author: Per Curiam.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES G. BONCELET, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1969
    Decided November 17, 1969.

      Before Judges Kilkenny, Labkecque and Leonard.

      Mr. Frank P. VUlanova argued the cause for appellant.

      Mr. Fred Kieser, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   Per Curiam.

Defendant Charles G. Boncelet appeals from his conviction on an indictment for violations of N. J. S. A. 40A :4-57 and 58 and N. J. S. A. 2A:135-5.

Following a grand jury investigation of the financial affairs of the Borough of Carteret, defendant, a member of the borough council and chairman of its finance committee during the year 1965, was indicted in a four-count indictment. The first two counts charged that between September 1 and December 16, 1965 he, together with three other councilmen, voted to incur liabilities, chargeable to four line items in the budget, in amounts which exceeded the sums appropriated, in violation of N. J. 8. A. 40A:4-57 and 2A:135-5. Counts three and four charged that, in voting to transfer funds from two other line item appropriations on December 29,1965 to make up the overexpenditures cited above, he overexpended the two appropriations by some $834.82, in violation of N. J. 8. A. 40A :4-58 and 2A :135-5.

The State’s proofs were lengthy and involved. Without detailing them here, there was evidence from which the jury could have concluded that between September 1, 1965 and December 16, 1965 the council, by a majority vote of defendant and three of his colleagues (the latter were separately indicted and tried, see State v. Bohanek, et al., Docket A-1613-67), overexpended the appropriations of four line items in the 1965 budget as follows:

(a) Recreation, Other
Expenses Account $6,376.71
(b) Free Public Library,
Other Expenses Account 2,408.78
(c) Parks and Playgrounds,
Other Expenses Account 4,343.78
(d) Street Cleaning, Other
Expenses Account 4,197.54

and that on December 29, 1965 they voted to transfer funds from other accounts to make up the overexpenditures, purportedly pursuant to N. J. 8. A. 40A:4^58, which transfers resulted in the over expenditure of two other line items: Administrative and Executive, Other Expenses, $174.40, and Collection of Taxes, Other Expenses, $660.42.

The jury found defendant guilty on all four counts. He was sentenced to pay a fine of $100 on the first count, and $50 on the fourth count, and sentence was suspended on the second and third counts.

Defendant challenges his convictions on several grounds. They may be summarized as follows: (1) he was entrapped into waiving immunity and testifying voluntarily before the grand jury, (2) the trial judge’s charge was erroneous; (3) the indictment was constitutionally defective in that others guilty of similar violations were not indicted; (4) the prosecution was politically motivated, and (5) there should have been a judgment of acquittal because (a) no criminal intent was proven and (b) “defendant’s actions resulting in an indictment for violation of B. 8. 40A:4-57 and B. 8. 2A:135-5 were nevertheless lawful under B. 8. 40A :4-58 and 59.” We consider them in inverse order.

The core argument advanced by defendant is that the overexpenditure prohibited by lawT is the overexpenditure of the total budget rather than a line item thereof, and that he was guilty of no crime since the transfers made on December 29, 1965 added sufficient funds to each overexpended account to make up for the alleged overexpenditure. Implicit in this argument is the contention that municipal obligations may be incurred and paid for notwithstanding that they result in the overexpending of the line item to which they are chargeable, in the expectation that at the year’s end there will be unexpended sums in other line items which may be transferred to the overexpended accounts, or, alternatively, that illegality in the overexpenditure of a line item is cured by a subsequent transfer of funds from other line items.

We are satisfied and hold that the Local Budget Law, N. J. S. A. 40A :4-l et seq., was intended to control municipal expenditures by line item. N. J. S. A. 40A:4-57 provides that, with certain exceptions not here relevant, no officer, board, body or commission shall during any fiscal year (1) spend any money, (2) incur any liability, or (3) enter into any contract 'which by its terms involves an expenditure of money, for any purpose for which no appropriation is provided, or in excess of the amount appropriated for that purpose. The line item designates the purpose of the expenditure. A contract made in violation of this section of the statute is declared null and void and payment thereon is enjoined. Emergency appropriations are strictly limited. N. J. 8. A. 40A:4r-46 to 55.17. An unexpended balance in an appropriation may be cancelled by resolution, N. J. 8. A. 40A:4^60, or transferred to another line item under certain circumstances. N. J. 8. A. 40A:4^58. It is clear that the legislative restrictions imposed by N. J. 8. A. 40A:A-57 would be of doubtful effectiveness were their application to be limited to the total budget, as distinguished from line item appropriations. A reading of State v. Brom, 78 N. J. L. 222, 224 (Sup. Ct. 1909), decided under section 31 of the Crimes Act, L. 1898, c. 235, p. 803, from which N. J. S. A. 2A:135-5 was derived, would appear to confirm this interpretation.

N. J. 8. A. 40A :4-57 superseded R. 8. 40:2-29. The basic idea behind it is that the municipality shall make ends meet within its fiscal year; hence, budget expenditures during a fiscal yes.v should not depart from the budget of that year. 405 Monroe Co. v. City of Asbury Park, 40 N. J. 457, 470 (1963). Here the State’s proofs adequately supported the conclusion that there had been such overexpenditures prior to the December 29 transfers.

These overexpenditures were not rendered legal by the transfers from other accounts. N. J. 8. A. 40A:4-58, which authorizes such transfers, provides:

a. Should it become necessary, during the last 2 months of the fiscal year, to expend for any of the purposes specified in the budget an amount in excess of the respective sums appropriated therefor and there shall be an excess in any appropriations over and above the amount deemed to be necessary to fulfill the purpose of such appropriation, the governing body may, by resolution setting forth the facts, adopted by not less than 2/3 vote of the full membership thereof, transfer the amount of such excess to those appropriations deemed t© be insufficient * * *. [Emphasis added]

It is dearly worded and does no more than furnish the means whereby under certain conditions the amount budgeted m a given account may be augmented by the excess remaining in another account. The right to transfer from an account depends upon whether there is an unexpended balance, and is limited to the amount of such balance. Here, as noted, the transfers from two line items voted by the majority of the council involved sums greater than the excess remaining in them.

Defendant also urges that criminal intent was the necessary element of the offenses charged and, in the absence of proof thereof, he “was wrongfully adjudged guilty of a crime.” The trial judge properly instructed the jury that criminal intent was an essential element of the common law offense of misconduct in office, N. J. S. A. 2A:85-1, here based upon defendant’s violation of N. J. 8. A. 40A A-^i and 58 (first and second counts). State v. Begyn, 34 N. J. 35, 49-50 (1961). However, to establish intent it was not necessary to adduce proofs from which it could be inferred that the defendant intended to profit or otherwise benefit from the overexpenditures. It was sufficient if there was an intent to commit the act which the law forbade, State v. Gleitsmann, 62 N. J. Super, 15, 20-21 (App. Div. 1960), and a finding that defendant’s conduct was unlawful and willful would support a charge of bad faith, State v. Williamson, 54 N. J. Super. 170, 184-185 (App. Div. 1959), aff’d 31 N. J. 16 (1959).

"We find the proofs adequate to establish the necessary intent. There was testimony which, if believed, established that defendant, a college graduate and successful businessman who was serving his third year as a councilman and was chairman of the council’s finance committee, knew of the cited provisions of the Local Budget Law and of the penalty provided by AT. J. S. A. 2A:135-5 for overexpenditures. Each of the councilmen, including defendant, received a disbursement sheet monthly which showed the balance in the several accounts and, where there was an overexpenditure, that item was shown in red. Defendant knew that the red ink indicated that the account was overdrawn but nevertheless continued to vote to authorize additional payments. He testified, “I was aware that more had been spent in certain accounts than had been appropriated, and transfer in some of these cases had not been made,” and “the [treasurer’s] report showed that more money was spent than was budgeted in many of these accounts * * Additionally, the attention of the council had been directed to N. J. S. A. 2A:135~5 by a letter from the Director of Local Government which preceded the making of the transfers on which the third and fourth counts of the indictment were based. While defendant introduced evidence having a tendency to exculpate him from the charges, resolution of the fact issue thus presented was for the jury rather than the court.

As to the second and fourth counts for violation of N. J. 8. A. 2A :135-5, the court charged (in the words of the statute) that, in order to convict, ft was necessary that the jury find that defendant had willfully and knowingly voted for the overexpenditures. In this it was correct. It was within the competency of the Legislature to declare an act criminal irrespective of the motive of the doer. State v. Labato, 7 N. J. 137, 149-150 (1951). Here it prescribed willfulness and knowledge as the tests. Thus, the State was not required to adduce evidence to establish a corrupt motive on defendant’s part as to those counts. Cf. State v. Halsted, 39 N. J. L. 402, 411 (Sup. Ct. 1877); Halsted v. State, 41 N. J. L. 552, 592 (E. & A. 1879). The proofs were adequate to support a finding, implicit in the jury’s verdict of guilty, that the overexpenditures were willfully and knowingly voted.

Defendant next urges that (1) the prosecution against him was politically motivated, and (2) the course of conduct which led to the over expen ditures charge was sanctioned by customary usage, and in singling him out for prosecution he was deprived oí the equal protection of the law to which he was entitled under the Fourteenth Amendment. We find neither point to be meritorious. The indictment followed a general investigation of the financial affairs of the Borough of Carteret by the grand jury pursuant to an order of the assignment judge. At the most, defendant’s proofs would have supported the inference that overexpenditures of local budgets had taken place in certain other municipalities but there had been no prosecutions based thereon. This is a far cry from demonstrating the proof of purposefully discriminatory enforcement necessary to establish a violation of equal protection. Snowden v. Hughes, 321 U. S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944); Boynton v. Fox West Coast Theatres Corp., 60 F. 2d 851 (10 Cir. 1932). Yick Wo v. Hopkins, 118 U. S. 356, 68 S. Ct. 1064, 30 L. Ed. 220 (1886), on which defendant principally relies, is inapposite in that it involved intentional discrimination rather than mere unequal application of a statute which was fair on its face. The mere fact that a law has not been fully enforced against others does not give a defendant the right to violate it. The true issue here was not whether political considerations had played a hand in initiating the investigation which led to defendant’s indictment, but whether defendant had willfully and knowingly violated the statute.

Defendant levels two criticisms at the charge — that the trial judge (1) shifted the burden of proof when the jury was instructed to determine who was “holding back or presenting excuses,” and (2) wrongfully permitted the jury to consider the indictment for evidentiary purposes.

We are satisfied that the quoted excerpt did not have the effect of shifting the burden of proof to defendant. An abstract from the charge is not to be considered in isolation, but in the light of the entire charge. Where the charge as a whole is clear and correct there is no error. State v. Neff, 67 N. J. Super. 213, 221 (App. Div. 1961). The challenged excerpt is found in that portion of the charge dealing with the issue of credibility. We are satisfied that that portion as a whole correctly and adequately set forth the applicable law. It was made clear to the jury, both before and after it, that the burden of proof rested upon the State at all times.

During its deliberations the jury requested a copy of the indictment. While ordinarily it would not have been error'to send the indictment into the jury room, State v. Profita, 113 N. J. L. 330, 334 (Sup. Ct. 1934), aff’d on other grounds, 114 N. J. L. 334 (E. & A. 1935); State v. Begyn, 58 N. J. Super. 185, 195 (App. Div. 1959), aff’d on other grounds, 34 N. J. 35 (1961), there was an objection by counsel for defendant. The objection was sustained and in lieu thereof the trial judge summarized the various counts in the indictment for the benefit of the jury, while cautioning the jurors that the indictment was nothing more than a mere formal written charge and neither the indictment nor the allegations set out therein were evidential in any respect. We find no error. It is to be assumed that the jurors followed the court’s instructions. State v. Curcio, 23 N. J. 521 (1957).

Defendant urges that the indictment was fatally defective because he was entrapped into waiving immunity and giving testimony before the grand jury, citing State v. Fary, 19 N. J. 431 (1955); State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967), and State v. Rosania, 96 N. J. Super. 515 (Law Div. 1967). Pie argues that he should have been advised that he was one of the targets of the grand jury’s investigation and should have been advised as to his privilege against self-incrimination. This argument is wholly lacking in substance. The investigation into the fiscal affairs of the Borough of Carteret for the period named was a general one ordered pursuant to N. J. S. A. 40A:5-22-. Defendant, though subpoenaed by the State, had not been called upon to testify before the grand jury. When advised that' he was not to be called, he requested that he be permitted to go before the'grand jury. His request was granted after he was advised of his constitutional rights by the deputy attorney general in charge. When he appeared before the grand jury he was again advised as to his constitutional rights; thereafter stated that he did not wish to consult an attorney and, after being warned that anything he said might be used against him in any criminal proceeding which might result from the investigation, signed the waiver of immunity. His introductory statement to the grand jury was: “Ladies and gentlemen, I appreciate your coming in here this morning and today and spending your valuable time here so that you may hear what we might consider the other side of the coin.”

The record is devoid of any showing that the indictment was based on defendant’s testimony before the grand jury. On the contrary, the evidence adduced at the trial consisted mostly of municipal records and supporting testimony by the borough clerk, treasurer and accountant, and the municipal accountant who had conducted the investigation by order of the court.

Our careful examination of the record satisfies us that defendant had a full and fair trial, free of error, in which the issue of his guilt or innocence was submitted to the jury in a charge which correctly delineated the issues involved and the law applicable thereto. We find no cause to disturb the verdict.

Affirmed.

       A tape recording of tlieir interview was played before the trial judge on the motion to quash the indictment.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS L. CALDWELL AND ANNE D. CALDWELL, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS, v. THE AETNA CASUALTY AND SURETY COMPANY, AN INSURANCE COMPANY AUTHORIZED TO DO BUSINESS IN NEW JERSEY AND VELMA MASON, DEFENDANTSRESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1969
    Decided November 17, 1969.

      Before Judges Comeord, Collester and Kolovsky.

      Mr. James H. Smith argued the cause for plaintiffs (Messrs. Reussille, Gormo ell, Mausner & Garotenuto, attorneys).

      Mr. Carroll A. Morley argued the cause for defendants (Messrs. Lamb, BlaTce, Hutchinson ■& Dunne, attorneys).
   Per Curiam.

We reverse for erroneous exclusion by the trial judge of competent and material testimony proffered by plaintiffs on the issue whether the assureds did not in fact understand that the homeowner’s policy in question did not afford them workmen’s compensation coverage.

We read Gerhardt v. Continental Insurance Cos., 48 N. J. 291 (1966), to hold that a homeowner’s policy in form such as this one, while technically not extending workmen’s compensation coverage for injury to a domestic employee of the homeowner sustained under circumstances calling for compensation under the workmen’s compensation law of this State, will nevertheless be construed to afford such coverage to the generality of purchasers of such policies because of the ambiguity of the policy in that regard to the average lay reader of the policy language. However, the court makes clear that the company’s intent not to extend such coverage will be vindicated if prominent notice of absence of the coverage is affixed to the face of the policy or otherwise brought home to the assured (48 N. J., at 298). It is. moreover, implied in the opinion, and indeed a logical corollary of its rationale, that a purchaser of the standard form policy involved in Gerhardi and here, who is affirmatively shown to realize he is not getting compensation coverage in buying the policy, will be held not to obtain it. To that extent we agree with the trial judge and defendant.

However, we do not agree with the trial judge that the typed-in, “(b) does not apply”, after the printed verbiage, “Section IT Only: * * * (b) Insured employs not more than two full-time residence employees; * * * Exceptions, if any, to (a), (b) or (c) :” of the policy, constitutes clear notice to the assureds that they are not getting compensation coverage. This would more naturally mean that the assureds could have more than two such employees without impairing whatever coverage the policy affords (or without being subject to rerating).

Nor do we regard it as of any materiality that the domestic employee in this case was injured off rather than oh the premises. The assureds’ possible ignorance of the incidence of workmen’s compensation liability as to an accident to an emplojme sustained in the course of employment off the residence premises will not operate to negate Gerhardttjqpe coverage if the assurds did not know that the policy did not actually afford compensation coverage as such.

The assureds did proffer proof, excluded by the trial judge, which in our view had at least some probative value on the issue of their state of mind as to whether they had coverage to protect themselves from any liability they might sustain as a result of an accident sustained by a domestic while working for them. This was that an employee of the realty and insurance concern which plaintiffs engaged to find them a home, and, upon the occasion of the closing of title, to provide them with insurance, was told by the husband-assured that a full-time domestic would be living in the house and that the insurance should include “everything [he] needed.” It is inferable from this, if believed, that when the assureds received the policy they thought they were covered for liability of any kind in respect of accidents to the domestic. Cf. Gerhardt, supra, 48 N. J., at 298. (“She might not know anything at all about the difference between a common-law liability claim and a workmen’s compensation claim but would expect coverage in either event.”)

It should be noted that the legal materiality of the foregoing is not necessarily dependent upon whether the agency with whose representative the assured had the conversation mentioned was the agent of the insurance company rather than of the assured in the transaction of issuance of the policy. The question here is not whether the agency was authorized by defendant to issue workmen’s compensation coverage or whether defendant is chargeable with notice of the conversation mentioned, but rather whether the assured, in buying this particular policy, knew that he was not thereby obtaining coverage of that scope. The conversation, if credible, is some evidence of his state of mind on the subject regardless of whose agent the agency was in transacting the business.

Defendant argues that the testimony of its investigator as to his conversation with the husband-assured two weeks after the accident (occasioned by its automobile liability coverage of the other party to the automobile accident in which the domestic was injured) demonstrates conclusively, because it stood uncontradicted, that the assureds knew the instant policy gave them no compensation coverage. This was that ho asked the assured whether he “carried Workmen’s Compensation coverage which would be available to [the domestic]” and that he answered that “he had none.” However, this conversation is not conclusive on the issue. It may possibly have meant that the assured had no workmen’s compensation policy as such. Or it may have meant he had none that he knew of. Neither of these permissible inferences is necessarily inconsistent with the thesis of coverage via Gerhardt. As noted above, the most that Gerhardt may be read to imply in favor of the insurer in this regard is that the standard homeowner’s form will not be held to give workmen’s compensation coverage to a purchaser who is shown affirmatively to realize when buying it that the policy does not provide such coverage.

Defendant argues that there is no proof that plaintiffs read the policy, and that Gerhardt gives no compensation coverage to a purchaser of a standard homeowner’s policy who does not actually read the policy, as he does not meet the asserted rationale of that decision that the assured has in fact been misled by the ambiguities and complexities of the policy. We do not agree that Gerhardt can be thus qualified. Most insurance purchasers do not read the fine print of their policies beyond the cover and face sheeis. Cf. Gerhardt, 48 N. J., at 299 (top paragraph). It was not affirmatively shown that the plaintiff in Gerhardt had read her policy. Yet she recovered. The implicit rationale, of the case is that ordinarily the company should be bound by the impression as to coverage which the average purchaser would gain from such inspection of the policy as he would be likely to make. Compare Bauman v. Royal Indem. Co., 36 N. J. 12, 25 (1961).

Defendant further contends that it is illegal in this State for an insurance policy to combine workmen’s compensation coverage for domestic employees with homeowner’s insurance, or for policies extending workmen’s compensation coverage not to contain standard language promulgated by the Department of Banking and Insurance. Enforcement of liability to plaintiffs in this case is thus argued to effect an illegal result. The contention seems to us to lack merit, and a similar position was rejected by Judge Gaulkin, then sitting in the Law Division, in Gunther v. Metropolitan Cas. Ins. Co., 33 N. J. Super. 101 (1954). One who exacts a premium for a policy judicially determined to fairly import workmen’s compensation coverage to the average purchaser should not be heard to seek refuge from liability therefor in the argument that by making the contract he has violated laws regulative of the insurance industry.

The case should be retried in a manner consistent with the foregoing expressions. The issue for resolution at retrial has been stated hereinabove. The burden of proof on that issue will be on the defendant, as we read Gerhardt to impose prima facie liability for compensation coverage upon a company issuing a homeowner’s policy in the form used there and here, absent another outstanding policy covering the assured specifically for workmen’s compensation liability as such.

Reversed; no costs on this appeal.


author: Cozzi, J. G. G.

text:
    ONONDAGA TRUCK LEASE INC., A CORPORATION, PLAINTIFF, v. VICTOR C. HOVELL, INDIVIDUALLY AND t/a CIRCLE SERVICE, DEFENDANT.
    Hudson County Court Law Division — Civil.
    Decided November 14, 1969.

      Mr. Norman Malzberg attorney for plaintiff.

      Mr. Joseph J. Talafous argued the cause for defendant.
   Cozzi, J. G. G.

This is a proceeding under the Garage Keeper’s Lien Act, N. J. 8. A. 2A :4L-21 et seq., wherein it is undisputed that defendant is the owner and operator of a gasoline service station and he furnished fuel, oil, services and accessories to 10 tractors and 15 trailers owned by plaintiff Onondaga Truck Lease Inc., and leased to Seaboard Transport Corp., not a party to this action. Defendant supplied and serviced the leased vehicles pursuant to a book account with Seaboard Transport Corp., payable monthly. He supplied and furnished said vehicles from December 16, 1968 to March 5, 1969 for the amount of $2,663.41. Seaboard defaulted in paying the aforesaid bill, and defendant on March 5, 1969 caused a constable to seize and detain one of the vehicles, White Tractor Trailer, Serial No. 628240, serviced pursuant to the Garage Keeper’s Lien Act. Thereafter plaintiff owner, Onondaga, replevied the vehicle, posting a bond in accordance with the terms of said statute. Defendant counterclaimed for the sum of $2,663.41, the claim amount of the lien and book account, and $210 for storage charges for the tractor-trailer. It appears from the evidence that Seaboard and Onondaga, in the presence of Joseph Landano, shared office space and its facilities and that Landano was president and director of Onondaga Truck Lease Inc.

The evidence further discloses that Onondaga Truck Lease Inc., lessor, was aware of, acquiesced and participated in the entension of credit to its lessee and ratified the actions of its officer, Landano, during the extension of credit and consequent book account. In fact, at times he included his charges for gas and oil supplied to his personal car in that account. After the seizure by the constable, Landano offered and delivered to defendant the plaintiff’s check for $2,820 in full payment thereof, but later stopped payment.

The sole question for determination by this court is whether defendant is entitled to a lien against the seized vehicle under the Oarage Keeper’s Lien Act to the full extent of the entire book account, supplies and services, or is he limited to the amount due and owing for gas, etc., supplied specifically to the seized vehicle? There is no exact case in point in this State.

In the absence of a statute conferring a lien, one who furnishes gas, oil, etc., for a motor vehicle is not entitled to a lien. However, such a lien may arise by statute. In New Jersey, such a statute, N. J. 8. A. 2A:44-21, has been enacted and, in part, roads as follows:

A garage keeper who shall store, maintain, keep or repair a motor vehicle or furnish gasoline, accessories or other supplies therefor, at the request or with the consent of the owner or his representative, shall have a lien upon the motor vehicle or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline, accessories or other supplies therefor, * * *. (Emphasis added)

The statute is in some respects declaratory of the common law artisan’s lion, except that it extends to motor vehicles for services and specified materials and services furnished, not known at common law.

Therefore, the Garage Keeper’s Lien Statute is the sole source of authority for creating such a lien and the added right to repossess to enforce payment thereof. However, the statute must be strictly construed since it is in derogation of the common law. Wallace v. Terpis Garage, 17 N. J. Misc. 183, 7 A. 2d 795 (1939). Also compare, Windsor Const. Corp. v. Budny, 93 N. J. Super. 235 (App. Div. 1966).

The statute clearly states that the “garage keeper shall have a lien upon the motor vehicle or any part thereof for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline, accessories, or other supplies therefor * * (Emphasis added).

Manifestly, by the plain language of the statute, the lien is limited to the vehicle serviced and can not be extended to include therein a lien to other vehicles serviced or supplied.

In an analogous situation construing a similar statute, the court in N. Y. Yellow Cab Co. v. Laurel Garage, 219 App. Div. 329, 219 N. Y. S. 671 (Sup. Ct. 1927), held that the statute created a specific lien on the vehicle serviced and not a general lien embracing other vehicles serviced. Compare, Susi v. Belle Action Stables, Inc., 261 F. Supp. 219, S. D. N. Y. (1966).

Accordingly, defendant is limited to a specific lien for the amount due and owing for supplies and services rendered to the particular vehicle seized.

At the oral argument, respective counsel stipulated that the amount due on the lien for the specific vehicle, including storage, is $401.89, for which amount this court hereby grants judgment to the defendant on his claim embraced in his answer, together with costs.


author: Gallnbe, P. J. J. D. E. C.

text:
    BERNICE H. BZOZOWSKI, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JULIUS J. BZOZOWSKI, DECEASED, PLAINTIFF, v. PENNSYLVANIA-READING SEASHORE LINES, A CORPORATION OF THE STATE OF NEW JERSEY AND LEO J. WNUK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued October 3, 1969
    Decided November 20, 1969.

      Mr. N. Douglas Bussell, attorney for plaintiff.

      Mr. Arthur J. Sills, Attorney General (Mr. William Gunal, Deputy Attorney General, appearing), attorneys for the Board of Public Utility Commissioners.
   Gallnbe, P. J. J. D. E. C.

(temporarily assigned).

Plaintiff served a subpoena duces tecum upon the Board of Public Utility Commissioners (hereinafter Board) in which she requested access to certain records in the Board’s possession. The documents sought to be inspected pertain to an investigation by the Board of a grade crossing of the Pennsylvania-Eeading Seashore Line located in Vineland, New Jersey, as a result of a fatality which occurred on or about August 8, 1967. Thereafter, the Attorney General, on behalf of the Public Utility Commission, moved to quash the subpoena.

Plaintiff has followed the improper statutory procedure to invoke the court’s aid in inspecting the documents sought here. Having been denied the right of inspection, her remedy should have been by way of a proceeding in lieu of prerogative writs for an order requiring the custodian of the records to produce. N. J. 8. A. 47 :lA-4. However, since the subpoena does not seek the production of the records in court nor any Board official to testify, it will be treated as though this action were brought on by a proceeding under N. J. 8. A. 47 :lA-4 and will be decided on the merits. The briefs and arguments raise a substantial question of law and the following of the prescribed procedure would not change the posture of the case at this point, nor would it alter the substantial questions involved. The action will be treated as if properly brought.

The chief question to be decided is whether the various investigations by the Board sought to be “discovered” are immune from such scrutiny. This query of necessity brings the court face to face with N. J. 8. A. 47:1A-1 et seq., and Board regulation 14:406-4 (4). N. J. 8. A. 47:1A-1 provides:

The Legislature finds and declares it to be tlie public policy of this State that publie records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest.

This policy is modified by the exceptions contained in N. J. 8. A. 47.TA-2. The Board claims that its regulation was passed by virtue of the authority vested in it by N. J. 8. A. 47 :lA-2. Plaintiff seeks to escape the thrust of this regulation in seeking discovery of the reports requested in the subpoena duces tecum.

The common law right of an interested citizen to inspect public records, Ferry v. Williams, 41 N. J. L. 332 (Sup. Ct. 1889), has been incorporated into the “Right to Know Law,” N. J. S. A. 47:1A-1, quoted above.

In implementing this policy so declared, the Legislature provided in N. J. 8. A. 47 :lA-2 that records are discoverable, “Except as otherwise provided in this act or by any other statute, * * * executive order of the Governor, rule of court, any Federal Law, regulation or order, or by any regulation promulgated under the authority of any statute on executive order of the Governor * * *.

Pursuant to the authority vested in him by N. J. 8. A. 47:lA-2, the Governor, in three executive orders, Kos. 7, 8, 9, empowered, the chief executive officer of each executive department of the State Government to adopt regulations specifying which records would be subject to public inspection. Acting under this delegated power, the Board promulgated regulation 14:406-4, subparagraph 4, which reads:

All records which are required to be made, maintained or kept by and for the Board which relate to accidents and investigation of accidents concerning public utilities and to safety inspections * * * shall not be deemed public records, copies of which may be purchased or reproduced under the provision of Chapter 73, P. L. 1963.

We must assume, without more concrete authority to the contrary, that the executive orders referred to were issued to carry out the general purpose of the “Right to Know Law” on the one hand and to protect and immunize certain critical governmental functions from public prying and scrutiny on the other. See N. J. 8. A. 47 :lA-3. The United States Supreme Court, in Jencks v. United States, 353 U. S. 657, 77 S. Ct. 1007, 1014, 1 L. Ed. 2d 1103 (1957), expressed that concept in this language;

It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government’s possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of government to adopt regulations “not inconsistent with law, for * * * use * * * of the records, papers * * * appertaining” to his department.

111 addition, the executive orders must be read in pari materia with the statute under which the Board is given rule-making power. It is noteworthy that our Legislature, long before the “Bight to Know Law,” contemplated the enactment of rules by a governmental agency necessary only for the protection of the public and not arbitrary or generally prohibitive, for in N. J. 8. A. 48 :2-12, it provided that “the Board may make all needful rules for its government and other proceedings.” (Emphasis supplied). This court reads “needful” as meaning necessary to accomplish a public protective purpose only.

First, it must be borne in mind that the Governor’s executive orders and any protective regulation promulgated thereunder must bear a relationship to public policy, the need to protect the record and the balance between such need and the interests of justice and litigants. Our courts have not been reluctant to strike down regulations deemed to be inimical to the provisions of N. J. S. A. 47:1A-1.

In Accident Index Bureau v. Hughes, 46 N. J. 160 (1965), the Supreme Court held a regulation of the Workmens Compensation Division denying inspection of records as being arbitary and discriminatory. The regulation there involved had a built-in motive to prevent a profit-making organization from prying into the records but, as the court held, legitimate persons were also thereby deprived.

In the present case there seems to be no legitimate purpose for regulation 14:406-4(4). It is broad in its scope; it does not serve a public interest geared to secrecy, but it does violate the intent of the “Right to Know Law.” It is self-serving. An examination of the Public Utility Act discloses that the regulation is repugnant to the statute regulating the Board. N. J. S. A. 48 :2-9 states:

The board shall furnish its secretary or in his absence an assistant secretary such of its findings and decisions as, in its judgment, may be of general public interest. The secretary or in his absence an assistant secretary shall compile the same for the purpose of publication in a series of volumes to be designated “Reports of the Board of Public Utility Commissioners of the State of New Jersey,” which shall be published in such form and manner as may be best adapted for public information and use. Such publications shall be competent evidence of the reports and decisions of the commission therein contained without any further proof or authentication thereof. The contents of the reports shall not be under the supervision or control of the official State editor.

It should be noted in this statutory mandate that the “reports” and “decisions” are to be published for public consumption. However, in this case plaintiff merely seeks an examination of the “reports” contained in the investigators’ records here in question.

The Board is endowed with certain powers as a governmental agency. Its general jurisdiction is outlined in N. J. S. A. 48:2-13 and 16. To give a governmental agency complete supervision over utilities which are tightly coupled with a public interest on the one hand, and to permit its inspections of grade crossings to be immune from public knowledge on the other, is an illogical process of the very principles of government and obviously repugnant to the very interest of the “Right to Know Law.” The only defense the regulation here under consideration could enjoy would be its need to protect the general public.

State v. Mayo, 4 Conn. Cir. 511, 236 A. 2d 342 (Cir. Ct. 1967) indicates that Connecticut has a “right to know” statute not dissimilar from our own gen. stat. § 1—19. That law contains a built-in prohibition to inspect and is expressed in the following language:

“Section 1-20 of the General Statute authorizes the refusal of permission to inspect or copy such records if such inspection would affect the public security or the financial interests of the state or any of its political subdivisions * * ®.”

This protective cloak is not unlike the exceptions written into the law of our own State or the executive orders thereunder. This court, like the court in Mayo, does not construe such permissive protective legislation as granting a public body a carte Manche right to enact arbitrary rules of prohibition without showing that such a protection of the records being shielded from scrutiny are vital to public security. One of the issues in Mayo was whether defendant’s denial of plaintiff’s request to inspect was for just and proper cause. This court, in deciding the issue before it, applies the same qualifying test.

It is urged by the Attorney General that to permit inspection of reports by utilities would encourage their filing less candid reports. The court will not explore this thesis since the reports sought here are those of the Board growing out of inspections, and not reports by utilities to the Board. N. J. S. A. 48:2-9 does not contemplate reports from utilities. Tt refers to “Beports of the Board of Public Utility Commission of the State of New Jersey.” (Emphasis supplied). See also the method of use of “all official documents,” as prescribed in N. J. 8. A. 48:2-10.

Parenthetically, it is the opinion of this court that this Board regulation does not immunize the inspection of the specific records which plaintiff seeks. Bather, the limited effect of the regulation is to prohibit copies of the records from being either purchased or reproduced.

Generally, inspection orders should issue upon proof that the desired inspection of documents will aid a plaintiff in the preparation of his case, or otherwise facilitate proof or progress at trial, or that a denial would prejudice plaintiff. Lakewood Trust Co. v. Fidelity and Deposit Co., 81 N. J. Super. 329 (Law Div. 1963). Further, in Guarriello v. Benson, 90 N. J. Super. 233 (Law Div. 1966), the court stated that inspection of public records will only be prevented where, on balance, more harm than good will result to the public interest.

In the present case it is difficult to perceive what harm would result to the Board if plaintiff is permitted to inspect its documents, nor are the Board members being requested to testify in any civil litigation, contrary to N. J. S. A. 48:2—38, or to engage in any other proceedings which would detract from their normal business activities, as Attorney General argues in his brief. In contrast, plaintiff is involved in civil litigation concerning the manner in which an individual met his untimely demise at a railroad grade crossing. The purpose of the litigation is to seek justice for all the parties involved. In order to accomplish this end the court should facilitate the discovery of relevant documents, absent a showing of substantial harm to the public’s interest in having the documents inspected. Plaintiff does not suggest that the reports would be evidential. However, discovery for the purpose of obtaining facts calculated to lead to the discovery of admissible evidence is proper. Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U. S. 689, 53 S. Ct. 736, 77 L. Ed. 1449, 88 A. L. R. 496 (1933); Lakewood Trust Co. v. Fidelity and Deposit Co., supra.

It is plaintiff’s necessity to exercise the now well-recognized right of discovery that overrides the Attorney General’s arguments that the Board’s records of inspection enjoy an immunity under the quoted Board regulation.

In the Lakewood Trust Co. case the Attorney General sought to invoke the protective cloak furnished by N. J. S. A. 17:9A-264 (immunity of investigations by the Department of Banking and Insurance). The court in weighing the privilege against the plaintiff’s needs, said:

The application of N. J. 8. A. 17:9A-264 presents a novel question in this State. No provision is made in the statute for breaching this confidentiality. However, the reports, even though confidential, may be inspected if the party seeking to inspect satisfies the court that the reports are material and relevant to the action and the ends of justice and public advantage are served by the inspection. The statute thus follows substantial precedent from other jurisdictions having similar statutes which have required the production of banking department reports when necessary to serve the ends of justice.

The Attorney General in the case at bar argues that the same principle does not apply to the Board regulation under consideration because N. J. S. A. 17:9A-264 contains a method by which the information sought can be obtained via court order for good cause shown, whereas the Board’s regulation does not contain such an enabling clause.

The Court cannot subscribe to this argument. The drafting of regulations so strict and unmalleable as to rob even the court of discretionary powers does not deserve the court’s protection, unless the ends sought to be met by such regulation are so valid in purpose that even a court cannot tamper with them.

If the delicate area of banking and insurance can be invaded by discovery, as was held in Lakewood Trust Go., the court fails to find any compelling reason not to invade the records of the Board and must create openings in the impregnable wall so arbitrarily built up around itself by the Board.

The Attorney General fears the possibility of a breakdown in candid reporting by utilities. As we said before, such reports are not before us, but assuming arguendo that they were, the court invokes the language of Lakewood Trust Go-.

The purpose behind y. J. S. A. 17:9-4-264 and statutes in other jurisdictions like it is to promote the efficient administration of the banking laws by encouraging complete and accurate investigations. This policy has been readily acknowledged in other jurisdictions. However, it was made subject to the rights of litigants in full and complete disclosure of pertinent facts in litigation.

The essence of this opinion is also found in that case where the court said:

The Attorney General argues that in the event the court opens the reports for inspection by the movants, the efficiency of the Department would be impaired. A potential decrease, if any, in efficiency of the Department has not been in other jurisdictions a basis for withholding material matter from litigation and should not be in this State. The public interest is best served by promoting fair and open trials free of surprise so as not to simulate a sporting event. Full disclosure of relevant matter is essential to accomplish this purpose. Further, where as here the reports sought to be withheld from litigants form a part of the complaint upon which the action is based, it is the opinion of this court that the interests of substantial justice require that the contents of those reports be made known to the party against whom they are being used. The fact that the reports may not be admissible in evidence at trial does not alter this conclusion.

It is apparent from the pleadings that, among other things, the construction and maintenance of the railroad grade crossing which was subject to the Board’s inquiry, is a basis for plaintiff’s allegations in her complaint. Full discovery and disclosure of these conditions are necessary to the preparation of her case and must perforce serve the ends of justice. If inspection of the grade crossing were a police matter, that would be the agency where plaintiff would need to seek her information. Her only source is the Board, an agency created for the purpose of serving the public in the area of public utilities.

It may well be that the right asserted here is of a qualified nature, but that should assist rather than foreclose plaintiff’s right to inspect.

This court need not rule on the total legality or illegality of the Board’s regulation. It is sufficient if the particular documents sought to be inspected are of such a character that this court is impelled to grant the relief sought on the ground that plaintiff here falls within a class of the public to whom the right to examine the Board records should not be denied. And so this court will follow the approach as found in 45 Am. Jur. Records and Recording Laws, § 17, at 427;

Every person is entitled to the inspection, either personally or by his agent, of public records, including legislative, executive and judicial records, provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. This rule, it is said, is not so much a denial of the right of every citizen to inspect the public records and documents as a declaration of the interest which a private individual must have to avail himself of the extraordinary writ of mandamus to enforce his right. In theory the right is absolute, yet in practice it is so limited by the remedy necessary for its enforcement that it can be denominated only a “qualified right.” The existence of a suit is not, however, a sine qua non for the exercise of the right.
In this country, the person asking inspection must have an interest in the record or paper of which inspection is sought and the inspection must be for a legitimate purpose, but interest as a citizen and taxpayer is sufficient in some instances. An attorney at law employed by a person having the right to an inspection has an interest which entitled him to an inspection.

The Board is a governmental agency; it is created to serve a specific service ior the people in the area of regulating public utilities. The various administrative agencies charged with certain regulating powers are creatures of the Legislature and as such are governed by statute except where enabling Legislation gives an agency rule-making powers. This rule-making power has now been interpreted in the Administrative Procedure Act, L. 1968, G. 410, which became effective January 14, 1969. N. J. S. A. 52 :14B-3 of that act provides.

B. In addition to other rule-making requirements imposed by law, each agency shall:
(1) adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests.

It is apparent from this statutory enactment that a total and invulnerable prohibition against inspection, as prescribed in regulation 14:406-4(4), supra, was never contemplated by the Legislature. It is the opinion of this court that the regulation is oppressive, for it does not even contain sufficient elasticity to apply to a competent court for the right to inspect, as provided for by N. J. S. A. 17:9A-264, which the Attorney General cites in his brief as distinguishing that statute from the regulation under discussion. The omission of a method for gaining access to the records of the Board does not protect it; on the contrary, its very arbitrary language condemns it.

The court is cognizant of the fact that certain areas of government are sensitive and, for the good of all, must be guarded from public scrutiny. But in this case, without a showing by the Attorney General what harm could befall the Board from the inspection sought by plaintiff, this court must consider that the various inspections made by the Board of the railroad crossing in question comprise information in the hands of a public servant to which the right of inspection attaches and falls squarely under N. J. S. A. 47:1A-1 et seq. and is not protected by the regulation of the Board. This policy was aptly expressed in the case of Moore v. Mercer County Board of Chosen Freeholders, 76 N. J. Super. 396 (App. Div. 1962), modified in 39 N. J. 26 (1962). The court there said;

Citizens of a self-governing society must liave tlie legal right to examine and investigate the conduct of its affairs, subject only to those limitations imposed by the most urgent public necessity. To that end they must have the right to simple, speedy enforcement procedure geared to cope with the dynamic expansion of government activity.
These rights must be elevated to a position of the highest sanction if the people are to enter into full enjoyment of their right to know. Freedom of information is the very foundation for all those freedoms that the First Amendment of our Constitution was intended to guarantee.

To this end it is determined that plaintiff is entitled to examine the records of the Board at a time and place convenient to the Board personnel. Upon submission of a proper Order such inspection will be directed.


author: Owens, J. S. C.

text:
    DIANE LEDBETTER, AN INFANT BY HER GUARDIAN AD LITEM, JAMES LEDBETTER, AND JAMES LEDBETTER, INDIVIDUALLY, PLAINTIFFS, v. LEON H. SCHNUR, LILLIAN F. SCHNUR, ROBERT B. STUART, AND DONALD SAVAGE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued October 17, 1969
    Decided November 25, 1969.

      Mr. Leo D. Burrell appeared for plaintiffs.

      Mr. Neil Reiseman appeared for defendant Robert B. Stuart (Messrs. Schreiber and Lancaster, attorneys).
   Owens, J. S. C.

Plaintiffs seek an order providing for service of process upon defendant Donald Savage by substituted service on the insurance carrier of defendant Robert B. Stuart, the owner of the motor vehicle involved in the accident.

The complaint alleges that plaintiff Diane, a pedestrian, was struck by two vehicles. One vehicle was owned by a co-defendant, Leon Schnur, and operated by Lillian Schnur. The other vehicle was owned by defendant Stuart (hereafter “owner”) and operated by defendant Savage. Savage was driving with the owner’s consent, but not as his agent. This accident occurred on March 29, 1969 in Cedar Grove, New Jersey.

Plaintiffs served the owner Stuart, but could not effect service upon the driver Savage, who apparently departed this State leaving no forwarding address. Plaintiffs’ attorney ■made an exhaustive but unsuccessful search to locate the driver.

The insurance carrier, Fidelity and Casualty Insurance Company, has entered an appearance for the owner, its named assured, and will eventually obtain a dismissal for lack of agency. The owner’s policy, under the omnibus clause, extends coverage to the driver. However, the carrier does not appear for the driver, presumably for failure to effect service.

Therefore, to restate the issue, plaintiffs seek to serve the driver by way of substituted service by serving the owner’s insurance company.

Plaintiffs urge as authority for the validity of such service the case of Rudikoff v. Byrne, 101 N. J. Super. 29 (Law Div. 1968). There the court allowed service of process on defendant pursuant to R. R. 4:4-4(j) and R. R. 4:4-5(a), the rationale of the holding being that although New Jersey did not expressly allow such service, the rules did permit service outside the State if such service were valid in that state. Service was made in New York State where such service is permitted. Dobkin v. Chapman, Sellars v. Raye and Keller v. Rappoport, 21 N. Y. 2d 490, 289 N. Y. S. 2d 161, 236 N. E. 2d 451 (Ct. App. 1968). This was a tri-case decision treated in one opinion. Dobkin and Sellars were cases of uninsured drivers where service on the Motor Vehicle Accident Indemnification Corporation was sustained. Since Keller v. Rappoport involved service on defendant’s insurance carrier, we shall hereafter refer to the decision only as Keller v. Rappoport.

Rudikoff v. Byrne, supra, clearly holds that service was allowed because New York law was followed. It also noted that at that time there was no precedent in New Jersey for such service.

It is true that no provision of our rules expressly permits service upon an insured by serving his insurance carrier, and there is no judicial precedent for it in our State. [101 W. J. Super., at 33]

Whether Rudikoff v. Byrne, could be used as authority for granting plaintiff’s motion is no longer important. It is recognized that there should be some provision in the rules to authorize this type of service. Carlin v. Schuler, 89 N. J. Super. 366 (Law Div. 1965). However, it is the opinion of the court that R. 4:4r-4(i), effective September 8, 1969, does in fact authorize the court to allow service on the driver Savage by serving the owner’s carrier if the court finds good cause. R. 4:4r-4(i) reads:

If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.

The tentative draft comment under this provision indicates it is intended to fill the gap in the present rules by permitting the court to direct service to be made in a particular manner where service cannot be effected pursuant to the other provisions of this rule, so long as the order is consistent with due process of law. It further suggests that such a provision is significant in circumstances where usual modes of service are cither impossible or unduly oppressive upon plaintiff or where the defendant successfully evades service of process.

The Court having authority to grant or deny plaintiff’s motion, we proceed directly to the issue.

The first question to be resolved is the mandate of R. 4:4^-4. By affidavit, plaintiffs’ attorney stated that he had visited the address that Savage gave the police. The owner of the premises advised him that Savage had moved without leaving a forwarding address. The attorney also mailed registered letters to the same address, which were returned marked “moved” and “no return address.” Therefore, R. 4:4^4(e), “Alternate Mode of Service,” could not be used. The affidavit also states that defendant’s mother resides at 7806 Charlesmont Road, Edgemere, Maryland, but certified letters sent to .that address have been returned unclaimed. Therefore, R. 4:4—5(a) cannot be used. See Carlin v. Schuler, supra; Zander v. Martine, 66 N. J. Super. 310 (Cty. Ct. 1961). Consequently, the only other mode of service would be that stated in B. 4:L-4(i).

The court now turns to the constitutional question of due process of law. In weighing the constitutional question, the court in Keller v. Rappoport, supra, held that due process is a matter of balancing several factors: (1) plaintiff’s need, (2) the public interest, (3) the reasonableness of plaintiff’s efforts to inform defendant, and (4) the availability of other safeguards for defendant’s interest.

In Keller plaintiff, a New York resident, sued to recover for injuries sustained when his automobile collided with defendant’s car. At that time defendant resided in Long Beach, Nassau County, New York. He moved from that place without leaving a forwarding address, and plaintiff was unable to serve him. Plaintiff was told that defendant had moved to California. Inquiry proved fruitless. Plaintiff then applied to the Supreme Court, Nassau County, for an ex parte order for substituted service under paragraph 4 of CPLR 308, which reads:

4. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraph one, two or three of this section.

That rule allowed the court discretion, providing it was exercised “consistent with due process of law.” The court applied the four factors and concluded that the ex parte order should be granted. It must be pointed out that section 4 of CPLR 308 is relatively the same as R. 4:<U4(i) of the New Jersey rules. Applying to this case the four elements set forth in Keller v. Rappoport and cited in Rudikoff v. Byrne, the following consequences appear.

First, it is obvious that plaintiffs’ cause of action would never be finally adjudicated if substituted service is not allowed. Plaintiffs cannot recover from the Unsatisfied Claim and Judgment Fund since the vehicle was insured. N. J. 8. A. 39 :6-70(f).

Second, the public interest is best protected by discouraging evasion of service, either deliberate or inadvertent. The case of Carlin v. Schuler, supra, demonstrates a prime example of what the courts are attempting to avoid. In the instant case it is obvious that defendant is deliberately evading service. Savage has moved from the address given to the police at the time of the accident. A check of his Maryland driving record further reveals that he was driving while his license was suspended. A hearing was scheduled by the Maryland Department of Motor Vehicles, concerning his driving record. The hearing was canceled for failure to locate defendant. It is exactly this type of connivance and obstruction of justice which our Supreme Court is attempting to avoid by adding B. 4:4-4(i) to our rules of court.

The third element is the extent of inquiry by plaintiff to locate defendant. Plaintiffs’ attorney by affidavit sets forth the various efforts made to locate defendant, including personal inquiry at his former Hew Jersey residence and at his last known place of emplojunent here; registered letters addressed to his residence, which were returned marked moved leaving no forwarding address; inquiry of the Hew Jersey Motor Vehicle Department as well as the Motor Vehicle Department of Maryland (Maryland being his previous residence), and inquiry by the local police department to the Baltimore, Maryland, police department, which disclosed that Savage no longer lived at his mother’s address there and also revealed that warrants were issued for his arrest on several motor vehicle violations in Maryland, among which was a charge for operating a motor vehicle without a license.

As to the fourth element, the safeguards for defendant, these are readily available to defendant himself. Anyone who drives a car knows that after such an occurrence he is likely to become a litigant. He can protect himself against the possibility of failing to receive actual notice by keeping his insurance carrier or state licensing agency informed as to his current residence.

As stated in Keller v. Rappoport, supra, 289 N. Y. S. 2d, at 173, 236 N. E. 2d, at 459,

“Indeed, in an automobile case, no defendant need be without notice unless he chooses and wants to be.”

The Court feels that under the circumstances of this case Savage has chosen to avoid service of process.

Our courts have not hesitated to approve publication where other service is not practical or possible. It has been recognized that in the ease of persons missing or unknown, employment of indirect or even a probably futile means of notification is all that the situation permits and does not render the service unconstitutional. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

This would be especially true where it appears from the facts that a person is deliberately avoiding service. It is the finding of this court that the elements of due process have been met.

Turning to the carrier’s contention that there was no contract between Savage and the carrier, the court is of the opinion that such an argument is without merit. The court may properly take account of the true objectives of these lawsuits in determining the reasonableness of the notice given defendants. Rappoport v. Keller, supra. In the present case the carrier admits a valid omnibus clause covered Savage. This insurance carrier knew, as does every carrier, that providing such coverage requires defense of such litigation. The carrier’s duty is not singular in nature but is a dual obligation. The second part of this duty or obligation belongs to the person who has suffered injury at the hands of the assured. His injury is the same whether caused by the owner-insured or the omnibus-insured. The carrier has provided for omnibus protection and it has now been called upon to answer for such protection.

In Pieret v. Murray, 59 Misc. 2d 201, 298 N. Y. S. 2d 201 (Cty. Ct. 1969), plaintiff made application to have defendant driver served by service 'upon plaintiff’s insurance carrier, plaintiff being a passenger in her own automobile. The Court denied the application because plaintiff had not shown sufficiently that service under other methods was impracticable. But as to the nature of the relationship between plaintiff, defendant and carrier the court said:

In light of Dobkin v. Chapman, 21 N. Y. 2d 490, 289 N. Y. S. 2d 161, 236 N. E. 2d 451, supra, it should not make any substantial difference in a situation likq the one in the case at bar that service of process be made on the defendant herein by service on plaintiff’s insurance canler and also by mailing to defendant’s last known address. Such mode of service would not violate the requirements of due process and would meet the standards set forth in the aforesaid Dobkin case. [298 N. Y. S. 2d at 203]

For the reasons set forth above and under the authority of R. 4:4—4(i), plaintiff’s motion for service upon Savage by substituted service on the insurance, carrier of the owner is hereby granted. .


author: Yafoef, J. D. C.

text:
    AVON SHEET METAL, CO., A CORPORATION OF NEW JERSEY, PLAINTIFF, v. HERITAGE HOUSE ASSOCIATES, A PARTNERSHIP CONSISTING OF EUGENE KLEINWACKS, MELVIN TOBIAS AND MAX DRILL, DEFENDANTS.
    District Court, Essex County
    Argued November 6, 1969
    Decided December 1, 1969.

      Mr. George Y. Sodowich appeared for plaintiff. (Messrs. Bickler, Rosenberg & Silver, attorneys).

      Mr. Leon Sack appeared for defendants.
   Yafoef, J. D. C.

Plaintiff seeks a contract recovery in two counts, one for the sum of $868.73, the other for the sum of $247.20, aggregating more than $1,000. Plaintiff refused to waive the excess over $1,000. The action was instituted prior to enactment of L. 1969, c. 177, effective October 14, 1969, and tried subsequent thereto. The testimony impels the following findings of fact and conclusions.

Defendant Heritage owns and operates an apartment house, known as Heritage House located in Morristown, New Jersey. The structure was built by Max Drill, Inc., which had employed Keith Crossman as project superintendent in the construction of Heritage House. Leaks appeared in the roof after the building was occupied.

Heritage notified Philip Drill, who was both vice-president of Max Drill, Inc., and the person who “ran the job” on Heritage House, about the leaks. Drill, in turn, communicated with plaintiff and asked it to patch the roof as best it could. Crossman lived in the building at the time and it was expected that he would handle a portion of the job, as agent for Drill. As a result, Leonard Tobias, an engineer employed by plaintiff, met Crossman on the roof and received from him specific instructions as to the areas to be repaired. Count I seeks recovery for the cost of doing this work. Crossman also asked Tobias to construct and install scuppers and leaders in another portion of the house for purposes not connected with the leaks. Count II seeks recovery for the price thereof. The scuppers and leaders were constructed but not installed because the price for the other work was not paid.

Heritage denies that Crossman was its agent for the purpose of ordering the scuppers and leaders, but does not dispute that Drill was authorized to order the roof repair on its behalf. The major defense to Count I is that the repairs did not remedy the leaks.

With respect to the scuppers and leaders, the defenses are that the order was not authorized, that the materials were not installed, and that the contract was not part of the roof repair eonract, but a separate one.

Preliminarily, the attention of the court is called to the fact that plaintiff’s claim exceeds the sum of $1,000, leaving it to the court to determine whether it has jurisdiction.

I

The jurisdictional issue will be considered first.

Clearly, County district court jurisdiction over the subject matter is restricted by the monetary and other limitations specified by statute. Friedman v. Podell, 21 N. J. 100 (1956); Andriola v. Galloping Hill Shopping Center, Inc., 93 N. J. Super. 196 (App. Div. 1966); Besser v. Krasny, 114 N. J. L. 146 (E. & A. 1934). The monetary limitation of the court has been increased many times, but whether an increase in jurisdictional amount operates on pending cases has not been determined.

Eor the purpose of determining jurisdiction, plaintiffs claims should be aggregated. 17 N. J. Practice (Fulop, District and Municipal Courts), § 175, at 82 (1954). In negligence actions, however, when “several distinct * * * claims are * * * asserted in one action on separate counts or otherwise” the county district court has jurisdiction notwithstanding that the said claims in the aggregate shall exceed $3,000.00 exclusive of costs, provided none of the separate distinct claims * * * exceed $3,000.00.” N. J. 8. A. 2A:6-34.1 See Ricciardi v. Rabin, 79 N. J. Super. 7 (App. Div. 1963). If the jurisdictional limits have been exceeded, under the former practice the action could be dismissed, Mooney v. Woolhouse, 77 N. J. L. 325 (Sup. Ct. 1909); or under current practice, the excess over $1000 waived, Andriola, supra, or the cause transferred to the County Court, Vorhies v. Cannizzaro, 66 N. J. Super. 551 (App. Div. 1961); see concurring opinion of Judge Conford in Ricciardi, supra, 79 N. J. Super., at 10.

If L. 1969, c. 177 (N. J. S. A. 2A:6-34), effective October 14, 1969, increasing jurisdiction in contract actions to $3000, is applicable to causes instituted prior thereto, disposition of the excess over $1000 need not be determined, and we hold that it is. The only change made by the amendment is substitution of larger amounts for previous jurisdictional limits. Significantly, the act reads:

1. Section 2A :6-34 of the New Jersey Statutes is amended to read as follows:
(a) Every action of a civil nature at law, other than a proceeding in lieu of a prerogative writ, and every action to recover any penalty imposed or authorized by any law of this State, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of $3,000.00, exclusive of costs, shall be cognizable in the county district courts of this State.

By its terms (§ 5) the act is effective immediately. “Cognizable” is defined, “in -law, within the jurisdiction of a court; * * *” New Twentieth Century Dictionary Webster’s (2nd ed.) The simple substitution of figures, complied with the immediate effective date, means that upon passage of L. 1969, c 177, the jurisdiction of the court was enlarged.

The same result is reached by applying general principles of statutory interpretation to what is, after all, a procedural change.

While statutes normally operate prospectively only, Nickell v. Gall, 49 N. J. 186 (1967), statutory language indicating a legislative intent that the statute operate retrospectively is given effect, in the absence of constitutional limitations, Howard Savings Institution v. Kielb, 38 N. J. 186 (1962); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N. J. 372 (1954). Remedial and procedural statutes are ordinarily given retrospective effect where the statute provides a change in the form of a new remedy for an existing wrong. Pennsylvania Greyhound Lines, Inc., at 381. Thus, a statute permitting a 5/6ths jury verdict was held applicable to pending cases because the rights affected related to remedy or procedure. Morin v. Becker, 6 N. J. 457 (1951). Here, both the language of the amendment and the nature of amendment impel the conclusion that the legislative intention was to enlarge the jurisdiction of the county district court, not only as to cases instituted subsequent thereto, but as to cases already pending. This is particularly true in view of the current legal disposition to override procedural technicalities in order to deal with the substantial issue involved. The language of Judge Gaulkin in Ricciardi, supra, well expresses this tendancy:

The drive of the present practice in all of our courts is to sweep aside all shibboleths and impediments which stand in the way of the swift decision of controversies on their merits, and even statutes which fix the jurisdiction of particular courts are interpreted in the light of our rules and our present practice to achieve that goal. [79 N. J. Super., at 9]

It is instructive that of the three cases which recently dealt with situations in which recovery in the county district court exceeded its monetary jurisdictional limit, only Andriola, supra, failed to find a means to sustain the recovery. Vorhies and Ricciardi, both supra.

II

The issue as to the roof repair is whether the contractor or the owner bore the risk of successful performance. It is not contended that the quality of workmanship or materials was inferior. Defendants argument is that it was the obligation of the contractor to rectify the leaks, and that in the absence of such rectification plaintiff may not recover.

In America-Foreign S. S. Corp. v. 9,000 Tons of Manganese Ore, 109 F. Supp. 765 (D. N. J. 1952), Judge Forman said

Whether a promise is made in consideration of actual performance or whether a risk of performance is assumed by the other party is a question of fact, with the presumption in a doubtful case said to be in favor of the former interpretation, [at 773]

In 6 Corbin on Contracts, § 1333, at 365 (1962), dealing with the situation in which “supervening discovery of facts * * * make the promised performance more difficult or expensive”, the author said:

In every case of the kind now under discussion, the Court must be alert to weigh any evidence to show a custom throwing the risk upon one party rather than the other, or to show that there was a mutual contemplation of its being borne by one of them, [at 371]

The testimony of Philip Drill shows conclusively that the risk of performance was to be borne in this ease by the owner. Max Drill, Inc. was the agent for the owner in entering into the contract with plaintiff, and the owner stands in his position. His testimony makes it plain that the repairs were to be made on an experimental basis. He stated frankly that if plaintiff did not stop the leaks, he would still be entitled to payment. Under the circumstances there must, therefore, be a finding of fact that the risk of performance was upon the owner, and that plaintiff is entitled to recover a judgment on the first count. Cf. Kennedy v. Reece, 225 Cal. App. 2d 717, 37 Cal. Rptr. 708 (D. Ct. App. 1964), in which it was held that a contract to dig a well did not guarantee that water would be produced. Cf. Mechanical Devices Co. v. General Builders, Inc., 27 N. J. Super. 501 (App. Div. 1953), rev’d 15 N. J. 566 (1954).

Defendant must prevail on the second count. While Crossman was defendant’s agent, via Philip Drill, as to the roof leaks, Drill had no authority to order scuppers and leaders, and in consequence could not confer authority upon Crossman.

It is also clear that the contract, if any, with respect to the scuppers and leaders was distinct from the roof repair. While, trader certain circumstances, nonperformance of a material nature of contract obligations on one side justifies refusal on the part of the other side to continue performance Restatement, Contracts § 317, at 471 (1932); Giumarra v. Harrington Heights, Inc., 33 N. J. Super. 178 (App. Div. 1954), aff’d 18 N. J. 548 (1955); Ridgely v. Walker, 82 N. J. L. 341 (Sup. Ct. 1912), aff’d 86 N. J. L. 590; Dixon v. Smyth Sales Corp., 110 N. J. L. 459 (E. & A. 1933), this is not such a case. Since the contracts for roof repair and supply of scuppers and leaders were separate, nonperformance on the part of the owner of a promise under one contract could not justify plaintiff’s nonperformance under another contract. Had there been evidence showing that plaintiff was justifiably concerned about collectibility, there might have been reason for its refusal to deliver and install the scuppers and leaders, in conformity with its contract obligation. The scuppers and leaders were of no value to the owner without installation. In a construction contract the builder must render substantial performance to be entitled to recover. Jardine Estates, Inc. v. Donna Brook Corp., 42 N. J. Super. 332 (App. Div. 1956). Since plaintiff did not perform its contract obligation with respect to these items, it is not entitled to recover, and there must be a judgment for defendant on the second count. Restatement, Contracts, § 399 (1), at 751 (1932).

       L. 1873, c. 119, Port I, p. 245; L. 1877, c. 150, §§ 7, 8 and 9, р. 234, L. 1898, c. 228, p. 556; L. 1923, c. 87, p. 167; L. 1950, с. 219, p. 546; L. 1953, c. 297, § 1, p. 1836.


text:
    HAROLD J. RUVOLDT, AND HAROLD J. RUVOLDT, JR., PLAINTIFFS-RESPONDENTS, v. JAMES A. TUMULTY, JR., PROSECUTOR OF HUDSON COUNTY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1969
    Decided October 22, 1969.
    Before Judges, Goldmans, Lewis and Matthews.

      Mr. Gregory J. Gastano, Assistant Prosecutor, argued the cause for appellant (Mr. James A. Tumulty, Jr., Hudson County Prosecutor, attorney pro se).

      Mr. Harold J. Ruvoldt, Jr. argued the cause for respondents (Messrs. Ruvoldt & Ruvoldt, attorneys pro se.

      Mr. Arthur J. Sills, Attorney General, filed a statement in lieu of brief (Mr. Kenneth M. Olex, Deputy Attorney General, of counsel).
   Per Curiam.

This matter has been heard on an accelerated basis at the request of the parties.

We affirm substantially for the reasons expressed in the oral opinion of Assignment Judge Artaserse. 107 N. J. Super. 545. Costs to' plaintiffs.


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

text:
    GEORGE THEODORE JAMAR, JR., AN INFANT BY HIS GUARDIAN AD LITEM, GEORGE THEODORE JAMAR, SR., AND GEORGE THEODORE JAMAR, SR., INDIVIDUALLY, PLAINTIFFS-APPELLANTS v. TYRONE HODGES, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1969
    Decided November 28, 1969.
    Halpern, J. A. D., dissented.

      Before Judges Sullivan, Cabton and Halpeen.

      Mr. Leonard 8. Sachar argued the cause for appellants (Messrs. Sachar, Sachar & Bernstein, attorneys).

      Mr. Lawrence 8. Grossman argued the cause for respondent (Messrs. Burton, Quaclcenboss cfi Axelrod, attorneys).
   The opinion of the Court was delivered by

Sullivan, P. J. A. D.

This appeal in a pedestrian automobile accident case involving an uninsured driver, raises the question whether a proposed additur to a jury verdict fixing damages requires the consent of the Unsatisfied Claim and Judgment Fund in addition to the consent of the uninsured driver-defendant. The trial court held that it could not enter the additur as a judgment without the Fund’s consent. We affirm this ruling.

Plaintiff George Jamar, Jr., then age 19, was struck by an automobile operated by defendant Tyrone Hodges, an uninsured driver. Suit was instituted for the infant’s injuries by his father as guardian ad litem, who also sued individually for his son’s medical expenses and loss of his son’s services. The Fund, having received proper notice of the claim, assigned it to an insurer for investigation and defense. N. J. 8. A. 39:6-66. Counsel was retained to represent the defendant. N. J. 8. A. 39 :6—67.

After a plenary jury trial on the issues of liability and damages, the jury returned a verdict in favor of the infant plaintiff for $3,000. The father was awarded $3,000 on his claim. The infant plaintiff thereupon moved to set aside the jury verdict and for an additur, or, in the alternative, for a new trial as to damages only. The court ordered that if defendant would accept an additur of $2,500 for plaintiff George Jamar, Jr., thereby increasing his total recovery to $5,500, judgment would be entered accordingly. The court also determined that if defendant did not accept the additur, the verdict as to both plaintiffs would he set aside as to damages only and a new trial granted on the issue of damages.

Counsel assigned to represent the uninsured defendant reported to the court that the uninsured defendant elected to accept the additur, but that the Fund was unwilling to agree to it. The trial court ruled that it had no authority to order additur in the case over the objection of the Fund and it therefore ordered a new trial as to both plaintiffs limited to the issue of damages.

Plaintiffs filed a notice of appeal from the aforesaid determination and in due course submitted their brief and appendix on appeal. An answering brief was filed in the name of defendant, but actually supporting the position of the Fund. Prior to oral argument the court called counsel’s attention to the fact that this was an attempted appeal from an interlocutory ruling taken without leave of court. Plaintiffs then asked the court to grant leave to appeal nunc pro tunc. Since the matter had been fully briefed and was ready for argument, and since tire issue was an important one, this court granted leave and agreed to hear the merits of the appeal.

We are satisfied that under the circumstances here presented the consent of the Eund was a prerequisite to the entry of an additur. Although no order for payment of any judgment out of the Eund has as yet been made, it is not seriously contended that the Eund will not have to pay the amount of any judgment entered in this cause, up to the limits of its liability. It therefore had a sufficient interest in the case, even though not a party thereto as such, to be heard on the question of an additur.

We recognize that defendant in this case, the uninsured driver, did give his consent to the additur. However, such consent cannot be binding on the Eund. Even though defendant will be legally liable for any judgment entered, realistically speaking, the judgment also involves the Eund. The act provides that in any case in which an insurer has assumed the defense of an action, defendant shall cooperate in the defense of such action. N. J. 8. A. 39 :6-68. It seems fundamental that under these circumstances the Eund should have an equal right to accept or reject the additur. Cf. Fisch v. Manger, 24 N. J. 66 (1957); Moran v. Feitis, 69 N. J. Super. 531 (App. Div. 1961).

It is to be noted that under the act, N. J. 8. A. 39:6-72, a settlement of an action against an uninsured motorist requires, inter alia, (1) a confession of judgment by defendant as to the amount agreed upon, (2) approval of the proposed settlement by the trial court, and (3) approval thereof by the manager of the Eund. This is so even though the Eund is not a party to the action.

For the reasons heretofore stated, we hold that the trial court properly determined that it was without authority to order an additur unless the Eund consented to such additur.

Our dissenting colleague holds that the uninsured defendant’s consent to the proposed additur should be sufficient to impose the additur unless the Eund shows good cause to the contrary. We cannot agree. Here, a jury fixed the amount of the infant’s damages after a plenary trial. The Eund cannot be required to become liable for a larger award without its consent except by retrial. That is the essence of the practice of additur.

In the instant case the proposed additur did not involve the verdict in favor of the father on his per quod claim. However, the court ordered a new trial on the issue of damages as to both plaintiffs, in the event the additur was not accepted. Appellants have not challenged the order for a new trial as to the father’s damages except on the ground that the additur should have been entered.

Affirmed.

Halkekn, J. A. D.,

(dissenting). I respectfully dissent, The facts set forth in the majority opinion should be supplemented to indicate that defendant was driving plaintiff’s car, which he had taken without permission, when he ran him over. Plaintiff sustained serious injuries and was hospitalized for about ten days; part of the time he was confined to the intensive care unit. He suffered body burns resulting in extensive scarring, requiring future plastic surgery at an estimated cost of $1,125. The medical bills incurred and out-of-pocket expenses amounted to about $1,400. The trial judge found, as a matter of law, that plaintiff was not guilty of contributory negligence.

These supplemental facts are recited to show there was ample justification for the additur allowed. In fact, counsel for the Eund recommended its payment. The only reason the trial judge ordered the new trial on damages was his conclusion that he could not impose additur without the Eund’s consent.

I disagree with such conclusion. The Eund has the right to be heard and refuse to consent, but such decision must not be made arbitrarily and capriciously, to the detriment of the plaintiff, defendant, and the public whose funds it administers. In this ease, so far as the record reveals, no reason whatsoever was given by the Eund'for its decision.

The Eund is a public bodjq whose officers hold positions of public trust. They are required, to exercise, their statutory duties in good faith, and on fair and intelligent consideration, with loyalty to the public, the courts and litigants. If the Fund’s actions are deemed arbitrary, they are subject to. judicial scrutiny for reasonableness. See Terminal Enterprises, Inc. v. Jersey City, 54 N. J. 568 (Decided November 5, 1969).

The Legislature’s purpose in establishing the. Eund and delineating its responsibilities is set forth in Douglas v. Harris, 35 N. J. 270 (1961):

The purpose of the Fund is to provide a measure of relief to persons who sustain losses or injury inflicted by financially irresponsible or unidentified operators of motor vehicles, where such persons would otherwise be remediless. Corrigan v. Gassert, 27 N. J. 227 (1958), Dixon v. Gassert, 26 N. J. 1 (1958). The statute is to be liberally construed to advance the remedy, due regard being had to the protection of the Fund against fraud and abuse and to the fulfillment of the essential legislative policy. Giles v. Gassert, 23 N. J. 22, 34 (1956). The Fund is created for those purposes by charging fees to registrants of uninsured motor vehicles and by levying assessments against liability insurance companies doing business in New Jersey and is regarded as a trust fund for the stated purposes and the cost of administration. Wormack V. Howard, 33 N. J. 139, 143 (1960). The public interest demands that the Fund, although a trust fund for those individuals injured by financially irresponsible or unidentified operators of motor vehicles, be administered in a fashion to assure that only those persons legitimately entitled to participate in its benefits are paid therefrom. This is a duty imposed by public policy and owed to the contributors as well as the general public. See Myers v. Cave, 55 N. J. Super. 185 (App. Div. 1959). [at 279]

A consideration of the Eund Law as a whole' reveals a statutory scheme placing the ultimate decision for payment from the Fund, in most instances, upon the judiciary. The courts are the guardians of the trust money held in the Fund. Szczesny v. Vasquez, 71 N. J. Super. 347, 358 (App. Div. 1962). It must'hear all applications for the payment of judgments obtained against uninsured drivers. N. J. 8. A. 39 :G-69. It must be satisfied that the claimant (judgment creditor) has complied with all the conditions entitling him to payment; and the Fund is empowered to appear and be heard as to “why the order should not be made.” A. J. 8. A. 39:6—70. In dealing with payment of a judgment consented to by a defendant, the statute requires notice to the Fund to afford it an opportunity to be heard, but it permits the court to order payment “in such sum as the court shall determine to be justly due and payable out of the fund, * * A. J. 8. A. 39 :6-7h. These statutes spell out a legislative intent requiring the Fund to show some reasonable basis as to why the court should not enter the order to pay the judgment.

A distinction must be drawn between settlements of ¡lending cases requiring Fund approval under A. J. 8. A. 39 :6-72 and the situation before us. In the instant case there has been an adversary jury trial. Defendant’s responsibility for the accident has been established (it was never seriously in dispute). The Fund is willing to pay the judgments totalling $6,000 but not $8,500. The trial judge, with full realization of his responsibilities, made the factual determination that the infant plaintiff’s judgment should be raised from $3,000 to $5,500. Defendant agreed such was fair and consented to the additur. Such consent, under these circumstances, should be sufficient to impose the addiiur unless the Fund shows good cause to the contrary.

It is more probable than not that on a retrial limited to damages the verdicts will exceed $10,000 (the Fund’s limit of responsibility). The excess over $10,000 theoretically will have to be paid by defendant, and his interests should be considered in view of all the circumstances. Why should the Fund be entitled to gamble at his expense without giving some reason for its actions?

I appreciate the fact that while defendant is the real party in interest the Fund, in the first instance, will have to pay the judgment. This gives it standing to be heard. In fact, A. J. 8. A. 39:6-67 authorizes the Fund to appear on behalf of defendant and in his name conduct his defense and take an appeal if thought desirable — “and all such acts shall be deemed to be the acts of such defendant.” This statutory provision is comparable to a similar clause usually contained in policies of liability insurance permitting the insurance carrier to control the course of the litigation. If we were dealing with an insured defendant, there would be no problem. The insurance carrier would be gambling with its own money, and if the subsequent verdicts exceeded the policy limits, the insured could conceivably obtain relief against it for any excess. Whether such right exists for an uninsured defendant against the Fund is problematical.

And what about the infant plaintiff? The trial judge concluded he was entitled to the additur, and plaintiffs and defendant consented thereto; hence no fraud or abuse exists. In fact, a possible benefit exists to the Fund since its assets could be depleted by an additional $1,500, if the subsequent verdicts exceed $10,000. If the view of the majority is accepted, the injured plaintiff, for whose benefit the Fund Law was adopted, and who has indicated his willingness to accept the additur in order to avoid the trouble and expense of another trial, is bound by what may be the arbitrary action of the Fund.

I would remand with instructions that the Fund be ordered to show cause to the trial judge, on notice to all parties, why the additur should not be allowed.


author: Collester, J. A. D.

text:
    HARRY S. DRAKE, JR., PLAINTIFF-APPELLANT, v. CITY OF RAHWAY, A MUNICIPAL CORPORATION OF NEW JERSEY, AND SIDNEY H. STONE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1969
    Decided December 1, 1969.

      Before Judges Corroed, Ooi.lester and Kolovsky.

      Mr. Calvin J. Hurd argued the cause for appellant.

      Mr. William, 8. GurJcin argued the cause for respondents.
   The opinion of the court was delivered by

Collester, J. A. D.

Plaintiff appeals from a summary judgment entered in the Law Division in favor of defendants which dismissed his complaint in an action in lieu of prerogative writs.

On January 17, 1966 plaintiff, a member of the Rahway Fire Department, submitted a letter of resignation "effective immediately on the above date.” On January 20 he submitted a second letter stating that he was withdrawing his resignation. The city considered plaintiff’s resignation as having been effective on January 17 and refused to honor his attempted withdrawal. However, it carried him on the payroll until February 14 to provide compensation for his accrued vacation credits.

On January 25, 1968 plaintiff sent a letter to the business administrator of the city requesting that his name be placed on the regular reemployment list pursuant to N. J. 8. A. 11:22-10.3. Copies of the letter were sent to the Rahway Fire Department and the Civil Service Commission. On February 6, 1968 the business administrator, advised plaintiff’s attorney that the request was denied because it had been presented more than two years after the effective date of plaintiff’s resignation. On August 6, in reply to a letter from the business administrator, the Civil Service Commission advised that plaintiff’s resignation had not been effective until February 15, 1966 but that plaintiff had not applied to the Commission for inclusion on the reemployment list in • accordance with Civil Service Circular No. 100.

Plaintiff filed a complaint in lieu of prerogative writs for a judgment to compel defendants to place his name on the reemployment list and to restrain the city from appointing persons to the fire department whose applications were received subsequent to January 25, 1968. An ex parte temporary restraining order was entered. Defendants filed an answer alleging, inter alia, that plaintiff had failed to apply to have his name placed on the reemployment list within the time limited by law; that the chief examiner and secretary of the Civil Service Commission had the authority to place plaintiff’s name on the reemployment list, and defendants had no such authority; that assuming defendants had such authority, they did not recommend inclusion of plaintiff’s name on the list because of his record of past performance, and that his reinstatement would not he in the best interest of the service. They further alleged that the Civil Service Commission was an indispensable party to the action and plaintiff had failed to include it.

On the day scheduled for a hearing on whether the temporary restraint should he continued until final judgment was entered, the parties requested the court to consider and treat the matter as though both sides had moved for summary judgment. The trial judge raised the issue of whether the Law Division had authority to deal with the case or whether plaintiff should have appealed to the Civil Service Commission. He directed that briefs be submitted and adjourned the hearing. Plaintiff then filed a motion to amend his complaint to add the Civil Service Commission as a party. On the adjourned motion day plaintiff did not appear and the court entered judgment for defendants. While the order for judgment recites that the court considered the argument of counsel and briefs submitted by them, it specifies no grounds for the court’s action except the failure of plaintiff’s attorney to appear. However, a review of the transcript provided us indicates that the judgment of dismissal was based on the court’s conclusion that it had no jurisdiction “over the appeal from the action of the Civil Service Commission.”

N. J. S. A. 11:22-10.3, which permits a municipal employee who has resigned from his position to apply for reinstatement on the civil service reemployment list, provides as follows:

When an employee in the classified service of any *• * * municipality * * * who has resigned in good standing shall have requested his reinstatement thereto, the chief examiner and secretary shall cause the name of such employee to be placed on the regular re-employment list for the appropriate class. The name of no such employee shall be placed on the said regular re-employment list unless (1) the employee’s request for reinstatement shall have been made within 2 years after the effective date of his resignation, and (2) the appointing authority shall have recommended that, because of the employee’s record of past performance, reinstatement would be in the best interests of the service. * * *

Civil Service Circular No. 100, which was issued to explain the operation of the statute, states that “the procedure for placement on the regular re-employment list must be initiated by the employee through a request to the appointing authority,” and further, that “the employee’s request for re-employment shall have been received by the Department of Civil Service within 2 years after the effective date of his resignation.”

Plaintiff contends that the trial court erred in dismissing his complaint on the ground that it was an appeal from an action of the Civil Service Commission over which it had no jurisdiction. He alleges that he complied with the requirements of the statute and the Civil Service Circular by submitting his request for reinstatement within the two-year period following his resignation, and that the appointing authority failed to recommend his reinstatement solely because of a mistaken conclusion that his request was made out of time. He argues that his complaint was properly brought under B. B. 4:88-l and 2 [now B. 4:69—1] to compel the appointing authority to perform a ministerial act.

Defendants contend that the trial court did not err in dismissing the complaint on the ground of lack of jurisdiction. They allege that plaintiff was required to first apply to the Civil Service Commission and if his request was denied, his remedy was to appeal to this court pursuant to B. B. 4:88-8(a) [now B. 2:2-3 (a)(2)]. They further allege that, in any event, plaintiff is not entitled to reinstatement because (1) his request was made more than two years after the effective date of his resignation, and (2) the city would not recommend his reinstatement because he had confessed to crimes committed during his previous employment as a city policeman, for which he had been indicted, although the indictments were dismissed because his confession was legally inadmissible at a criminal trial.

We are satisfied that the trial court should not have dismissed the complaint for lack of jurisdiction. This was not an appeal from a final decision or action of the Civil Service Commission which is appealable only to this court under B. B. 4:88-8(a), now B. 2:2-3(a) (2).

Moreover, we do not believe that plaintiff’s claim for relief lay in an appeal to the Civil Service Commission. It is obvious from a reading of N. J. 8. A. 11:22-10.3 that before the Civil Service Commission could place plaintiff’s name on the reemployment list, the appointing authority would have to recommend such action. Such a recommendation was a statutorily required condition precedent.

The complaint filed by plaintiff, in substance, charged the appointing authority with violation of the provisions of N. J. S. A. 11:22-10.3 by arbitrarily refusing to recommend plaintiff’s reinstatement on the reemployment list. In our opinion plaintiff was entitled to bring an action in the Superior Court, Law Division, for a review of the city’s alleged unlawful action by a proceeding in lieu of prerogative writs. N. J. S. A. 11:25-4; B. B. 4:88-2, now B. 4:69-l. Cf. Board of Chosen Freeholders of Hudson County v. Brenner, 25 N. J. Super. 557, 565-566 (App. Div. 1953), aff’d sub nom. Board of Chosen Freeholders of Hudson County v. Smith, 14 N. J. 348 (1954). Accordingly, the judgment dismissing the complaint must be reversed and the case remanded to the court below for a plenary hearing.

There is an obvious ambiguity in both N. J. S. A. 11:22-10.3 and the Civil Service Circular as to whom a request for reinstatement on the reemployment list should be submitted. It is undisputed that plaintiff's request of January 25, 1968 was submitted to the city, with a copy thereof sent to the Civil Service Commission. Insofar as it is relevant, we hold that this was proper service of his request, in compliance with both the statute and Civil Service Circular. However, we do not pass on the question of whether the request was made within the two-year limitation period since it is apparent that this may involve a question of fact to be determined by testimony. Assuming that plaintiff's demand for reinstatement is found to be timely, the basic issue to be decided at the hearing is whether the appointing authority was arbitrary in refusing to recommend plaintiff's reinstatement. The trial court should conduct a full hearing on plenary proofs and decide both the factual and legal questions concerning this issue.

The judgment is reversed and remanded to the Superior Court, Law Division, for proceedings consistent with the above conclusions.