author: Dwyer, J. S. C.

text:
    PHOENIX ASSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. PETER, DAVIS, MAXINE DAVIS, JEROME SCHER, THOMAS A. CAMPION AND GENEVIEVE A. CAMPION, PARTNERS, t/a THOMAS A. CAMPION & CO., COMMUNITY TRUST SAVINGS & LOAN ASSOCIATION, A NATIONAL SAVINGS AND LOAN ASSOCIATION, FIRST NATIONAL STATE BANK OF NEW JERSEY, A NATIONAL BANKING CORPORATION, AND FIDELITY UNION TRUST COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 8, 1974.

      Mr. Edward B. Schwartz for plaintiff (Messrs. Schwartz & Andolino, attorneys).

      Mr. William O. Dodd for defendant Fidelity Union Trust Company (Messrs. Biker, Danzig, Scherer & Broiun, attorneys) .

      Mr. Philip F. McNally for defendant First National State Bank of New Jersey (Messrs. Baf, Scheider & Budd, attorneys).

      P.E.G. is an abbreviation meaning prior endorsements guaranteed.

   Dwyer, J. S. C.

Phoenix Assurance Company (plaintiff) brings this action against First National State Bank (National), Fidelity Union Trust Company (Fidelity) and certain others who were payees on its drafts numbered 055438 for $2,800 (first draft), and 113737 for $700 (second draft). The present parties to the action are plaintiff and the two banks. A default judgment has been entered against the payee who received the proceeds and all other payees were dismissed by consent at pretrial.

The facts, which have been stipulated, show that the payee entitled to the proceeds never endorsed the drafts. The case involves a missing, and not a forged, endorsement and a claim by the drawees against the collecting banks, drawees having issued new drafts to the payee whose endorsement was missing. No New Jersey decision has been found on the question for decision. Cf. Gast v. American Cas. Co. of Reading, Pa., 99 N. J. Super. 538 (App. Div. 1968) (payees who did not receive proceeds of draft because o£ forged endorsements had cause of action in conversion against drawerdrawee who paid draft on forged endorsement.) The basic practical problem is one familiar to the law. The wrong person obtained the funds and is no longer available. The novel question for decision is what is the effect of N. J. S. A. 12A :3—120 making a bank through which a draft is payable a collecting bank. See Murray, “Drafts Payable Through Banks,” 77 Comercial L. J. 389 (1972) (analysis of problems created in the use of drafts, as distinguished from checks, due to the absence of a drawee bank and the designation of the banks through which drafts are payable as collecting banks.)

Plaintiff issued the drafts in settlement of two claims under an insurance policy insuring the mortgagor-owners (husband and wife) of, and the mortgagee of, real property in Newark, New Jersey, against vandalism and fire losses.

The first draft was issued on December 28, 1968, “payable through Fidelity Union Trust Company, Newark, N. J.” upon acceptance by Plaintiff and payable to the owners of the property, an attorney who represented owners, a public claims adjuster and the mortgagee. The first draft was sent to the owners. This draft was endorsed by all payees, except the mortgagee. The husband-owner deposited it in his account with National on January 9, 1969 and provisional credit was given. National endorsed the draft, “Pay any bank, banker or trust company P. E. G.,” and transferred and delivered said draft on that date to Fidelity. Fidelity provisionally credited National’s account with Fidelity for the draft on that date.

Plaintiff and Fidelity had no defined legal relationship except that created or imposed by N. J. S. A. 12A :3 — 120.

In accordance with the arrangements between Fidelity and plaintiff, Fidelity presented the first draft to plaintiff on January 10, 1969 for acceptance and authorization of payment. Plaintiff reviewed the draft and authorized and directed Fidelity to pay from a checking account plaintiff had with Fidelity. Fidelity did so and final settlement was issued on January 14, 19.69 to National.

On February 27, 1969 plaintiff issued the second draft, “payable through Fidelity Union Trust Company, Newark, N. J.” upon acceptance by plaintiff to the order of the owners and mortgagee. The owners endorsed the second draft. The mortgagee did not. On April 2, 1969 the husband-owner-payee deposited it in his account with National. National gave provisional credit. National endorsed the draft, “Pay any bank, banker or trust company, P. E. G.,” and transferred and delivered said draft to Fidelity on the same day.

Pursuant to Fidelity’s arrangement with plaintiff. Fidelity endorsed the second draft and presented it to plaintiff for acceptance and authorization of payment- on or about April 3, 1969. Plaintiff reviewed, accepted and authorized payment of the second draft against plaintiff’s checking account at Fidelity. Fidelity debited plaintiff’s account and issued final settlement to National on April 7, 1969. Owner obtained proceeds of both drafts.

On May 2, 1969 the mortgagee notified plaintiff that it was foreclosing the mortgage and had not been paid on the two claims. The mortgagee made formal demand for payment upon plaintiff. Plaintiff made demand upon those who endorsed the drafts, other than the banks, for repayment after the mortgagee’s demand upon it. Repayment was not obtained. On June 26, 1969 plaintiff issued third and fourth drafts for $2,800 and $700, respectively, to the mortgagee alone. These were paid through Fidelity on July 30, 1969.

Plaintiff made no demand on the banks prior to June 30, 1969. During the two months preceding June 30, 1969 the owner had a modest balance in the account at National, but not a balance sufficient to pay the full amount of the two drafts. The account was closed June 30, 1969. This action was commenced on July 16, 1969. The complaint was the first notice to the banks.

The remaining parties agreed to a stipulation of facts and all moved for summary judgment. The stipulation ends with the following:

* * * the foregoing shall be considered as all the facts on which this Court shall render judgment.

Plaintiff has alleged negligence of defendant banks and breach of warranty of good title under N. J. 8. A. 12A :4— 207 as the bases of their respective liability to it. If the court finds defendants liable on one of the two grounds, it is unnecessary to consider the other.

Defendant Fidelity has asserted that the action is barred because plaintiff gave no timely notice as required by N. J. 8. A. 12A:4-406 or 4-207(4), and that Fidelity acted in accordance with plaintiff’s instructions, N. J. 8. A. 12A:4-203. Fidelity has asserted a cross-claim against National under N. J. 8. A. 12A:4-207.

National has asserted that plaintiff’s action must fail because it accepted the draft without endorsement and thereby altered the draft without its consent, N. J. 8. A. 12A:3-412(3), and that any claim for negligence is barred by plaintiff’s contributory negligence in accepting a draft without all endorsements. Since a claim based upon breach of warranty of good title grounded upon a missing endorsement is not barred by contributory negligence, Feldman Construction Co. v. Union Bank, 28 Cal. App. 3d 731, 104 Cal. Rptr. 912 (Ct. App. 1972), the court will not consider it in respect to the claim based upon warranty.

Plaintiff has asserted its right to recovery under N. J. S. A. 12A:4-207(1), which provides:

Each customer or collecting bank which obtains payment or acceptance of an item and each prior customer and collecting bank warrants to its payor bank or other payor who in good faith pays or accepts the item that
(a) he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title; * * *.

Fidelity also has grounded its crossclaim on this section as noted earlier. Since this warranty is imposed by law, even in the absence of an endorsement by a collecting bank, the collecting bank is subject to it.

In the pleadings, the pretrial order, and the stipulation of facts, no defendant raised any question as to the “good faith” of plaintiff in making payment. Although questions of “good faith” frequently present fact questions sufficient to defeat motions for summary judgment, in view of the actions of the parties in this matter the court treats the “good faith” of plaintiff as stipulated.

The first and second draft were deposited with National without the endorsement of the payee-mortgagee. Any negotiable instrument made payable to payees jointly and not in the alternative may be assigned, but not negotiated, without the endorsement of all payees. N. J. S. A. 12A:3-116 (b); cf. First National Bank of Bloomingdale v. North Trust Co. of Ridgewood, 18 N. J. Misc. 449, 14 A. 2d 765 (Sup. Ct. 1940). The depositor, the collecting bank and plaintiff, were assignees and not holders of these drafts. They held subject to the rights and claims of the owners. Bank of Marshall County v. Boyd, 308 Ky. 742, 215 S. W. 2d 850 (Ct. App. 1948). By obtaining payment from plaintiff for the drafts, Fidelity became liable to plaintiff on a warranty of good title, N. J. S. A. 12A:4-207(1), which good title it did not have and had no authority to obtain. When National obtained payment from Fidelity, National became liable on a similar warranty and with a similar lack of good title or authority to obtain it. Similarly, the depositor became liable to National when he received payment from National. Thus, the court hold that plaintiff has a claim against Fidelity and Fidelity has a claim against National.

In analyzing the various defenses asserted, the duty of a drawee-acceptor of a draft should be considered, for, in this case, Plaintiff was the drawer, drawee and acceptor of all drafts.

Prior to the adoption of the Uniform Commercial Code, and indeed of the Negotiable Instruments Law (N. I. L.), (he drawee-acceptor of a draft admitted the genuineness of the signature of the drawer, the existence of the payee and the payee’s capacity to endorse. The drawee did not admit the genuineness of the signatures of the payees or endorsers. See 11 Am. Jur. 2d, Bills and Notes, §§ 597 and 1014. The N. I. L. was basically a codification of these rules. Idem.

The Uniform Commercial Code, in N. J. 8. A. 12A: 3-413(3), provides that the drawee by “accepting * * * admits * * * the existence of the payee and his then capacity to indorse.” And in subparagraph (1) the Code provides that the drawee, by accepting, engages to pay the draft according to the tenor of the draft at the time of its acceptance. This the commentators, in their notes to N. J. 8. A. 12A:3~ 413, state precludes the drawee from denying the validity of the signature of the drawer after acceptance. Thus, plaintiff has not admitted the genuineness of or presence of payees’ endorsements by its acceptance of the drafts.

The drawee, under well established law and present provisions of statutory law, has not been, and is not, under a duty to check endorsements. Federal Deposit Ins. Corp. v. Marine National Bank of Jacksonville, 303 F. Supp. 401 (D. Fla. 1969).

In view of the defense raised by Fidelity under N. J. 8. A. 12A:4^-406, the court has considered whether any duties may be imposed upon a drawee under this section to check for endorsements. The relation between plaintiff and Fidelity is governed by N. J. 8. A. 12A:3-120, a new law at the time New Jersey adopted the Uniform Commercial Code. Within the definitions of “customer” and “item” contained in N. J. 8. A. 12A :4-104, the provisions of N. J. 8. A. 12A: 4^406 apply to the plaintiff-Fidelity relationship and the drafts in questions as follows:

When a bank sends to its customers * * *' holds items [drafts] pursuant to a request or instructions of its customer * * * and in a reasonable manner makes * * * the items available to its customer, the customer must exercise reasonable care and promptness to examine ^ * * the items [drafts] to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof. [Emphasis added]

Within the context of the facts before the court, under that section plaintiff had to examine for (1) forgeries of its signature as drawer and (2) any attempts to alter, such as raising the amount. It does not impose a duty to check for forged or missing endorsements. This interpretation is supported by the thought that the statute would have primary application to the typical monthly checking account. Traditionally, the drawer of a check has not been responsible for payments on forged or missing endorsements; the drawee bank has been. See Pratt v. Union National Bank, 79 N. J. L. 117 (Sup. Ct. 1909), aff’d 81 N. J. L. 588 (E. & A. 1919). The court concludes and holds that plaintiff did not breach any duty it had to check for endorsements. Therefore, plaintiff had no duty to give Fidelity notice under N. J. S. A. 12 A:4-406.

Fidelity further urges that it acted in accordance with the instructions of its transferor (plaintiff) under N. J. S. A. 12A:4-203, and therefore Fidelity is not liable. Said section provides in relevant part:

* * * only a colleeiing bank’s transferor can give instructions which affect the bank or constitute notice to it and a collecting bank is not liable to prior parties for any such action taken pursuant to such instructions or in accordance with any agreement with its transferor.

On the facts before the court, National was the transferor of Fidelity and plaintiff the transferee. See comment to section 12A :<N203. Further, this defense is not applicable to the claim of plaintiff, for Fidelity received no instructions from its transferor National.

Before passing upon the defense, or offset to liability, based upon N. J. 8. A. 3 2 A :4-207 (4), which in this Opinion is considered in the context of both defendants, the defense based upon N. J. 8. A. 32A:3-412(3) asserted by National is considered.

National urges that

When FNHB endorsed the drafts “Pay any Bk., Bkr., or Tr. Co. P.E.G-.” and delivered them to Fidelity, Fidelity became the holder of the Drafts, N. J. 8. A. 12A :4r-201(2) [sio] ; [20]. The Drafts, as originally drawn, were payable to two or more payees, jointly and not in the alternative, with the result that neither Draft could, by its terms, be negotiated, discharged or enforced by or on behalf of less than all the payees thereon. N. J. S. A. 12A:3-116 (b). By proffering acceptance and payment of the Drafts to less than all the payees, plaintiff varied the terms thereof. IV. J. S. A. 12A:3-116(a)

It concludes that Fidelity assented and National did not, and that National is therefore discharged under N. J. 8. A. 12A :3-412(3), which states:

Where the holder assents to an acceptance varying the terms of the draft each drawer and indorser who does not affirmatively consent is discharged.

The defense is not applicable. Fidelity was not, and is not, a “holder” within the meaning of the section quoted above. The endorsement mentioned in the definition of holder, N. J. 8. A. 12A:1-201(20), should be considered with the provisions of N. °J. 8. A. 12A:3-202(2) : “An indorsement must be written by or on behalf of the holder * * *.” National was not the holder because all the payees had not endorsed the drafts to it. By stamping on the drafts its warranty under N. J. 8. A. 12A:4^207(1), national did not elevate its status to that of a holder. Indeed, by transferring the drafts and by paying them to less than all the payees, national converted them, Federal Deposit Ins. Corp. v. Marine National Bank of Jacksonville, 431 F. 2d 341 (5 Cir. 1970), as did plaintiff, Gast v. American Cas. Co. of Reading, Pa., supra. See also, comments to N. J. S. A. 12A :3-201 and 202, particularly 201(7). In view of the foregoing, it is not necessary to decide whether the alleged act of acceptance and payment was a variation. See comments to N. J. S. A. 12A :3-412.

Finally, Fidelity raises the defense that plaintiff did not give notice of the breach of warranty within a reasonable time after it learned of it on May 2, 1969, and therefore Fidelity is discharged to the extent that it has sustained loss. N. J. 8. A. 12A:4^207(4). By stipulation plaintiff did not give notice until July 16, 1969 (when the complaint in this action was filed), or ten weeks after it learned of the breach. Recognizing that the parties stipulated that the husband-owner-payee of the drafts had an account with national until June 30, 1969, when he closed it; that the parties worked on the stipulation jointly; that it was represented to the court at oral argument that the purpose of attaching the monthly statements of such account for May and June 1969 was to show that if national had had notice prior to June 30, 1969, National could have offset against some balance, the Court will consider that defense available to National as well, although not expressly pleaded.

In fairness to plaintiff it was represented that certain records had been lost due to mergers and relocation of offices, so that plaintiff could not establish an earlier notice date than July 16, 1969. At oral argument it was also represented that there was no information available about the reason for delay, other than what was in the stipulation, namely, that the payee-mortgagee made demand on May 2, 1969 and stated it had started to foreclose the mortgage. Plaintiff issued replacement drafts on June 26, 1969 to the mortgagee.

What is a reasonable time is a fact question depending upon the circumstances. On the facts available to the court, the court finds that there was an unreasonable delay. Plaintiff issued replacement drafts about three weeks before giving any notice. Certainly, plaintiff knew before it issued the drafts that there was a reasonable basis for the claims. Plaintiff had to take time to locate the first and second drafts, and to attempt to investigate with the payee-mortgagee and others whether in fact the payee-mortgagee had been paid notwithstanding the absence of the endorsement, the status of the foreclosure proceeding, and whether the payee-mortgagee had been paid in full through that source, etc. The court notes that all parties involved were either in one city, i. e., Newark, New Jersey, or had offices there at that time. On the facts as outlined in the stipulation and the statements made at oral argument, the court finds that a reasonable time was two weeks, and that plaintiff delayed unreasonably in waiting ten weeks to give notice.

Fidelity did not give notice to National until after the suit, for it had no knowledge until that time. Plaintiff urges, therefore, that as against it Fidelity suffered no loss because the owner-payee had no account with Fidelity and Fidelity gave prompt notice to National as soon as the suit papers were filed. Plaintiff then urges that, as against Fidelity’s crossclaim, National had no defense because of the prompt notice.

There is no question but that National has the burden of proof to establish its loss and the amount thereof. The monthly statements do show that during May and June 1969 there were a number of deposits, withdrawals and a small balance. Admittedly there is a good deal of speculation as to what would have happened as to deposits if National had made an offset and when it would have acted (considering the deposits that were made in and about the relevant time.) The court holds that National would have recouped some amount if notice had been given within a reasonable time, and fixes it at $200.

The impact of the provisions here considered (particularly N. J. 8. A. 12A:4^207) is to make the initial collecting bank responsible for checking endorsements so that the collection process will be speedy and efficient, see Federal Deposit Ins. Corp. v. Marine National Bank of Jacksonville, 431 F. 2d 341 (5 Cir. 1970) (bank of deposit liable for draft with missing endorsement in suit by assignee of payee); for the purpose of this decision, the person liable under N. J. S. A. 12A:4-207 is National. However, National has sustained loss due to plaintiffs failure to give reasonable notice. Plaintiff should not be allowed to use the existence of an intermediate bank in the collection chain, or process, to create an artificial immunity to its failure to give notice within a reasonable time. The predicate of liability on the part of National is to encourage the first bank to keep improper paper out of the collection process — an increasingly important function in light of an ever-increasing mechanization of the collection and payment process. Similarly, when claims are to be made, they should be made within a reasonable time on the facts, and the initial bank should have the benefit of N. J. 8. A. 12A:4-207(4) arising from the failure to give that notice. On the facts here present plaintiff failed to act within a reasonable time and it should bear the loss to the extent that there is a basis for establishing the existence and amount of the loss.

Plaintiff is entitled to recover on its claims $2,800 and $700, or an aggregate of $3,500, less the loss of $200, or a net of $3,300. The underlying claims were liquidated in amount. The assertion of defenses even in good faith does not bar the allowance of interest. Kamens v. Fortugno, 108 N. J. Super. 544 (Ch. Div. 1970). Conceptually, the right to deduct the loss, which National has, is an independent right and is unliquidated in amount. The existence of this right, and even its recognition, should not bar the allowance of interest. Accordingly, interest will be allowed at 8% on $3,300 from July 16, 1969, the date the complaint was filed, since that was the date of demand. In an appropriate case a court might well allow interest on the amount of the loss from a date before the claim is asserted against the collecting banks. On the facts of this case, and considering the amounts involved, this court decides not to allow interest on the loss set at $200 prior to July 16, 1969.

Judgments should be submitted in accordance with this opinion. No costs.


source: Caselaw Access Project

author: Bellfatto, P. J., J. & D. R. C.

license: Public Domain

text:
    BEVERLY ROSS, PLAINTIFF, v. DAVID J. ROSS, DEFENDANT.
    Juvenile and Domestic Relations Court — Essex County
    Decided December 5, 1973.

      Ur. Sanford Gudger for plaintiff (Mr. Robert Doris, of the Essex County Legal Services, attorney).

      Mr. Melvin Randall for defendant (Mr. John G. Love, attorney) .
   Bellfatto, P. J., J. & D. R. C.

The question presented in this case is whether a mother and her husband are es-topped to deny their previous admissions of paternity of the prenuptial child.

The facts, succinctly stated, involve a child of plaintiff-mother born to her about 18 months prior to her marriage to defendant-husband. There is testimony by plaintiff that the parties engaged .in prenuptial sex relations (denied by defendant) as of the time of conception. After the marriage the parties lived together with the child for about four years. There is nothing in the record to indicate that the relationship between the parties during their married life with the child was anything 'but harmonious. During the course of the marital relationship defendant-husband filed a certificate of admission of paternity with the Bureau of Vital Statistics at Trenton, pursuant to N. J. 8. A. 26:8-40, indicating thereon the names of the married couple as the parents of the child. The child entered school at the time plaintiff and defendant lived together. As stated by the mother, the school records of the child indicate that the parties to this action are the parents of the child. The parties became separated and the child remained with the mother. Thereafter, on September 11, 1972 the mother filed a sworn complaint against her husband seeking support for the child and herself and indicating in her affidavit that he was the father of the child. At the hearing in the Domestic Relations Court an order of support for the child and the mother was entered. Neither of the parties at that time disclaimed paternity.

At a subsequent hearing on June 15, 1973 the mother for the first time informed the Court that the child was not that of her husband, and he so indicated. The order of support was continued to include the wife and child, and the matter was adjourned for the filing of briefs by counsel. Defendant-husband has substantially met the order of support. Plaintiff-mother was advised to obtain counsel, which she did.

On the return date of the argument, December 5, 1973, the court interviewed the child, then almost seven years of age, in chambers. After questioning the child as to his residence and school the following questions and answers took place: Q. “Who is your daddy?” This brought a quick response. A. “He’s outside.” (Defendant was then sitting in the courtroom adjacent to the judge’s chambers).

Q. Where is your daddy today? A. He’s outside.
Q. Do you love your daddy? A. Yes.
Q. Do you get Christmas presents from your daddy? A. Yes.
Q. Did you get one last year? A. Yes.
Q. What did you get? A. A television [and] he gave me a radio — its yellow, but it’s broke.
Q. Who will fix it for you? A. My daddy.
Q. Would you like to see your mother and daddy together again? A. Yes.

The child appeared to be as a bright and intelligent youngster and the court is convinced that the child recognizes defendant-husband as his father.

Thereafter, and during the course of argument, counsel for plaintiff-mother indicated that prior to the case being called for a hearing, and in the corridor adjacent to the court, he observed the child running to the arms of defendant-husband as a child would do in greeting a father. This comment by counsel was neither objected to by counsel for defendant-husband nor denied by defendant.

Despite his prior contradictory behavior, defendant now contends that he is not the child’s father and should therefore be absolved from support obligations. He maintains that requiring support when nonpaternity is admitted by both parties is contrary to N. J. S. A. 9 :16 — 1 et seq. Belying on B. v. 0., 50 N. J. 93 (1967), he claims that only the natural father can be saddled with that responsibility; the fact that he held himself out as the father under N. J. 8. A. 26 :8-40 should not estop his later denial of parenthood. He cites Jackson v. Prudential Ins. Co., 106 N. J. Super. 61 (Law Div. 1969).

It is undeniable that in New Jersey a determination of paternity is a prerequisite to the entry of a support order against the natural father. Although N. J. S. A. 9:16-1 to 9 :16-4 does not specify this requirement, case law has firmly established this interpretation. Borawick v. Barba, 7 N. J. 393 (1951) ; Porter v. Wainwright, 104 N. J. L. 51 (Sup. Ct. 1927); Hall v. Centolanza, 28 N. J. Super. 391 (App. Div. 1953); State v. Napoleon, 37 N. J. Super. 595 (Law Div. 1955). There is nothing in New Jersey law, however, that would preclude entry of a support order against someone who earlier had claimed paternity. Defendant’s reliance on B. v. O., supra, for the proposition that the duty of support accrues exclusively to the natural father is clearly misplaced. In that case our Supreme Court held that a married woman had standing to institute a support action against her paramour without violating the Pennsylvania presumption that children born in wedlock are legitimate. By stipulation of the parties, however, Pennsylvania substantive law controlled that case. New Jersey cases were cited merely gratuitously, by way of example. B. v. O., supra, is therefore inapplicable to the case at bar.

The duty of the natural father to support his illegitimate child is uncontroverted. See N. J. S. A. 9:16-2 (1953). Based on the principle of equitable estoppel, this responsibility may also be imposed upon one who acts in loco parentis to the child.

Equitable estoppel precludes a party from repudiating “acts done or positions taken or assumed by him when there has been reliance thereon and prejudice would result to the other party.” Goodpasture v. Goodpasture, 115 N. J. Super. 189, 197 (Ch. Div. 1971). “An estoppel arises ‘where a man is concluded and forbidden by law to speak against his own act or deed; * * * even-though it is to say the truth.’ ” Summer Cottagers’ Ass’n v. Cape May, 19 N. J. 493, 504 (1955). This principle prevents a party from adopting contrary factual postions between the original and later hearings. See Vogel v. Red Star Express Lines, 73 N. J. Super. 534 (App. Div. 1962), aff’d per curiam, 40 N. J. 44 (1963). Even prior inconsistent admissions by a party may trigger the application of equitable estoppel. Koppel v. Olaf Realty Corp., 56 N. J. Super. 109, 121 (Ch. Div. 1959), aff’d 62 N. J. Super. 103 (App. Div. 1960). Furthermore, fraudulent conduct by a party necessarily precludes his benefiting from his own misbehavior.

The husband has been estopped to deny paternity when he represents to the child that he is the actual father, and the child, in reliance thereon, is prejudiced. Clark, Law of Do mestic Relations 176—177 (1968). Clevenger v. Clevenger, 189 Cal. App. 2d 658, 11 Cal. Rptr. 707 (Ct. App. 1961). See also, Wener v. Wener, 35 App. Div. 2d 50, 312 N. Y. S. 2d 815 (App. Div. 1972); Gursky v. Gursky, 39 Misc. 2d 1083, 242 N. Y. S. 2d 406 (Sup. Ct. 1963); cf. Swain v. Swain, 250 Cal. App. 2d 1, 58 Cal. Rptr. 83 (Ct. App. 1967); Jackson v. Jackson, 278 A. 2d 114 (D. C. Ct. App. 1971); Fuller v. Fuller, 247 A. 2d 767 (D. C. Ct. App. 1968) ; Sargeant v. Sargeant, 495 P. 2d 618 (Nev. Sup. Ct. 1972).

In Clevenger, supra, the court held that the husband had no duty to support an illegitimate prenuptial child after a divorce action, even though he accepted the child into the family for a period of years while living with the mother-wife. However, the court remanded the case for further proceedings as it was of the opinion that there could be an equitable estoppel if it were established on remand that (1) the husband made a direct or implied representation to the child as Ms natural father (the record in that case apparently is void of any knowledge on the part of the infant that the husband was his natural father), (2) the child relied upon the representation and treated the husband as his father and gave him his love and affection, and (3) the child was ignorant of the facts.

It has been held that a wife has been similarly estopped from asserting the illegitimacy of her child. In Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (Fla. Sup. Ct. 1934), a wife was estopped to deny the legitimacy of her children so as to obtain a greater inheritance in her husband’s estate. Adopting a similar position, In re Smith’s Estate, 136 Misc. 863, 242 N. Y. S. 464 (Cty. Ct. 1930), held that the wife who had held herself out to the children and the community as the lawful parent was equitably estopped to change her position to their detriment.

In this State the equitable estoppel theory has been considered in Jackson v. Prudential Life Ins. Co., supra, and Bartholdi v. Dumbeky, 37 N. J. Super. 418 (App. Div. 1955). Jackson merely raised, but never resolved, the estoppel question. Since the issue was clearly left open, it is totally devoid of precedential value. In Bartholdi the husband, who had acknowledged his wife’s illegitimate child in a prior proceeding, was barred from thereafter questioning the status of the child. There was no dispute regarding the husband’s paternity; the child was obviously illegitimate. Since the husband was bound by his prior judicial admission, he could not subsequently relitigate the child’s status.

Applying the reasoning of the above cases, it is evident that both parents should be estopped from now denying the husband’s paternity. The child, the real party in interest for whose benefit the support action was brought, will otherwise be irretrievably injured.

[B]astardizing the child * * * may permanently wound him emotionally * * * Every child has the need to feel rooted * * * When such knowledge is denied the child may resort to fantasy to fill the void. As the links to his past disappear with time, the search for his identity will become more difficult. The anxiety to learn what was in his past may be pathological, making it more difficult for the child to lead a useful life and to form meaningful relationships, [In re Adoption by K, 92 N. J. Super. 204, 208 (Cty. Ct. 1960)]

The doctrine of equitable estoppel is intended to prevent just such unfair results. See Drake v. Ming Chi Shek, 155 F. Supp. 345 (D. N. J. 1957), and Koppel v. Olaf Realty Corp., supra.

Within the entire framework of this case the court comes to the following determination: (1) the child sincerely believes that defendant-husband is his father; (2) defendant-husband did by his conduct represent himself to the child as his father, and (3) the mother and her husband are estopped to deny that they are the parents of this child. To find otherwise would do irreparable harm and inflict deep injury upon the child.

The order of support for mother and child is continued.


author: Per Curiam.

text:
    ELIZABETH V. COLLINS, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MARTIN L. COLLINS, DECEASED, PLAINTIFF-RESPONDENT, v. UNIROYAL, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 21, 1973
    Decided June 22, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Burtis W. Horner argued the cause for defendant-appellant (Messrs. Stryher, Tams & Dill, attorneys).

      Mr. Michael H. Ilochman argued the cause for plaintiff-respondent (Messrs. Miller, Ilochman, Meyerson & Miller, attorneys).
   Per Curiam.

Plaintiff’s intestate, an entertainer who, with his wife and daughter, travelled extensively throughout the country performing a knife-throwing act, was killed on March 27, 1967, in an automobile accident which occurred near Chicago while they were enr.oute to an engagement in Des Moines, Iowa.

About five months earlier the decedent had bought five new tires for his station wagon from a Uniroyal distributor. On the day in question, the three were proceeding along Interstate Highway 80, their station wagon being loaded with their personal belongings and the paraphernalia of their act. The right rear tire failed, causing the vehicle to go out of control and roll over. Decedent sustained fatal injuries.

Decedent’s widow, as general administratrix and as administratrix ad prosequendum, instituted suit against Uniroyal to recover damages for her husband’s death, asserting as causes of action strict liability in tort and breach of express warranty. At the trial the cause was submitted to the jury on both theories with instructions, in the event of a verdict in favor of the plaintiff, to state whether the basis of recovery was strict liability in tort, breach of express warranty, or both. A verdict was returned for plaintiff in the sum of $125,000 for breach of warranty.

Defendant appeals, contending that the trial court erred in denying its motion for dismissal of the action for strict liability in tort; that the express warranty issue was improperly restricted in scope and incorrectly submitted to the jury; that certain evidence was erroneously received; and that plaintiff’s expert lacked the qualifications to express an ■opinion on causation.

On the first point, defendant argues that the issue of strict liability in tort should not have been sent to the jury because all the experts testified there was no defect in the tire. There is no need to consider whether the argument has merit. Since the jury chose to return its verdict on the basis of breach of express warranty, the issue of strict liability in tort is moot and if there was error in sending that issue to the jury, it was obviously harmless. The submission of a case to a jury which reaches the same result which it is contended the court should have reached furnishes no ground for reversal. Courtois v. General Motors Corp., 37 N. J. 525, 548 (1962) ; Manning v. Public Service Elec. & Gas Co., 58 N. J. Super. 386, 397 (App. Div. 1959).

The jury’s verdict also disposes of the contentions, if otherwise meritorious, that plaintiff’s expert lacked sufficient qualifications to testify and that his testimony regarding a possible defect should have been excluded.

Defendant does not dispute the existence of the express warranty issue; in fact, its position is that this should have been the sole issue presented to the jury. It urges, however, that the court erred in permitting certain testimony of the investigating state trooper, that the court erroneously received in evidence defendant’s advertisement, that the instructions to the jury were inaccurate, and that the court improperly removed from the jury’s consideration the limitation of damages provision of the warranty.

The warranty, according to Mrs. Collins’s testimony, was given to her husband at the time he bought the tires. Its pertinent language is as follows:

The new U. S. Royal Master tire with wrap-around tread and pin stripe (% inch) whitewall design is of such quality and reliability that D. S. Rubber Tire Company makes the following Guarantee: LIFETIME — Every such IJ. S. Royal Master tire of our manufacture, bearing our name and serial number, other than “seconds,” is guaranteed to bn free from defects in workmanship and material for the life of the original tread without limit as to time or mileage.
ROxAD HAZARD — In addition, every such U. S. Royal Master tire, when used in normal passenger car service, is guaranteed during the life of the original tread against blowouts, cuts, bruises, and similar injury rendering the tire unserviceable. Tires which are punctured or abused, by being run flat, improperly aligned, balanced, or inflated, cut by chains or obstructions on vehicle, damaged by fire, collision or vandalism, or by other means, and “seconds” are not subject to the road hazard provision of this Guarantee.
If our examination shows that such a U. S. Royal Master tire is eligible for adjustment under either the Lifetime or Road Hazard provision of this Guarantee, we will repair it or provide a new U. S. Royal Master tire at a fractional price computed on percentage of wear of original tread' depth and then current U. S. suggested exchange price as follows: [There follow a rate chart and several additional paragraphs not relevant here.]
This Guarantee does not cover consequential damage, and the liability of the manufacturer is limited to repairing or replacing the tire in accordance with the stipulations contained in this guarantee. No other guarantee or warranty, express or implied, is made.
* sf: tfs * & t¡<

Before submitting this document to the jury along with the other exhibits, the trial judge excised the italicized paragraph. He charged the jury that any attempt to limit liability to the repair or replacement of a tire in the event of a breach of warranty was not valid under the law of this State. The trial judge, in our view, correctly removed the above paragraph from the jury’s consideration.

Where the suit is between a buyer and seller, the sales chapter of the Uniform Commercial Code applies with respect to express warranties as provided for in the chapter. See N. J. 8. A. 12A:2-313. We need not concern ourselves with whether there was any incongruity in the jury’s rejecting the theory of strict liability in tort and finding a breach of express warranty.

In the case of breach of warranty the recovery of consequential damages is permitted, N. J. S. A. 12A:2-714 (3); and such damages include injury to the person proximately resulting from the breach. N. J. 8. A. 12A:2-715(2) (b). Although consequential damages may be limited or excluded unless it is unconscionable to do so, the limitation of consequential damages for injury to the person in the ease of consumer goods is prima facie unconscionable. N. J. 8. A. 12A:2-719(3). See Heavner v. Uniroyal, Inc., 63 N. J. 130 (decided June 5, 1973; p. 33 of slip opinion). There is no evidence in the record to overcome the clear unconscionability of limiting consequential damages in this case to the repair or replacement of the tire.

Defendant also challenges as plain error the following portion of the court’s charge:

I instruct you also, ladies and gentlemen, that in order for the plaintiff to prevail on this cause of action for breach of an express warranty, it is not necessary that she prove the technical cause of the tire’s failure, nor is it necessary on the basis of this cause of action to prove a specific identifiable defect in the tire. Plaintiff must establish that a blowout occurred during the life of the original tread while the car was being used in the normal passenger service. If she does so, and you also find that the blowout was a proximate cause of what happened, she has established a breach of express warranty by the defendant and would be entitled to recover damages from the defendant for breach of express warranty.

It is contended that this instruction removed from the jury’s consideration the question of whether the defendant had intended to cover any kind of tire failure, that “blowout” was not defined therein, and that no assistance was given the jury in determining the meaning of normal passenger car service in spite of evidence that the vehicle was heavily loaded, that this was the third set of tires in 19,000 miles, and that shock absorbers had been replaced. A further contention is that the court did not refer to the construction given the language by the experts who testified.

The simple response is that all this evidence and more was before the jury. Plaintiff’s expert was extensively cross-examined on what constituted normal passenger ear service, including the factors referred to by the defendant. It was his opinion that the load carried by the car, plus the weight of the passengers, and the speed and distance travelled, were not abnormal. He also said that the load was not excessive for the tire pressure. Contrary testimony was given by defendant’s expert. It was the jury’s task to evaluate the conflicting proofs and to determine whether the station wagon ■was being used in normal passenger car service when the accident occurred.

Moreover, failure to define the term “blowout” did not constitute reversible error. The word, as it relates to tires, is one commonly understood by laymen, and there is nothing in the warranty to suggest otherwise.

The jury also had before it copies of Uniroyal tire advertisements used during 1966, received in evidence over the objection of defense counsel. Mrs. Collins testified without objection that about a month before the purchase her husband had shown her a Uniroyal advertisement and had indicated his intent to buy the product. The jury could have inferred from these proofs that the advertisement was like the ones in evidence and that decedent relied upon it when be bought the tires. More importantly, the advertisement helped to explain the scope and intent of the “road hazard” part of the warranty which guaranteed for the life of the original tread every Royal Master tire, when used in normal passenger car service, against blowouts, cuts, bruises, and similar injury rendering the tire unserviceable. Although the term was not defined, the advertisements reflected defendant’s concept of what normal passenger car service included. They extolled the virtues of the tire, containing statements such as:

If it only saves your life once, its a bargain.
... It could pay off some day. The day you hit a pothole at 70 miles an hour.
The day you sweep around a tricky, rain-slicked c'urve. The day it’s 90 degrees in the shade and you have to go 600 miles in a hurry. The day you pick up a nail and it’s three in the morning.
You’re getting a brute of a carcass that’s so strong, you can practically forget about blowouts.

The trial judge fully and fairly instructed the jury on the issue of normal passenger car service. He did not merely charge the jury that segment which defendant claims was plain error. He also said:

Both the plaintiff: and the defendant agree that the road hazard express warranty applies only if you find that Collins’ Ford Country Squire wagon was used in normal passenger ear service. If you find that the vehicle was not used in normal passenger car service, then the road hazard warranty does not apply. On the other hand, if you find that the vehicle was used in normal passenger car service, then you must find that the road hazard guarantee does apply. You will note, ladies and gentlemen, that nowhere in the guarantee is there a definition of the meaning of the phrase, “normal passenger car service,” nor indeed is there any reference in the guarantee to load capacity of the tires or any other facts except the language that you will find.
Each of the attorneys has addressed you at length on the subject of normal passenger service, Mr. Hochman taking the position that the vehicle was used in normal passenger car service and Mr. Horner taking the position that it was not. Some of the evidence on that subject came in on the basis of expert testimony in the form of opinion about which I shall have more say later. And there was much reference made on summation to speed, mileage of the vehicle as of the date of the accident, the weight of the load, how many sets of tires were used by the car from its original purchase, the distribution of the weight load, standards relating to weight load for a 1966 Ford Country Squire station wagon, air pressure in the tires, and so forth . . .
It is your function, of course, to consider all the proofs that you have heard and to consider everything that was said on the subject . . .

Taking the charge as a whole, the jury could not have been misled, as defendant seems to contend, on the issue of whether the tire blew out while it was being in normal passenger car service.

We have examined the remaining assignments of error and find none of such significance as to require corrective action.

The judgment is affirmed.


text:
    HOWARD A. WEIN, PHILIP J. GUARINO, PLAINTIFFS-RESPONDENTS, v. TOWN OF IRVINGTON, MUNICIPAL COURT OF THE TOWN OF IRVINGTON, TOWN OF IRVINGTON POLICE DEPARTMENT, BERNARD DE LUCIA, DETECTIVE, TOWN OF IRVINGTON POLICE DEPARTMENT, DEFENDANTS-APPELLANTS, AND JOSEPH P. LORDI, ESSEX COUNTY PROSECUTOR, INTERVENOR-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 8, 1974
    Decided January 28, 1974.

      Before Judges Carton, Siedman and Demos.

      Mr. Samuel J. Zucker, Town Attorney, attorney for municipal appellants (Mr. Daniel A. Rosenberg, Municipal Prosecutor, on the brief).

      Mr. Joseph P. Jjordi, Essex County Prosecutor, pro se (Mr. Ralph J. Jabbour, Assistant Prosecutor, of counsel and on the brief).

      Messrs. Stern & Weiss, attorneys for respondents (Mr. Harvey L. Weiss, on the brief).
   Per Curiam.

Section 22 — 35 of the Irvington Town Code, adopted in 1960, provides as follows:

It shall be unlawful for any person to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish, or offer to publish, or have in his control, or otherwise distribute, make, display or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film image, cast, slide, figure, instrument, statute, drawing or presentation or other article which is obscene, within the town.

Violators are liable to the payment of a fine not exceeding $200, imprisonment for a term up to 90 days, or both.

Plaintiffs, the owners and operators of the “Best Adult Book Store” in Irvington, filed a complaint to enjoin the town, its municipal court, the police department and one of its detectives from arresting and prosecuting them for the alleged sale of obscene materials in violation of the quoted section; to compel the return of a quantity of books, magazines, films and other goods seized by the police pursuant to a warrant, and to declare the section of the Code “preempted, illegal, void, invalid and unconstitutional.”

The Chancery Division granted an interim restraint and entered an order directing defendants to show cause why a temporary injunction should not issue pending final hearing. The Essex County Prosecutor was permitted to intervene as a party defendant.

On the return day of the order to show cause, there being no disputed facts, the trial court elected to treat the matter as a motion for summary judgment. The pertinent section of the town code was declared invalid on the ground that it was preempted by N. J. S. A. 2A :115 — 1.1 et seq., and the complaints pending in the municipal court were dismissed. Plaintiffs’ demand for the return of the seized items was denied without prejudice to the making of a later application therefore.

Judgment was entered accordingly and defendants and the intervenor appeal.

In determining that the ordinance was invalid, the trial court relied entirely upon the case of Dimor, Inc. v. Passaic, 122 N. J. Super. 296 (Law Div. 1973). Defendants argue before us, as they did below, that Adams Newark Theatre Co. v. Newark, 22 N. J. 472 (1956), aff’d 354 U. S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957), is dispositive on the authority of the municipality to adopt the type of ordinance under attack herein.

We observe at the outset that Adams Theatre Co. is not in point, since the question of preemption did not arise in that case. The issue there, resolved in favor of the city, was whether an ordinance condemning certain kinds of obscene performances violated the state and federal constitutional provisions guaranteeing freedom of speech.

Dimor involved a declaratory judgment action to invalidate a section of a municipal motion picture theatre licensing ordinance which declared unlawful the exhibiting of immoral pictures or shows “whose dominant theme appeals to the prurient interest, is patently offensive, affronts contemporary community standards relating to sexual matters and is without redeeming social value.” Judge Doan, in the Law Division, held that the field of obscenity had been preempted by the State through the enactment of N. J. S. A. 2A:115-1.1 et seq., and, as a consequence, the challenged portion of the ordinance was ultra vires and void.

The matter of preemption has recently been reviewed and the general principles stated in Chester Tp. v. Panicucci, 62 N. J. 94:

* * s- Municipalities have been granted broad police power over matters of local concern and interest, both in numerous specified instances, as here, by N. J. S. A. 40 :48-l and generally by N. J. 8. A. 40:48-2. Our Constitution, Art. IV., § VII, par. 11, ordains liberal construction of those powers. Their scope, however, does not extend to subjects inherently in need of uniform treatment or to matters of general public interest and applicability which necessarily require an exclusive state policy. In addition, a municipality may be foreclosed from exercising power it would otherwise have if the state has sufficiently acted in a particular field * * * [o]ur cases establish that a municipality is precluded from exercising its powers in an area which the state has preempted. * * * [at 99-100]

An intent to occupy the field must appear clearly. Kennedy v. Newark, 29 N. J. 178, 187 (1959); Summer v. Teaneck, 53 N. J. 548, 554 (1969). The problem is to determine the intent of the Legislature.

* * * The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with, local aspects otherwise within their power to act. [53 N. J. at 555.]

See also Coast Cigarettes Sales v. Mayor, etc., Long Branch, 121 N. J. Super. 439, 446 (Law Div. 1972).

There is no doubt that municipalities have statutory power to deal with obscenity. In addition to the omnibus provisions of N. J. S. A. 4:48-2, specific authority to adopt ordinances to prevent vice, drunkenness and immorality is contained in N. J. S. A. 40:48-1(6). Nevertheless, it is our view that statutes on obscenity enacted by the Legislature since 1957, and particularly in 1971, evidence a clear design for uniform .state-wide treatment of the subject.

The uttering or exposing of obscene literature or pictures is prohibited by N. J. S. A. 2A:115-2, originally enacted in 1898 (L. 1898, c. 235, p. 808), and amended thereafter only in minor respects in 1957 and 1959. It provides, in pertinent part:

Any person who, without just cause * * * possesses with intent to utter or expose to' the view or hearing of another, any obscene or indecent book, publication, pamphlet, picture, * * * or other representation however made or any person who shall sell, * * # or distribute or possess with intent to sell ® * *, or offer for sale any obscene or indecent book, publication, pamphlet, picture or other representation, however made, * * * is guilty of a' misdemeanor.

The .increasing concern of the State with respect to obscenity is apparent in N. J. S. A. 2A:115-1.1, as amended by L. 1971, c. 449, § 3, which defines “obscene.” Aecording to the statement attached to the 1971 amendment, the legislative intent was to establish a constitutionally viable standard for defining the term “which would permit action to be taken against the accumulating flood of salacious films and literature which in recent years has serionsly alarmed our citizens.” Note should also be taken of the legislative findings set forth in N. J. 8. A. 2A:115-l.la:

* * * The Legislature * * * finds that the most recent binding definition of “obscenity” enunciated by the United States Supreme Court is represented by section 1 of chapter 165, laws of 1962, prior to subsequent amendments; and that said subsequent amendments ought to be repealed in order to re-establish a workable definition of “obsenity” within the framework of our statutory law, and that certain other changes should be made in other statutes for the purpose of consistency.

The Legislature deemed it necessary to deal specifically with the sale of obscene materials to persons under 18 years of age. N. J. 8. A. 2A :115-1.6 et seq. It found

* * * That salacious and lascivious material is increasingly available to State residents under 18 years of age, that it is harmful to their mental and moral health because they lack the maturity to cope with it, and that, to help insulate them from it, it is necessary to establish the separate standard of obscenity, designated “material obscene for persons under 18,” provided for in this act, and to restrict the sale of such material for the purposes cited herein. [N. J. S. A. 2A :115-1.6]

Another statute, also enacted in 1971, makes it a misdemeanor knowingly to communicate publicly “material obscene for public communication.” N. J. 8. A. 2A:115-2.1, et seq. The Legislative findings are significant:

The Legislature finds that there is increased public communication in the State of salacious and lascivious material; that such public communication is a nuisance which offends the standards, sensibilities and aesthetic values of the State community relating to the public display and vocalization of sexual matters, and assaults individual privacy and that to abate and prevent this nuisance it is necessary to establish a standard of material obscene for public communication and to forbid and punish the public communication thereof. [3L J. S. A. 2A: 115-2.1].

The Legislature has launched a broad attack on a problem it considered offensive to the public community. It has declared the public policy in the matter and clearly spelled out the need for a uniform mode of treatment.

The court said in Dimor, supra:

* # * Tire affront against public morals, although of necessity a matter of local concern, is predominantly within the domain of the State. It must be so. State v. Hudson County News Co., 41 N. J. 247, 265-266 (1963). This philosophy is evidenced by an examination of the Legislative findings of the amended statute * * * they quite clearly demonstrate that the Legislature intended even by its prior legislation * * * that the statutory manner of treatment of obscene matter was to be the sole uniform mode of treatment. * * * But there is little doubt, and the court finds, that the statute does encompass the ordinance and that the State has preempted the field. To permit each municipality to enact its own laws and regulations in this area would be in direct opposition to the legislative mandate.
The subject of obscenity is one of “general public interest and applicability” which necessitated “uniform treatment.” Coast Cigarette Sales, Inc. v. Mayor, etc., Long Branch, supra. Surveying all the interests involved it is quite clear that “the Legislature intended to immobilize the municipalities from dealing with local aspects” of the subject matter of obscenity. Summer v. Teaneck, supra. [122 N. J. Super, at 302-303]

We are in substantial agreement with the court’s reasoning in Dimor and we reach a like result with respect to the ordinance in this case, the subject-matter of which is encompassed within the statutes referred to hereinabove. The trial court correctly held the ordinance invalid on the ground of preemption.

As for plaintiffs’ contention that the seized goods should be returned to them, we note that the right of plaintiffs to make application therefor to the court below was reserved in the judgment. We perceive no need for our consideration of that issue on this appeal.

Affirmed.

      This section was declared unconstitutional by the United States District Court for the District of New Jersey because the definition of “obscene” omitted the “social value” test. Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42, 50 (D. N. J. 1972), citing Memoirs v. Massachusetts, 383 U. S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1967). In Dimor the court disagreed with the decision and refused to accept it as binding. However, it should be noted that the United States Supreme Court has now discarded as a constitutional standard the “utterly without redeeming social value” test, so that the holding in Gine-Gom Theatres has lost whatever validity it may have had. Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, 431 (1973).

      Having concluded tliat the subject of obscenity has been preempted by the State, we have not considered the question of whether the prohibited acts fall within that category which would otherwise permit both the State and the municipality to punish for the violation thereof without doing violence to any constitutional principle. See Chester Tp. v. Panicucci, supra, at 62 N. J. 103-104. On the problem of possible double jeopardy should one be convicted of violating a municipal ordinance and later be charged on the same facts with breach at a state statute, see Waller v. Florida, 397 U. S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970).


author: Michels, J. S. C.,

text:
    ESSEX COUNTY WELFARE BOARD, PETITIONER-APPELLANT, v. NEW JERSEY BELL TELEPHONE COMPANY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted November 5, 1973
    Decided January 31, 1974.

      Before Judges Lynch, Mehler and Michels.

      Messrs. Cohen & Reichstein, attorneys for appellant (Mr. Ronald Reichstein, on the brief).

      Mr. Joseph A. Hoffman, attorney for respondent.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, submitted a Statement in Lieu of Brief on behalf of the Board of Public Utility Commissioners of the State of New Jersey (Mr. William Gural, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Michels, J. S. C.,

Temporarily Assigned. In mid-1968 petitioner applied to Bell Telephone for a charitable discount in connection with the 701 dial telephone system it was using, and Bell Telephone granted the application, allowing a charitable discount of 25% in the charge for local telephone service. Thereafter, in 1969 Bell Telephone’s communications consultant approached the Essex County Freeholders for the purpose of discussing Bell Telephone’s ability to supply more effective telephone service. Discussions of the advantages and costs of replacing the old 701 dial system with the modern Centrex telephone system were held. In August 1969 an oral presentation by Bell Telephone of the advantages and costs of the Centrex system was made to petitioner. In September 1969 petitioner and Bell Telephone entered into an agreement providing for installation in petitioner’s offices of a Centrex telephone system which was completed in November 1970. Bell Telephone’s regular bill to petitioner the following month for the new Centrex system did not reflect any charitable discount.

Bell Telephone’s predecessor companies began the practice of affording charitable discounts to qualified telephone customers in 1913. These discounts applied and apparently are still extended by Bell Telephone to certain charities using “plain old black telephone service.” In 1960, however, Bell Telephone decided not to provide charitable discounts on any new services it introduced. Centrex was one of these new services. An application on rates and regulations for Centrex service was submitted by Bell Telephone to the New Jersey Board of Public Utility Commissioners (Board), indicating that the charitable discount would not be applicable to rates for the Centrex system. The application was approved by the Board, and the Tariff P. U. C. — H. J. Ho. 1, Part 1 — General, Section 32, which contained the exemption, became effective in 1962. Hence, qualified charities who purchased Centrex service after that year were not entitled to the traditional charitable discount.

Petitioner welfare board filed a petition with the Board of Public Utilities Commissioners alleging that it was never informed that installation of a Centrex telephone system would result in termination of the charitable discount, and therefore argued that Bell Telephone was estopped from depriving it of the 25% discount on this service. It also insisted there was no justification for allowing the discount to qualified charities using one telephone system and not allowing the discount to qualified charities using another telephone system. Petitioner asked the Board to amend Tariff P. U- O. — H. J. Ho. 1, Part 1 — General, Section 32, to permit the charitable discount for'Centrex users and to rule that it was entitled to the traditional 25% reduction on its local service telephone bill from the date of installation of the new Centrex system.

A hearing was held before a Board hearing examiner, who filed a detailed report and recommendations denying petitioner the relief sought. The Board adopted that report and recommendations as its decision from which this appeal was taken.

I.

Petitioner contends that the Board’s decision which adopted the report and recommendation of the hearing examiner was substantively defective because a specific finding was not made on the issue of whether petitioner was informed by Bell Telephone that it would lose its charitable discount in changing over to a Centrex system. The examiner did not make this specific finding in spite of the fact that there was a sharp conflict in the evidence whether Bell Telephone so informed petitioner. However, since petitioner was charged with knowledge of the tariff and bound by it, this finding was not essential to the decision below.

N. J. S. A. 48:2-21 (a) provides that “the board may require every public utility to file with it complete schedules of * * * every * * * rate, toll, fare or charge made, charged or exacted by it for any product supplied or service rendered within this State, as specified in the requirement.” The Board, by virtue of this authority, and pursuant to Administrative Order 14:280, has set forth the following requirement :

Every public utility shall file with the Board and keep open to public inspection in each office where applications for service may be made, tariffs applicable to its affected service area, showing all rates and charges made, established, or enforced, or to- be charged or enforced, all rules and regulations relating to rates and charges or services used or to he used, anl all general privileges and facilities granted or allowed. The same shall be readily accessible to the public at all times during office hours, and on demand by any person shall be produced for examination immediately. [N. J. A. C. 14:11-7.2(a)]

It is well established that a tariff required by law to be filed by a telephone company is not a mere contract; it is the law. Carter v. American Tel. & Tel. Co., 365 F. 2d 486, 496 (5 Cir. 1966), cert. den. 385 U. S. 1008, 87 S. Ct. 714, 17 L. Ed. 2d 546 (1967); Shehi v. Southwestern Bell Tel. Co., 382 F. 2d 627, 629 (10 Cir. 1967). As such, it is binding upon subscribers whether the customer actually knows of the regulation or not. Warner v. Southwestern Bell Tel. Co., 428 S. W. 2d 596 (Mo. Sup. Ct. 1968); Alcazar v. Southwestern Bell Tel. Co., 353 S. W. 2d 933, 936 (Tex. Civ. App. 1962).

Moreover, were Bell Telephone to grant petitioner a charitable discount for the Centrex service contrary to its filed and published tariffs, it would clearly violate N. J. 8. A. 48:3 — 1 which prohibits preferential rates. It is settled law that a utility which is required by law to file its rate through published tariffs is without authority to charge a customer less than the rates quoted in such tariffs. Southern Pacific R. R. Co. v. Wheaton Brass Works, 5 N. J. 594 (1950).

The findings by the examiner, which were adopted by the Board of Public Utility Commissioners, that Bell Telephone did not intentionally mislead petitioner in its negotiation for Centrex service, and that there was sufficient information available to petitioner that should have indicated to it that Bell Telephone would not supply the Centrex service with the discount provision that was available to its former t3pe of service, could reasonably have been reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965); Clover Hill Swimming Club v. Goldsboro, 47 N. J. 25, 36 (1966).

II.

Petitioner further contends that the decision of Bell Telephone not to extend the charitable discount to users of new telephone systems such as the Centrex service is discriminatory in that it forces charities to continue the use of inefficient and outmoded systems in violation of N. J. 8. A. 48:3-4. We disagree.

N. J. 8. A. 48:3-4 provides:

No public utility shall make or give, directly or indirectly, any undue or unreasonable preference or advantage to any person, locality or particular description of traffic, or subject any particular person, locality or particular description of traffic to any prejudice or disadvantage.

The hearing examiner found that since Bell Telephone treated all charitable customers alike in not extending the charitable discount to them for new telephone services, Bell Telephone was not guilty of discrimination. Bell Telephone made a managerial decision not to provide charitable discounts to users of newly introduced systems, such as Centrex, which was reviewed and accepted by the Board of Public Utility Commissioners in the exercise of its rate-making power when the applicable tariff was filed.

It is stated in 86 C. J. 8., Telephone and Telegraph Radio & Television, § 72 at 86—87:

The obligation resting on telegraph and telephone companies, and the like, to render equal and undiscriminating service to all proper applicants requires that the same charges shall be made to all persons in the same class for the furnishing of similar service, unless otherwise provided by statute.
Not every discrimination as to rates is objectionable, but only such a discrimination as under the circumstances is unreasonable and unjust, so discriminations founded on reason and justice may be made, and different rates may be charged to different patrons where there a/re substantial differences in the character of the services rendered or facilities furnished, or differences in the conditions and circumstances affecting the inconvenience and expense to the company of giving the service or furnishing the facilities. [Emphasis added]

Accordingly, the finding by the hearing examiner, adopted by the Board, that the charitable discount was not applied by Bell Telephone in a discriminatory manner, could reasonably have been reached on sufficient credible evidence in the record. See Close v. Kordulak, supra; Clover Hill Swimming Club v. Goldsboro, supra. The tariff involved, which does not extend the charitable discount to users of new telephone systems, is not discriminatory and does not violate the provisions of N. J. 8. A. 48:3-4.

Eor the foregoing reasons, the decision of the Board of Public Utility Commissioners denying Essex County Welfare Board’s petition to compel a charitable discount from New Jersey Bell Telephone Company in connection with its newly installed Centrex telephone service is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DORIS BURDEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 10, 1973
    Decided January 31, 1974.

      Before Judges Lynch, Mehler and Michels.

      Ms. Rita L. Bender, Urban Legal Clinie-Rutgers, argued the cause for appellant {Mr. Stanley O. VanNess, Public Defender, attorney; Mr. Richard H. Ghused, Urban Legal Clinie-Rutgers, on the brief).

      Mr. Robert W. Gluck, Deputy Attorney General, argued the cause for respondent {Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Michels, J. S. C., Temporarily Assigned. Defendant appeals her conviction of the crime of willfully failing to provide proper and sufficient food, clothing, maintenance and medical attention for her three infant children, aged three years, two years, and five months, contrary to the provisions of N. J. 8. A. 9 :6-l and 9 :6-3. Defendant was sentenced to the Correctional Institution for Women for an indeterminate term, which sentence was suspended. She was placed on probation for three years with the condition that she was not to remove her three children from the foster home in which they had been placed through the Bureau of Children’s Services.

Defendant contends that the State failed to sustain its burden of proving a violation of N. J. 8. A. 9 :6 — 1, arguing that the word “willfully” contained in the statute requires proof of an evil intent and knowledge on the part of defendant that harm would result from her action. We disagree.

N. J. S. A. 9:6-3 provides in pertinent part:

Any parent, guardian or person having the care, custody or con, trol of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a misdemeanor. * * *

The neglect which is made an offense by the above statute is defined in N. J. 8. A. 9 :6-l as follows:

Neglect of a child shall consist in any of the following acts, by anyone having the custody or control of the child: (a) willfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home, or (b) failure to do or permit to be done any act necessary for the child’s physical or moral well-being.

Our courts have not yet had occasion to consider the legislative intent with respect to the element of “willfulness” required in the statutory offense of child neglect.

The Legislature has the power to designate the mere doing of an act as a crime, even in the absence of the mens rea which was a prerequisite at common law. State v. Moore, 105 N. J. Super. 567 (App. Div. 1969); State v. Hammond, 116 N. J. Super. 244 (Cty. Ct. 1971); State v. Kinsley, 103 N. J. Super. 190 (Cty. Ct. 1968), aff’d 105 N. J. Super. 347 (App. Div. 1969). Whether a statute provides criminal sanctions for proscribed conduct without the necessity of proving criminal intent is a matter of legislative intent. State v. Russell, 119 N. J. Super. 344, 347 (App. Div. 1972); Morss v. Forbes, 24 N. J. 341, 358 (1951).

The statute, N. J. S. A. 9 :6-l, was enacted to protect children against certain evils incident to their early life. See Vega v. Sullivan, 2 N. J. Misc. 385, 387 (Sup. Ct. 1924). One of those evils was neglect, whicli is delineated by the Legislature to consist, among other acts and omissions, of willfully failing to provide proper and sufficient food, clothing, maintenance, required school education, medical and surgical attention and a clean and proper home. In view of the remedial nature of this statute, evil intent or bad motive is not required to prove child neglect thereunder. The word “willfully” in the context of this statute means intentionally or purposely as distinguished from inadvertently or accidentally. Hence, N. J. S. A. 9 :6-l does not require proof that defendant acted with an evil intent and knew that harm would result from her conduct to satisfy the burden of proof cast upon the State in this case.

[The court here held that the prosecutor’s remarks during summation were not prejudicial, and there was no error in denying defendant’s motion for a new trial on the ground that the verdict was against the weight of the evidence.]

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BRYANT BALLARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 3, 1973
    Decided January 31, 1974.

      Before Judges Lynch, Mehler and Michels.

      Mr. Stanley O. Van Ness, Public Defender, attorney for appellant (Mr. Robert P. Gorman, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Francis John Badach, Assistant Prosecutor, of counsel).
   The opinion of the court was delivered by

Michels, J. S. C.,

Temporarily Assigned. Defendant appeals his conviction for armed robbery in violation of N. J. S. A. 2A:141 — 1 and 2A:151-5. His only ground for reversal of the conviction is that he was denied constitutional due process when the jury failed to adequately deliberate upon the elements of the offenses charged against him. The jury was out 15 minutes which, defendant claims, was too short a time to deliberate adequately. We completely disagree.

We know of no rule of law which requires a jury to deliberate for any particular length of time. See Wall v. United States, 384 F. 2d 758 (10 Cir. 1967), wherein the court stated:

The appellants say that the jury could not have considered the evidence, and particularly their defense, because it took but one hour of deliberations to reach a verdict in a case which had taken eight days of trial. We know of no rule which requires a jury to deliberate for any particular period of time. From our study of the record we can well understand why the jury took no longer in coming to a decision. Its verdict must stand, [at 762]

In Kimes v. United States, 240 F. 2d 301 (5 Cir. 1957), reh. den. 242 F. 2d 99 (5 Cir. 1957), cert. den. 354 U. S. 912, 77 S. Ct. 1299, 1 L. Ed. 2d 1429 (1957), the court, in the rehearing opinion, stated:

After a fair trial before a good judge and competent jury, with all the facts undisputed except the alibi of the defendant, we find nothing suspicious, questionable, or remarkable in the action of the jury in returning its verdict of guilty after deliberating only twenty minutes. [242 F. 2d at 400-101]

See also, United States v. Young, 301 F. 2d 298 (6 Cir. 1962), wherein the court held that a iour-minute jury deliberation was not so capricious as to deny a defendant due process of law; United States v. Brotherton, 427 F. 2d 1286 (8 Cir. 1970), wherein the court held that it could not find error by reason of the short time consumed (five to seven minutes) by the jury in its deliberation.

Here, there was not any genuine issue as to whether a robbery occurred. Even defendant’s counsel in his summation said: “We know what happened. Mr. Phillips was held up. We know where it happened. It happened on Waverly Avenue.” Thus, the only question was one of identity which the jury could resolve very quickly. From our study of the record we cannot conceivably find error by reason of the jury deliberation consuming only 15 minutes to make a determination of this simple fact issue of identity.

Defendant also contends that the sentence of six to ten years in State Prison was manifestly excessive and unduly punitive. Again, we disagree. Considering all the circumstances, as well as defendant’s presentence report, we cannot hold that there was an abuse of discretion in the imposition of this sentence by the court below. See State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).

Affirmed.


author: Handler, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JUAN LAKOMY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 9, 1073
    Decided February 1, 1974.

      Before Judges Handler, Meanor and Kole.

      Mr. Joseph D. J. Gourley, Pasasic County Prosecutor, attorney for appellant (Mr. Dante P. Mongiardo, Assistant Prosecutor of counsel and on the brief).

      Mr. Dominic Oavaliere attorney for respondent.
   The opinion of the court was delivered by

Handler, J. A. D.

Defendant was charged with possession of an automatic revolver without first having obtained a permit, contrary to N. J. 8. A. 2A:151-41(a). On motion the evidence was suppressed, and the State was granted leave to appeal that interlocutory order.

The only testimony at the hearing on the motion to suppress was that of the arresting police officer. He stated that on October 20, 1972 he was alone on patrol duty when he received a radio call from his dispatcher stating that there was a report of a man with a gun at the Alfred Heller Heat Treating Company. He arrived simultaneously with another police officer who had also been dispatched to the scene. At the factory the policemen were met by an officer of the company. This individual related that an employee had told him that Juan Lakomy, the defendant, had a gun. The officers were led to the washroom and defendant was specifically pointed out to them.

Defendant, with his back to the officers, was washing his hands. Both officers approached from the rear. Each officer grabbed one of defendant’s arms, stated that they were police officers, and gave defendant a pat-down search and found a pistol tucked under defendant’s shirt. The officers had not seen the gun before defendant was searched. Defendant was arrested after the gun was found.

What occurred here was a “stop and frisk.” The inquiry in this context is whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” Terry v. Ohio, 392 U. S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). As stated in Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) :

In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d at 906.” The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. [At 145, 92 S. Ct. at 1923]

In a variant situation in State v. Dilley, 49 N. J. 460, 468 (1967), an experienced police officer in a high crime area came upon two strangers who were lingering in a parking lot at 3 a.li. and who attempted to leave when the officer arrived. It was held that the officer had a right to stop and to frisk the men for his own protection. The court noted (at 467) that such a stop and frisk “is not to be viewed as a formal arrest requiring probable cause.” It went on to state:

The fourth amendment does not speak in absolute terms but strikes a balance between the interests of the individual in being free from police interference and the interests of society in effective law enforcement. Thus in terms it protects the people’s right to security against “unreasonable” searches and seizures. In determining reasonableness, weight must of course be given to all of the pertinent factors including the basis of the suspicion on the part of the police and the nature and extent of the restraint on the individual. [At 468]

Under this standard it has been recognized that, in situations involving aggravated circumstances presenting the strong possibility of some physical danger, a police officer may promptly seek and seize a weapon believed to be in a person’s possession. United States v. Pleasant, 469 F. 2d 1121 (8 Cir. 1972); State v. Dennis, 113 N. J. Super. 292 (App. Div.), certif. den. 58 N. J. 337 (1971); State v. D’Orsi, 113 N. J. Super. 527 (App. Div.), certif. den. 58 N J. 335 (1971); People v. Taggart, 20 N. Y. 2d 335, 283 N. Y. S. 2d 1, 229 N. E. 2d 581 (Ct. App. 1967), app. dism. 392 U. S. 667, 88 S. Ct. 2317, 20 L. Ed. 2d 1360 (1968) This type of situation may be compared instructively with that which involves suspicious conduct but does not project a threat of physical danger which may require self-protection, as in In re State in the Interest of D. S., 63 N. J. 541, reversing on dissenting opinion below 125 N. J. Super. 278 (App. Div. 1973). It may be further contrasted with full searches which are incidental to an actual arrest for relatively minor offenses. E. g. United States v. Robinson, - U. S. -, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Gustafson v. Florida, - U. S.-, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973).

The court recognized in Ten-y that an officer may conduct a limited protective search, not to discover evidence but to allow him to pursue his investigation without fear of violence when he believes that “the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others * * 392 U. S. at 24, 88 S. Ct. at 1881. See also Adams v. Williams, supra, 407 U. S. at 146, 92 S. Ct. 1921. Here the information supplied was that defendant was armed with a gun. If such information were acceptable, it would justify a reasonable belief that defendant might be dangerous and that prompt protective measures, such as a frisk or a pat-down search, were dictated in order to complete an investigation of the complaint without creating a serious risk of physical injury.

Defendant’s more pointed argument suggests that the information was not acceptable as a basis for the police action taken. He argues, in effect, that there could be no basis for the measures undertaken generated from the bare statement of the company executive, not otherwise corroborated. Consequently, he urges that the seizure of the weapon constituted an unconstitutional invasion of privacy.

Generally, some verification of an informant’s disclosures of criminal activity, as well as a demonstration of his trustworthiness, is necessary in order to establish his credibility, so that such information may fairly and reasonably be assimilated as a proper basis for appropriate police action. Adams v. Williams, supra; cf. Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). Different considerations obtain, however, when the informer is an ordinary citizen. There is an assumption grounded in common experience that such a person, regarded as a cooperative member of the general public, would in the ordinary course of events have no ties or connections with the underworld or the criminal element. He would be expected to be motivated by factors which are consistent with law enforcement goals. Consequently, an individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is undertaken. Erickson v. State, 507 P. 2d 508 (Alaska Sup. Ct. 1973); People v. Zimnicki, 29 Cal. App. 3d 577, 105 Cal. Rptr. 614 (D. Ct. App. 1972); Gaskins v. United States, 262 A. 2d 810 (D. C. Ct. App. 1970); People v. Davis, 10 Ill. App. 3d 611, 295 N. E. 2d 108 (App. Ct. 1973) ; People v. Wayne, 9 Ill. App. 3d 344, 292 N. E. 2d 186 (App. Ct. 1972) ; People v. Arthurs, 24 N. Y. 2d 688, 301 N. Y. S. 2d 614, 249 N. E. 2d 462 (Ct. App. 1969).

The Wisconsin Supreme Court in State v. Paszek, 50 Wis. 2d 619, 184 N. W. 2d 836, 842 (1971), explained the rationale behind this distinction:

A different rationale exists for establishing the reliability of named “citizen-informers” as opposed to the traditional idea of unnamed police contacts or informers who usually themselves are criminals. Information supplied to officers by the traditional ptolice informer is not given in 1he spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply convey a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they have supplied in the past.
However, an ordinary citizen who reports a crime which has been committed in his presence, or that a crime is being or will be committed, stands on much different ground than a police informer. He is a. witness to criminal activity who acts with an intent to aid the police in law enforcement because of his concern for society or for his own safety. He does not expect any gain or concession in exchange for his information. An informer of this type usually would not have more than one opportunity to supply information to the police, thereby precluding proof of his reliability by pointing to previous accurate information which he has supplied.

The imputation of reliability with respect to information given by an ordinary citizen and the founding of probable cause for effective police action based on such cooperation and concern are particularly appropriate in a context where the reactive measures taken are for the limited purpose of neutralizing a dangerous situation. In .the present case the informer held a responsible position. He was an officer of the company with no apparent motive to fabricate 'or to rely heedlessly on baseless reports or rumor. If the information that there was an armed employee in the factory were true, it imported a risk of harm to persons on the premises or elsewhere. In this context, the citizen-informer was himself “in the nature of a victim or complainant, whose information could be taken at face value irrespective of other evidence concerning his reliability.” People v. Baker, 12 Cal. App. 3d 826, 841, 96 Cal. Rptr. 760, 770 (D. Ct. App. 1970) ; Leonard v. State, 506 P. 2d 596 (Okla. Cr. 1973); People v. Ramos, 17 Mich. App. 515, 170 N. W. 2d 189 (App. Ct. 1969).

Moreover, the complainant waited for the police to arrive and he himself informed the police of defendant’s whereabouts and pointed out defendant, so there was no risk of misidentification. By such personal involvement the informant exposed himself to- reprimand or personal accountability. These were important considerations in the evaluation of his credibility and the reliability of the information he imparted. Adams v. Williams, supra, 407 U. S. at 147, 92 S. Ct. 1921; United States v. Pearce, 356 F. Supp. 756, 759-760 (E. D. Pa. 1973). The fact that the information included hearsay on the informant’s part is a factor to be considered. It is by no means fatal, however, to the assessment of the credibility or the plausibility of the basic information related by the informant and the determination that probable cause existed under the circumstances for the police action which was undertaken. Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).

We note the additional argument on this appeal that defendant, under the circumstances narrated herein, was not in violation of N. J. S. A. 2A:151-41(a) because his possession of the gun was not in a public place. Further, we are aware of State v. Johnson, 125 N. J. Super. 344 (App. Div. 1973). This contention, however, was not a basis for defendant’s motion to suppress, nor was it ruled upon by the court below (although such contentions were advanced at the oral argument on the motion). While it is stated that reference was made to this argument on the motion for leave to appeal, we do not conceive that this issue is properly before the court for disposition on this appeal.

For the reasons stated, the order granting the motion to suppress evidence is reversed.


text:
    EARL PRICKETT, PLAINTIFF-APPELLANT, v. MATILDA ALLARD, THE ISSUES OF MATILDA ALLARD NOW OR HEREAFTER BORN DURING THE LIFETIME OF MATILDA ALLARD, THEIR HEIRS, DEVISEES, PERSONAL REPRESENTATIVES AND THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT TITLE AND INTEREST; THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted January 22, 1974
    Decided February 4, 1974.

      Before Judges Halpern, Matthews and Bischoff.

      Messrs. Valentine and 8eUzer, attorneys for appellant (Mr. George L. Seltzer, on the brief).
    Respondents did not file briefs.
   Per Curiam.

Plaintiff appeals from a judgment dismissing his action to foreclose the equity of redemption in a tax sale certificate. On December 11, 1943 the Township of Egg Harbor sold the lands in question for unpaid taxes and issued a tax sale certificate to the Township of Egg Harbor. The certificate was assigned to plaintiff on September 7, 1949. This foreclosure action was instituted pursuant to N. J. S. A. 54:5-85 on April 20, 1972, and default entered against all defendants on January 5, 1973.

When plaintiff sought to obtain an order fixing the amount, time and place of redemption of the tax sale certificate, the standing master refused to execute the order but, instead, entered judgment dismissing.the action for failure of plaintiff to institute the foreclosure proceedings within the 20-year period provided for in N. J. S. A. 54:5-79. That statute provides, in pertinent part:

The title of a purchaser at a sale shall cease and determine and the certificate of sale shall be void at the expiration of 20 years from the date of the sale, unless the purchaser, his heirs or assigns shall, before the expiration of that term * * * foreclose the right to redeem it by notice or by a civil action in the nature of a proceeding in equity ’■'**.

Plaintiff contends the judgment of dismissal was improperly entered because the statute of limitations is an affirmative- defense and must be pleaded. B. 4:5-4. That contention is correct as a general rule. But where, as here, the bar of the statute of limitations appears on the face of the complaint, it may be asserted as a “failure [of the complaint] to state a claim upon which relief can be granted,” • B. 4:6-2(e); Rappeport v. Flitcroft, 90 N. J. Super. 578 (App. Div. 1966), and is not waived by defendant’s failure to plead it. Since the defendants were in default and the matter was proceeding in an ex parte fashion, the standing master properly raised the issue. In re McCraven, 87 N. J. Eq. 28, 32 (Ch. 1916).

Municipal liens are statutory in origin, and rights arising therefrom are fixed and determined by the statute. Brewer v. Porch, 53 N. J. 167, 173 (1969). When the Legislature creates a right, it may subject the right to limitations in such a manner that the right is to terminate upon the expiration of the limitation. Marshall v. Geo. M. Brewster & Son, Inc., 37 N. J. 176, 181 (1962). This statute declares the tax sale certificate void unless the right of redemption is foreclosed within the 20-year period. In that respect it differs from a general statute of limitations which can be waived by not pleading it. Plaintiff not having proceeded to perfect his title to the land within the 20-year period, his title to the tax sale certificate is void.

Plaintiff next contends that since the tax sale certificate was owned by the Township of Egg Harbor from December 11, 1943 to September 9, 1949, the 20-year limitation is not applicable and relies upon the following proviso of N. J. 8. A. 54:5-79:

* * * however, that this act shall not apply to titles acquired by a municipality under certificates of tax sales purchased and held by it at tax sales conducted therein which titles so acquired and certificates of tax sales are hereby expressly exempted from said limitation period of 20 years. [Emphasis added]

We disagree. This exemption, in plain terms, applies to tax sale certificates purchased by a municipality and held by U. Once the municipality assigns the certificate, the exemption from the 20-year period no longer exists. Plaintiff herein having held the tax sale certificate for over 20 years without perfecting his title to the land, the certificate is void.

Affirmed.