Only the alleged insured or a qualifying third-party beneficiary-can bring this type of aeüon, and
D. Even if the Fund could properly seek such relief, the relief sought is the proper subject matter of the Chancery and not the Law Division.

The court is compelled to disagree with these contentions for various reasons. It is of the opinion that the best interests of justice will be served by the determination of this issue prior to, instead of after, the county district court matter is heard.

The issues raised will be more clearly understood if discussed individually rather than collectively. The court’s attention is initially directed to the issue of jurisdiction.

There are two separate counts in the complaint before us. While the count we are basically concerned with is founded in equity, the other count is clearly founded in law. A strict reading of B. 4:3-1 (a)(1) would indicate that if the court determines that the principal relief sought is equitable, the action should be brought in the Chancery Division.

However, our State Constitution (1947), Art. VI, § III, par. 4, gives to each Division of the Superior Court the power to exercise the functions of the other. It is well accepted that jurisdiction over one issue allows the court to decide as to all issues. A strict application of the rule is not necessary, and the fact that legal relief is also being sought makes the question of jurisdiction moot for our purposes. See Curley v. Curley, 37 N. J. Super. 351 (App. Div. 1955) ; Hintenberger v. Garfield, 49 N. J. Super. 175 (Law Div. 1958) aff’d 53 N. J. Super. 536 (App. Div. 1958). It is noteworthy that in LeFelt v. Nasarow, 71 N. J. Super. 538 (Law Div. 1963), aff’d 76 N. J. Super. 576 (App. Div. 1963), certif. den. 39 N. J. 86 (1963), Le Felt v. Aetna Ins. Co., the very issue of declaratory relief was determined by the Appellate Division on review from the Law Division.

The next issue is whether the existence of a statutory remedy after judgment precludes the Fund from seeking equitable relief at this time. The court finds it does not. B. 4:43-3 states that “A judgment for declaratory relief, if appropriate, is not precluded by the existence of another appropriate remedy.” See also Vonins, Inc v. Raff, 101 N. J. Super. 173 (App. Div 1968). Though the Fund has the right to deny payment after a judgment is entered, if declaratory relief is appropriate it can also avail itself of this remedy. The question is then reduced to one of “appropriateness.”

A justiciable controversy between adverse parties must exist to warrant maintenance of a declarator}' judgment action. N. J. 8. A. 3A:16-50 et seq., 51, 53; Union Cty. Bd. of Chosen Freeholders v. Union Cty. Parle Comm., 77 N. J. Super. 435 (Law Div. 1963), rev’d on other grounds 41 N. J. 333 (1964). Such a controversy exists where the court is asked to determine an insurer’s liability. See Maryland Casualty Co. v. Pacific Coal and Oil Co., 313 U. S. 370, 61 S. Ct. 510, 85 L. Ed. 836 (1941). The requirement of a real controversy, as opposed to one which is merely hypothetical or speculative, is also satisfied by the issues sought to be adjudicated herein. N. J. S. A. 3A :16-55, In re Badenhop, 61 N. J. Super. 536 (Cty. Ct. 1960). A further requirement is that the declaration sought helps to terminate the controversy between the parties. State Farm Mut. Automobile Ins. Co. v. Semple, 407 Pa. 572, 180 A. 2d 925 (Sup. Ct. 1962). The Fund is obviously seeking such a result by bringing the action at this time, hoping to avoid the necessity of added litigation on the same issues after the county district court matter is heard.

The court’s attention now focuses upon the major issue pertaining to the motion before it. This issue is basically two-fold. First, whether the Fund is an “interested party” for the purpose of bringing a declaratory action on an insurance contract? Secondly, whether the Fund has standing and interest for such an action under the statute creating it, N. J. S. A. 39:6-65 et seq.f This statute provides that the Fund is not obligated to make any payment until after an unsatisfied judgment is entered against an uninsured motorist. In the court’s opinion, neither theory precludes the Fund from seeking declaratory relief.

Under the first theory defendant Concord contends that the Fund is not a proper party for the institution of such an action. The court cannot agree. In State v. Murtes, 232 La. 486, 94 So. 2d 446, 447 (Sup. Ct. 1957), the word “interested” is defined, among other things, as being “liable to be affected or prejudiced.” “Interest” generally means a concern which is more than mere curiosity, or academic or sentimental desire. State ex rel. Farmers Mut. Automobile Ins. Co. v. Weber, 384 Mo. 1159, 273 S. W. 2d 318, 321 (Sup. Ct. 1954). There is no doubt the Fund will be affected or prejudiced by the outcome of the County district court action. Without the relief sought the Fund would be obligated to defend and control a suit needlessly. Once the Fund receives a notice of intention under N. J. S. A. 39 :6—65 it acquires an interest in the action. Since N. J. S. A. 39:6-66 allows the Fund to assign to an insurer claims it deems “advisable to investigate,” it must be given some safeguards against claims not thought to warrant such attention. Declaratory relief is just such a safeguard. Though the insured might also be a proper party to initiate this action, he is not the only one who can do so. When the insured’s policy is disclaimed and a notice of intention is filed with the Eund, it is required to undertake a defense on his behalf. By thus assuming the insured’s obligations, the Fund should also be entitled to benefit from his rights. Even if it is said the Fund has nothing to gain or lose by this action, it would still be considered an “interested party” under Twigg v. Flynn, 68 F. Supp. 23, 24 (D. C. Fla. 1946), which stated:

A party to be an “interested party” in an action need not be one who may gain or lose something therein nut the word has a broad meaning and includes all those who as parties have some control over the action, whether they will be individually affected thereby or not

The Fund should be allowed to maintain this type of action against an insurer who has disclaimed on a policy and thereby obligated the Fund to assume defense of the so-called “insured’s” suit.

The heart of the Unsatisfied Claim and Judgment Fund Act is the Fund itself. It provides the wherewithal to compensate those victims of injury and damage who are left holding the empty bag of an unsatisfied judgment. The monies used to administer it are comprised of public funds, and the problem of red tape is a consideration in disbursement. Administrative and procedural safeguards are necessary for the protection of the Fund. The impatience of a claimant who has just suffered economic or family loss from an accident is understandable. Under such circumstances any delay would be considered to be unnecessary red tape. These funds are a last resort, not to be approached until all other legal remedies have been exhausted. Delay is necessary in order to exhaust all means of satisfying the judgment from sources other than the Fund and, naturally, in those cases where unjustified and excessive red tape does exist, it should be eliminated. For a concise treatise on this refer to Folmar, Unsatisfied Judgment Fund Legislation in the United States and Canada (New Mexico Legislative Council Service, 1960).

An attempt to eliminate such unjustified and excessive red tape is a definite concern in this court’s decision. If, as defendant Concord contends, the Lund, upon receiving the aforementionel notice of intention, has no recourse available until a final judgment is entered, undue delay, unnecessary expense and the multiplicity of suits would be unavoidable. The Lund would find itself compelled to undertake the responsibility of a defense and control a case that it conceivably should not. Then, when a judgment is finally entered, it would be forced to institute a subsequent suit to determine if it was even obligated to defend the action in the first place. The more desirable and efficient practice would be to allow the Lund to have its ultimate liability determined before the actual trial. This would avoid improper control, unnecessary delay and useless litigation.

Since the Lund is given the power under N. J. S. A. 39 :6-67 to assign a claim to an insurer who may “take such other steps as it may deem appropriate on the behalf of and in the name of the defendant” pertaining to the defense of this claim, it is inconceivable that the Lund should be forbidden to take whatever steps are deemed appropriate by its preliminary investigation. When a claim is made which the Lund feels is without merit, for whatever the reason, it should not be rendered powerless to correct the situation until after a judgment is entered against it.

The court is unaware of any previous ruling in this State on issues similar to those before it at this time. There have, however, been analogous situations previously decided which have enlightened the court in its determination of the motion before it. In the case of Jamar v. Hodges, 107 N. J. Super. 495 (App. Div. 1969), the court held that the Lund had an equal right with the uninsured motorist to reject or accept an additur. This, of course, recognizes the existence of the Lund’s interest prior to the final judgment. Even before Jamar, the court showed its awareness and concern for the Lund’s welfare. In LeFelt, previously cited for other reasons, the court, in discussing the fact that a plaintiff must show that the judgment debtor was uninsured at the time of the accident in order to obtain payment from the Eund, stated;

Resolution of that question before rather than after trial of the negligence action would be of benefit to all concerned. It would put the onus of trying the case, or settling it if that course is deemed desirable, on the party which toould pay the judgment if one is recovered, whether that party he the Fund or either or hoth of the insurance companies. (Emphasis added)

Eor the reasons set forth herein, the motion of defendant Concord to strike the complaint is denied and the Eund therefore may properly proceed with its declaratory judgment proceeding. An appropriate order should be submitted.


author: Hoes, J. S. C.

text:
    WILLIAM J. McLAUGHLIN, JR., RUTH E. McLAUGHLIN, GEORGE J. SCHNEIDER, ELIZABETH I. SCHNEIDER, DORSEY CALHOUN, HELGA CALHOUN, CHARLES M. PEEK, III, GAIL PEEK, RAYMOND J. DILL, CAROLINE DILL, CHARLES M. SMITH, CAROL SMITH, CLARENCE W. HAND, AND RACHEL HAND, PLAINTIFFS, v. THE CITY OF MILLVILLE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; WILLIAM SHAW, FRANK HOFFMAN, STEVEN ROMANIK, SAUL POLKOWITZ, BEING MEMBERS OF THE BOARD OF COMMISSIONERS OF THE SAID CITY OF MILLVILLE; LANDIS SEWERAGE AUTHORITY, A PUBLIC BODY, POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY; CUMBERLAND MALL ASSOCIATES, INC., A CORPORATION OF THE STATE OF NEW JERSEY; AND CONRAD A. WALTMAN, MILLVILLE CITY CLERK, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 27, 1970.

      Mr. J. Peter Davidow for plaintiffs.

      Mr. Edward S. Miller, City Solicitor, for defendants City of Millville, the named commissioners, and Conrad A. Wait-man, city clerk.

      Mr. Jordan D. Lippner for defendant Landis Sewerage Authority.

      Mr. Paul B. Porreca for defendant Cumberland Mall Associates, Inc. (Messrs Porreca, Olconiewsld & Lisi, attorneys) .
   Hoes, J. S. C.

Plaintiff brings this action in lieu of prerogative writs, B. 4:69, in order to compel officers of the City of Millville to submit ordinance 30-1969 to public referendum. N. J. 8. A. 40:74-5. Motions for summary judgment were made by all parties and the matter is presently before the court on the basis of the complaint, affidavits and briefs.

Ordinance 30-1969 authorized Millville to enter into a contract with the Landis Sewerage Authority (Landis) whereby the Millville sewerage utility would process effluent originating from within a portion of the neighboring City of Vineland.

In 1966 Millville was directed by the State Board of Health to expand its sewerage processing facilities. At that time the Millville plant was functioning at between 90% and 100% of its two million gallon capacity. Relying upon the advice of its consulting engineers, Millville elected to erect a new plant with a five million gallon capacity. It was projected that this plant would satisfy the city’s needs until the year 2000.

In 1967 Millville declared its sewer department to be a self-liquidating utility. Therefore, a bond ordinance was adopted by the board of commissioners authorizing the sale of $2,260,000 of bonds. The new plant is presently under construction.

Sometime in 1969 discussions began concerning use of a portion of the new plant to treat effluent from Vineland which would otherwise have been processed by defendant Landis Sewerage Authority. Specifically to be treated was sewerage produced by a shopping center complex which defendant Cumberland Mall Associates (Mall) intend to build on a tract of land on the Vineland side of the boundary with Millville. It is contemplated that this shopping center will include at least four major department stores, a motion picture theater and some 100 “satellite” specialty shops. It is estimated that Cumberland Mall will generate 25,725 gallons of effluent per day, or a fraction of 1% of the Millville plant’s total capacity. However, Landis does not have the facilities to treat the projected effluent.

In order to effect such an arrangement, representatives of Landis, Cumberland Mall, and Millville entered into negotiations culminating in the presentation of a resolution to the Millville board of commissioners dated November 3, 1969. This resolution, No. 5590, authorized the execution of a contract between Millville and Landis. The resolution was adopted by a vote of four in favor, with Mayor Rulon Peek opposed. Mayor Peek then instructed the city solicitor, Edward S. Miller, to submit a legal opinion as to the authority for submitting the resolution for his signature. The solicitor advised that instead of the resolution an ordinance embodying the subject matter of the resolution would be prepared. This ordinance, No. 30-1969, was introduced for first reading at the commission meeting of November 18, 1969. Attached thereto was a proposed agreement of lease. The contract provided that Millville would lease Landis its sewage facilities for a period of ten years and that Landis would pay as rent a sum equal to 75% of the sewer charges that Landis would collect from Cumberland Mall. Later a revised agreement was substituted, incerasing the time required for a written notice renewing the agreement.

On December 2, 1969, upon second reading, the ordinance was adopted by a vote of three in favor, with Mayor Peek again opposed. One commissioner was absent. All parties acknowledge that the passage of this ordinance was surrounded by great controversy. Petitions in opposition to its enactment had been submitted to the city commission. Vocal opposition appeared at all commission meetings at which the issue was considered. Open letters have appeared in local newspapers.

Continued protests were heard after passage of the ordinance. On December 11, 1969, 41 petitions containing 1,886 signatures protesting the passage of ordinance 30-1969 were filed with the Milville municipal clerk. On December 12, 1969 an additional 15 petitions containing 293 signatures were filed. It was the apparent intention of those who circulated these petitions to have them constitute the basis of a remonstrance, as provided for in N. J. S. A. 40 :74-5. That statute states:

If within ten days after the final passage of an ordinance, except ordinances authorizing an improvement or the incurring of an indebted ness, other than for current expenses, where other requirements are made by law, a petition signed by electors of the municipality equal in number to at least fifteen per cent of the entire vote cast at the last preceding general municipal election protesting against the passage of such ordinance, be presented to the board, it shall thereupon be suspended from going intro operation and the board of commissioners shall reconsider the ordinance. If the ordinance is not entirely repealed, the board shall submit it, in the manner provided in paragraph “b” of section 40 :74r-14 and sections 40 :74—15 to 40:74-18 of this title, to the vote of the electors of the municipality, either at the general election or at a special municipal election to be called for that purpose, and such ordinance shall not become operative unless a majority of the qualified electors voting on the ordinance shall vote in favor thereof.

The form of such petitions is governed by N. J. 8. A. 40:74-10 through 14. Each petition must contain an attestation that all signatures contained thereon are genuine. N. J. 8. A. 40:74-11. The municipal clerk is then charged with examining the petitions and determining whether they contain the signatures of the requisite number of qualified voters. N. J. 8. A. 40:74-12. If defects are found to exist, the statute mandates the municipal clerk to return the petitions to those who have submitted them. Ten days are permitted for the correction of any deficiency. Id.

In the case at bar the petitions submitted were examined and initially found deficient for not having contained the required verification. N. J. 8. A. 40:74-ll. Accordingly, they were returned to those who had submitted them. N. J. 8. A. 40:74-12. On December 22, 1969 properly executed affidavits for all but two petitions were submitted. The amended documents were then examined by the municipal clerk and found to contain 1703 valid signatures. Additionally, the clerk certified that the total number of votes east in the last municipal election was 7,542 and “that the number of valid signatures of electors required to make the petition effective is 1,131.” However, upon advice of the solicitor, the municipal clerk has refused to submit the matter for referendum. It is that refusal which is being tested by this action brought in lieu of prerogative writs.

Plaintiffs argue that N. J. 8. A. 40:74^5 must be read as mandatory and that the municipality is now obligated to conduct a referendum on the merit, of the ordinance. Defendants counter with the proposition that the terms of the statute are not mandatory. They found this argument upon the reasoning of this court in Snow v. Bell, 105 N. J. Super. 484 (Ch. Div. 1969). Specifically, they contend that that case held that the referendum statute was inapplicable to ordinances adopted to implement an improvement ordinance by providing for rules and regulations and rate schedules. Alternatively, defendants assert that the passage of ordinance 30-1969 had been made superfluous by the previous enactment of resolution 5590. Because the statute refers only to ordinances and not to resolutions defendants further urge that no referendum is required.

Snow v. Bell, addressed itself to whether the Borough of Avalon was required to submit to referendum an ordinance regulating the use of water, fixing metered rates and setting out regulations with respect to the use of water. Plaintiffs contended that the provisions of N. J. S. A. 40:74^5 mandated the suspension of the operation of the ordinance, so that the borough commissioners were obliged either to repeal the ordinance or to submit it to the voters by means of a referendum. The court recognized plaintiffs’ real objective was to obtain a decrease in the metered water rates secured by ordinance No. 395. They agreed that the improvement in the water system was needed for reasons of public health, safety and welfare. Thus, in effect, plaintiffs in Snow v. Bell, sought to have the electorate determine the ultimate rates to he charged by securing or requiring referenda until the governing body reduced the rates to meet their approval. The court held that such referenda were not contemplated by N. J. S. A. 40 :7A-5 and that the provisions of ordinance No. 395 were part and parcel of the general improvement theretofore ordained. The court stated:

I believe that the provisions of ordinance No. 395 are part and parcel of the general improvement theretofore ordained. The rules and regulations which were promulgated by the ordinance under attach, as well as the metered rates fixed for service to consumers, are provisions implementing the basic improvement.
This is a pragmatic approach as well. In view of the fact that the increased supply of water may not be utilized unless meaningful rates are required to be paid by consumers, it seems hardly likely that the Legislature intended the possible frustration of the sound purposes of the improvement ordinance by permitting the effective transfer of the rafe-fixing power from the governing body to the electorate, especially in a situation where the electorate had no right to a referendum initially.
Accordingly, plaintiffs are not entitled to an injunction since the petition filed with the borough was ineffective to suspend the operation of ordinance No. 395. * * * [at 491-492; emphasis added]

The present case is distinguishable from Snow v. Bell. This action concerns an ordinance embodying subject matter which could not have been reasonably anticipated by the electorate when the initial improvement ordinance was adopted. It does not implement the initial improvement ordinance. It does not relate to the authorization of an improvement or to the fixing of a rate. The issue that would be submitted to the voters would be whether a portion of the operating capacity of Millville’s self-liquidating utility should be used to process effluent from another municipality. The court foresees a legitimate public debate on this issue. Proponents could argue that Millville’s processing plant can easily handle the increased load and that the revenue collected will be available to retire capital debt. Opponents may argue that Millville is unnecessarily relinquishing control of a portion of its plant’s capacity and that as Southern New Jersey becomes more developed this added capacity may become needed to process Millville effluent.

Defendants also argue that the passage of ordinance 30-1969 had been made superfluous by the prior enactment of resolution 5590. Were the argument accepted it would follow that the referendum would be obviated because the remonstrance procedures of N. J. S. A. 40:74-5 attach only to ordinances. N. J. S. A. 40:49-1 defines the terms “ordinance” and “resolution”:

The term “ordinance” when used in this subtitle means and includes any act or regulation of the governing body of any municipality required to be reduced to writing and read at more than one meeting thereof and published.
The term “resolution” when used in this subtitle means and includes any act or regulation of the governing body of any municipality required to be reduced to writing, but which may be. finally passed at the meeting at which it is introduced.

N. J. 8. A. 40:49-2 defines the procedures for the passage of ordinances.

It is frequently stated that the term “ordinance” encompasses matters which are legislative in character, while “resolutions” refer to administrative or procedural matters. O’Keefe v. Dunn, 89 N. J. Super. 383, 388 (Law Div. 1965), aff’d 47 N. J. 210 (1966); Woodhull v. Manahan, 85 N. J. Super. 157, 164 (App. Div. 1964), aff’d 43 N. J. 445 (1964); 5 McQuillin Municipal Corporations, § 16.42, at 232 (1969). Actions by governing bodies which do not rise to the dignity of ordinances are termed “resolutions.” In certain instances, the statutes require that a proceeding be instituted by the enactment of an ordinance. In such instances the legislative purpose cannot be effected by resolution; the latter wanting the solemnities of an ordinance; is not regarded as a legal equivalent. Chasis v. Tumulty, 8 N. J. 147, 154 (1951); Paterson v. Barnet, 46 N. J. L. 62 (Sup. Ct. 1884).

Where the statutes fail to indicate whether the power should he exercised by ordinance or resolution it may be done by either means. Krieger v. Jersey City, 27 N. J. 535, 542 (1958); Howard v. Mayor, etc., of Paterson, 6 N. J. 373, 377 (1951); Fraser v. Teaneck Tp., 1 N. J. 505, 507 (1949); City of Burlington v. Dennison, 42 N. J. L. 165, 166 (F. & A. 1880). I need not, however, determine whether the use of the word “ordinance” in N. J. S. A. 40:74—5 should be construed to include an action taken by resolution.

The statutes do not specify a particular procedure for effecting the legislative purpose of the ordinance and resolution under review. Accordingly, either the form of an ordinance or that of a resolution could have been, employed. The facts disclose that both procedures were used. Initially, a resolution was carried; subsequently, an ordinance was enacted. It is not for this court to inquire why both were invoked. Regardless of what may have occurred prior to its passage, once ordinance 30-1969 was enacted the provisions of N. J. 8. A. 40 :74-5 became operative. Upon compliance with N. J. 8. A. 40:74-10 through 14, the Millville governing body became obligated to suspend the ordinance from going into operation and to reconsider its passage. Since upon reconsideration the ordinance was not entirely repealed, the board became obligated to submit it to a vote of the electors of the municipality.

To excuse Millville from conducting a referendum because of the earlier passage of a resolution which alone would have sufficed would cause an unjust result. The doctrine of equitable estoppel guards against such situations.

“It is of the essence of equitable estoppel that one is precluded from taking a position inconsistent with that previously assumed and intended to influence the conduct of another, if such repudiation ‘would not be responsive to the demands of justice and good conscience,’ in that it would effect an unjust result as regards the latter.” [Gitomer v. United States Casualty Co., 140 N. J. Eq. 531, 536 (Ch. 1947)].

Municipal corporations are ordinarily subject to the doctrine of estoppel to serve the demands of right, reason and justice, at least where the invocation of the rule would not hinder or prejudice essential governmental functions. Vogt v. Belmar, 14 N. J. 195, 205 (1954). Accordingly, I find Millville estopped from refusing to conduct a referendum by relying upon the earlier passage of the resolution.

To hold otherwise would subvert the purpose of N. J. S. A. 40:74-5. Through this statute the Legislature, within defined bounds, granted the electorate the right to review actions taken by municipal governing bodies. Defendants have not challenged the constitutional propriety of this statute. Nor does the court find that such a challenge could be sustained. Courts have in other circumstances permitted the Legislature to authorize local voters to review questions of public concern. Two Guys from Harrison, Inc. v. Furman, 32 N. J. 199 (1960); Smith v. Middle Tp., 92 N. J. L. 300 (Sup. Ct. 1919). Similarly, it has been held that, while the Legislature cannot delegate its power to enact laws, it may provide that whether a law shall be operative may be submitted to general referendum. Noonan v. Freeholders of Hudson, 51 N. J. L. 454 (Sup. Ct. 1889), aff'd 52 N. J. L. 398 (E. & A. 1890). Indeed, this statute embodies a most proper form of participatory democracy and public policy supports this view. Cf. Wyatt v. Clark, 299 P. 2d 799 (Okla. Sup. Ct. 1956).

I have not considered the relief sought concerning alleged alterations made in the petitions submitted to the municipal clerk.

Accordingly, I will sign an order enjoining Millville from carrying into effect the terms of resolution 5590 and compelling the municipal clerk to submit to the eligible electorate the issue of the passage of ordinance 30-1969.

Ho costs.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACOB ROSEN, DEPENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 22, 1968
    Decided May 15, 1968.
    See also 110 N. J. Super. 216.

      Before Judges Sullivan, Foley and Leonard.

      Mr. Frederick H. Martin argued the cause for defendant-appellant.

      Mr. Martin J. Queenan, Burlington County Prosecutor, argued the cause for plaintiff-respondent (Mr. Myron II. Gottlieb, on the brief).
   Per Curiam.

Defendant Jacob Eosen and Henry Sincavage were indicted jointly for breaking and entering with intent to commit larceny. A second indictment charged that at the same time and place they were in knowing possession of burglar’s tools. The indictments were consolidated for trial over objection of defendants that each defendant should be tried separately on each indictment. The jury returned a verdict finding the defendants guilty of breaking end entering with intent to commit larceny, but acquitted them of the charge of possession.

Eosen prosecutes this appeal alleging numerous grounds for reversal as follows:

1. The trial court committed error in refusing to grant each defendant a separate trial on each indictment and in allowing the State to consolidate the two indictments for purposes of trial.

3. The trial court erred iu refusing to dismiss the charge of breaking and entering with intent to commit larceny at the end of the State’s case when the proofs showed at most an entering without breaking.

3. The trial court committed error in the refusal to dismiss the indictment for breaking and entering with intent to commit larceny at the end of the State’s case when there was no proof that defendant was not validly on the premises.

4. The trial court committed error in refusing to grant a mistrial because of the prosecutor’s comment in summation that the defense was a “smoke screen.”

5. The trial court committed plain error in allowing evidence to be admitted which referred to the commission of other crimes by the defendant, and also committed plain error in its comments with reference to such evidence.

6. The trial court erred in its charge to the jury (a) that breaking need not be proved (b) as to reasonable doubt (c) in its failure to charge that the appellant had to be present at the scene by pre-arrangement.

7. The trial court committed error in denying defendant’s motion for a new trial on the ground that the jury verdict was inconsistent.

8. The trial court committed error in denying defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence and the result of mistake.

9. The trial court violated defendant’s constitutional rights by coercing defendant to go to trial with counsel not selected by him.

We have reviewed the entire record in the light of defendant’s contentions and find no merit or substance in any of the claims of error or prejudice. Defendant received a fair trial and the State’s proofs amply support the jury verdict.

We see no merit in defendant’s contention that he was not permitted to be represented by counsel of his own choice. The indictment was one of the oldest in the County. Defendant had been aware for several weeks that his retained counsel had been appointed to the bench and would be unable to represent him at trial. Understandably, the trial court insisted that the case must proceed. Defendant, after consultation with his former counsel’s associate, announced that he was ready to stand trial. The record shows defendant was given competent and skillful representation.

Affirmed.