author: Furman, J. S. C.

text:
    PETER STREETER, GEORGE H. PFIRRMAN AND WARREN ABRAMSON, PLAINTIFFS, v. WILLIAM BROGAN, INDIVIDUALLY, AND t/a CIRCLE SUNOCO SERVICE, AND SUN OIL COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 8, 1971.

      Mr. Jack Wysoker for plaintiffs (Messrs. Mandel, Wysoker, Sherman, Glassner, Weingartner and Feingold, attorneys).

      Mr. Eugene P. Kenny for defendant William Brogan, individually, and t/a Circle Sunoco Service.

      Mr. Francis X. Journick for defendant Sun Oil Company (Messrs. Wilentz, Goldman and Spiizer, attorneys).
   Furman, J. S. C.

The issue before the court is whether plaintiffs and other members of the class whom they represent are entitled to an injunction against defendant Brogan, who refused to sell them gasoline because they displayed the so-called peace symbol on their ears.

The facts are stipulated. The peace symbol is thus It is in wide currency among persons opposed to the war in southeast Asia, constituting a cross-section of the public of diversified religious, nonreligious and anti-religious views.

Defendant Brogan is a' disabled combat veteran of the Korean War. He has a stepson now serving in the United States Marines. After research into its origins he formed the conviction that the peace symbol is anti-Christ and atheistic, as well as the symbol of cowardice and capitulation. He posted a large sign at the gasoline service station of which he is proprietor under lease from defendant Sun Oil Company, located on U. S. Highway 1 and 9 in Woodbridge Township. The sign identified the peace symbol as the symbol of hate and anti-Christ. The township board of adjustment subsequently ordered its removal.

Plaintiffs and others, about 14 persons in all, drove several cars displaying the peace symbol into defendant Brogan’s gasoline service station and demanded gasoline on September 3, 1970. Their purpose in displaying the peace symbol was to express their opposition to the war in southeast Asia. Defendant Brogan refused them service. When plaintiffs and those with them declined to leave the premises without being supplied with gasoline, defendant Brogan summoned the township police. The police ordered plaintiffs and the others off the premises under threat of arrest.

U. S. Highway 1 and 9 is a main highway artery traversing New Jersey. Within a half-mile radius of defendant Brogan’s there are approximately 12 other gasoline service stations.

Plaintiffs found their cause of action for a permanent injunction under New Jersey and federal civil rights statutes, New Jersey and Woodbridge Township licensing requirements for gasoline service stations and the common law.

The New Jersey statute of 1945, as amended (N. J. S. A-10:1-3), provides:

No owner, lessee, proprietor, manager, superintendent, agent or employee of any such place shall directly or indirectly refuse, withhold from, or deny to, any person any of the accommodations, advantages, facilities or privileges thereof, or directly or indirectly publish, circulate, issue, display, post, or mail any written or printed communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from, or denied to, any person on account of race, creed, color, national origin, ancestry, marital status or sex, or that the patronage or custom thereat of any person belonging to or purporting to be of any particular race, creed, color, national origin, ancestry, marital status or sex, is unwelcome, objectionable or not acceptable, desired or solicited.

The Federal Civil Rights Act (42 U. S. C. A. § 2000a(a)) provides:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

Defendant Brogan’s gasoline service station is by definition (N. J. S. A. 10:1-5; 42 U. S. C. A. § 2000a (b) (2)) a place of public accommodation subject to the state act and a place of public accommodation whose operations affect commerce subject to the federal act.

Indisputably, neither civil rights act, state or federaL, bars discrimination based upon political views. Thus, insofar as defendant Brogan refused service because plaintiffs were expressing opposition to the war in southeast Asia he was not in violation of the civil rights acts. Cf. Garifine v. Monmouth Park Jockey Club, 29 N. J. 47 (1959).

Plaintiffs argue that pacifism or opposition to war is a firm, consistent ethical belief, rising to the stature of a creed and within the protection of N. J. S. A. 10 :1-3. This argument is blocked on the law and facts. No reported opinion has construed “creed” in N. J. S. A. 10 :1-3 or “religion” in 42 U. S. C. A. § 2000a (a) as encompassing a moral or ethical creed apart from a formal religious creed. In addition, defendant Brogan refused service to plaintiffs because they displayed the peace symbol, not because of their pacifism or other fixed moral or ethical belief.

A subtler extension of plaintiffs’ argument is that defendant Brogan viewed the peace symbol as anti-Christ and atheistic and thus discriminated against them on religious grounds. By analogy to the Selective Service cases, in particular United States v. Seeger, 380 U. S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); United States v. Sisson, 297 F. Supp. 902 (D. Mass. 1969), app. dism. 399 U. S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970) and Goguen v. Clifford, 304 F. Supp. 958 (D. N. J. 1969), a person opposed to formal religion or an atheist is entitled to equal protection of the laws. A statute against discrimination, according to this argument, should protect an atheist as well as a member of a religious faith.

Whatever the merits of this argument in other contexts, it is inapplicable here. Plaintiffs do not allege atheism (or any religious views). Defendant Brogan refused them service because of their display of the peace symbol, as already pointed out, not because they were anti-Christ or atheistic. He had a sincere belief that the peace symbol itself was antiChrist and atheistic but no reasonable ground to suppose, in view of its wide currency among the public generally, that persons displaying the peace symbol were anti-Christ and atheistic.

This court, therefore, holds that defendant Brogan is not subject to an injunction under the state or federal civil rights acts.

Plaintiffs also cite the gasoline service station licensing requirements of the state statute. (N. J. S. A. 54:39-1 et seq.) and of the Woodbridge Township ordinance. But these legislative provisions are for the purposes, respectively, of collecting the Motor Fuels Tax and of fire protection, purposes unrelated to training or skill qualifications for gasoline service station proprietors. Such licensing, accordingly, does not foster a favored or monopoly position with a concomitant duty not to discriminate in serving the public. Cf. Sellers v. Philip’s Barber Shop, 46 N. J. 340 (1966).

In any event, the Supreme Court in Garifine struck down the argument that a race track, because of its state license, had surrendered its common law right of exclusion and was obligated to admit the public without discrimination.

.Plaintiffs also claim the right to service at Brogan’s gasoline service station without discrimination, in accordance with the common law rights of the public to accommodations at an inn, including the feeding and stabling of their horses, and to farrier’s services in attending to and shoeing horses.

Indisputably such rights exist at common law. In Garifine Justice Jacobs wrote:

Innkeepers and common carriers may be said to be the most notable illustrations of business operators who, both under early principles and under the common law today, are obliged to serve the public without discrimination. [29 N. J. at 50]

See also Greisman v. Newcomb Hospital, 40 N. J. 389 (1963), citing duty to serve all comers on reasonable terms imposed by the common law on innkeepers, carriers and farriers; Lanning v. Cohen, 91 N. J. Law 409 (Sup. Ct. 1918); 2 Cooley’s Blackstone, 451 n. 14 (1884); 3 Cooley’s Blackstone, 164 (1872); 43 C. J. S. Innkeepers §§ 8, 9, 10; 40 Am. Jur. 2d, Hotels, Motels and Restaurants, § 4 at 902; The Six Carpenters’ Case, 8 Coke 146a, 77 Eng. Repr., 695 (K. B. 1610); The Origin and First Test of Public Callings, 75 U. Pa. L. Rev. 411 (1927).

According to these authorities, the rights of travelers and the duties of innkeepers were derived from considerations of public policy for the protection and security of travelers. The innkeeper who refused accommodations was subject to an action sounding in tort for damages, unless his refusal was for justifiable cause, i. e., inability to pay or disorderly conduct.

No judicial decision has been cited and none found imposing the common law obligations of the innkeeper and farrier to serve the public without discrimination upon a gasoline service station proprietor.

Defendant Brogan contends that the extension of the innkeeper’s common law duties to the gasoline service station proprietor is not logically warranted. The gasoline service station proprietor does not enjoy the monopoly position which most innkeepers enjoyed at the time their duties were fixed in the middle ages. If the innkeeper cast out a wayfarer, the wayfarer might sleep overnight in a hedgerow. The motor vehicle driver who is refused gasoline at one station may drive nearby to be supplied, to any one of 12 other stations within a half mile radius of Brogan’s, for example.

On the other hand, if this court sustains defendant Brogan, the proprietor of each nearby gasoline service station could refuse to supply gasoline to plaintiffs and others displaying tire peace symbol on their cars.

Motor vehicles approach being a necessity today. To many people railroad or other public transportation is unavailable. Private motor vehicles provide basic transportation, including transportation to places of employment. As the motor vehicle is a necessity for a large segment of the population, so too is gasoline, the fuel fox its internal combustion engine. Cf. Bancredit, Inc. v. Bethea, 65 N. J. Super. 538, 549 (App. Div. 1961) (whether automobile is a necessity for an infant is a fact issue).

The inn survives as the inn or hotel or motel. Its services in feeding and stabling horses, the motor power for transportation before motor vehicles, and the services of the farrier in attending to and shoeing horses, may be viewed as assumed by the gasoline service station proprietor and garage keeper, who render equivalent fueling and maintenance services for motor vehicles. Transportation would falter and travelers be stranded in a transportation system dominated by the motor vehicle if the gasoline service station proprietor or garage keeper could pick and choose his customers arbitrarily, just as the danger was in a transportation system dependent upon horses whenever there was discrimination by an innkeeper or farrier.

This court, therefore, applies the common law obligations of the innkeeper and farrier to serve the public without discrimination to defendant Brogan as the proprietor of a gasoline service station.

The remaining issue is whether the display of the peace symbol ou plaintiffs’ cars led defendant Brogan .to reasonably regard them as disorderly and thus to deny them service, under common law principles applicable to innkeepers. Defendant’s subjective conviction that the peace symbol is anti-Christ and atheistic is pertinent on this issue.

The peace symbol is not vicious, obscene or blasphemous by any reasonable standard in view of its wide currency among a cross section of the public of religious as well as non-religious ox anti-religious views. To view its display as disorderly would flout the right of freedom of speech under the Eirst Amendment of the United States Constitution and Art. I, par. 6 of the New Jersey Constitution.

Plaintiffs and members of their class have established a right to be served at defendant Brogan’s station. The refusal to serve plaintiffs was arbitrary and without justification. The remedy in damages is remote. The threat of irreparable injury is immediate. A permanent injunction will be granted in favor of plaintiffs and the class whom they represent against defendant Brogan.

As to defendant Sun Oil Company there is nothing in the stipulation of facts to support a finding of a principal-agent relationship or of a conspiracy or other participation by the co-defendant in defendant Brogan’s refusal to serve plaintiffs gasoline. Injunctive relief against defendant Brogan provides a complete remedy. A judgment of dismissal is granted in favor of defendant Sun Oil Company.


source: Caselaw Access Project

author: Gallner, P. J. J. D. R. C.

license: Public Domain

text:
    VIOLA WATFORD, PLAINTIFF, v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, A STATUTORY BOARD OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 23, 1971.

      Messrs. Perslcie and Perslcie, attorney for plaintiff (Mr. David H. Romberger on the brief).

      Mr. Remo M. Croce, Deputy Attorney General, for defendant (Mr. George F. Kugler, Attorney General, attorney).
   Gallner, P. J. J. D. R. C.

(temporarily assigned). [1] This matter is brought before this court on a motion for summary judgment addressed to a complaint seeking a declaratory judgment resulting from the Unsatisfied Claim and Judgment Fund Board (Fund) refusing to defend an action heretofore instituted by plaintiff against an uninsured motorist. The Fund denies responsibility because of plaintiff’s failure to comply with the statutes requiring the filing of a notice of intention. The salient question before this Court is whether the transactions which heretofore took place at the time of the inception of the original action by plaintiff against an uninsured motorist constituted sufficient notice under N. J. S. A. 39:6-65. The Fund claims that the procedure followed was such that it should not be called upon to defend the action; plaintiff, on the other hand, claims that there has been a sufficient substantial compliance with the statute so as to impose an obligation upon the Fund to defend and, in the event of a judgment, after trial, to pay within statutory limits any Judgment the Plaintiff may obtain.

The original action and the transactions taking place thereunder are as follows: On February 8, 1969 plaintiff was involved in an automobile accident with an uninsured motorist, one James Martin. The accident happened in Cumberland County and, as a result thereof, plaintiff herein was injured. A complaint was filed against the uninsured motorist on February 24, 1969 by the firm of Perskie and Perskie, attorneys, having their offices in Wildwood, New Jersey, which complaint was served upon the driver and other persons joined as defendants, to wit: the owner, Annie B. Martin and other uninsured motorists involved in the accident. Defendants then, and prior to March 13, 1969, visited their personal attorney, Philip P. Wodlinger, who has law offices in the City of Millville. Wodlinger sent the complaint to the Unsatisfied Claim and Judgment Fund Board on March 13, 1969. In an accompanying letter he advised them that James Martin and Annie B. Martin were defendants to the complaint; that the Martins were uninsured and, further that he had told his clients it would be more expedient for the Fund to attend to the defense of the action. He enclosed a copy of the summons and complaint and stated: «I * * * assume that you will defend this action unless I hear from you to the contrary. I am mailing a copy of this letter to Perskie & Perskie, Esquires.” This communication was sent to the Eund with the complaint enclosed, and a copy of the letter was sent to plaintiff’s counsel.

Uothing was done by plaintiff’s counsel, and on May 29, slightly more than 90 days from the date of the accident, the Eund communicated with plaintiff’s counsel and advised him as follows: “We acknowledge receipt of the Complaint in this matter. A review of our files has failed to reveal any record of a notice of intention filed by or on behalf of the plaintiff; therefore, we are unable to assist you in this matter.” The Eund had the complaint in its office from March 1969 until the end of May 1969, during which time nothing was said by them to anyone or any communications addressed to anyone with respect to the anticipated decision that the Eund was going to make respecting the action. A count of the days will indicate that approximately 117 days had expired, but during the entire 90-day prescribed period, the complaint was in the hands of the Eund.

At the conclusion of the time to plead plaintiff made a motion before the Superior Court, Law Division, Cape May County, for an order granting a default against defendant Eund for failure to plead or otherwise defend. Subsequently, and by order of the court, the Eund was given leave to file an answer in this action. It answered, alleging that it received the letter from Wodlinger, referred to hereinabove, and admitted it had received a notice of intention, dated June 5, 1969 after the expiration of the 90 days. As a separate defense the Eund set up as a bar noneompliance with N. J. S. A. 39 :6-65. Subsequent to filing the answer, a motion was made to dismiss the action summarily, and it is this motion the Court is now called upon to decide.

The statute, N. J. S. A. 39:6-65, sets up certain guidelines — a course of action, if you will — promulgated for the purpose of granting heretofore unknown relief to statutorily qualified persons injured or suffering property damage by virtue of accidents with uninsured motorists. The statute prescribes a certain procedure that must be followed, and the Lund alleges in its brief, as well as in argument before the court, that plaintiff’s action is barred because there was a failure to follow these prescribed guidelines.

It is the opinion of this court that to deny relief because of a deviation from the prescribed route is to defeat the very purpose for which the statute was enacted. A reading of section 65 would indicate that its primary purpose is to place the Lund upon notice of the pending action. Obviously, it is imperative that the Lund, as well as any insurance company, should have prompt notice of the happening of a casualty insured against or protected by the Lund. A requirement that such notice be given is reasonable and will be enforced. Miller v. Zurich General Acc. & Liab. Ins. Co., 36 N. J. Super. 288 (App. Div. 1955). It would seem that the Lund needs prompt notice, as does any insuror, yet an examination of the statute will indicate that its provisions for notice to the Lund are much more liberal than those contained in insurance policies. See Russo v. Forrest, 52 N. J. Super. 233 (App. Div. 1958).

In this case notice was not sent to the Lund within the prescribed time; however, plaintiff did ask for forms and advised the Lund of the accident. The case arose out of a delay because of the injury, and, on the facts, the court denied relief; however, the court, in its opinion indicated that if notice had been given by some person, particularly plaintiff’s husband who was with her at the time of the accident, within a reasonable time, then oven if the information had been in the form of a letter telling the Lund about the accident and requesting forms, it would have been sufficient to have fulfilled the statutory mandate. The court was explicit in pointing out that “It would be impossible in a single opinion to lay down general rules for the guidance of all future eases.” However, pertinent in the opinion was the following:

And though the statute does say the notice shall be “on a form prescribed” by the Bund, that does not mean the claimant or someone on his behalf may not write the Bund, advise it of the accident and ask for forms * * * [t]he date of the receipt of such a letter and its contents would very likely have a bearing favorable to the claimant on the ultimate question whether notice by, or on behalf of the claimant, was given within a proper time.

It is well recognized in our law that the purpose of notice is merely to apprise the responsible party of the pendency of an action and to give him an opportunity to make investigation and protect himself in the suit, should there be one. The purpose of notice is to avoid fraud and to prevent the claimant from taking an unfair advantage over the person, insurance company or Fund called upon to defend an action by allowing such a length of time to expire that it would be impossible for proper investigation and preparation. See Miller v. Zurich General Acc. & Liab. Ins. Co., supra.

The basic philosophy behind the entire Fund concept was laid down by Justice Heher in Giacobbe v. Gassert, 29 N. J. 421 (1959). In that case the question arose as to whether an injured person was able to give the statutory notice required under N. J. S. A. 39 :6-65 or, in lieu thereof, show some reason for not giving such notice. Plaintiff had been injured, and having no knowledge of the right to seek redress by making a claim against the Fund and later learning thereof, gave notice to the Fund by letter, which letter was written by plaintiff’s landlady. Defendant, Director of the Fund, read the statute literally and insisted that notice had not been given within a reasonable period. The court held that the Fund had not been prejudiced, and that its Administrator was not placed at a disadvantage, nor was there any claim, as in this case, to the contrary. Justice Heher pointed out that notice is a process to prevent overreaching and otherwise to secure efficient administration of the Fund, and that the statutory provisions should be liberally read and applied to serve and not subvert the substance or policy of relief in the given circumstances. He stated that the statute was protective, not punitive, and he recognized the relaxation that may he required under certain mitigating circumstances. In any event, he did not place a strict construction upon the statute, as the Attorney General would in the present case. The court said in Giacobbe:

It is the obvious reason of a law that gives it life, not the strict literal sense of terms. The words may be expanded or limited according to the spirit of the legislative expression. The animating principal of the correlated symbols of expression prevails over the import of particular words and phrases considered in vacuo or in the context of other and different circumstances. The whole is to be coordinated in fulfillment of tlie overriding plan and purpose; the procedural course is not an end in itself but a mechanism in aid of the substantive policy. [Citing cases]. And here the statutory relief is to be accorded to all who are within the given class, as a preemptory measure of social policy; and the notice is designed to afford a timely inquiry and thus to safeguard tlie Fund against fraud and imposition. Giles v. Gassert, 23 N. J. 22 (1956). [at 425]

The Attorney General argues that the purpose oi the statutory requirement that notice be given is to prevent the perpetration of a fraud upon the Fund. With this, the court has no argument. However, there is no showing in this case that any fraud has been perpetrated upon the Fund and therefore, having leaped this hurdle, we must now come to the other side of the coin with respect to the Security Responsibility Law.

This is social legislation, not to be denied because of the failure to follow a prescribed form of notice. The wording of the statute should be construed in the light of its intent and purpose. Frantz Equipment Co. v. Anderson, 37 N. J. 420 (1962). The principal social impact brought about by the creation of the Fund, and an outline of its avowed purpose, was expressed by the court in the case of Douglas v. Harris, 35 N. J. 270 (1961), where the Court said:

... ... l'7¡,e purpose of the Fund is to provide a measure of relief to persons who sustain losses or injury inflicted by financial irresponsible or unidentified operators of motor vehicles where such person would otherwise be remediless. Corrigan v. Gassert, 27 N. J. 277, Dixon v. Gassert, 26 N. J. 1 (1958). The statute is to be liberally construed to advance the remedy, due regard being had to the protection of the Fund against fraud and abuse and to the fulfillment of the essential Legislative policy. Giles v. Gassert, 23 N. J. 22, 34 (1956) * * * The public interest demands that the Fund, although a trust fund for those individuals injured by financially irresponsible or unidentified operators of motor vehicles, be administered in a fashion to assure that only those persons legitimately entitled to participate in its benefits are paid therefrom. This is a duty imposed by public policy and owed to the contributors as well as the general public * * *. [at 279; emphasis supplied]

There is no showing in this case that there has been any fraud or imposition perpetrated upon the Eund. We are dealing with the interpretation of section 65 and attempting to arrive at the ultimate conclusion as to whether or not there has been a sufficient substantial compliance with the statutory mandate so as to fulfil the general purpose of the statute, to wit: notice to the Eund in order to place upon the Eund the responsibility of defending the action.

While the statute prescribes a certain means to reach a just end, it is inconceivable that the road to justice is a hard straight line, deviation from which would compel a court to place greater emphasis on the means rather than on the end. Such must have been the rationale of the court in Wharton v. Knox, 98 N. J. Super. 61 (App. Div. 1967), which held that a “liberal construction” of N. J. S. A. 39 :6-65(b) could lead to only one legal result, that “the insolvency of the insurance company was tantamount to a ‘disclaimer/ as that term is used in our statute.” In that case the insurance company had become insolvent and had not disclaimed. The court was making reference to subsection (b) of the statute, which requires 15 days’ notice to the Eund after having received a disclaimer on a policy of insurance. A constricted reading of the statute, and placing thereon the bonds of strictness the Attorney General places on the statute in the case at bar, would have totally frustrated the end result reached in Wharton. By the same token, were we to place the strict interpretation on the statute as was placed by the court in Keith v. Petrakakas, 95 N. J. Super. 262 (Law Div. 1967), the decision in Wharton could have never been written.

In the case at bar the Fund contends that the letter from the uninsured’s lawyer enclosing the complaint tiled by plaintiff (a qualified person) was not notice within the framework of the statute. Thus, we are faced with the question of construction and look for its parallel in Wharton, where the Fund contended that the insolvency of an insurance company could not be construed as a disclaimer under the act. Following the line of logic of the court in Wharton, this court applies the same legel philosophy and adopts the language in 1 f harton to support a finding that the "form” of the notice (short of fraud) shail not frustrate legislative intent. The court in Wharton outlined the basic principles of the Act and said, "Taken as a whole, the act is to be liberally construed to advance the remedy it affords. Although due regard must be given to the protection of the Fund agianst fraud and abuse, the statute should not be narrowly construed to prevent the fulfilment of the Legislative policy it projects.”

The Attorney General relies upon the Case of Szczesny v. Vasquez, 71 N. J. Super. 347 (App. Div. 1962); however, in that case, more than 90 days had expired before even a notice of intention was filed, and the pivotal question was whether the Fund had received the notice, plaintiff claiming that it was sent through the secretary of the attorney. However, the court found from the facts that it had not been sent or, in any event, had never been received, and therefore concluded that the notice had never been sent. The attorney’s secretary had testified that it was her belief that she had sent the notice; however, the court read into the uncertainty of the testimony a corroboration of the Fund’s claim that it had never received the notice. It is obvious in that case that, in balancing the liberal construction of the statute against "due regard being had to the protection of the Fund against fraud and abuse,” and within the framework of the facts, the protection of the Fund superseded the protection of the injured motorist, Szczesny turns upon its own facts. In the case at bar an examination of the communications by the attorney for the uninsured motorist and the language of the complaint that was sent to the Fund, indicate quite clearly that substantially all of the information which could be incorporated in the prescribed form by the Fund was incorporated in the complaint which the Fund received well within the 90 days.

The complaint to which reference is made and which gave rise to the original suit, contained the name and address of the claimant, Yiola Watford; the names of the uninsured motorists; the manner and place where the accident happened; the fact that there were injuries and medical expenses which ensued from the accident, and the court in which the venue was laid. There is little more than this in the prescribed form, and to permit the Fund now to say that it did not have sufficient information upon which to predicate or at least inaugurate the necessary conduct of the case, would be to fly in the face of reality.

The Fund does not investigate the case. Under N. J. S. A. 39:6-66 it is provided that the Fund Board shall assign to insurors the claims made against it for investigation and defense, in order that a proper defense may be interposed. There was sufficient information in this complaint, together with the letter from the uninsured motorist’s attorney, to place the Fund on notice and cause it to follow the procedure prescribed in N. J. S. A. 39 :6-66. A notice of intention is merely an advance information or advice that someone intends at sometime or other, within the period of the statute of limitation, to bring an action. Here we have more than a notice of intention; we have the actual action brought, the complaint filed, and the Fund amply on notice that an uninsured motorist who had paid an additional fee for his registration was being sued and that there would be a possibility that the Fund would be called upon in the event of a judgment to pay the judgment, or at least before that exigency to defend the action. We cannot ignore the rights of the uninsured motorist. See Douglas v. Harris, supra.

This court looks with disfavor at the sequence of events wherein the Fund, when advised by the uninsured motorist’s attorney that he was sending the Fund the complaint and that he assumed it would defend the action unless “I hear from you to the contrary,” remained silent; lulled plaintiff, who had received a copy of the letter, as well as the uninsured motorist, into a sense of security, and then, at the conclusion of 90 days, advised the parties that it would not defend. There was almost a full 90-day period during which the Fund could have disclaimed liability in the same language that it did in the letter of May 29, 1969, wherein, after 90 days had expired, the Fund said, “We acknowledge receipt of the complaint in this matter. A review of our files has failed to reveal any record of a notice of intention filed by or on behalf of the plaintiff; therefore, we are unable to assist you in this matter.” The Fund’s silence and the failure to raise the technical barriers prior to the expiration of 90 days should now estop it from denying the protection to the uninsured motorist and injured plaintiff for which it was basically established.

It is the opinion of this court that the Fund’s actions were arbitrary and unreasonable and fell well within the language of Judge Halpern’s dissent in Jamar v. Hodges, 107 N. J. Super. 495 (App. Div. 1969). Judge Halpern espoused this most logical and proper principle of law:

The Fund is a public body, whose officers hold position of public trust. They are required to exercise their statutory duties in good faith and on fair and intelligent consideration, with loyalty to the public, the courts and litigants. If the Fund’s actions are deemed arbitrary, they are subject to judicial scrutiny for reasonableness * * *.

With respect to the working of an estoppel against the State, it must be borne in mind that the recent pronouncements of our Supreme Court in the cases of Willis v. Dept. of Conservation, 55 N. J. 534 (1969), and P. T. & L. Construction Co. v. Commissioner, Dept. of Transportation, 55 N. J. 341 (1969), destroying sovereign immunity, shows the judicial journey into enlightenment and justice in these matters. However, the concept of sovereignty as being a defense, not only against law suits but even in the invocation of the doctrine of estoppel, is not a new one. In the case of Summer Cottagers’ Ass’n of Cape May v. City of Cape May, 19 N. J. 493 (1955), Justice Heher aptly laid down the principles of estoppel insofar as they relate to government. He said:

The principle of estoppel in pais is not, for obvious reasons, given the same freedom of application against the public as against private persons. Municipalities, for example, are agencies of government for local administration with enumerated powers, and deviations from the legislative grant must needs have the legal consequences comporting with the declared legislative intention and policy. The essential principles of the policy of estoppel here invoked is that one may, by voluntary conduct, be precluded from taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct * * * An estoppel by matter in pais may arise by silence or omission where one is under a duty to speak or act * * * It has to do with the inducement of conduct to action or nonaction. Ones act or acceptance may dose his mouth to allege or prove the truth. * * * The doing or forebearing to do an act induced by the conduct of another may work an estoppel to avoid wrong or injury ensuing from reasonable reliance upon such conduct. The repudiation of ones act done or position assumed is not permissible where that course would work injustice to another, who, having the right to do so, has relied thereon * * *. [at 504-505; citations omitted]

This court has no hesitancy in preventing the Eund from hiding behind its supposed sovereign immunity (now destroyed, see cases, supra) and evade the thrust of an estoppel, particularly when the communication to it, with the accompanying complaint, indicated that all parties would rely upon the Eund accepting the charge imposed upon it or making a timely rejection thereof. The failure to reject the complaint and the form of the letter as constituting proper notice, should have been timely. The entire legislative scheme would be mere sophistry if the Eund were now permitted to evade and avoid a defense of this action. It is the holding of this court that not only because of the substance rather than the form of the notice within time to the Fund of the pendency of the action, but because of the Fund’s failure to react thereto and thus bring down upon its head the doctrine of estoppel, the Fund should he called upon to defend. This brings ns now to a further important feature of this case.

This declaratory action is not brought for the purpose of inducing the Fund to pay a judgment under the proper statutes. This is merely an action calling upon the Fund to defend. Whether the Fund will he required at a future date to pay a judgment is not now before this court, and it may well be that the defense of the action may meet with such results that the question of payment under N. J. S. A. 39 :6-74 and 39 :6-70 may never arise. However, should it arise, then the responsibility to determine whether payment should be made is upon the judiciary. As was said in the dissent in Jamar v. Hodges, supra:

A consideration of the Fund Law as a whole reveals a statutory scheme placing the ultimate decision for payment from the Fund, in most instances, upon ¡he judiciary. The courts are the guardians of the trust money held in the Fund. Szczesny v. Vasquez, 71 N. J. Super. 347, 358 (1962). It must hear all applications for the payment of judgments against uninsured drivers; N. J. S. A. 39:6-69. It must be satisfied that the claimant (judgment creditor) has complied with all the conditions entitling him to payment; and the Fund is empowered to appear and be heard as to “why the order should not be made;” N. J. S. A. 39:6-70 * * These statutes spell out a legislative intent requiring the Fund to show some reasonable basis as to why the court should not enter the order to pay the judgment. [107 N. J. Super. at 500-5011

At this posture, then, it would appear that inasmuch as the court will eventually be called upon to determine whether judgment, if recovered, should be paid by the Fund, it should now exercise that same power conferred upon it by the language of J armar in determining whether the Fund should defend. Inasmuch as the court, by the language of Jamar, is considered the true guardian of the trust money held in the Fund, this same court should have the power to determine whether the Eund should inject itself into the suit and defend on the basis that there has been a substantial compliance with the statute, and whether there has been an imposition or fraud perpetrated upon the Eund.

The supervisory powers of the court over the Eund was recently decided in the case of Crudup v. Marrero, 57 N. J. 353 (Jan. 25, 1971), dealing with experimental Rule 4:58 et seq., the offer of judgment rule. The Fund claimed it was immune from the operation of this rule and refused to pay counsel fees and interest as required by the rule upon the generation of a verdict of more than 120% over the offer of judgment. Justice Francis held that despite the lack of statutory authority in the legislation creating and regulating the Fund, the inherent powers of the court are broad enough to enforce this rule against the Eund despite its protests. In response to the dissenting opinion in that case, Justice Francis supplied the concept upon which this court leans heavily in arriving at its conclusions. Justice Francis said:

The dissent suggests that Rule 4:58 should not be applied to the Fund because of the latter’s public nature. This means that personal injury accident victims with claims against the Fund can be prevented from receiving their Just compensation at the discretion of the Fund for what ever period of years it takes for such cases to be reached for trial and disposed of in that fashion. Approval of that course would be opposed to all equities of the situation.

It is but a short step from destroying the sovereign immunity of the State to the detriment of its citizens to judicial incursion into the Fund’s cacoon of claimed immunity.

While this court does not suggest new forms or modes of notice as a practice in substitution of statutory fiat, it cannot stand idly by where the facts warrant a justifiable relaxation of procedure in order to prevent resulting inequities to the very persons for whose benefit the Fund was created.

I therefore find that the Fund has received ample, if not “form” notice, of the pendency of a suit against an uninsured motorist by an injured claimant for whose benefit the Fund was originally established. I find that the Fund failed to reject the claim in the form in which it was received; failed to give notice to either the uninsured motorist, his attorney or the attorney for the claimant, and that it would not consider the filing of the complaint as ample. I find that timely notice was given to the Fund, affording it the opportunity to assign the defense to the action. I find, further, that a denial of the right to a defense to this plaintiff would totally negate the legislative scheme which gave rise to the creation of the Fund in the first instance, and for that reason the motion for summary judgment by the Fund is denied, and the Fund directed to proceed with the defense of the original action.


author: Fusco, J. S. C.

text:
    BERNARD GARFIELD AND SHIRLEY GARFIELD, PLAINTIFFS, v. FURNITURE FAIR-HANOVER, A CORPORATION OF NEW JERSEY, SOMETIMES KNOWN AS FURNITURE FAIR; AND A. B., AN INDIVIDUAL WHICH IS A FICTITIOUS NAME; AND IN THE ALTERNATIVE, X. Y. Z. CORPORATION, LIKEWISE A FICTITIOUS NAME; AND M. N., A PARTNERSHIP MADE UP OF O. P. AND Q. R., LIKEWISE FICTITIOUS NAMES, NOW IMPLEADED JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE. DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 11, 1971.

      Mr. Herman W. Eapp for plaintiffs (Messrs. Eapp <& Finkel, attorneys).

      Mr. W-illiam L’E Wertheimer for defendants (Messrs. Lum, Biunno ■& Tompkins, attorneys).
   Fusco, J. S. C.

This is an issue of novel impression. Plaintiffs, husband and wife, bring this action to recover for personal injuries allegedly sustained by her when a bed that was loaned to them by defendant collapsed.

The matter now before the court is a motion by defendant, Furniture Fair to dismiss the complaint, pursuant to R. 4:46. Defendant bases this motion on N. J. S. A. 2A :14-2, which provides for a two-year statute of limitations in actions to recover damages for personal injuries. Plaintiffs, on the other hand, contend that N. J. S. A. 12A:2-725, which provides for a four-year statute of limitations in actions to recover damages for breach of warranty, is applicable to the instant situation.

The facts are not in dispute and can be easily summarized. Defendant was engaged in the retail furniture business, and on July 20, 1965 plaintiffs went to its place of business for the purpose of purchasing a bedroom set. It was not known when the bedroom set plaintiffs had decided upon would be delivered. In order not to lose the sale and also not to part with the showroom display bedroom set, defendant agreed to furnish a temporary bed and dresser to plaintiffs until such time as their chosen bedroom set would arrive.

The temporary bed and dresser were delivered and set up on August 5, 1965. At approximately 10 p.m. that night Mrs. Garfield sat on the foot of the bed to remove her shoes; the straps supporting the spring and mattress buckled and the bed collapsed, resulting in personal injuries to her. Plaintiffs then filed their complaint in this action on August 1, 1969, which is within four years after the alleged occurrence.

The first issue to be resolved by the court is whether the transaction in question was a bailment or a sale. A sale is defined in N. J. S. A. 12A:2-106(1) as “the passing of title from the seller to the buyer for a price.” On the other hand, a bailment has been defined by our courts as where an article of personal property is put into the hands of one for a special purpose, and is to be returned by the bailee to the bailor or delivered to some third person when the object of the trust is accomplished. Tompko v. Sharp, 87 N. J. L. 385, 387 (Sup. Ct. 1915), Accord, Gilson v. Pennsylvania R. R. Co., 86 N. J. L. 446 (Sup. Ct. 1914), aff’d 87 N. J. L. 690 (E. & A. 1915).

It is thus apparent that the distinction between a bailment and a sale is two-fold: first, in a sale transaction title to the property in question is in the hpyer, whereas in a bailment situation title remains in the bailor and only mere possession passes to the bailee; secondly, in a bailment situation the property in question is to be restored to the owner, whereas in a sale transaction there exists no obligation on the buyer to return the specific article, Bretz v. Diehl, 117 Pa. 589, 11 A. 893 (Sup. Ct. 1888).

Plaintiffs contend that the court cannot fragment the entire transaction into an initial bailment and a resulting sale, but, rather, that the loan of. the bed and dresser was an integral part of the sale to which the warranties of N. J. S. A. 12A :2-314 would attach. Plaintiffs "have cited no authority for this theory of integration of a bailment into a sale, and the court has likewise found no authority. Plaintiffs correctly state that bailments are contractual in nature, N. Y., L. & W. R. R. Co. v. N. J. Elec. Ry. Co., 60 N. J. L. 338 (Sup. Ct. 1897), but the warranty section of the Uniform Commercial Code extends warranties only to contracts of sale, not to contracts of bailment.

It would appear to the court that this theory of integration is untenable. It cannot be disputed that the loan of the bed and dresser was an inducement to the sale of the bedroom set, and in that respect the loan was a part of the sale. However, to hold that the bailment became merged or integrated into the sale so as to extend the contractual warranties of the Uniform Commercial Code, would fly in the face of the definition of "sale” as given in the Code and Tompko v. Sharp, supra, and Gilson v. Pennsylvania R. R. Co., supra, Cf. Nelson v. Fruehauf Trailer Co., 20 N. J. Super. 198 (App. Div., 1952), aff’d 11 N. J. 413 (1953).

It must be additionally noted that there are two exhibits attached to the affidavit of plaintiffs’ attorney in opposition to this motion. Exhibit “A” is a copy of the invoice of the transaction in question. It is dated July 20, 1965, but typed in on the bottom is:

Returned on February 11, 1966 — to Furniture Fair-Hanover, N. J. one bed, one dresser, and one mirror, in good condition.

Exhibit “B” is a letter of August 4, 1966 from defendant’s then attorney to plaintiffs’ then attorney. The letter reads in part:

ISTow that Hr. Garfield has discarded the metal crossbars Mr. Beck states that he’s ready to sell them the rest oí the bed that was graciously loaned them, in the first place. [Emphasis added]

Instead of supporting plaintiffs’ contention that the bailment merged into the sale, plaintiffs’ exhibits “A” and “B” only support the conclusion that the bailment was separate and distinct from the sale.

Alternatively, if the warranties of N. J. S. A. 12A:2-314 were to apply to the instant situation, the two-year statute of limitations of N. J. S. A. 2A:14-2 would nonetheless govern. The facts of Raskin v. Shulton, Inc., 92 N. J. Super. 315 (App. Div. 1966), are essentially identical to the facts at bar. There the court held that the two-year statute of limitations for personal injuries applied when such injuries arose from a breach of warranty. However, the court’s decision was made in the light of N. J. S. A. 2A:14-1 (the six-year statute of limitations in contract actions) because the transaction occurred prior to the effective date of the Uniform Commercial Code, which did not apply to the situation, N. J. S. A. 12A:2—725(4). N. J. S. A. 12A:2-725 and the comments thereunder add nothing to N. J. S. A. 2A:14-1 that would warrant a result different from that in Bashin. This represents the better reasoned point of view. An action to recover damages for personal injuries is essentially a personal injury action, and no other denomination of it can change this inherent character of it.

On the grounds that this is a bailment situation to which N. J. S. A. 2A :14—2 applies, or, alternatively, that N. J. S. A. 2A :14.—2 applies even if this were considered a breach of warranty situation, defendant’s motion to dismiss the complaint on the grounds that plaintiffs’ suit is barred by the two-year statute of limitations is granted.


author: Beetel, J. C. C.

text:
    ROBERT H. BRYNILDSEN, PLAINTIFF, v. AMBASSADOR INSURANCE COMPANY, A CORPORATION OF THE STATE OF VERMONT DOING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 16, 1971.

      Mr. Lee Trucker argued the cause for plaintiff (Messrs. Norris, McLaughlin & Trucker, attorneys).

      Mr. Allan Maitlin argued the cause for defendant (Messrs. Feuerstein> Sachs <& Maitlin, attorneys).
   Beetel, J. C. C.

(temporaily assigned). This case comes before the court on cross-motions for summary judgment brought by the parties under R. 4:46-2. There appearing to be no genuine issue as to the facts involved, it would appear that this matter is ripe for determination.

On or about April 17, 1968 one Stanley Lenzner purchased a fire insurance policy from defendant on premises owned by him at 293 Peshine Avenue in Newark, New Jersey. The face amount of the policy was $5,000, and it ran from April 17, 1968 to April 17, 1969. Attached to the body of the policy and made a part thereof was a “warranty endorsement” by which the insured party warranted that there was “in full force and effect, covering the same property insured hereunder a policy of insurance identical with this policy in all respects, * * * issued by Jeferson Insurance Coin the amount of $10j000&0.“ Another policy of insurance in the amount of $5,000, issued by the Cumberland Insurance Co., was also in effect when the policy written by defendant became effective, but no reference to the Cumberland policy appears in the warranty clause or elsewhere in defendant’s policy.

On November 15, 1968 plaintiff purchased the premises from Lenzner. In December 1968, the Jefferson policy was cancelled, and when voluntary placement could not be made, it was replaced by a $20,000 policy issued by Aetna Insurance Company through the “Fair Plan” or assigned risk plan. Plaintiff’s attorney frankly conceded at the hearing on the motion that no notice of the cancellation by Jefferson or the obtaining of the Aetna policy was given to Ambassador by plaintiff or plaintiff’s attorney, and does not contend that it had no opportunity to do so.

On January 28, 1969 the insured property was damaged by fire to the extent of approximately $18,000.00. Defendant has refused to admit liability, maintaining that the warranty endorsement was breached by the cancellation without notification.

I

Plaintiff urges that since defendant’s position under its contract of insurance was strengthened rather than prejudiced by the substitution of the Aetna policy for the Jefferson policy, in that its potential liability was clearly diminished, this court should prevent Ambassador from denying liability by following the rationale set forth in Cooper v. Government Employees Insurance Co., 51 N. J. 86 (1968).

Defendant, on the other hand, urges that since there are no ambiguities contained in the language of the warranty, and since plaintiff admits there was no notification of change of insurance company or amount of coverage, the warranty was plainly breached and the policy coverage therefore was voided. Defendant alleges that whether its position was hindered or helped by the activities is irrelevant when dealing with the question of breach of an express warranty.

This court is in accord with the general principle of the law of insurance that forfeitures are not looked upon with favor, and is disposed to avoid forfeiture if by reasonable interpretation it can do so, Neilson v. American Mut. Liab. Ins. Co., 111 N. J. L. 845 (1983). It would appear to be the duty of this court to construe a forfeiture clause in such a manner as to confer coverage, where an interpretation defeating forfeiture is reasonably deducible from the terms or words used. Hampton v. Hartford Fire Ins. Co., 65 N. J. L. 265, 47 A. 433 (1900); 3 Williston on Contracts, §§ 620 and 790; 3 Corbin on Contracts 115, § 552. See also Rockmiss v. New Jersey Mfrs. etc. Co., 112 N. J. L. 136 (1933). The insurer having in most cases drawn the particular policy, all doubt as to the construction of terms in an insurance policy is to be construed most strongly against the insurer and in favor of the insured. Jorgensen v. Metropolitan Life Ins. Co., 136 N. J. L. 148, at 151 (1947); Connell v. Commonwealth Cas. Co., 96 N. J. L. 510 (E. & A. 1921).

The words of an insurance, policy, however, must be given their ordinary and usual meanings and if there is no ambiguity, a strained or distorted construction will not be applied. If it is consistent with public policy, the terms of an insurance will be enforced. Jorgensen v. Metropolitan Life Ins. Co., above; Downs v. N. J. Fidelity & Plate Glass Ins. Co., 91 N. J. L. 523 (1917). See also Schneider v. New Amsterdam Casualty Co., 22 N. J. Super. 238, 242-243 (App. Div., 1952).

The current approach to insurance contract interpretation is to be found in Allen v. Metropolitan Life Ins. Co., 44 N. J. 294, 295, 306 (1965), and Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475 (1961). Cooper v. Government Employees Insurance Co., 51 N. J. 86, 94 (1968), urged by plaintiff to be controlling in the case at hand, is factually distinguishable from the case at bar in that it considers a “condition” in a policy and not a “warranty,” although it does demonstrate the tendency of the modern judiciary to protect the consumer from unreasonably strict construction of adhesion contracts.

The Allen ease points that

(W)hile insurance policies and binders are contractual in nature, they are not ordinary contracts but are “contracts of adhesion” between parties not equally situated, [Oiling cases] The company is expert in its field and its varied and complex instruments are prepared by it unilaterally whereas the assured or prospectives assured is a layman unversed in insurance provisions and practices. He justifiably places heavy reliance on the knowledge and good faith of the company and its representatives and they, in turn, are under correspondingly heavy responsibility to him. His reasonable expectations in the transaction may not justly be frustrated and courts have properly molded their governing interpretative principles with that uppermost in mind. Thus we have consistently construed policy terms strictly against the insurer and where several interpretations wore permissible, we have chosen the one most favorable to the assured, [citing cases]
In Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475 (1961), we left little doubt as to our current approach by using this pertinent language: “When members of the public purchase policies of in-
surance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. They should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be construed liberally in their favor to the end that coverage is afforded to the full extent that any fair interpretation will allow.” Francis, J. in Danek v. Hommer, 28 N. J. Super. 68, 76 (App. Div. 1953), affi’d 15 N. J. 573 (195-4), [44 N. J. at 305-306.]

The tendency of onr courts to construe liberally rather than strictly adhesion contracts can be readily seen in areas other than insurance, the most notable example being the landmark decision in Henning sen v. Bloomfield Motors, Inc., 32 N. J. 358, 389 (1960), where the Supreme Court looked with extreme disfavor on the uniform automobile warranty of the Automobile Manufacturer Association, used at the time by all major automobile manufacturers. Thus the perimeter of public policy appears to be ever increasing, and although courts continue to recognize that persons should not be unnecessarily restricted in their freedom to contract, there is an increased willingness to invalidate contractual provisions which clearly tend to injure the public in some way. See Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 538, 554 (1967).

II

Keeping in mind the general tendency toward liberal construction indicated by the decisions above, we must turn now to the “warranty endorsement” and the admitted breach thereof. The terms of the endorsement are clear and explicit, and leave no doubt as to the obligations of the insuror and the insured. The language relied upon by defendant Ambassador provides that

* * * the coverage provided under this policy shall be effective only so long as the total amount of insurance indicated in the above warranty is and remains in full force and effect, without any reduction. whatsoever, in the insurance company indicated above, and no other. * * * [I]f said policy is cancelled or the terms or conditions thereof changed, then, unless notice is given to the company of such * * * cancellation or change and the consent of the Company to continuation of this policy notwithstanding such * * * cancellation or change is endorsed hereon the coverage afforded under this policy shall, without notice to the insured, immediately and automatically cease and this policy shall become NUI/L AND VOID. [Emphasis supplied]

In general, an insured is chargeable with knowledge of the contents of a policy, in the absence of fraud or unconscionable conduct on the part of the carrier. Merchants Indemnity Corp. v. Eggleston, 37 N. J. 114, 115, at pg. 121-122 (1962); Heake v. Atlantic Gas. Co., 15 N. J. 475, 483 (1954). In the present case plaintiff does not contend that it was unaware of its duty to notify Ambassador of the cancellation of the Jefferson policy, nor does he seek to show that he had no reasonable opportunity to so notify Ambassador during the period between the Jefferson cancellation and the date of the fire.

A warranty differs from a representation or a condition, in that a warranty, unlike representations and conditions, is actually an integral part of the contract, relating to risk. Representations are statements preceding the contract, not being a part thereof, and need only be substantially true. Generally, an untrue representation will not invalidate an insurance contract unless there has been fraud. Procacci v. U. S. Fire Insurance Co., 118 N. J. L. 423, 426 (1937). To be relieved of liability for the breach of a condition in an insurance policy, an insurer has the burden of proving not only the breach, but also of showing that the breach resulted in a likelihood of appreciable prejudice to it. Cooper v. Government Employees Ins. Co., Inc., 51 N. J. 86, 94 (1968).

Plaintiff urges that this court should ignore the difference between warranties, representations and conditions, holding the insurance company liable under the terms of the Cooper case above, since there has been no active showing of prejudice on defendant’s part. While such a construction may be suggested by the pronouncements of the Supreme Court in Henningsen v. Bloomfield Motors, Inc., above, and its progeny, this interpretation would be a novel one which we are not constrained to adopt, especially in view of the fact that there is no authority in this State ignoring the difference between warranties and conditions or representations in contracts of insurance.

In the case at bar plaintiff knew it was obliged to notify defendant of any change in or cancellation of the Jefferson policy, yet when a stronger policy with a larger carrier was obtained, it failed to carry out its acknowledged duty. Clearly, plaintiff has not shown equitable considerations sufficient to justify this forum’s redrafting of the insurance contract in a more equitable fashion. Such other considerations may in fact exist, but since they have not been set forth in the pleadings or testimony, this court will not engage in speculation.

Accordingly, summary judgment will be entered in favor of defendant Ambassador Insurance Company. Plaintiff’s cross-motion for summary judgment will be denied. No costs.

APPENDIX A

WARRANTY ENDORSEMENT

Attached to and forming part of Policy Number E12145 issued to Stanley Lenzner and Lois Lenzner By AMBASSADOR INSURANCE COMPANY of Montpelier, Yt. Date of Endorsement 4/17/68.

WARRANTY

The assured hereby acknowledges that the Company has not independently underwritten the risk covered by this policy but that the Company has, rather, issued its policy only because of its reliance on the assured's warranty below of other identical insurance on the property covered, in the amount stated, in the company named.

Elnowing that the Company is relying upon the following warrant of the assured and that if said warranty were not strictly correct the Company would not issue its policy, the assured warrants that there is presently in full force and effect, covering the same property insured hereunder a policy of insurance identical with this policy in all respects, except rate which must be not more than the rate at which this policy is written, issued by Jefferson Insurance Co. in the amount of $10,000.00.

If, at the time this policy is issued, this warrant is in any respect incorrect, to wit, if there is no policy presently in full force and effect; or if there is a policy presently in full force and effect but it either (a) does not cover the same property insured hereunder, or (b) it is not in all respects identical with this policy, or (c) it is issued by any company other than the named insurance company, or (d) it is in any amount less than the amount stated, or (e) any combination of (a) and/or (b) and/or (c) and/or (d), then this policy is and shall be NULL AND YOID and the Company shall not be liable for any payment hereunder except for the repayment of the premium.

Any provision of this policy to the contrary notwithstanding, the coverage provided under this policy shall be effective only so long as the total amount of insurance indicated in the above warranty is and remains in full force and effect, without any reduction whatsoever, in the insurance company indicated above, and no other. If the total amount of insurance indicated is reduced in any amount whatsoever, or if said policy is cancelled or the terms or conditions thereof changed, then, unless notice is given to the Company of such reduction, cancellation or change and the consent of the Company to continuation of this policy notwithstanding such reduction, cancellation or change is endorsed hereon, the coverage afforded under this policy shall, without notice to the insured, immediately and automatically cease and this policy shall become NULL AND VOID. Thereafter, the Company shall not be liable for any claim hereunder except for the return of the premium for the period from the date of discontinuance or diminution or change of coverage to the end of the term of the policy.

The insured hereby acknowledges and agrees that any action, adjustment or settlement of any loss with the insurance company indicated above is independent of any claim made hereunder and that such action, adjustment or settlement shall in no way bind or impose liability on the Company.

/s/ G. Kenneth Taylor

       See Appendix A

       See Appendix A


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

text:
    MISELLY MASONS, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. D. H. OVERMYER CO., INC., A NEW JERSEY CORPORATION; PEOPLES TRUST COMPANY OF BERGEN COUNTY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY; GIBBONS CONSTRUCTION COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY; GREEN AND WHITE CONSTRUCTION COMPANY, INC., A CORPORATION; MIDDLESEX CONCRETE PRODUCTS AND EXCAVATING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY; BEST BLOCK COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY; UTILITYSEBOLT CO., A CORPORATION OF THE STATE OF NEW JERSEY; AND ISIDORE FRIEDMAN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 28, 1970
    Decided October 7, 1970.
    Before Judges Sullivan, Collestek and Labkecque.

      Mr. Morton Joel G-oldfein argued the cause for plaintiff-appellant (Messrs. Greenbaum, Greenbaum & Bowe, attorneys; Mr. Arthur M. Greenbaum, of counsel).
    dir. Edward P. Lynch argued the cause for defendant-respondent D. II. Overmyer Co., Inc. (Messrs. Pitney, Hardin & Kipp, attorneys; Mr. Clyde A. Szuch, of counsel).
   Per Curiam.

Plaintiff Misc.ly Masons, Inc. appeals from an order granting summary judgment in favor of defendant D. H. Overmyer Co., Inc.

Overmyer hired defendant Green and White Construction Co., Inc. to construct a warehouse facility on its property in Woodbridge, New Jersey. Green and White subcontracted the masonry work on the project to plaintiff who filed notices oí intention in connection therewith. When plaintiff later filed a mechanic’s lien claim for the balance due under its contract, it failed to endorse upon the lien claim the time of commencement of the action to enforce the same. The grant of summary judgment was predicated upon this omission.

In granting the motion the court below was of the opinion that Cox v. Hruza, 54 N. J. Super. 54 (App. Div. 1959) was controlling. We agree. In that case, where, as here, the plaintiff had urged that no other interest would be unjustly affected by allowance of its lien, it was held that the endorsement requirement of N. J. S. A. 2A:44—99 and 101 was substantive and mandatory, “It goes to the very life of the lien; observed, it gives the lien viability and continued life; disregarded, it cuts short its existence and potential effectiveness.” (at 63)

We are thus left with no alternative but to affirm the judgment below.

Sullivan, P. J. A. D.,

(dissenting). I must disagree with my brethren, and in so doing question the soundness of Cox v. Hruza, 54 N. J. Super. 54 (App. Div. 1959). Concededly, plaintiff failed to comply ■with one of the procedural requirements of the Mechanics’ Lien Act, hut defendant-respondent was not prejudiced in any way. Cox states at p. 63:

The endorsement on the lien claim of the fact that an action has been commenced is necessary for the protection of all those who might rely upon the public record in the county clerk’s office—not only the contractor and owner who, of course, know of the action because they are parties defendant, but all persons who might possibly claim a lien or interest in the lands involved, whether as mechanics’ lien claimants, purchasers, mortgagees or judgment creditors.

However, I am satisfied that the endorsement is not intended to give notice of suit to the property owner, who must know about it since he is being sued. Therefore, it is inequitable to permit him to raise the failure to endorse as a defense. I would hold that under the circumstances the irregularity was not fatal to the validity of the lien claim and does not bar plaintiff from proceeding with his suit to establish his lien.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH D’ORSI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1971
    Decided March 3, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Avrom J. Gold argued the cause for appellant (Messrs. Mandelbaum, Mandelbaum $ Gold, attorneys; Mr. Barry R. Mandelbaum, on the brief).

      Mr. Edward R. Rosen, Assistant Prosecutor, argued the cause for respondent {Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
   Per Curiam.

Defendant was found guilty by a jury of unlawfully carrying a firearm — a 6-mm. Browning Automatic pistol — on his person without first having obtained the requisite permit to carry the same, contrary to the provisions of N. J. S. A. 2A :151-41. On March 20, 1970 he was sentenced to the New Jersey Reformatory to serve an indeterminate term. Defendant appeals from the judgment of conviction.

I

Defendant’s first contention is that the trial court mistakenly denied his pretrial motion to suppress the weapon unlawfully possessed by him because this evidence was obtained through an unlawful search and seizure.

On March 6, 1968 Detective Walter Monahan of the Middletown Police Department received a telephone call at police headquarters from an informant from whom the detective had previously received reliable information. Monahan was told that "three men were leaving Ilazlet in a 1963 Buick, registration MWC 309, were heading south on Highway 35 through Middletown to pull an armed robbery in Long Branch.” The informant said "they were armed.” The information was passed on to other members of the police force.

Monahan and Detective Haiti day took a position in the headquarters driveway which abuts Highway 35. There were other police vehicles in the vicinity, in the other driveway on the other side of the garage. Detective Olsen was dispatched to the boundary lino of Middletown to see if the car in question did in fact come into Middletown. After a short while Olsen sent a radio message that the car in question was now proceeding south on Highway 35 with three occupants. When this vehicle was directly in front of police headquarters it was stopped by the combined efforts of Olsen and the waiting police.

Monahan proceeded to the driver’s side of the Buick; Halliday, to the passenger side. Defendant was the driver and was so identified by Monahan at the hearing on the motion to suppress and at the trial. Defendant was told to step outside the car and place his hands on the hood. Monahan could tell from observation “there was a weighted object in his pocket * * * right front coat pocket.” As Monahan testified, “I patted the coat down and put my hands inside and pulled out a Browning .35 automatic loaded with the clip and reamed for a silencer.” Thereupon, defendant was arrested and advised of his rights. The detective identified the gun which he took from defendant that night from the marking of his initials on it.

The patting down or “frisking” of defendant was not, under the circumstances, an “unreasonable search.” The police had reasonable cause to believe the occupants of the car were armed, not only by reason of the information furnished to them but also on the basis of Monahan’s personal observation and his police expertise. The police action was legally justified. Terry v. Ohio, 393 U. S. 1, 88 S. Ct. 1868, 30 L. Ed. 3d 889 (1968); State v. Dilley, 49 N. J. 460 (1967), utilizing the rationale later expounded in Terry v. Ohio, supra. See, too, McCray v. Illinois, 386 U. S. 300, 87 S. Ct. 1056, 18 L. Ed. 3d 63 (1967) and Draper v. United States, 358 U. S. 307, 79 S. Ct. 339, 3 L. Ed. 3d 337 (1958), upholding the validity of the police action under somewhat analogous circumstances.

II

We find no substantial merit in defendant’s argument that N. J. S. A. 2A :151-41 is unconstitutional in its application to this defendant in that it compels him to incriminate himself contrary to his rights under the Fifth Amendment to the United States Constitution.

Defendant’s rationale is that one needs a permit to purchase a gun under N. J. S. A. 2A:151-33 and also needs a permit to carry a concealed weapon under N. J. S. A. 2A:151-41. If he applied for the latter permit, he would have been required to incriminate himself by admitting that he had obtained the gnu without first having been granted a permit to purchase it. Thus, he would equate the instant situation with Marchetii v. United States, 390 U. S. 39, 88 S. Cl. 697, 19 L. Ed. 2d 889 (1968), and Haynes v. United States, 390 U. S. 85, 88 S. Ct. 122, 19 L. Ed. 2d 923 (1968), each of which involved disclosure of a violation of the law in order to meet the requirement of another law.

We find this ease distinguishable. In Marchetii, for example, one needed a federal tax stamp, to carry on the business of a gambler. But here, one might apply for a permit to carry a concealed weapon lawfully obtained without disclosing his possession of a weapon unlawfully obtained. Pie may not justify a distinct and separate unlawful act by a mere potential of self-incrimination when avoidance lay readily in his own hands, namely, first lawfully obtain a gun and then apply for a permit to carry it lawfully.

Ill

Defendant’s next point is that his admission that he did not have a permit was inadmissible by reason of the failure of the police officers to give him the appropriate Miranda warnings. Cf. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See, too, State v. Barnes, 54 N. J. 1 (1969), in explanation of Miranda.

The police officer, Monahan, testified that he had advised defendant of his constitutional rights prior to any statement by defendant. Monahan testified that he “told him that he was being placed under arrest. He had a right to remain silent and anything he did say would be held against him. That if he didn’t have an attorney an attorney would be provided for him.” These are the warnings required by Miranda. Monahan was asked on cross-examination if defendant told him that he did not have a permit and he answered: “Yes, sir, he did.” Thus, the inculpatory admission was elicited by defendant’s own attorney. Defense counsel made no objection, and no request was made to strike the admission.

Accordingly, this contention lacks merit.

IY

Defendant alleges error in the remarks of the prosecutor in summation, in referring to the weapon as having been adapted for the use of a silencer. He argues that this was highly inflammatory and prejudicial to defendant’s right to a fair trial.

During the direct examination of Detective Monahan by the State, the trial judge sustained an objection by defense counsel that Monahan not be allowed to comment on the fact that the barrel of the gun had been threaded to receive a silencer. However, on cross-examination, while defense counsel was attempting to impeach Monahan’s credibility, he asked the officer to describe the gun. Monahan replied: “This is a Browning 6 clip, made in Belgium, 6 millimeter, 35 with a clip, with a muzzle threaded to receive a silencer.” Defense counsel never asked that this answer be stricken, but continued to question Monahan’s testimony as to the gun.

The trial judge permitted the prosecutor, over objection of defense counsel, to comment upon the gun as so described in Monahan’s testimony. The jury had heard this testimony. We find no such impropriety in the remarks of the prosecutor to warrant a reversal by reason thereof.

V

Defendant’s final claim of error is that the trial court’s failure to grant an adjournment to defendant’s newly assigned counsel was an abuse of discretion and effectively denied defendant a fair trial.

“The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error.” State v. Smith, 87 N. J. Super. 98, 105 (App. Div. 1965). We find no abuse of discretion in the instant case. On the contrary, the trial court was justified in denying further delay of the trial, based upon all the circumstances herein as revealed by the record before us. There has been no showing herein that defendant was prejudiced by denial of the request for an adjournment. Cf. State v. Motley, 251 S. C. 568, 164 S. E. 2d 569 (Sup. Ct. S. C. 1968). In fact, the record reveals that he was ably defended by experienced counsel.

Einding no valid ground for reversal in any of the claims asserted on behalf of defendant, the judgment of conviction is affirmed.


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

text:
    CHARLES B. YATES, CRAIG YATES, ALBERT CARNIVALE, HARRY M. DANLEY AND THOMAS J. LeJAMBRE, PLAINTIFFS-APPELLANTS, v. EDWARD A. KELLY, JR., COUNTY CLERK OF BURLINGTON COUNTY, NANCY MAY, DOROTHY P. MAIN, EDWARD G. SNOW AND GLENN C. BAKER, MEMBERS OF THE BOARD OF ELECTIONS OF BURLINGTON COUNTY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Decided February 25, 1971.

      Before Judges Goldmann, Leonakd and Mountain.

      Mr. George H. Barb our, attorney for appellants.

      Mr. George F. Kugler, Jr., Attorney General, attorney for respondent Burlington County Board of Elections (Mr. Stephen Slcillman, Assistant Attorney General, of counsel; Mr. Dennis J. Quinn, Mr. David S. Litwin and Mr. Gordon Golum, Deputy Attorneys General, on the brief).

      Mr. D. Neil Manuel, attorney for respondent County Clerk Edward A. Kelly, Jr.
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

The issue to be determined on this appeal is whether Assembly District 4B created by the Apportionment Commission in 1967, or Assembly District 4B as reconstituted by the Apportionment Commission in 1969, should be used in the forthcoming election to fill the vacancy created by the resignation of Burlington County Senator Edwin B. Forsythc, who was elected to Congress at the November 1970 general election.

Jackman v. Bodine, 43 N. J. 453 (1964), declared invalid the Legislative Article of the New Jersey Constitution (1947) insofar as it dealt with the apportionment of members of the Legislature under Art. IV, § II, par. 1 (Senate) and § III, par 1 (General Assembly), and this on equal protection grounds. Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).

In order to comply with the requirements of the one man-one vote principle as delineated by the United States Supreme Court, the voters of New Jersey, at the general election held November 6, 1966, adopted amendments to Art. TV, §§ II and III, and Art. XI, § V of our Constitution, as proposed by the Constitutional Convention of 1966. Those amendments, as well as the work product of the Apportionment Commission created by Art. IV, § III for the purpose of establishing Senate Districts and Assembly Districts and for apportioning Senators and Assemblymen, came under attack in Jackman v. Bodine, 49 N. J. 406 (1967), and were rejected in part. Senate Districts were ordered reallocated where that would substantially reduce deviation with respect to particular districts and reduce state-wide deviation. The problem which faced the court was whether it should remand the matter to the Apportionment Commission for reconsideration in light of the views expi’essed in the opinion. Because the November 1967 election was imminent and since a reconsideration could entail Assembly districting throughout the State-, the court deemed it unwise to direct the Commission to undertake and complete that task before the election. It was imperative that government continue, and for that reason, said the court, deviations which might otherwise be fatal would he tolerated for the time being. The work of the Apportionment Commission would be accepted for the purposes of the 1967 November election, leaving ample time for a full exploration of the challenged deviations and the reasons therefor in preparation for the November 1969 election. To that end the Commission was to continue in office and make a reasonable recertification of Assembly Districts for that election. (At 419—420)

Among the Senate Districts created by the Apportionment Commission in 1967 was the Fourth, composed of Burlington and Ocean Counties and from which two Senators were to be elected. The Fourth Senate District was divided into two Assembly Districts. Assembly District 4A included Ocean County and the following municipalities located in Burlington County: Pemberton, Wrightstown, and the townships of Bass River, Eastampton, New Hanover, North Hanover, Pemberton, Shamong, Tabernacle, Washington and Woodland. Assembly District 4B included that portion of Burlington County not included in District 4A. A Senator was to be elected from each Assembly District.

On November 7, 1967 the voters in Assembly District 4B elected Edwin B. Forsythe to a four-year Senate term commencing January 9, 1968. He was sworn into office and continued to serve as State Senator until elected Congressman on November 3, 1970, whereupon he resigned.

In accordance with the decision in Jackman v. Bodine, above, 49 N. J. 406, and Art. XI, § V of our Constitution, the Apportionment Commission met and, after study and discussion, eventually on April 7, 1969 certified the establishment of Assembly Districts throughout the State. Assembly Districts 4A and 4B, constituting the Fourth Senate District, were reapportioned so that each had a population of 166,370. To accomplish this result the two districts were recast. The following municipalities, part of Assembly District 4B as set up in the 1967 apportionment, were now placed in 4A: Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield Township, Edgewater Park Township, Borough of Fieldsboro, Florence Township, Mansfield Township and Westampton Township. On the other hand, the following municipalities, formerly part of 4A, were placed in 4B: Pemberton and the Townships of Bass River, New Hanover, Pemberton, Shamong, Tabernacle and Washington.

The 1969 recertification of Assembly Districts by the Apportionment Commission came under attack in Jackman v. Bodine, 55 N. J. 371 (1970), because of deviations from mathematical equality between districts. The court held that a 1.5-1 ratio between the most and least populous districts was not inherently intolerable and, subject to certain qualifications and observations in the opinion, adjudged the apportionment plan valid with respect to the several challenges that had been addressed thereto.

By resolution dated December 30, 1970 the Burlington County Board of Chosen Freeholders petitioned the New Jersey Senate to issue a writ for a special election to elect a Senator for the unexpired term of Senator Forsythe. The Senate acted on January 12, 1971 by adopting a resolution providing for a special primary election in Senate District 4B on February 16, 1971 and a special general election on March 2, 1971. A writ of election and proclamation issued over the signature of the Senate President and was filed with the Secretary of State on January 15, 1971. The Secretary of State then forwarded certified true copies to the Burlington County Board of Elections and the Burlington County Clerk. The county election board proceeded to publish the writ of election and proclamation in two Burlington County newspapers on January 21 and 28, 1971. All this was done in accordance with the provisions of N. J. S. A. 19:27-4 to 9. On the same dates and in the same newspapers the Burlington County Clerk published a notice to persons desiring absentee ballots and another notice addressed to the attention of military service voters and their relatives and friends. Both gave notice of the special primary election on February 16, 1971 and the special general election to be held on March 2, 1971 in Assembly District 4B. In both eases the county clerk identified the municipalities that would participate in the election as those loeated in Assembly District 4B as constituted by the Apportionment Commission in 1969. The members of the Burlington County Board of Elections divided 2-2 as to whether the special elections to fill the vacant Senate seat should be held in Assembly District 4B of 1967 from which Senator Forsythe was elected, or in Assembly District 4B as established by the Apportionment Commission of 1969. The county clerk, after consulting with the Secretary of State’s office and others as to the proper procedure to be followed, published the notices just mentioned, employing the most recent description of Senate District 4B as proper for use in the special elections'.

This action was initiated by a complaint filed February 5, 1971 and an order to show cause signed ex parte and returnable February 10, 1971 before Assignment Judge Martino. The plaintiffs are respectively residents of Borden-town City, Burlington City, Edgewater Park Township, Florence Township and Willingboro. Plaintiff Charles B. Yates, of Willingboro, filed nominating petitions for the Democratic nomination. Walter L. Smith, Jr., of Riverton and presently an Assemblyman from Assembly District 4B, filed nominating petitions for the Republican nomination. No other persons filed.

The substance of the complaint is that the notices published by the Burlington County Clerk mistakenly identified the municipalities whose voters would participate in the special primary and general elections by including those located in Assembly District 4B as established by the Apportionment Commission in 1969, rather than in 4B as established by the Commission in 1967. The matter complained of was that because of the transfer of certain municipalities from 4B as constituted in 1967 to Assembly District 4A, some 59,540 people resident in those municipalities would be deprived of their franchise insofar as electing a successor to fill the unexpired term of the Senator whom they had helped elect in November 1967. On the other hand, voters in municipalities formerly in 4A and now in 4B under the 1969 apportionment, and who had voted in the November 1967 election which resulted in the election of Senator William T. Hioring in 4A, would be permitted to vote in the special elections called for Assembly District 4B, as established in 1969.

(It should immediately be observed that following the filing of the complaint, the Legislature passed a bill, signed by the Governor, eliminating the necessity of conducting the special primary election scheduled for February 16, 1971. L. 1971, c. 30.)

The complaint demanded judgment requiring defendants to insure that voters in the municipalities transferred from former Assembly District 4B to 4A be permitted to participate in the special general election on March 2; enjoining them from conducting the election in other than the municipalities formerly constituting 4B, and requiring the board of elections to distribute election machines to only those municipalities.

On the return date of the order to show cause the Attorney General, as attorney for defendant board of elections, took the position that due to the inability of the board to reach a decision in this matter, the board was not truly an adversary party. After considering the affidavits and briefs, and hearing argument, Judge Martino entered final judgment on February 18, 1971 in defendants’ favor. Plaintiffs filed their notice of appeal immediately and the matter was listed for hearing on an accelerated basis on February 22 in light of the special general election scheduled for March 2. The court called for supplemental briefs to be filed on or before the close of business on February 24.

Assembly District 4B, as constituted by the Apportionment Commission in 1967, had no viability whatever after the coming down of the opinion in Jackman v. Bodine, 49 N. J. 406, on July 3, 1967 except for the November 1967 election. As noted, the court directed that the Apportionment Commission continue in office and, after full exploration of the challenged deviations and the reason therefor, “make a seasonable recertification of Assembly Districts for the 1969 election.” This was done, with the result that a number of Assembly Districts, including 4A and 4B, were recast in order to achieve as nearly as possible apportionment according to the one man-one vote principle. In the case of 4A and 4B, the Commission arrived at a perfect equalization: there is no deviation in the population count of the two districts.

The present situation is a unique one. An examination of the record of the Apportionment Commission of 1969 shows that the possibility of an election to fill a vacancy occurring after April 7, 1969 and before the November 1971 general election for the State Senate was not envisaged or discussed. This has led plaintiffs to argue that voters in only those municipalities constituting Assembly District 4B, as established by the 1967 Commission, should be permitted to vote in the March 2, 1971 election for the unexpired term of former Senator Forsythe.

To accept the proposition here advanced by plaintiffs would be to permit the revitalization of Assembly Districts declared invalid in the 1967 Jackman v. Bodine decision. The creation or re-creation of Senate and Assembly Districts is a legislative function; it is not for the courts to undertake.

There was no complaint that Senator Forsythe, following the April 7, 1969 apportionment and until he resigned on election to Congress in 1970, represented other than the electorate in Assembly District 4B, as constituted by the 1969 Apportionment Commission, or that Senator Hiering represented other than the electorate in Assembly District 4A as established by that Commission. Those in present 4B will be represented by the State Senator to be elected on March 2, 1971, and those in 4A will continue to be represented by Senator Hiering. In the particular circumstances of the present case, it cannot be said that the over-arching democratic concern has not been satisfied.

The Apportionment Commission is required to establish Senate and Assembly Districts and to apportion State Senators and Assemblymen among them after the 1970 decennial census of the United States and every subsequent one, by reason of Art. IV, § III, par. 1. The Commission, by a majority of all its members, must do so within one month of the receipt by the Governor of the official decennial census for New Jersey, or on or before February 1 of the year following the year in which the census is taken, whichever date is later. Id. The official decennial census for New Jersey was received by the Governor on February 23, 1971. He filed it with the Secretary of State’s office on February 25, 1971, thereby officially promulgating that census. See N. J. S. A. 52:4-l. The census will be effective May 1, 1971. L. 1971, c. 14, N. J. S. A. 52:4-3.

The State Senator elected on March 2, 1971 will fill the remainder of former Senator Forsythe’s term, which expires in January 1972. The voters of Assembly District 4B, as established by the Apportionment Commission in 1969 pursuant to Art. XI, § V, par. 2 of our Constitution, will in November 1971 choose a new State Senator, who will represent them for a two-year period inasmuch as Art. IV, § II, par. 2 provides that a Senator “elected for a term beginning in January of the second year following the year in which a decennial census of the United States is taken, shall be elected for a term of two years.”

The judgment is affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL DE GEORGE AND PETER LUCCI, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 26, 1971
    Decided March 1, 1971.

      Before Judges Lewis, Matthews and Hintz.

      Mr. Mark A. Aurigemma argued the cause for appellants.

      Mr. Edwin II. Stern, Chief Assistant Prosecutor, argued the cause for respondent (Mr. Geofrey Gaulkin, Prosecutor of Hudson County, attorney).
   The opinion of the court was delivered by

Lewis, P. J. A. D.

Defendant Michael De George pled guilty to three counts of an indictment charging him with engaging in a lottery business, possession of lottery paraphernalia and bookmaking, in violation of N. J. S. A. 2A:121-3(a) and (b) and N. J. S. A. 2A:112-3, respectively. Codefendant Peter Lucci pled guilty to an indictment charging him with working for a lottery in violation of N. J. S. A. 2A:121-3(a).

De George was sentenced to the Hudson County Penitentiary on each of the first two counts of the indictment for a period of one year, the terms to run concurrently. The sentences were suspended except for a 75-day period of confinement. On the third count, he was sentenced to State Prison for a period of one to three years. The sentence was suspended, and he was placed on probation for a period of three years and fined $1,000.

Lucci was sentenced to the Hudson County Penitentiary for one year. The sentence was suspended except for a confinement of 60 days, and he was placed on probation for a period of two years and fined $500.

On appeal defendants argue that (1) the offenses committed should not carry any custodial sentence because “the public wants to gamble” and that “any necessary custodial sentence is violative of the discretion of the sentencing judges,” (2) the custodial sentences imposed were not warranted, and (3) their motion to remit the fines was erroneously denied.

We find nothing of substance to this appeal. The sentences were well within statutory limits and sound judicial discretion.

The sentencing judge, in his oral opinion on the motion to remit the fines, made it clear that “the fine is part of the sentence and therefore has to be paid as well as the sentence being served.” The orders of probation stated that the fines were to be paid forthwith. Moreover, each defendant respectively acknowledged in writing that he had read the conditions of probation and that they had been explained to him. These conditions, among other things, provided: “You will pay through the probation department any and all monies ordered to be paid by the court in strict accord with terms fixed by the court.” See R. 3:21-7; N. J. S. A. 2A:168-2; cf. Adamo v. McCorkle, 13 N. J. 561, 567-568 (1953), cert. den. 347 U. S. 928, 74 S. Ct. 531, 98 L. Ed. 1080 (1954).

We note that the brief and appendix on behalf of the State included copies of the presentence reports. The assistant prosecutor who argued the matter on appeal recognized the impropriety of the procedure that had been followed by the draftsman of the brief. We ordered sua sponis that these reports be expunged from the filed document, because such reports should not be a matter of public record. See R. 3:21-2; cf. State v. Kunz, 55 N. J. 128, 139-140 (1969). The better practice in submitting presentence reports to the court is to do so separately and apart from briefs or appendices in an enclosure appropriately noting that they are for the confidential use of the court.

Affirmed.


author: Mountain, J. A. D.

text:
    ANGELINA BATTISTA AND RALPH BATTISTA, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. JOSEPH N. BELLINO, M. D., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 1, 1971
    Decided March 1, 1971.
    Before Judges Goldmann, Leonabd and Mountain.

      Mr. Thomas F. Campion argued the cause for appellant (Messrs. Shanley and Fisher, attorneys; Richard F. Brennan, on the brief).

      Mr. George B. Henkel argued the cause for respondents (Messrs. Marinello, Henkel, Soriano and Klein, attorneys; Mr. Henkel, on the brief).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendant appeals, pursuant to leave granted, from the denial by the trial court of his motion for summary judgment.

The facts of the ease may be simply set forth. Plaintiff Angelina Battista suffered injuries as the result of an automobile accident. She instituted suit, her husband joining per quod, against the operator of the other car involved in the collision. Her attorney in that action arranged to have Dr. Bellino, the defendant here, testify as to Mrs. Battista’s injuries. He had been a treating physician. The doctor’s specified fee of $200 was paid but at the time of trial he did not appear. The case went forward, the doctor was nowhere to be found and at .2:30 in the afternoon the plaintiffs rested. The trial judge offered plaintiffs’ counsel an opportunity to call Dr. Bellino if he could be produced before four o’clock that afternoon. This proved impossible.

Upon the following morning Mrs. Battista’s counsel appeared in court with Dr. Bellino and sought leave to offer his testimony at that time. Counsel for defendants objected upon the ground that they had released their own medical witnesses at four o’clock the previous afternoon and accordingly would be unable to counter Dr. Bellino’s testimony. The trial judge felt that in the light of these circumstances it would be unfair to the defendants to permit the doctor to testify and accordingly the case went to the jury without the benefit of the doctor’s evidence.

The jury returned a verdict in favor of plaintiff Angelina Battista in the sum of $2,'500.

The gravamen of this action is to be found in plaintiffs’ claim that Dr. Bellino had entered into a contract to testify on their behalf and that he thereafter broke this contract to their resultant injury.

Defendant moved for summary judgment which was denied and this appeal followed. Although the motion was one for summary judgment, it perhaps might more properly have been deemed a motion pursuant to R. 4:6-2(e) challenging plaintiffs’ complaint as failing to state a claim upon which relief could be granted.

Initially it is urged here, as it was below, that plaintiffs are launching an improper collateral attack upon the $2,500 judgment and that the proper avenue to have followed in any search for further relief was by direct appeal from that judgment. We do' not so read the complaint. Rather, we think, as did the court below, that plaintiffs are alleging that Dr. Bellino broke his contract and that as a result the jury verdict in the negligence action was smaller than would have been the case had defendant performed his contractual obligation by appearing and testifying. Defendant’s counsel agreed on oral argument — we think quite properly — that a breach of contract must be conceded for the purpose of this motion. We also think the complaint sets forth a cause of action for breach of contract —■ something quite separate and apart from the claim in tort that was projected in the negligence suit.

It is next argued that even if this be so, the action should not be allowed to go forward because damages are so conjectural and speculative, so impossible of any precise proof, that the court will be powerless to grant relief. It may very likely be difficult to prove damages but this is no reason for denying plaintiffs the chance to try. The same argument was advanced and rejected in an action to recover for a prenatal injury, Smith v. Brennan, 31 N. J. 353, at 365 (1960), where the court observed that “the mere difficulty of proving a fact is not a very good reason for blocking all attempts to prove it.” In Falzone v. Busch, 45 N. J. 559, at 566 (1965), in announcing the rule that there may be recovery for injury sustained from the negligent operation of a motor vehicle despite lack of physical impact, where the same argument was again presented, the court said that “difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim.” Many difficulties of proof, seemingly as intractable as that before us, have given way before the imaginative ingenuity and resourcefulness of counsel.

The order denying the motion for summary judgment is affirmed.