author: Lora, J. S. C.

text:
    THE BOARD OF EDUCATION OF THE CITY OF BAYONNE, IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. FRED KOLMAN, t/a COLORAMA, INTERNATIONAL FIDELITY INSURANCE COMPANY, A CORPORATION, BROADWAY NATIONAL BANK OF BAYONNE, A BANKING INSTITUTION, SINGER HARDWARE AND SUPPLY CO., INC., WINDALUME CORPORATION, BILDISCO, A PARTNERSHIP, M. POSNOCK, INC., AND VETTER BROS. GLASS CORP., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 8. 1970.

      Air. John J. Pagano, attorney for plaintiff.
    Messrs. Dembe and Dembe, attorneys for defendant cross-claimant The Broadway National Bank of Bayonne.

      Messrs. McGlynn and McGlynn, attorneys for defendant International Fidelity Insurance Co.
   Lora, J. S. C.

Broadway National Bank of Bayonne (Broadway) loaned money to defendant contractor Fred Kolman, t/a Color ama, who subsequently defaulted on his contract with the Board of Education of the City of Bayonne for certain repair work at several schools. The purpose of the loan was to enable Kolman to pay his laborers and acquire supplies.

International Fidelity Insurance Company (International), the surety of the contractor, refuses to pay Broadway, denying Broadway has any status under the Municipal Mechanics Lien Act or the Bond Act. Broadway, at the time of the advance to Kolman, perfected a security interest in the contractor’s accounts receivable.

Initially, Broadway states that on August 25, 1967, and pursuant to N. J. S. 2A:44-135, the board of education served all parties with an order to show cause why certain lien claims, including that of the bank, should not be paid, returnable before said board on September 1, 1967; that defendants International and Kolman defaulted on that occasion, made no appearance, nor in any other way eon-tested the claim of Broadway at that time. Thereafter, on September 14, 1967 the board, by resolution, declared Kolman to be in breach of his contracts. The board, however, did not pay any of the liens and in April 1969 instituted this interpleader action.' It is the position of Broadway that International is estopped and legally barred from challenging the validity of its lien claim.

N. J. S. A. 2A:44-128 provides for a lien against funds held by a public agency on a public improvement contract, in favor of a “laborer, mechanic, materialman, merchant or trader, or sub-contractor,” who “performs , any labor or furnishes any materials, including the furnishing of oil, gasoline or lubricants and vehicle use, toward the performance or completion of any such contract.” The mechanics for establishing such lien claim are provided for in N. J. S. A. 2A:44-132 to 134.

Pursuant to N. J. S. A. 2A:44-135 the public agency involved may serve notice, upon the contractor and upon any person who may appear to have an interest in the fund in the possession of the public agency, that the claim is filed, and requiring the contractor or such persons in interest to show cause before the governing board of the public agency, within five days from the service of notice, why the claim should not be paid. N. J. S. A. 2A:44-136 authorizes the public agency to pay any such lien claim without the order of any court, out of the funds in its possession upon which the claimant has a lien, unless the contractor or person in interest files a statement, duly verified, that the lien claim is unfounded and untrue, specifying in what respects the same is unfounded and untrue.

It would appear, however, that this section of the statute is merely discretionary and not mandatory. Here,, despite the failure of the contractor or the bonding company to appear, the board of education nevertheless chose not to pay any of the claims presented. Since no payment of any claims was made by the board, it follows that the failure of the contractor and his bonding company to appear did not in any way prejudice the position of Broadway or any other claimant. Hence no estoppel arises against defendant International.

The enforceability of Broadway’s lien claim was thereby left to this court, in accordance with N. J. S. A. 2A:44-137. The basic issue for this court’s determination, simply stated, is whether one who advances money to a contractor to enable him to pay laborers or to acquire materials is entitled to a mechanics lien, or is entitled to be subrogated to the position of the laborers paid off with said funds or to the position of the supplying materialman. It is my opinion that such third person is not entitled to a mechanics lien nor is he entitled to be so subrogated, in the absence of an assignment of the mechanics lien or of an agreement for such a lien, or of an obligation to make the loan or advancement, or a necessity to discharge such claim in order to protect his rights or interests. 36 Am. -Jur., Mechanics Liens, § 79 (1941).

Support for this conclusion is found in In re North River Construction Co., 38 N. J. Eq. 433 (Ch. 1884), affirmed 40 N. J. Eq. 340 (E. & A. 1885), where a superintendent of a construction project advanced some $6,000 to the company to pay laborers on the job. He expected to be reimbursed by the company, but the company subsequently was adjudged insolvent and he never received the $6,000. It was held plaintiff was not entitled to a mechanics lien for the $6,000 he had advanced, nor was he entitled to be subrogated to the position of the workmen paid off.

The court rejected the creation of any direct mechanics lien, stating (at 435), “it is entirely clear that if he has any claim to such lien it must be on the principle of subrogation in equity.” Then, in denying subrogation to the position of the workers paid off, the court said that “[it] has never been held that one who lends or advances money to a corporation to enable it to pay laborers, who, if their wages had remained unpaid, would have been entitled to the lien therefor, is, merely by virtue of such loan or advanee, entitled to that lien by equitable subrogation.” (at 437).

The Chancellor stated the rationale behind the Mechanics Lien Act and why it necessitated denial of subrogation to plaintiff as follows:

The statutory lien given to workmen is to be confined within its legitimate limits. It is not to be extended by a forced application of the principle of subrogation in equity to cases not within the mischief which the law was designed to remedy. The object of the Legislature was to secure to a very meritorious but helpless class of persons the payment of the wages of their toil, and to that end to give them, personally, a paramount lien on the assets of the employer. It did not contemplate giving to creditors from whom the company might borrow money on its own credit with which to pay its workmen, such a lien on the assets for their reimbursement, [at 437-438]

The headnote to the ease of Williams v. Bradford, 21 A. 331 (Ch. 1891), reads, “Such law [Mechanics Lien Law] does not apply to a general creditor who has furnished the contractor money with which to pay for labor or material.” In Williams a bank had loaned money to a contractor to be used in the purchase of material and the payment of labor. The owner filed an interpleader, and while other claimants were given the status of mechanic lienors, the bank was denied that status because, as the court stated, the prerequisites to that status included the following which the bank did not satisfy:

He must be a creditor of the contractor; not a general creditor, but a creditor whose debt was contracted for work done to the building erected by the contractor for the owner, or for material furnished for the building, [at 331],

More recently in Tolland v. Lista, 46 N. J. Super. 272 (App. Div. 1957), the principle was again confirmed. There the lender advanced $3,350 to the contractor, his son, in order that he might purchase a shell needed in the construction of a dwelling. The Appellate Division denied the claim by the lender that he had the status of a mechanics lienor, stating:

The basis of a mechanic’s lien claim is the existence of a debt due and owing for labor performed or materials furnished. Plaintiff admits that if the money advanced by Mm was simply a loan to his son, who as builder then purchased the materials which went into the job, then he is not entitled to the lien claimed. Evans v. Lower, 67 N. J. Eq. 232, 235 (Ch. 1904). [at 276]

The lender attempted to show, unsuccessfully, that the transaction was in effect a novation wherein he was substituted for his son as purchaser from the supplier and consequently the direct supplier of the shell to the contractor. And in Evans, supra, the court denied mechanics lien status to a claimant who advanced money to the contractor to buy millwood which the lender was not in the business of supplying.

It follows, then, that Broadway is not a valid lien claimant to the funds which were held by the board of education and subsequently “turned over” to the bonding company. International received the sum on deposit with the board, totaling $19,533.62, in return for an agreement to hold the board harmless on any judgment entered in the bank’s favor, and thereafter disbursed a total of $33,646.63 to the lienholders who agreed to settle their claims. The total amount of claims filed, excluding the bank’s claim, was $35,246.63.

Broadway further contends that it has status under the performance bonds. The two bonds issued pursuant to statute for the protection of the school district as well as to guarantee payment for “all labor performed or materials, provisions, provender or other supplies, teams, fuels, oils, implements or machinery used or consumed in, upon, for or about the construction, erection, alteration or repair of such buildings, works or improvements.” N. J. S. A. 2A:44-143. The statutory form of bond is prescribed by N. J. S. A. 2A:44-147 and the bonds herein are identical to the statutory form.

Our courts have held that the Bond Act, the Municipal Mechanics’ Lien Act and Trust Fund Act (N. J. S. A. 2A:44-147, 148) are in pari materia and must be read together. Key Agency v. Continental Cas. Co., 31 N. J. 98, 104 (1959), Morris Cty. Industrial Park v. Thomas Nicol Co., 35 N. J. 522, 526 (1961).

Key, in effect, denied mechanics’ lien status to a plaintiff who had furnished workmen’s compensation and public liability insurance coverage to the contractor engaged in building schools, in holding that the protection of the Trust Fund Act extended only to persons who could go against the public contractor’s surety on the payment bond. The Key court went on to say:

And, while the point has never been expressly decided in this State, it would clearly appear that plaintiff in providing workmen’s compensation and public liability insurance to the general contractor did not perform labor or furnish “materials, provisions, provender or other supplies, teams, fuels, oils, implements or machinery used or consumed in, upon, for or about the construction, erection, alteration or repair of * * * buildings, works or improvements.” N. J. S. 2A:44-143. [at 109, 110]

In Morris Cty. Industrial Park v. Thomas Nicol Co., supra, which was an action to enforce claims under the Municipal Mechanics’ Lien Law. and Bond Act, Justice Hall for the Supreme Court stated:

All this language in the lien law evidences to us without question that the Legislature has limited a right of lien to a materialman supplying either the general contractor or a subcontractor. * * *
To turn to the bond act, somewhat different language is used, but we feel constrained to say that it has to be similarly limited. Section 143, previously quoted in full (N. J. S. 2A:44-143), in defining the additional obligation required to be contained in the performance bond, specified that it shall be “for the payment by the contractor, and by all subcontractors, for all * * * materials * * * used or consumed in, upon, for or about the construction * *
The following section, N. J. S. 2A:44-144, prescribes the condition of this obligation of the bond in the same language, but including as well subcontractors of subcontractors. The precise form of the bond, set out in N. J. S. 2A:44-147, though couched in somewhat different phraseology, must be read in the light of the foundation provisions of the preceding sections just cited.
There are some instances where the bond act gives protection and the lien law would not. Eor example, the latter is not available where the project is by the State itself, as has been noted. The bond aet permits a claim against the surety for a period of up to 80 days after the acceptance of the improvement, N. J. S. 2A:44-145, while the lien law benefit is limited to a claimant who files a notiee of lien within 60 days following acceptance. And there may be other situations. Cf. Wilson v. Robert A. Stretch, Inc., supra, 44 N. J. Super. 52, 59 A. 2d 599. But we feel there is not sufficient legislative indication of intended difference between the two acts with respect to the issue before us [at 529-530]

Again, in Hiller & Skoglund, Inc. v. Atlantic Creosoting Co., Inc., 40 N. J. 6, 13 (1963), the court pointed out that while, generally speaking, the benefits oi the Bond Act are broader and the protection greater than the right of lien, the act requires the prime contractor to furnish the agency with a surety bond, not only guaranteeing performance of the principal contract, but also including the “additional obligation for the payment by the contractor, and by all subcontractors, for all labor performed or materials * * * used * * * in, upon, for or about the construction * * * N. J. S. 2A:44-143 * * *" Subcontractors, materialmen and laborers are expressly made beneficiaries of the' bond and have a direct right of action upon it. N. J. S. 2A:44-146 and 147.”

Having considered the aforesaid, it is the opinion of this court that Broadway does not come within the comprehension of the Bond Act.

Lastly, Broadway argues it had a perfected security interest under the Uniform Commercial Code and had served upon the board of education copies of a duly filed financing statement assigning all accounts receivable of Kolman pursuant to N. J. S. A. 12A:9-101 et seq.; that, in any event, the Code provisions prevail over the Lien Act since they were enacted subsequent in point of time.

Interestingly enough, the court in Williams supra, in holding that the bank was a general creditor, further said: “There is no intimation on the record of any equitable assignments of a portion of this fund by Mr. Matthews [the building contractor] in favor of the trust company.” 21 A. 331, 332.

Here the bank filed its security interest and financing statement with the Secretary of State and noticed the board of education on August 2, 1967 of its claim in the amount of $12,072. At that time the board of education (owner) still had in its possession approximately $19,500. The lien claims, exclusive of any claim by the bank, totalled approximately $35,000 for work performed in 1966 and 1967. As stated in Mayo v. City National Bank and Trust Company, 56 N. J. 111, 117 (1970), an “assignment to plaintiff, whether outright or as collateral security, can rise no higher than the assignors entitlement to payment”; therefore, since Kolman,' who had defaulted, was not entitled to any payment, Broadway in turn was not entitled to receive any funds from the owner board of education. See also, Allen B. DuMont Labs., Inc. v. Marcalus Mfg. Co., 30 N. J. 290, 298 (1959).

Then, too, N. J. S. 2A:44-131, entitled “Priority of lien over assignments,” provides:

The lien given by and filed pursuant to this article shall have priority over an assignment, by a contractor or subcontractor to a third person of moneys due or to grow due to such contractor or subcontractor for labor performed or materials furnished for a public improvement referred to in this article even though such assignment was made prior to filing of notice by the lien claimant, but not if such money had been paid to the assignee at the time of the filing of notice.

N. J. S. A. 12A:9-310 of the Code, cited by Broadway’s counsel, is not applicable since it deals only with the priority of certain possessory liens over a perfected security interest. As set forth in the Yew Jersey Study Comments, “The mechanic’s lien is a non-possessory lien and is therefore excluded from § 9-310.”

Additionally, implied repealers are not favored in the law. Applying the best set forth in Brewer v. Porch, 53 N. J. 167, 173 (1969), I find the Mechanics’ Lien Law and the Code are not inconsistent or repnguant in this respect.

In view of all of the foregoing, it is the court’s conclusion that judgment he entered in favor of International Fidelity Insurance Company dismissing the claim of Broadway National Bank of Bayonne. No costs.


source: Caselaw Access Project

author: Fulop, J. S. C.

license: Public Domain

text:
    JOYCE A. FURR, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE CO., A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 8, 1970.

      Bruce W. Lerner for plaintiff (Messrs. Freeman & Bass, attorneys).

      Mr. John A. McGoldrick and Mr. Eugene M. Haring for defendant (Messrs. McCarter & English, attorneys).
   Fulop, J. S. C.

This action was tried to the court without a jury.

Plaintiff is the named beneficiary in two policies of life insurance issued by defendant upon the life of plaintiff’s son, William E. Purr. William died on July 15, 1 967. Each policy contains a provision for an additional payment in the event of accidental death of the insured. Defendant has paid the ordinary death benefits provided by the policies but not the accidental death benefits. Plaintiff claims that she is also entitled to these benefits, amounting to a total of $1,970 on the two policies. Defendant denies liability. The issue in the case is whether decedent’s death resulted from bodily injuries caused by accidental means within the meaning of the double indemnity provision of each policy.

At the trial the policies and the insured’s death certificate were introduced into evidence. Plaintiff testified to her relationship to the insured, to the fact that he was absent from home for two days prior to his death, and that he died on the date stated. Defendant presented the testimony of a Newark policeman and some photographs of decedent and of the locale of his death which were published in a magazine.

Patrolman Parisi of the Newark Police Department testified that on July 13, 14 and 15, 1967 there was extensive rioting and looting in the city, especially in the 4th and 5th precincts. There were numerous fires of suspicious origin. Firemen and policemen were stoned and shot at. In addition to working as a detective,' Parisi was assigned to riot duty. He worked for more than 24 hours without going off duty.

On the afternoon of Saturday, July 15, 1967, Parisi was driving a well marked black and white police car under the direction of Sergeant O’Connor, who was seated in the right front seat. Patrolman Scarpone was in the rear seat of the car. All three were in uniform and equipped with shotguns. Scarpone pointed his gun out of a rear side window of the car. At about 2:25 p.m. these officers were directed by radio to go to a liquor store at 125 Avon Avenue reportedly being looted. They promptly followed instructions. As the police arrived at the store they noted that it was damaged and saw the insured leaving the store with a package in his hands. They drove along the sidewalk next to Furr. The officers called to Furr to stand still. He looked directly at the police and at the shotgun protruding from the police ear pointing in his direction but did not stop. He ran, carrying the package -which was later discovered to be a six-pack of beer. The police fired warning shots, hut Turr continued to run. The police intentionally shot him to prevent his escape. He died of the wounds.

The identical policy provisions in issue read in part as follows:

Upon receipt of due proof that the death of the Insured resulted, directly and independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, the Company will pay, as an additional death benefit, an amount equal to the amount payable under the Schedule. * * * Such benefit shall not be payable if the Insured’s death * * * (4) is the result of participating in or attempting to commit an assault * * *.

No illegal acts of the insured result in loss of the accidental death benefits under the words of the policies except suicide, assault, or attempted assault.

It is admitted that the insured died from injuries caused solely by external and violent means. The issue is whether the cause was accidental within the meaning of the policy.

Defendant’s position is stated in its brief as follows:

■:< * * the insured’s death was not “accidental” within the additional indemnity provision because his death was the foreseeable, natural, and probable consequence of his own actions. Furthermore, although the foregoing is a sufficient defense, it is also true that the accidental death benefit should be barred as a matter of public policy since the insured’s death grew out of and was directly related to the insured’s own criminal conduct.

What constitute accidental means causing death has been the source of much litigation. The law was thoroughly canvassed by Justice Hall in Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N. J. 511 (1963). It has been studied again in Schwartz v. John Hancock Mutual Life Ins. Co., 96 N. J. Super. 520 (Law Div. 1967), affirmed substantially o. b. 99 N. J. Super. 223 (App. Div. 1968), certif. den, 51 N. J. 393 (1968).

Original thinking on the meaning of this policy provision or the probable understanding of the parties would be futile after the many cases dealing with the subject, even though none is squarely in point. We are confined to the application of the decided cases, leaving any rethinking thereof to the appellate courts.

It has been held that an “accidental” occurrence within the meaning of such policy provisions is one which “takes place without one’s foresight or expectation.” Kobylakiewicz v. Prudential Ins. Co., 115 N. J. L. 382 (Sup. Ct. 1935); Walters v. Prudential Ins. Co., 116 N. J. L. 304 (E. & A. 1936). The foresight or expectation to be conidered is that of the insured. White v. Metropolitan Life Ins. Co., 118 N. J. L. 149 (E. & A. 1937). An act causing the death of the insured may be intentional on the part of the actor, but accidental to the insured. Eor instance, an intentional shooting of the assured by one who mistakes him for another would be accidental as to the insured.

An act which causes the insured’s death which is induced by the insured’s culpable conduct and is the reasonable and probable consequence of such conduct is deemed foreseeable by the insured and not accidental. Walters v. Prudential and White v. Metropolitan, supra. However, death caused by the police without legal justification has been said to be non-foreseeable by the insured and therefore accidental. White v. Metropolitan, supra.

The burden of proof of death caused by external, violent and accidental means is upon plaintiff. Kennedy v. United States F. & G. Co., 113 N. J. L. 431 (E. & A. 1934). However, upon proof of death by external and violent means, a rebuttable presumption arises that the same was accidental. 46 C. J. S. Insurance § 1317a(2) and b(1) (b). The burden of proving the defense that decedent was committing a crime which rendered the shooting by the police foreseeable appears to be upon defendant as proof of an affirmative defense. See White v. Metropolitan, supra.

It cannot be said that the criminal conduct of the insured has been proved in this case. The evidence points in that direction, but proof of criminal conduct requires the overcoming of a presumption of lawful conduct. Even in a civil case the burden of proof of criminality appears to be a little greater than in other types of situations. One might describe the attitude of the courts as a polite unwillingness to believe evil of any man, or a carryover from the criminal law burden of proving guilt beyond a reasonable doubt.

But even if we assume that it has been proved that the insured was escaping in the course of theft of a six-pack of beer and of entering the premises of another without breaking with intent to steal, there is doubt that the police were justified in shooting him to death to prevent his escape.*

*It would be improper to decide that the action of the police was not legally justified in this case in which the police officers and the city are not parties, and the evidence on the subject is minimal.

See Davis v. Hellwig, 21 N. J. 412 (1956), and Wimberley v. Paterson, 15 N. J. Super. 584 (App. Div. 1962), certif. den., 38 N. J. 340 (1962).

On the authority of White v. Metropolitan Life Ins. Co., supra, I hold that decedent’s death was an occurrence which, from his point of view, was not foreseeable or expectable and was therefore accidental. Judgment will be entered in favor of plaintiff for the amount claimed and costs.


text:
    STATE IN THE INTEREST OF B. H., A JUVENILE.
    Juvenile and Domestic Relations Court, Bergen County
    Decided September 4, 1970.

      Messrs. Breslin and Breslin, attorneys for complaining witness (Mr. Michael Breslin, appearing).

      Mr. Nathan Qholodenko, attorney for juvenile.
   Rosenberg, Abraham: L., J. J. & D. R. C.

This is a motion to dismiss a complaint charging juvenile delinquency in the perpetration of assault and battery in violation of the Disorderly Persons Act, N. J. 8. 2A:170-26.

The issue herein, apparently undecided in this State, is the applicability of the statute of limitations governing prosecutions under the Disorderly Persons Act to proceedings thereunder against Juveniles. N. J. S. 2A:169-10 provides that no person shall be prosecuted for a violation of the Disorderly Persons Act unless the complaint therefor be filed within one year from the commission or discovery of the offense, the limitation not applying to any person fleeing from justice. The complaint alleges that the assault and battery occurred on March 10, 1969. R. 5 :3-2 requires that all matters in the Juvenile and Domestic Relations Court shall be instituted by the filing of a written complaint. The complaint herein was filed on March 11, 1970. State v. Rhodes, 11 N. J. 515 (1953) specifies that

* * *■ our courts have generally followed what is now customarily described as the common law rule, that statutory periods of limitation will be computed by excluding the first day, and including the last day unless it falls on Sunday or other dies non, in which event the following day is included. [520]

March 10, 1970 was not dies non, and therefore under this rule of computation the complaint herein was filed one day-after the expiration of the statute of limitations pertaining to the Disorderly Persons Act. At common law there was no limitation as to the time within which offenses could be prosecuted. Limitations on prosecution are a matter of legislative enactment and unless a period of prescription is fixed thereby prosecution will not be barred by the lapse of time. 22 C. J. S. Criminal Law § 223, page 572. The Juvenile and Domestic Relations Court Act, N. J. S. A. 2A: 4-14, does not establish any time limitation for the prosecution of juvenile delinquency, and it therefore follows that proceedings under the complaint herein would not be barred unless the limitation pertaining to violation of the Disorderly Persons Act are tenable in bar.

The tolling of the statute of limitations is a matter of defense and must be raised by a defendant as an issue for the trier of the facts. Board of Health, Hillsdale v. Tandy & Allen, 29 N. J. Super. 61 (Cty. Ct. 1953); State v. Greenberg, 16 N. J. 568 (1954). The State concedes the lapse of the statutory period and does not contend that the juvenile was a fugitive from justice at any time during that period.

In Ex parte Newkosky, 94 N. J. L. 314 (Sup. Ct. 1920), the court denied bail pending appeal from an adjudication of delinquency, holding that the proceedings were essentially civil, nonpunitive and predicated on the Chancery doctrine of parens patriae. Since this decision, however, juvenile delinquency prosecutions have been regulated by an increasing number of procedural requirements heretofore pertaining to the criminal or penal process only. This development is evidenced by the following decisions and rules: the right to a hearing and to be present thereat; to have the assistance of counsel and be allowed to present relevant facts at proceedings to transfer the cause to the criminal courts. State v. Van Buren, 29 N. J. 548 (1959), State v. Tuddles, 38 N. J. 565 (1962); R. 5:9-5(b); the right to counsel when the hearing may result in institutional commitment, In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), R. 5 :9-l(e)(d); to apply for suppression of evidence resulting from an illegal search or seizure. State in the Interest of L. B., 99 N. J. Super. 589 (J. D. R. C. 1968), State v. Lowry, 95 N. J. Super. 307 (Law Div. 1967); R. 5:8-9; to a voluntary disclosure when a confession is elicited, In re Carlo, 48 N. J. 224 (1966); to corroboration of the confession, State in the Interest of B. D., 110 N. J. Super. 585 (App. Div. 1970); to the sequestration of witnesses, State in the Interest of W. O., 100 N. J. Super. 358 (App. Div. 1968); to proof of the charges beyond a reasonable doubt, State in the Interest of J. M., 110 N. J. Super. 337 (App. Div. 1970); In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), R. 5:9-1 (f) and failure to testify may not be utilized to create an inference of guilt, State in the Interest of L. M., 56 N. J. 358 (1970).

The lapse of the statutory period for prosecution is not a procedural defense; it is substantive and jurisdictional. 22 C. J. S. Criminal Law § 223, page 574, citing United States v. Eliopoulos, 45 F. Supp. 777 (D. C. N. J. 1942), Moore v. State, 43 N. J. L. 203 (E. & A. 1881), In re Pillo, 11 N. J. 8 (1952). In Moore v. State, supra, the court held that:

* * * this statute is aimed directly at the very right which the state has against the offender, the right to punish, at the only liability which the offender has incurred, and declares that this right and this liability are at an end. [at 209]

And further, as stated in In re Pillo, supra:

In practical effect the lapse of time works an expurgation of the crime, [at 18]

It would indeed be anomolous to award juveniles an ever-expanding shield of procedural protection, but deny them the right to plead a substantive defense; Cf. State in the Interest of J. M., 110 N. J. Super. 337 (App. Div. 1970), wherein the statutory elements of the offense were held to be substantive even though the complaint did not set forth the citation of the statute involved. The defense of the statute of limitations, being substantive, should be available to juveniles where the complaint alleges the commission of an adult criminal or penal offense.

The complaint is dismissed.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. IRVING J. ZWILLMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1970
    Decided October 19, 1970.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Justin P. WaM&r argued the cause for appellant (Messrs. Sehapira, Steiner & Wadder, attorneys; Mr. Jefrey Barton Gahn, on the brief; Mr. Walder, of counsel).

      Mr. David S. Baime, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Baime, Mr. Franlclin M. Sachs, Assistant Prosecutors, and Mr. John De Cicco, Legal Assistant, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant, an attorney at law of the State of New Jersey, was convicted on three counts of obtaining money by false pretenses from the Maryland Casualty Company in violation of N. J. S. A. 2A :111-1. He was sentenced to 18 months in the Essex County Penitentiary, with six months to be in custody and the balance on probation. The judgment of conviction also ordered defendant to pay fines totaling $6,000 and costs of prosecution of $4,800.

The basis of the prosecution was that the defendant, acting with Anthony D. Córtese, a claims adjuster and later claims supervisor of the Maryland Casualty Company, submitted claims on behalf of three fictitious persons. The State’s case was based almost entirely upon Cortese’s testimony. It was contended that the operation was that Córtese would give the defendant a location insured by Maryland Casualty Company. Defendant would then write a letter to the insured on behalf of an alleged client. The claim letter would come to Córtese who would order a physical examination and then settle the claim with the defendant. The defendant submitted reports from a doctor who allegedly treated the claimants and releases allegedly signed by the claimants. The settlement drafts were allegedly endorsed by the claimants and then cashed by defendant acting through another person. Córtese testified that he received 10% of the settlement drafts.

I

At the oral argument defendant raised the point that there was no evidence to support the prosecution except the testimony of Córtese, a co-conspirator. He argued, therefore, that since the conspiracy was not shown by proof other than from Córtese, the testimony of Córtese out of Ms presence was not admissible against him, relying upon statements by the court in State v. Boiardo, 111 N. J. Super. 219 (App. Div. 1970), certif. den. 57 N. J. 130 (1970). The rule as stated in Boiardo is that declarations of a co-conspirator made outside the presence of a defendant are not admissible against the defendant unless there has been sufficient independent proof to show the conspiracy. Defendant misconceives the nature of the testimony given by Córtese. In support of the indictment the State did not rely upon declarations by Córtese made out of the presence of the defendant; rather, Cortese’s testimony was direct evidence of actions and statements of the defendant himself. These statements were part of the continuing transactions in which both, participated in obtaining monies under false pretenses as charged by the State. State v. Jackson, 43 N. J. 148, 155-156 (1964). An accused may be convicted solely on the uncorroborated testimony of an accomplice. State v. Begyn, 34 N. J. 35, 54 (1961). There is no substance in this point.

II

The denial of a motion for a judgment of acquittal at the end of the State’s case and of a motion for a judgment of acquittal notwithstanding the verdict of the jury is alleged to have been error.

The basis of this argument is that since Córtese had authority to settle the claims made by the defendant on behalf of the three alleged injured persons and since there was no reliance by Córtese upon anything done or said by the defendant, there could be no reliance by Maryland Casualty Company and the defendant could not be found guilty of obtaining money by false pretenses in violation of N. J. S. A. 2A:111-1. The argument urged that if, in fact, any crime was committed, it was embezzlement by Córtese.

Reliance by the aggrieved party, Maryland Casualty Company, is a necessary element of the offense charged. The extent of reliance, however, need not be great. A single misrepresentation which induces the defrauded party to part with his money is sufficient to support an indictment for a violation of N. J. S. A. 2A:111-1. State v. Allen, 53 N. J. 250 (1969); State v. Lamoreaux, 13 N. J. Super. 99 (App. Div. 1951).

It may well be that Córtese was guilty of embezzlement from his employer but that does not prevent the State from charging the defendant with violations of N. J. S. A. 2A:111-1. In conspiring with the defendant Córtese was not furthering the interests of his employer. He connived with the defendant in submitting false information to the insurance company on the basis of which the defendant received monies from the insurance company. Both defendant and Córtese could have been found guilty of obtaining money under false pretenses or could have been indicted and found guilty of embezzlement (Zwillman as an aider and abettor) under the proofs adduced by the State. Cf. State v. Drake, 79 N. J. Super. 458 (App. Div. 1963); State v. Urie, 92 Idaho 71, 437 P. 2d 24 (Sup. Ct. 1968); People v. Zimmer, 23 Cal. App. 2d 581, 73 P. 2d 923 (Ct. App. 1937).

Ill

Defendant objected to the court’s charge on the ground that the jury was not sufficiently instructed as to the necessity and requisites of a finding of reliance by the insurance company upon false representations made by the defendant.

The jury was specifically instructed that it was necessary “that the State show in each case that the defendant did deceive the Maryland Casualty Company which must have believed and relied on the defendant’s representations to be true.”

We have reviewed the entire charge and find that it adequately instructed the jury of the necessity of a finding of reliance by the Maryland Casualty Company upon a false representation submitted by the defendant in each of the three charges.

IV

The court permitted cross-examination of the defendant as to Ms compliance or lack of compliance with the rules of court requiring attorneys to keep trustee accounts and certain records. P. 1:21-6, formerly P. P. 1:12-5. The evidence showed that the defendant did not deposit the settlement drafts in any trustee account. Eather the drafts were cashed and the proceeds allegedly disbursed to the claimants and the defendant. No receipt was taken from the claimants by the defendant. The evidence was admitted to show the intent of the defendant to defraud. In the charge to the jury the court made it very clear that if the jury found a violation by the defendant, such finding should be considered “as a circumstance going to establish the defendant’s intent to violate the law of either false pretense and/or conspiracy if, in fact, you find that such deviations have been proven beyond a reasonable doubt.”

The evidence was properly admitted. State v. Then, 118 N. J. L. 31 (Sup. Ct. 1937), aff’d o. b. 119 N. J. L. 429 (E. & A. 1938); Cf. State v. Fisher, 96 N. J. L. 5 (Sup. Ct. 1921). We find no error.

V.

After the defendant had taken the stand he was served with a subpoena duces tecum to produce in court certain of his files. Defendant argues that his Eourth and Eifth Amendment rights were violated by the refusal of the trial court to quash the subpoena.

Evidence Buie 25(d) states that “the accused in a criminal action who voluntarily testifies in the action upon the merits does not have the privilege to refuse to disclose in that action any material relevant to any issue therein.” Defendant, therefore, cannot argué a violation of his Eifth Amendment rights. Ziegler v. United States, 174 F. 2d 439 (9 Cir. 1949), cert. den. 338 U. S. 822, 70 S. Ct. 68, 94 L. Ed. 499 (1949).

Defendant argues that the subpoena was unreasonable because it was served on him late Sunday night, calling upon him to produce certain files Monday morning. The subpoena was served at approximately 10 o’clock Sunday evening and required the defendant to produce files on 11 claims together with his ledger books for 1967-68, cash book stubs for 1967-68. and Lawyers Diary for the years 1966, 1967 and 1968.

On the motion to quash the subpoena the trial court in denying the motion indicated that the subpoena might have been unreasonable because of the shortness of time which it gave the defendant to search for the records. We agree with the trial court that in that respect it was unreasonable. The trial court, however, accorded the defendant additional time within which to search for the files. We find no prejudicial error.

VI

The jury retired on December 23, 1969 at 5:34 p.m. They returned at 8:30 p.m. with the following question:
Is it a lawyer’s responsibility to determine the truthfulness of a claim in a negligence case or does his responsibility lie in only representing his client to the best of his knowledge?

The court answered the question as follows:

A lawyer’s duty is, of course, the interest of liis client in the maintenance of his client’s rights and claims and the exertion of his utmost skill and learning to that end except that in so doing he shall not violate any of the laws. The presentation of a client’s claim must be performed within and not without the bounds of law. The office of an attorney does not permit, much less does it demand of him for any client, violation of law or any maimer of fraud or chicanery. He must obey his own conscience and not that of his client.
Now, this particular instruction that I give you now is limited to the question that you have presented to me. Yon must, nonetheless, in the consideration of your verdict as to the several counts of this indictment consider all of the evidence that has been presented in the case and all of the law that I have instructed you that should be applied to the evidence in this case. I’m going to ask you to please return and continue your deliberations * * *.

The jury returned at 8 :56 p.m. with its verdict of guilty.

Defendant argues that the Court’s response to the question was not an answer and that the lack of a definite answer was prejudicial error.

The assistant prosecutor had cross-examined the defendant as to the knowledge he had of the circumstances of the accidents of the alleged claimants. The defendant said that his knowledge was based on “only what my client told me.”

In summation the assistant prosecutor argued to the jury that there had been no investigation made by the defendant and that they could infer that the claims were fraudulent because the defendant had done nothing by way of investigation. In the course of his summation he said:

But in three cases, in three different years involving the same three people, do you not do anything whatsoever in an attempt to establish that somebody did something wrong unless you know you are never going to have to do it? Because the case is in the bag. I submit to you that you do not and I submit to you that his files will show you that he did absolutely nothing.

The response of the trial court was based upon Canon 15 of the Canons of Professional Ethics. In substance the Court told the jury that an attorney should not act illegally on behalf of his client, but that was not the question that the jury asked. The response given assumes that in this case the attorney, if in fact he had clients who made these claims, knew that their stories were not true. That was the very question that the jury had in mind — what, if anything, should the attorney have done to find out whether his client was telling the truth? The jury was entitled to a direct answer to this question.

It is not an attorney’s responsibility to decide the truth or falsity of a client’s representations unless he has actual knowledge or unless from facts within his personal knowledge or his professional experience he should know or reasonably suspect that the client’s representations are false. The duty of the attorney is to seek for his client all that the client is entitled to under the law and not to act in the first instance as judge and jury. Thode, “The Ethical Standard for the Advocate,” 39 Tex. L. Rev. 575, 584 (1961). The final draft of the Code of Professional Responsibility of the American Bar Association’s Special Committee on Evaluation of Ethical Standards sets forth certain ethical considerations under Canon 7 which canon provides that a lawyer should represent a client zealously within the bounds of the law. Ethical Consideration 7-36 states:

The law and Disciplinary Buies prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.

The Code of Professional Responsibility was adopted by the House of Delegates of the American Bar Association on August 12, 1969 to become effective for American Bar Association members on January 1, 1970.

We hold that the defendant was prejudiced by the failure of the trial court to give the jury an understandable answer to its inquiry.

VII

In addition to conspiring with the defendant to obtain money from the insurance company, Córtese had also conspired with others. There is some indication in the record that by himself he had embezzled funds from the company. There was in addition testimony showing that he had allegedly paid another attorney $1,500 with which to bribe the Essex County Prosecutor’s Office to drop the investigation of his activities. During the cross-examination of Córtese, the trial court refused to allow the defendant to go into the full nature and extent of Cortese’s activities against the Maryland Casualty Company and other related circumstances.

It appeared that the Essex County Prosecutor had told Córtese that he would be given immunity if he cooperated with the State in its investigation. This grant of immunity, which was informal as opposed to being in compliance with N. J. S. A. 2A :81-17.3, was as to any and all of Cortese’s activities involving the Maryland Casualty Company. Defendant, however, was prevented from showing the full nature and extent of such activities. Defendant alleges that such curtailment was prejudicial error.

There is no doubt that a trial judge has broad discretion in determining the proper limitations of cross-examination of a witness whose credibility is in issue. State v. Pontery, 19 N. J. 457 (1955). It is clear, however, that any fact which bears upon such credibility is relevant and that the party against whom the witness is called has a right to lay all such facts before the jury. State v. Pontery, supra; State v. Black, 97 N. J. L. 361 (Sup. Ct. 1922); Prout v. Bernards Land & Sand Co., 77 N. J. L. 719 (E. & A. 1909). Wide latitude should be allowed to a defendant in the cross-examination of a co-conspirator who is testifying for the State. State v. Curcio, 23 N. J. 521 (1957); State v. Spruill, 16 N. J. 73 (1954). Quite obviously, this is especially true where the witness involved is the principal witness against the defendant and has been given complete immunity from responsibility.

Here the defendant was not allowed to go into the specific circumstances under which the immunity was based or the nature of arrangements made for immunity. He was forced to be content with the general statement that Córtese had been granted immunity by the prosecutor. Defendant was not permitted to inquire as to the full nature, extent and severity of Cortese’s alleged offenses arising out of his involvement with Maryland Casualty Company which would have laid bare circumstances other than those for which the defendant here was indicted in which the State could have proceeded against Córtese. This he should have been permitted to do. State v. Mathis, 47 N. J. 455 (1966). Such testimony would have shown the full extent of Cortese’s illegal activities for which he was receiving immunity. State v. Hogan, 13 N. J. Misc. 117, 176 A. 709 (Sup. Ct. 1935), aff’d 115 N. J. L. 531 (E. & A. 1935); State v. Black, 97 N. J. L. 361, supra; People v. Moshiek, 323 Ill. 11, 153 N. E. 720 (Sup. Ct. 1926).

It was not appropriate for the trial court to limit the cross-examination to the three charges made in the case. The relevant question is whether there is a motive or interest that affected • Cortese’s credibility. To this end the defendant should have been allowed to show any possible charges against Córtese arising out of his activities with Maryland Casualty. Evidence of a crime totally unrelated to the charges against the defendant may be shown on the theory that the witness may be biased if such crime, even though unrelated, comes under the jurisdiction of the same prosecuting authorities from whom the witness may expect leniency. Alford v. United States, 282 U. S. 687, 51 S. Ct. 218, 75 L. Ed. 624 (1931); Spaeth v. United States, 232 F. 2d 776 (6 Cir. 1956); Commonwealth v. Gable, 171 Pa. Super. 468, 90 A. 2d 301 (Super. Ct. 1952) ; Annotation, “Prosecution Witness — Motive” 62 A. L. R. 2d 610 (1958).

The curtailment of the cross-examination is inexplicable to us, particularly in view of the trial judge’s statement on the record that “the extent of the immunity is on trial.”

The defendant called Robert A. Baime, the assistant prosecutor who had told Córtese that he would be granted immunity. During his direct examination the court stated that it would allow questions going to the extent and scope of the immunity promised but would not allow questions going to the extent and scope of Cortese’s involvement in any alleged offense. The effect of the court’s ruling was that all the defendant could lay before the jury was that Córtese was told by the prosecutor that he would not be prosecuted “concerning his involvements in his capacity as adjuster and supervisor with Maryland Casualty Company.” The defendant was still prohibited from showing what such involvement was and hence what Cortese’s interest or motive was. The extent of the immunity was the extent of the involvement. All inquiries in that direction were blocked.

One of the last exhibits offered by the defendant was a statement given by Córtese to the prosecutor which in part referred to his criminal involvement with Maryland Casualty Company. The basis of the offer was to show the scope of the immunity. The offer was denied.

The refusal of the trial court to allow evidence of Cortese’s full criminal involvement with Maryland Casualty Company was prejudicial error.

Till

Defendant raises as a point on appeal that he did not receive a fair trial because the trial judge in the presence of the jury consistently manifested extreme prejudice against the defendant’s counsel.

The accusation of prejudicial actions by a trial judge is properly reviewable by an appellate court considering the entire transcript. In reviewing the transcript our function is to ascertain the validity of the claim of prejudice, and we are not to reach a conclusion of harmless error because we may believe that the defendant in fact was guilty as charged. State v. Wolak, 26 N. J. 464, 481 (1958); Weiler v. United States, 323 U. S. 606, 611, 65 S. Ct. 548, 551, 89 L. Ed. 495, 499 (1945).

In State v. Pickles, 46 N. J. 542 (1966) Justice Francis stated at p. 566:

* * * But appellate courts are deeply concerned with the fairness of trials of persons charged with crime whose lives or liberty are at stake. And the intensity of that concern cannot be regulated according to our view of the strength or weakness of the State’s case.

A cardinal principle of our legal system is that courts of justice act upon the belief that if guilty, a party will be so found after a fair trial. Both the ends and the means of a trial must be fair, and no matter Row abRorrent tRe offense cRarged or how evident the guilt, an accused has an absolute constitutional right to a fair trial before an impartial judge and an unprejudiced jury. State v. Jackson, 43 N. J. 148 (1964); State v. Marchand, 31 N. J. 223 (1959); State v. Orecchio, 16 N. J. 125, 142 (1954).

Great latitude is given to a trial judge in the conduct of a trial. There are, however, bounds within which he must stay. A trial judge may intervene in the trial during the introduction of evidence to qualify or expedite matters. The trial judge is the symbol of experience, wisdom and impartiality to the jury and, as such, must take great care that an expression of opinion on the evidence should not be given so as to mislead the jury. He must not throw his judicial weight on one side or the other. State v. Ray, 43 N. J. 19 (1964); State v. Guido, 40 N. J. 191 (1963).

It is not proper for a trial judge to indicate his belief or disbelief of a witness, for to do so would be a usurpation of a duty solely within the province of the jury. State v. Walker, 33 N. J. 580 (1960); State v. Corbo, 32 N. J. 273 (1960); State v. Jones, 104 N. J. Super. 57 (App. Div. 1968), certif. den. 53 N. J. 354 (1969); State v. Hobbs, 90 N. J. Super. 146 (App. Div. 1966).

A trial judge should never unfairly criticize or humiliate defense counsel or a defense witness. State v. Guido 40 N. J. 191, supra. Where it appears that the trial judge has turned the jury against the defendant by mistreating defendant’s counsel in front of the jury, a new trial is required. United States v. Persico, 305 F. 2d 534 (2 Cir. 1962); United States v. Ah Kee Eng, 241 F. 2d 157 (2 Cir. 1957); Meeks v. United States, 11 Alaska 378, 163 F. 2d 598 (9 Cir. 1947); Annotation, “Conduct of Court — Kebuking Counsel,” 62 A. L. R. 2d 166, 220 (1958). Canons 5 and 10 of Canons of Judicial Ethics make it clear that trial judges must be courteous to counsel and be temperate, attentive, patient and impartial. A judge’s failure to comply with these canons can easily prejudice a jury since it conveys the opinion of the judge as to his belief or disbelief in one side of the ease. State v. Lemon, 107 N. J. Super. 101, 105 (App. Div. 1969). Attorneys are as much a part of the judicial system as judges. Without the active cooperation of attorneys our system of justice will come to a grinding halt. To demean an attorney, particularly in front of a jury, is completely unacceptable. It not only prejudices the litigant, but it goes to discourage lawyers from becoming trial attorneys. If we do not have an adequate number of lawyers willing to be trial attorneys, the judicial system as we know it will not survive.

We have carefully reviewed the transcript, and we come to the conclusion that the conduct of the trial judge towards defense counsel tended strongly to prejudice the defendant in the eyes of the jury. Nowhere in the long record is there any indication that defense counsel provoked the court. We find no indication of any impropriety on the part of defense counsel. No single instance may have been sufficient in itself to warrant a reversal. Taken in the aggregate, however, the actions of the trial judge convince us that the defendant was deprived of a fair trial. Biruk v. Wilson, 50 N. J. 253 (1967); State v. Orecchio, 16 N. J. 125, supra.

Schedule A lists some of the many instances in which the trial judge dealt unfairly with defense counsel.

[Schedule omitted.]

In addition to the prejudicial treatment of defense counsel, the trial judge committed numerous errors which taken with defense counsel’s treatment make it crystal clear that the defendant did not receive a fair trial. See Schedule B.

[Schedule omitted.]

We have reviewed the other points of the defendant: that the summation of the prosecutor was improper and prejudicial so as to deny a fair trial; that the defendant was denied due process of law because he was not allowed to sum up last; that the denial of the severance of the counts denied the defendant a fair trial; that the prosecutor’s summation was unfairly prejudicial in that the prosecutor argued that Córtese had no interest in the outcome of the case by virtue of the terms of immunity; and that the charge to the jury that they could consider the interest of a witness in the outcome of the case in determining credibility deprived the defendant of a fair trial, and find that none of these points are of substance.

The judgment of conviction is reversed, and the matter is remanded for a new trial.


author: Gaxtlkin, J. A. D.

text:
    THE TOWNSHIP OF MADISON, IN THE COUNTY OF MIDDLESEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GEORGE FIORE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1970
    Decided October 26, 1970.
    Before Judges Sullivan, Labbbcque and Gaulkin.

      Mr. Leonard Finhelsiein argued the cause for appellant (Mr. Jonathan M. HeiTbrunn, on the brief; Messrs. Ileilbrunn & lleilbrunn, attorneys).

      Mr. Richard F. Plechner argued the cause for respondent.
   The opinion of the court was delivered by

Gaxtlkin, J. A. D.

On February 21, 1966 the municipal manager of Madison Township appointed defendant Fiore tax assessor of the township, without stating what the length of his term was to be. The township is a Plan E Faulkner Act municipality (N. J. 8. A. 40 :69A~114.1 et seq.). On February 11, 1970 the municipal manager dismissed Fiore, claiming that N. J. S. A. 40:69A-95 gave him the right to do so at his pleasure. Fiore claimed that L. 1938, c. 386 (N. J. 8. A. 40:46-6.2, 6.3) gave him a term of four years from July 1, 1966. The trial court held that this statute did not apply to Plan E municipalities. It also rejected Fiore’s alternative arguments that he had tenure under N. J. 8. A. 54:1-35.25 et seq., or under the Veterans Tenure Act, or under the township’s ordinance. Fiore appeals, but abandons all claims except the one based on N. J. 8. A. 40:46-6.2. We hold that that statute did give him a four-year term and reverse.

N. J. 8. A. 40:46-6.2 and 6.3 provide:

The term of persons holding the position or office of “tax assessor” in any municipality of this State is fixed at four years. * * *
Any person now holding the position or office of “tax assessor” in any municipality of this State, and any person who may be hereafter appointed to, or elected to the position or office of “tax assessor” in any municipality of this State, shall hold their said office for a term of four years from the first day of July next following said election or appointment.
The term “tax • assessor” as used in this act shall be construed to mean and include assessors, members of the boards of assessors, and all other persons charged with the duty of assessing real and personal property for taxation in each municipality of this state, and this act shall be construed and applied to include tax assessors in all municipalities of this State, irrespective of the form of government under which such municipalities may operate. * * *

N. J. S. A. 40:69A-95 provides that the municipal manager of a Plan E municipality has the power to “appoint and remove * * * all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this article * * *.” It is agreed that said article contains no express provision for the selection or removal of tax assessors — indeed, assessors are nowhere mentioned in it. Therefore, argues the township, N. J. S. A. 40 :69A-95 gave the manager the right to dismiss the assessor whenever he pleased, and N. J. S. A. 40:46 — 6.2, 6.3 did not stand in the way because it was passed in 1938 and the Faulkner Act, which was passed in 1954, superseded it insofar as Plan B municipalities were concerned. For this proposition the township relies upon Smith v. City Council of Hackensack, 70 N. J. Super. 209 (App. Div. 1961), certif. den. 36 N. J. 300 (1962). However, the statute involved in Smith, N. J. S. A. 40:81-11, not part of the Faulkner Act, expressly stated that in municipalities organized under 40:81-11 the municipal council “shall appoint * * * an assessor, or where required by law a board of assessors * * *. All such officers appointed by the council shall hold office during the pleasure of the Council.” Section 40:80-12 of the same act provided that “no law, general or special * * * contrary to or inconsistent with the provisions hereof shall apply to such municipality * * *.” Section 40:79-5 of the same act was to the same effect. Therefore, we held in Smith, that 40 :46 — 6.2, passed in 1938, before the 1942, 1953 and 1957 reenactments of 40 :81 — 11, did not apply to the city of Hackensack. There are no such explicit provisions in 40:69A-95 — no reference to assessors and no statement that appointees serve during the pleasure of the manager. True, it says the manager may remove his appointees, but that does not necessarily mean he may do so at his pleasure when the appointee has a fixed term under another, general, law.

N. J. S. A. 40 :69A-26 provides that Faulkner Act municipalities are governed by “all applicable provisions of general law.” 40:69A-28 defines general law as “any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities and the following additional laws whether or not such additional laws are so applicable or available to all municipalities: legislation relating to taxation * * *.”

We hold that N. J. S. A. 40:46-6.2, 6.3 is such a general law. As the Supreme Court said in Clifton v. Zweir, 36 N. J. 309, 322 (1962) : “Judicial resolution of such matters must be guided by only one principle: legislative intent.” There can be no doubt that when the Legislature adopted N. J. S. A. 40:46-6.2, 6.3, in 1938, it intended that all assessors in all municipalities thereafter have four-year terms, for the statute said so. To make it doubly plain, N. J. S. A. 40:46-6.3 directed that it was to “be construed and applied to include tax assessors in all municipalities of this State, irrespective of the form of government under which such municipality may operate * * *.”

The reasons for assuring assessors this measure of independence were well and fully stated in Arace v. Irvington, 75 N. J. Super. 258 (Law Div. 1962), and it is safe to assume that such reasons motivated the Legislature to adopt N. J. S. A. 40:46-6.2, 6.3. We are informed of only two statutes in which the Legislature cut back the protection of N. J. S. A. 40:46-6.2: N. J. S. A. 40:81 — 11, which we dealt with in the Smith case, supra, and N. J. S. A. 40:46-6.13, a very limited act, adopted in 1947, which dealt only with assessors appointed immediately after the abolition of certain kinds of boards of assessors in cities of less than 50,000 population. On the other hand, L. 1966, c. 211, N. J. S. A. 40 :46-6.13a gave certain assessors tenure after two years of service, and L. 1968 c. 35 (N. J. S. A. 40:46-6.2a), passed as a supplement to N. J. S. A. 40:46-6.2, directed that in all municipalities in which there existed a board of assessors the terms of the members of the board were to be staggered, and thereafter the term of each member was to be for four years and vacancies were to be filled for the unexpired term only.

However, the plainest proof of the continuing concern and intent of the Legislature that the assessor be independent was the adoption of L. 1967 c. 44 (N. J. S. A. 54:1-35.25). The preamble of that statute said:

WHEREAS, the local property tax is the major source of revenue in state-local finance in New Jersey; and
WHEREAS, It is certain that the property tax will remain vitally important to New Jersey in the foreseeable future; and
WHEREAS, It is essential that the burden of the property tax be distributed equitably among the taxpayers in accordance with the law; and
WHEREAS, it is recognized that no other single factor is so important in insuring the competent and equitable administration of the property tax as that the tax assessment be made by a well-qualified person; * * *.

It then provided for the qualification of assessors, their examination and certification by the Director of Taxation as a prerequisite to appointment, the revocation of such certificates for cause, and their tenure.

In short, for the foregoing reasons we hold that N. J. S. A. 40:46-6.2, 6.3 is a general law which applies to Madison Township, and that Eiore possessed a four-year term ending June 30, 1970. The judgment is reversed and the case is remanded to the trial court for such further proceedings as may be necessary, consistent with this opinion. No costs.


author: Ackerman, J. S. C.

text:
    ELIZABETH IOANNOU AND ANTHANASIOS IOANNOU, PLAINTIFFS, v. IVY HILL PARK SECTION FOUR, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF, v. OTIS ELEVATOR COMPANY AND GARDEN STATE MAINTENANCE COMPANY, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 21, 1970.

      Mr. Kenneth J. McGuire, for plaintiffs Ioannou (Messrs. Stein, Bliablias and Goldman, attorneys).

      Mr. Henry 8. Buchanan, for defendant and third-party' plaintiff Ivy Hill Park Section Pour, Inc.

      Mr. Michael I. Litvah, for third-party defendant Otis Elevator Company (Messrs. Braff, Litvah & Krtag, attorneys) .

      Mr. Herbert G. Klein, for third-party defendant Garden State Maintenance Company (Messrs. Krieger & Klein, attorneys).
   Ackerman, J. S. C.

This matter is before the court on plaintiffs’ motion to file an amended complaint to assert a direct action against the two third-party defendants. It involves the statute of limitations and certain ramifications of the recent decision of the Supreme Court in Lawlor v. Cloverleaf Memorial Park, Inc., 56 N. J. 326 (1970), reversing in part 106 N. J. Super. 374 (App. Div. 1969), which reversed in part 101 N. J. Super. 134 (Law Div. 1968).

On November 22, 1968 plaintiff Elizabeth Ioannou filed a complaint against defendant Ivy Hill Park Section Pour, Inc. (Ivy Hill), the owner of an apartment house, to recover for personal injuries allegedly sustained as the result of a fall which occurred on October 6, 1967 in an elevator on defendant’s premises. Her husband sued per quod. Defendant was charged with negligence in the maintenance, control and inspection of the elevator. In April 1969, well within the statutory period, Ivy Hill filed a motion pursuant to R. R. 4:14-1 (now B. 4:8-1) for leave to serve a third-party complaint against Otis Elevator Company (Otis) and Garden State Maintenance Company (Garden State), seeking contribution under the Joint Tortfeasors Contribution Law and indemnity. Ivy Hill’s notice of motion and a copy of the proposed third-party complaint attached thereto were marked “filed” by the Clerk of the Superior Court on April 21, 1969. Said motion was dismissed for failure of Ivy Hill to appear to prosecute the same, but an identical motion was again filed by Ivy Hill returnable on July 18, 1969. The latter motion was adjourned until August 1, 1969, at which time it was granted. A formal order granting the motion was signed on September 19, 1969, prior to the expiration of the statutory period. This order was filed with the Clerk in Trenton on November 13, 1969, after the expiration of the statutory period. The third-party summons and complaint were served upon Garden State on November 20, 1969, and upon Otis on January 7, 1970. Apparently the third-party complaint was never filed with the Clerk as a separate pleading after the entry of the order granting leave to serve it.

After service upon Otis and Garden State, plaintiffs filed the motion now before the court for leave to file an amended complaint to make Otis and Garden State direct defendants to their action. Both third-party defendants oppose on the ground that the filing of complaints against them to hold them directly liable is barred by the two-year statute of limitations, N. J. S. A. 2A:14 — 2.

As is apparent from the above summary, plaintiffs’ motion to make Otis and Garden State direct defendants was made more than two years after Mrs. Ioannou’s fall, but Ivy Hill’s motion to make them third-party defendants was made and granted by the court within the two-year period. However, although there was no showing one way or the other on this motion as to whether Otis ox Garden State had actual notice during the statutory period of plaintiffs’ action against Ivy Hill or of the pendency of the motion by Ivy Hill to bring them in, it is clear that they did not have formal notice within the statutory period of the institution of the third-party action against them or of the existence of the action against Ivy Hill, because service of the third-party complaint was not made upon them until after the expiration of the two-year period.

In the recent Lawlor case the Supreme Court approved the holdings in DeSisto v. Linden, 80 N. J. Super. 398 (Law Div. 1963), and Greco v. Valley Fair Enterprises, 105 N. J. Super. 582 (App. Div. 1969), and firmly adopted the rule that, without running afoul of the statute of limitations, a plaintiff in a tort action will be permitted to file an amended complaint, after the two-year statutory period has run, to bring in as an additional direct defendant one who had been joined as a third-party defendant within the two-year period on motion of the original defendant on a claim for contribution or indemnit}'. In the Lawlor, DeSisio and Greco cases, however, Ihe third-party defendants had been served with the third-party complaint within the two-year period. They thus had actual, formal notice within that period of the nature and existence of the litigation and that they were parties thereto. And in the opinions in each case there is language which may be seized upon as supporting the view that it is necessary for application of the rule removing the statute of limitations as a defense that the third-party defendant he served within the statutory period.

Thus, in DeSisto, Judge Fulop noted (80 N. J. Super. at 405) that, “Third-party defendant was notified of the claim by process and a pleading in time.” And he concluded (at 406), “However, a new claim based on the same occurrences and the same wrong against an existing party may be asserted when that party has become a party and has been alerted to the claim before the running of the statute” In Greco the court stated (105 N. J. Super. at 584) that the third-party defendant was “joined as such prior to expiration of the limitation period,” and “has had timely notice * * The court also made specific reference to B. 4:9-3, which relates to amendments changing the party against whom a claim is asserted and provides that there is relation back of such amendments if, among other things, the defendant has “within the period provided by law for commencing the action against him * * * received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits.”

The references in Justice Jacobs’ opinion in the Lawlor ease are primarily to timely “filing.” But, in commenting upon DeSisto, which was approved as a “very sensible” application of the pertinent rules in their relation to the statute of limitations, and was referred to, together with Greco, as pointing to the “just and proper result,” he said (56 N. J. at 340), “It stressed that within the two-year period the contractor had been fully advised, through the third-party complaint, as to the charge of negligence against him, and had timely opportunity to prepare and defend.” In commenting upon Greco he stated (at 341) that “[w]ithin the two-year period [defendant] filed a third-party action * * With respect to the case before the court he noted (at 342) that “[t]he third-party complaint * * * was actually filed well within the two-year period,” and that answers were filed by the third-party defendants “well within two years” from the date when the plaintiff’s direct cause of action arose against the third-party defendants. And he stated:

When the third-party complaint was filed, the [third-party defendants] were made formally aware that they were being charged with negligence in the care of Mrs. Lawlor and that they were being sought to be held liable for the damages suffered by Mrs. Lawlor as the result of their negligence. Prom that point on they could not lie in repose but were called upon to prepare and defend. They had full and timely opportunity to do so and at no point did the negligence claims against them become stale. Though the plaintiff did not amend the complaint at the time of the filing of the third-party complaint so as to join the [third-party defendants] as direct defendants, the court rules and DeSisto were in the books and later amendment of the complaint with relation back should readily have been anticipated. The plaintiff’s delay in amending the complaint did not in anywise prejudice the [third-party defendants] and we see no reason why it should now bar a just adjudication on the merits of the plaintiff’s claims against them. * * * [at 343]

The question before the court is, therefore, whether actual service of the third-party complaint upon the third-party defendants within the two-year period, and consequent formal notice to them within such period of the third-party claim against them, or actual filing of the third-party complaint as a separate pleading within the statutory period, is essential either to constitute the commencement of the third-party actions against them under the rules or as a prerequisite to permit plaintiffs to have the benefit of the rule in the Lawlor case. It is the court’s opinion that neither actual service nor such filing within the statutory period are necessary and that, in the circumstances, the making of the motion to serve the third-party complaint within the two-year period renders the Lawlor doctrine applicable and avoids the bar of the statute of limitations, even though the third-party defendants may have actually been unaware of the plaintiffs’ action during the statutory period.

It cannot be denied that a plaintiff who obtains the benefit of the rule in the Lawlor case in a sense gets a windfall since he has taken no direct, affirmative action himself within the statutory period to diligently assert a claim against the third-party defendant. He may be deemed unduly fortunate when compared to a plaintiff in a plenary action who is barred because his complaint was filed one day late. Leake v. Bullock, 104 N. J. Super. 309 (App. Div. 1969). Obviously, there seems to be less injustice to a third-party defendant and less deviation or departure from customary or traditional applications of the statute if the third-party defendant, who is compelled under the Lawlor rule to defend a new direct claim asserted after the expiration of the statutory period, has at least been served with the third-party complaint and had actual notice of the litigation within the statutory period. However, the fact that the third-party defendant has had such notice, even though it may not have been essential as a matter of law, makes it easier for a court to hold that the statute is no bar to the plaintiff’s claim, and it is natural that a court in such a case would refer to the fact of such notice in the course of its opinion, as did the courts in the Lawlor, Desisto and Greco eases. And when the underlying rationale of the Lawlor doctrine is examined and other pertinent precedents are considered, it is apparent that the absence of such service and notice within the statutory period is immaterial.

In Lawlor the Supreme Court pointed out that although N. J. S. A. 2A:14-2 provides that a personal injury action “shall be commenced within 2 years next after the cause of any such action shall have accrued,” none of the statutory terms has ever been defined by the Legislature and they have necessarily been implemented in the court rules and decisions. The Supreme Court further pointed out that the court rules, including those relating to amendments and their relation back and to third-party procedure, contain “very broad provisions” (36 N. J. at 339). Among those referred to was R. 4:8-l(b), formerly R. R. 4:14-1, which deals with procedure after a third-party is joined and provides in part as follows:

* * * The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff, within 20 days after service of the third-party complaint upon him, or, if the defendant has sought leave, within 20 days after service upon him of the order granting such leave, may amend his pleading to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of plaintiff’s claim against the third-party plaintiff; thereafter plaintiff may so amend his pleading only by leave of court on notice to the parties to the action. * * *”

The Supreme Court also referred to R. 4:9-3, formerly R. R. 4:15-3, dealing with relation back of amendments, which provides:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

The basic premise upon which the Lawlor, DeSisto and Greco holdings rest is that the third-party action had been “commenced” and that the third-party defendant was a “party” to the overall litigation within the meaning of our rules of civil practice prior to the expiration of the statutory period. Having concluded that this was so in each instance, the court held in each case that the policy of the statute of limitations was satisfied and that the third-party defendant was therefore subject to the broad provisions of the rules without any qualification or limitation upon the plain meaning thereof imposed by the statute. It was held in each instance that the plaintiff’s new direct claim against the third-party defendant was deemed to have arisen out of the “same transaction or occurrence” that was the subject matter of the plaintiff’s claim against the third-party plaintiff, within the meaning of R. 4:8-l(b) or its predecessor rule and that it was deemed to have arisen out of the “conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading” so that there was relation back, at least to the third-party complaint as an “original pleading,” pursuant to the general rule as to relation back contained in the first sentence of R. 4:9-3 or its predecessor rule.

The important thing was that the third-party action had been commenced, as far as the third-party defendant was concerned, prior to the expiration of the statutory period, in accordance with our court rules, and that there was an original pleading, i. e., the third-party complaint, which antedated the running of the statute, to which there was relation back. There is no indication that actual service or notice were deemed to have supplanted the objective standards as to commencement of actions contained in the rules.

On the facts of this case, both Otis and Garden State were “parties” to the litigation and the third-party action was “commenced” against them within two years after Mrs. Ioannou’s fall.

R. 4:2-2 provides that a civil action is “commenced by filing a complaint with the court.” The text of this rule which was initially adopted in 1948 as Rule 3 :3-l and thereafter became R. R. 4:3-1, has remained unchanged since adoption of our court rules, and it is derived from Rule 3 of the Federal Rules of Civil Procedure. By its adoption the state practice was brought into conformity with the federal practice and an objective standard was adopted for determining when an action is commenced, replacing subjective standards theretofore applicable both in law and chancery dependent upon service of process and the giving of formal notice. See Comment on Rule 3:3-l, Tentative Draft, Rules Governing All of the Courts of New Jersey (1948), at 87-88; 2 Schnitzer and Wildstein, N. J. Rules Service, A IV-21 to 24.

Although there has been little discussion on the point in the reported cases or in the secondary authorities, it seems clear that regardless of whether or not leave of court is first required under the rules, the objective standard is also applied to determine when a third-party action or an action adding a new party by amendment will be deemed commenced. The terms of R. 4:2-2, either in their literal sense or as sensibly interpreted, are applied in such instances, and, since filing, where leave is not first required, or an application to the court, where such leave is required, is the first or initial step contemplated under the rules where a new party is to be added and precedes service of process (see R. 4:4-1; R. 4:8-1; B. 1:5-6(a)), commencement of the action against the new defendant does not depend upon when service was made upon him and formal notice given to him.

The normal rule as to amended complaints is that stated in Mears v. Economy Brake Service, Inc., 78 N. J. Super. 218 (App. Div. 1963), certif. den. 40 N. J. 216 (1963), where the court, obviously applying the literal terms of the rule, said:

Where a defendant is brought into an action for the first time upon the filing of an amended or supplemental complaint, the filing of such additional pleading constitutes the commencement of the action in so far as such new defendant is concerned. * * * [at 227]

The same standard normally applies to third-party actions and, in the usual case, the filing of the third-party complaint is stated to be the commencement of the action against the third-party defendant. See St. Paul Fire & Marine Ins. Co. v. United States Lines Co., 258 F. 2d 374 (2 Cir. 1958), cert. den. 359 U. S. 910, 3 L. Ed. 2d 574 (1959); D’Onofrio Construction Co. v. Recon Company, 255 F. 2d 904, 908 (1 Cir. 1958) ; 3 Moore’s Federal Practice (2d ed. 1968), § 14.18, [2.-1] at 633, n. 10; cf. 2 Schnitzer and Wildstein, op. cit., § 3(b), A IV-23.

However, when the rules make it mandatory that there first be an application to the court for leave to serve a complaint adding a new party, and such application is the first significant step in the action against the new defendant, the few courts which have considered the problem have given a sensible interpretation to the rule and have held that, so far as the statute of limitations is concerned, the action is deemed commenced against the new defendant when the motion for leave is made. Actual filing of the complaint after the granting of leave is not the critical act which constitutes commencement, nor is service upon defendant. This doctrine has been uniformly applied in cases involving applications for leave of court to amend to add new parties. Robinson v. Waterman S. S. Co., 7 F. R. D. 51 (D. U. J. 1947); Gloster v. Pennsylvania Railroad Co., 214 F. Supp. 207 (W. D. Pa. 1963); Derdiarian v. The Futterman Corporation, 36 F. R. D. 192 (S. D. N. Y. 1964); see Annotation, “Change in Party After Statute of Limitations Has Run,” 8 A. L. R. 2d 6, 22-23 (1949).

The same rule has been applied in cases involving motions to intervene, which require leave of court, and it has been uniformly held that the intervenor’s action is “commenced,” so far as the statute of limitations is concerned, if his motion was filed within the statutory period, even though the actual granting of leave to intervene and the formal filing of the intervenor’s complaint have come after the statutory period has run. Thus, in Jack v. Travelers Insurance Co., 22 F. R. D. 318 (E. D. Mich. 1958) the motion to intervene was filed one day before the statutory period expired and it was held that this constituted such filing as to “commence” the suit and satisfy the statute of limitations. The court said:

* * * We are then confronted with a situation where a prospective party is required, in order to file a complaint, to obtain leave of court before filing said complaint. The prospective party herein filed his application, for leave to file his complaint, prior to the running of the statute of limitations. However, the granting of said application will result in the filing of the complaint itself after the statute of limitations has run against the claim set forth in the complaint. The contention of defendant is that the statute of limitations is operative as a bar to applicants’ cause of action.
Our reasoning in granting the motion is based simply on the plain logic of the situation before us, which is not in. conflict with any of the cases cited by counsel or disclosed by our own research. Applicants were required under Rule 24 to seek leave before they might file their complaint in intervention. Rule 24 appears to be tailored for persons in applicants’ situation — it is a “natural” for the device of intervention. Who can possibly predict wlial length of time might elapse between the filing of a motion to intervene and a final order granting it? There are time factors to be taken into consideration — a hearing date in open court dependent upon the condition of the docket when the motion is filed, the possibility of counsel requesting time for the filing of briefs, the inability of the Court to study the briefs at the exact moment of their delivery, and a number of other factors which are obvious to those accustomed to processing motions. No matter how diligent counsel for an applicant intervenor may be, we do not perceive what guarantee can be available that there will be an opportunity to file the complaint prior to the running of the statute.
In relation to Rule 24(b) the Court decides that a motion to intervene which .sets forth the cause of action sought to be asserted, or which lias attached thereto a copy of the proposed complaint, is sufficient compliance with the statute of limitations, if such motion is properly filed prior to the running of the statute, and properly served on defendant (s) without delay. [22 F. R. D. at 319; emphasis not added]

Accord: Securities & Exch. Com’n v. Keller Bros. Securities Co., Inc., 30 F. R. D. 532 (D. Mass. 1962); see Engert v. Peerless Insurance Co., 382 S. W. 2d 541 (Tenn. Ct. of App. 1964); Callaway v. Ryan, 67 N. M. 283, 354 P. 2d 999 (Sup. Ct. 1960); see 3B Moore’s Federal Practice (2d ed), § 24.12 [1] at 24-503, n. 7, and § 24.13 [1] at 24-526.

Although there are no New Jersey cases on the point, the rationale of these decisions is directly applicable here, and no cases to the contrary have been found. There is a strong policy in favor of consolidation of actions and in favor of the third-party practice to avoid circuity of action and to permit all matters arising out of a single controversy or transaction to be disposed of in one proceeding with fairness to all the parties and a saving of court time and public expense. See Korff v. G. & G. Corp., 21 N. J. 558, 566-567 (1956); Sattelberger v. Telep, 14 N. J. 353, 372 (1954). To interpret B. 4:2-2 in accordance with the above authorities is reasonable and sensible, and is in harmony with the basic rules for applying and interpreting the statute of limitations and in furtherance of the policy which encourages use of our third-party practice. See Hogan v. Hodge, 6 N. J. Super. 55 (App. Div. 1949).

On the facts of this case, therefore, the action was commenced against Otis and Garden State and they became parties as third-party defendants, so far as any statute of limitations problem is concerned, when the motion for leave to serve the third-party complaint was filed. This was well within the statutory period and leave was actually granted well within such period. Failure to serve process and failure to file the complaint, after the granting of leave and prior to expiration of the statutory period, are of no significance so far as the statute of limitations is concerned. When the two-year period expired on October 6, 1969, Otis and Garden State were in a position comparable to that of a defendant in a conventional action where the complaint against him has been filed before expiration of the statutory period but service has not yet been made upon him and he is unaware of the existence of the action. In such situation, there is no statute of limitations defense available to him, and he is a party subject to all the broad provisions of the rules of civil practice. The action is “commenced” and he is deemed to have timely opportunity to defend so far as the statute of limitations is concerned, and if he has any basis for dismissal because it ultimately transpires that there is delay in service of process upon him, it rests upon other rules and not upon the statute of limitations.

It is undisputed here that, although the order of the court granting leave to file the third-party complaint was dated September 19, 1969, the order was not filed until November 13, 1969, and the summons and third-party complaints were not forwarded for service until November 17, 1969, over a month after the statutory period expired. Service was promptly made thereafter on Garden State on November 20, 1969, but was somewhat delayed as to Otis, being effected on January 7, 1970. No explanation was offered as to why there was a two-month lapse of time between the signing of the court’s order and the forwarding of the summons and complaint for service. But the fact that there may have been delay is not dispositive. Under the cases the important fact is that no claim or showing was made by Otis or Garden State on this motion that either suffered any prejudice because of any delay in the forwarding of the papers for service or in their actual service.

R. 4:4-1 provides, among other things, that “If the summons is not issued within 10 days of the filing of the complaint the action may be dismissed * * *.” It is well settled that violation of the ten-day issuance requirement and delay in effecting service of process will not automatically result in dismissal. The matter is discretionary with the court, rather than jurisdictional, and an action will not be dismissed when the defendant has not been prejudiced. McLaughlin v. Bassing, 51 N. J. 410 (1968), reversing 100 N. J. Super. 67 (App. Div. 1967) ; X-L Liquors v. Taylor, 17 N. J. 444, 453-454 (1955); see Hazek v. Mercadante, 22 N. J. Super. 103 (Law Div. 1952); Byrd v. Ontario Freight Lines Corp., 39 N. J. Super. 275 (App. Div. 1956); Rogers v. Dubac, 52 N. J. Super. 360 (Law Div. 1958); Clare v. Fliegel, 74 N. J. Super. 31 (Cty. Ct. 1962); see A & B Auto Stores of Jones Street, Inc. v. Newark, 103 N. J. Super. 559, 573-576 (Law Div. 1968), and Beese v. First National Stores, 52 N. J. 196, 201 (1968); cf. Pagano v. Krispy Kernels, Inc., 10 N. J. Super. 588 (Law Div. 1950). In the absence of a claim of prejudice and proof thereof, the delay in service here is immaterial.

By the same token, failure to file the third-party complaint, after leave to serve was granted, is immaterial. B. 4:8-1 (a), in force since September 8, 1969, provides that where leave of court is required, a “copy” of the proposed third-party complaint shall be annexed to the notice of motion. There was no such express requirement in B. B. 4:14-1, which was in force at the time Ivy Hill made its motion in this case, and there is none in Federal Buie 14, but it has long been the practice in both the state and federal courts to attach a copy of the proposed complaint to the motion. See Civil Procedure Form 23(a), 1968 Bules; 2 Schnitzer and Wildstein, op. cit., A IV-354; 3 Moore’s Federal Practice (2d ed.), § 14.18 [2.-1], at 632; see Ivey v. Daus, 17 F. R. D. 319 (S. D. N. Y. 1955). There is no specific requirement in B. 4:8 that the third-party complaint be filed after leave is granted. Although a respectable argument can be made that upon the filing of the motion with a copy of the complaint attached there has been a sufficient filing to comply with B. 1:5-6 (a) or the predecessor rule, R. R. 4:5-5 (a), it would seem that literal compliance with the rules requires a filing after leave has been granted. See 3 Moore’s Federal Practice, § 14.18 [2.-1] at 633, n. 10. However, as indicated above, such filing is not the meaningful act which it normally is to constitute the commencement of the action, and the failure to file is not fatal and can be corrected. Ciocca v. Hacker, 4 N. J. Super. 28 (App. Div. 1949).

It is therefore concluded that the objective standards set forth in our rules of practice are to be applied to determine whether a third-party action has been commenced within the statutory period for the purpose of determining whether a plaintiff may take advantage of the Lawlor doctrine. Service of the third-party complaint within the statutory period and consequent actual notice to the third-party defendant within the period are not necessary, and statements in the Lawlor, DeSisto and Greco opinions with respect to actual notice cannot be fairly construed as laying down a requirement that there must be such service and notice. The application of such objective standards, rather than subjective standards based upon service and actual notice, is consistent with the design of the rules and leads to uniformity. It also is in harmony with the underlying statutory policy of the statute of limitations, as construed by our highest court, and in furtherance of the rule that controversies shall be determined on the merits when such policy fairly so permits. See Lawlor, supra, at 339; Union City Housing Authority v. Commonwealth Trust Co., 25 N. J. 330, 335 (1957); Fernandi v. Strully, 35 N. J. 434, 449 (1961) ; Harr v. Allstate Insurance Co., 54 N. J. 287, 299 (1969); Tackling v. Chrysler Corp., 77 N. J. Super. 12, 16 (Law Div. 1962).

Plaintiffs’ motions are granted.

       Emphasis supplied in quotations unless otherwise stated.

       Although properly cited by the court in the Greeo case in support of its ruling there, the provision in the second sentence of R. 4:9-3, quoted above, is not authority that actual notice within the statutory period is required here. That rule applies only to amendments changing a party after the running of the statute of limitations. It permits a completely new party to be added after the statutory period. See Rooney v. Coraggio, 95 N. J. Super. 112 (App. Div. 1967), certif. den. 50 N. J. 89 (1967) ; Comments on R. 4:9-3, Proposed Revision of the Rules Governing the Courts of the State of New Jersey (1966). Here the third-party defendants were parties to the action prior to the expiration of the statutory period.