author: Breslin, J. C. C.

text:
    JAMES K. GUACLIDES AND SOPHIE GUACLIDES, HIS WIFE, PLAINTIFFS, v. MAYOR AND COUNCIL OF THE BOROUGH OF ENGLEWOOD CLIFFS, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 12, 1972.

      Messrs. Marotta and DeMiglio, attorneys for plaintiffs.

      Mr. Melvin Gittleman, attorney for defendant.
   Breslin, J. C. C.

(temporarily assigned). This is a prerogative writ action by the plaintiffs challenging the validity of Ordinance 7105 adopted by the Mayor and Council of the Borough of Englewood Cliffs on July 15,1971 and an amendment thereto designated as Ordinance 7201, adopted on February 10, 1972 and readopted on March 23, 1972.

Ordinance 7105, which amended Ordinance 100R, the basic zoning ordinance of said municipality, provided that (1) any application for approval of a commercial site must be filed at least ten days prior to any meeting of the planning board, file a copy of the site plan with the borough clerk and notify all property owners within 200 feet of the proposed site and publish a notice of the hearing at least five days prior thereto; (2) the planning board, after a hearing of said application, shall submit a written report to the mayor and council with its recommendations; (3) the mayor and council must act on said report within 45 days of the approval or it will be deemed approved as submitted; (4) regardless of the action of the planning board, the mayor and council may grant or deny the issuance of a building permit subject to the requirements of its building code and the planning and zoning ordinances; (5) the planning board may not take action unless a quorum of its members are present; and (6) in any application where the approval of the planning board or a zoning board of the municipality is required a requisite thereto shall be that no taxes or assessments for local improvements are due or delinquent on the property for which any application has been made. Ordinance 7201 merely amended section 3 of Ordinance 7105 by deleting section 3, subparagraph (a), and substituting a new subparagraph (a) to include a requirement that notice of a hearing be given to the applicant at least five days before the date of the hearing by certified mail.

The following exhibits were marked into evidence by consent of the parties: (1) original zoning ordinance; (2) Ordinance 7105; (3) Ordinance 7201 of amending Ordinance 7105; (4) transcript of hearing of mayor and council of July 15, 1971; (5) transcript of mayor and council of March 23, 1972.

The first of the two points raised by the plaintiffs is that there is no statutory authority for a planning board to hold a hearing with notice on a site plan approval, and for a mayor and council to approve or disapprove the recommendations made by a planning board on site plan approvals. They therefore contend that the action of the mayor and council in adopting the ordinance was arbitrary, unreasonable and capricious by casting an undue burden upon those whose applications for commercial site plan approval for proposed projects comply in all respects with the zoning ordinance. Plaintiffs’ second point is that the ordinance in question is an unconstitutional delegation of legislative authority because it does not contain sufficient standards.

Plaintiffs concede that N. J. S. A. 40:55-1.13 provides legislative authority for referral of site plan approval to the planning board:

The governing body may by odinance provide for the reference of any other matter or class of matters to the planning board before final action thereon by any municipal public body or municipal officer having final authority thereon * * *

In interpreting the above statute, the Supreme Court in Kozesnik v. Montgomery Tp., 24 N. J. 154, 186 (1957), held that the purpose of such a reference “is to insure that the details of the site plan for the authorized use will be such that the operation will not offend the public interest” by subjecting the plan to “the very expertise expected of a planning board,” since “it would not be feasible to set forth in the ordinance a set of specific requirements upon which the building inspector could readily grant or refuse a permit.” The court went on to state that under the pertinent statutes, the final authority to grant or refuse a building permit can rest either in a building inspector or in the municipal governing body.

The grant of authority in N. J. S. A. 40:55-1.13 does not require that site plan approvals be referred to a planning board. Eurthermore, there is no statutory requirement that the authority of a municipal governing body to issue building permits be delegated to a building inspector. See N. J. S. A. 40:87-15. Therefore, a situation in which applications for building permits are passed on only by the mayor and council is consistent with the statute.

Pursuant to the foregoing analysis, the right of the mayor and council to reserve to itself the power to approve or disapprove site plan recommendations is unquestionable. The assertion by plaintiffs that the exercise of this right was a politically motivated attempt by the governing body to usurp the power of the planning Board does not invalidate the ordinance. Plaintiff has failed to show “fraud, personal interest, or corruption,” LaRue v. East Brunswick, 68 N. J. Super. 435, 445 (App. Div. 1961). As long as “there was legal power to adopt the ordinance, the motives of the members of the governing body are immaterial.” Csaki v. Woodbridge Tp., 69 N. J. Super. 327, 333 (Law Div. 1961).

Plaintiff has directed the attention of the court to the recent decision in Arlington Ass’n v. Tp. Coun. Parsippany-Troy Hills, 118 N. J. Super. 418 (App. Div. 1972):

We find no statutory authority or other basis for the appeal to the governing body from an approval of a site plan by a planning board. The provisions of N. J. S. A. 40:55—1.19 relate to subdivisions * * • [at 420]

The ordinance in the matter at hand is not based upon the authority granted in N. J. S. A. 40:55—1.19, because it does not concern an appeal by an aggrieved party from a planning board approval. Kather, the ordinance requires approval of commercial site plans by the governing body after the planning board submits its recommendations in order for a building permit to issue.

In their objection to the ordinance provision for hearings before the planning board plaintiffs rely upon the reference to “the very expertise expected of a planning board” found in Kozesnik v. Montgomery Tp., supra, 24 N. J. at 186. Plaintiffs’ position is that hearings subject the planning board, and developers, to the pressures of public relations, thereby interfering with the planning board’s exercise of its own expertise.

The court in Newark, etc., Cream Co. v. Parsippany-Troy Hills Tp., 47 N. J. Super. 306, 332 (Law Div. 1957), did not find that the public hearings on site plan approvals and the exercise of expertise were mutually exclusive. The Law Division recognized that in Kozesnik, supra, the planning board is peculiarly the appropriate local body to determine such matters, and still declared that the planning board “must hold a hearing on notice and otherwise conform to accepted standards of due process in administrative proceeding.”

The purpose for planning board action on site plans, as explained in Kozesnik v. Montgomery Tp., supra, 24 N. J. at 186, is to uphold the public interest. Public hearings would enlighten the planning board with respect to the public interest. The court in ZozesniTc, pointed to the inherent expertise of the planning board when discussing the necessity for someone “to be empowered to consider whether the details of a proposed site plan square with the legislated standards.”

Eor the foregoing reasons, and in light of the legislative mandate that the Municipal Planning Act “shall be construed most favorably to municipalities, its intention being to give all municipalities the fullest and most complete powers possible concerning the subject matter hereof,” N. J. S. A. 40:55—1.3, this court finds that the ordinance provision for public notice and hearings, and review by the municipal governing body are within the statutory framework even though they are not expressly required by the Municipal Planning Act. See Legion Manor v. Wayne Tp., 49 N. J. 420, 425, 426 (1967).

The argument presented by the plaintiffs in relation to the second issue they raised is based on the holding in Brundage v. Randolph Tp., 54 N. J. Super. 384 (App. Div. 1959):

But there must be found in the ordinance some set of standards or conditions which a site plan must satisfy before warranting the approval or disapproval of that body, [at 395]

The above matter held that an amendment that delegates site plan approval to a planning board, but fails to refer to the standard set forth in the original ordinance, is invalid for insufficient standards. The amendment in the instant ease does refer to the standards in the original ordinance in two instances:

Section 11. * * * The Planning Board shall, within the scope of the aforementioned considerations, submit a written report to the Mayor and Council * * *.
Section 111. * * * the Mayor and Council may within the scope of the aforementioned considerations approve or disapprove the recommendations of the Planning Board. * * *

Plaintiffs’ next contention is that the standards in the original ordinance are improper because they pertain to private concerns instead of the public interest:

I feel a planning board may only consider those having a relation to the public interest, and not those which are merely matters of private concern in the use of property, having no connection with or effect upon adjoining property owners, adjoining areas outside the district or the community and public interest at large. [Newark, etc. Cream Co. v. Parsippany-Troy Hills Tp., 47 N. J. Super. 306, 333 (Law Div. 1957) ]

Plaintiffs are particularly concerned that the ordinance permits the planning board to consider the location of all structures and landscaping. They cite Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589, 601 (App. Div. 1958), aff’d 29 N. J. 468 (1959), which case this court finds inapplicable, because the word “location” in the ordinance before the Appellate Division referred to “whether a particular parcel can be used for school purposes at all, and not just to placement of school buildings and facilities on it.”

It is the opinion of this court that the standards set forth in the original for “D” Neighborhood Business Zones do have a connection and effect on adjoining areas, and “are as specific as the circumstances reasonably require,” Kozesnik, supra, 24 N. J. at 184. It should be noted that “D” zone borders immediately upon zone “B” residential areas. The interest of the mayor and council that there be a double check on structures in this area is understandable. There is no undue burden cast upon those seeking site plan approval for commercial structures in the “D” zone.

In addition to the standards in the ordinance, the amendment at issue limits the discretion of the mayor and council to order or deny the issuance of a building permit “to the requirements of the Building Code as administered by the Building Inspector * * This is not a situation in which the right to a building permit is “subject to the discretionary powers of the local governing body as in the case of an application for a variance,” Schack v. Trimble, 48 N. J. Super. 45, 51 (App. Div. 1957).

This court finds that the ordinance as amended contains sufficiently legal standards to guide both the planning board and mayor and council when passing upon site plan approvals. The action of the mayor and council in adopting Ordinance 7105 was not arbitrary, unreasonable, or capricious, and there was not an unconstitutional delegation of legislative authority. The plaintiffs have failed to overcome the presumption of the validity of the ordinances. Judgment for defendant.


source: Caselaw Access Project

author: Yanoff, P. J. D. C.

license: Public Domain

text:
    GROSSMAN FURNITURE CO. INC., PLAINTIFF, v. ELEANOR PIERRE, DEFENDANT.
    Essex County District Court
    Decided May 23, 1972.

      Messrs. Arthur J. Qorlcery and Robert 8. Fisher for plaintiff.

      Mr. 8am Farrington, Essex County Legal Services, for defendant.
   Yanoff, P. J. D. C.

This is a test case in -which defendant questions the constitutionality of the New Jersey Replevin Act, N. J. S. A. 2A:59-1, on the ground that it permits the taking of property by force without a preliminary trial-type hearing, alleging that it thereby violates the Fourth and Fourteenth Amendments of the United States Constitution. No claim is made of unconstitutionality under the New Jersey Constitution.

The factual context in which the issue is raised is that plaintiff sold defendant and her husband household furniture, including a bedroom set, a refrigerator and other items for a cash price of $2,065 and a time sale price of $2,385. Although a blank space is provided for that purpose on the contract form, the time sale price is not inserted. I have obtained it by adding the time balance and down-payment as directed by the contract.

The contract is a single sheet. On its face are set out the items sold, the cash price, the trade-in, unpaid cash balance, principal balance, time-price differential and time balance, as well as the amount of each installment, and the number of installments. The print is 8-point. The first sentence of the contract reads: “Undersigned Seller sells and undersigned Buyer (if more than one, jointly and severally) purchases subject to the terms and conditions set forth on both sides hereof the Merchandise described below.” Both defendant and her husband signed.

Beneath their signatures is the statement, “For office use only,” below which is an area equal in size to the contract already described consisting of unfilled blank spaces.

On the reverse side of the sheet appears, “Other Conditions of Contract,” the third paragraph of which contains a reservation of title, an acceleration clause and a right to retake the property upon default. The type is the same size as that on the face.

Below this is a form of assignment and notices with respect to group and property insurance.

Procedurally, the matter arose on order to show cause based upon an affidavit in which Mrs. Pierre stated that her only source of income is from Aid to Dependent Children benefits; that her husband has deserted her; that most of her furniture was removed from her home as result of the execution of the writ of replevin, including the refrigerator in which she kept her food; that she had no place to keep her own and her children’s clothing; that she had a meritorious defense; that she had paid approximately three-quarters of the time-sales price, and that she could not afford the cost of the re-replevin bond required by N. J. S. A. 2A:59-6.

The order to show cause provided as interim relief that specific items of furniture, including the refrigerator, be returned to defendant, and that she be subject to contempt penalties if she failed to deliver them to plaintiff upon court order. The Attorney General was given notice of this proceeding, but elected not to appear.

Oral testimony was taken upon the return date of the order, in the course of which Mrs. Pierre confirmed her statements as to her poverty and her urgent need for the repossessed goods. As to these matters there is no question, and I find them to be a fact.

By way of defense, defendant alleged that

1. Plaintiff was guilty of equitable fraud because it did not affirmatively advise her of the security' provisions.

2. Failure to insert the time sales price constitutes a violation of N. J. S. A. 17:16C-17.

3. Failure to separately describe the property in connection with the security provisions is a violation of the same statute.

4. Defendant is not bound by the security provisions because they were not specifically called to her attention in view of their location on the reverse side of the contract.

I directed that a hearing be held to determine whether defendant could make a prima facie showing of a meritorious defense because it would be pointless to explore an issue of constitutionality addressed solely to whether a defendant in replevin was entitled to hearing prior to the taking if it developed at the conclusion of the case that in all events plaintiff was entitled to possession of the property. A hearing was held at which plaintiff, defendant and the constable who took possession of the property testified.

However, I have determined not to decide the constitutional issue. The principles which control a court’s function when a constitutional question is raised axe well settled. Some of them are enunciated in WHYY, Inc. v. Glassboro, 50 N. J. 6 (1967) where Justice Schettino said for the court:

Moreover, there is a strong presumption that a statute is constitutional, In re Village of Loch Arbour, 25 N. J. 258, 264-65 (1957), and a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957). “To declare a statute unconstitutional is a judicial power to be delicately exercised.” Wilente v. Hendrickson, 133 N. J. Eq. 447, 487 (Ch. 1943), affirmed 135 N. J. Eq. 244 (E. & A. 1944). [at 13]

This ease was reversed, 393 U. S. 117, 89 S. Ct. 286, 21 L. Ed. 2d 242 (1968), for other reasons.

Tn the words of Judge Kilkenny: “It is axiomatic that courts will not decide constitutional issues not necessary to the disposition of the case before them.” Accident, Index Bureau, Inc. v. Hughes, 83 N. J. Super. 293, 302 (App. Div. 1964), aff’d 46 N. J. 160 (1965). In my view, justice can be done in this case without deciding the constitutional question.

Additionally, as a trial judge, I am enjoined not to hold a statute unconstitutional except in a clear case. Legg v. Passaic County, 122 N. J. L. 100 (Sup. Ct. 1939), aff’d 123 N. J. L. 263 (E. & A. 1939) ; State v. Packard-Bamberger & Co., Inc., 123 N. J. L. 180 (Sup. Ct. 1939) ; Neeld v. Automotive Products Credit Ass’n, 21 N. J. Super. 159, 161 (Cty. D. Ct. 1952); State v. Cannarozzi, 77 N. J. Super. 236 (App. Div. 1962); Chalmers v. Chalmers, 117 N. J. Super. 474 (Ch. Div. 1971) ; Almor Furniture & Appliances v. MacMillan, 116 N. J. Super. 65 (Cty. D. Ct. 1971).

It cannot reasonably be said that this is a clear case. Throughout the country, as the result of Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), courts are being pressed for determinations that the taking of property or property rights without a prior trial-type hearing violates constitutional rights. The issue is substantial and judicial responses have not been uniform.

Courts have found a constitutional infirmity where replevin laws have not provided for a full trial-type hearing prior to the taking: Laprease v. Raymours Furniture Co., 315 F. Supp. 716 (N. D. N. Y. 1970) (New York replevin statute, N. Y. Civil Practice Law & Rules §§ 7101 et seq. (McKinney 1970)); Kosches v. City of New York, 10 U. C. C. Rep. Serv., Release #1, p. 3, March 8, 1972 (N. Y. Civil Ct.) (New York Uniform Commercial Code retaking provisions, N. Y. Uniform Commercial Code §§ 9—503 and 9—504 (McKinney 1964)); Blair v. Pitchess, 5 Cal. 3d 258, 96 Cal. Rptr. 42, 486 P. 2d 1242 (Sup. Ct. 1971) (California replevin statute, Cal. Code Civ. Proc. §§ 509-521); Adams v. Egley, 338 F. Supp. 614 (S. D. Cal. 1972) (California Uniform Commercial Code retaking provisions, Cal. Uniform Commercial Code §§ 9503 and 9504 (West 1970); Blocker v. Blackburn, 228 Ga. 285, 185 S. E. 2d 56 (Sup. Ct. 1971) (Georgia replevin statute, Ga. Code §§ 61-401 to 61-407); Westinghouse Credit Corp. v. Edwards, CCH Poverty Law Reports, June 28, 1971 (Mich. C. P.) (Michigan replevin statute, 23 M. S. A. §§ 27A.7301 et seq., M. C. L. A. § 600.7301 et seq). Other courts have sustained the constitutionality of such statutes: Brunswick Corp. v. J. & P. Inc., 424 F. 2d 100 (10 Cir. 1970) (Oklahoma replevin statute, 12 O. S. §§ 1571 et seq.); Fuentes v. Faircloth, 317 F. Supp. 954 (S. D. Fla. 1970) (Florida replevin statute, F. S. §§ 78.01 et seq. F. S. A.); Epps v. Cortese, 326 F. Supp. 127 (E. D. Pa. 1971) (Pennsylvania replevin statute, 12 P. S. § 1821 and Pa. R. Civ. P. §§ 1071-1087, 12 P. S. Appendix); Union Teachers Credit Union v. Fran Kay Hunter, 2 CCH Poverty Law Reports 13,265, July 20, 1971 (Ill. Cir. Ct.) (Illinois replevin statute, 119 Ill. Anno. St. § 1 et seq.). Fuentes and Epps have been appealed to the United States Supreme Court, -which has not yet spoken.

In view of the strongly defined principles as to judicial restraint in overriding legislative action for constitutional reasons, it is apparent that this court must approach the problem with the utmost circumspection. Nevertheless, I would not be deterred from laying the issue on the table were there not an alternative basis for doing justice between the parties. In this connection the comment of Judge Eulop, while a county district court Judge, in Neeld v. Automotive Products Credit Ass’n., supra, in which he held a statute unconstitutional is pertinent:

It is dear that it is not the function of this court to pioneer in the field of constitutional law. The presumption of constitutionality must be applied with greater force here than in the appellate courts. The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead.
Nevertheless, the issues presented must be determined. There must be a conviction or an acquittal. I cannot conceive it to be my duty to convict when an acquittal is indicated, on the theory that the question should be settled on appeal. Even a policeman must construe the Constitution in the performance of his duty. [21 N. J. Super. at 161-162]

The consequences here to defendant and her family of living without a bed or a chest of drawers, or a refrigerator, are probably more calamitous than the money penalty which would have been imposed upon defendant in Neeld had the statute been sustained.

Defendant has had a preliminary trial-type hearing, so in this case at least, she has not been deprived o£ her constitutional rights. As the result of the evidence thus taken, I con-elude that one of the defenses which she asserts has substance.

There is not the least doubt that she signed the contract. Her testimony is that it was part of a pad of forms, that she did not read it, and that she had no idea that it contained a recapture provision. Her education was very limited, but she is not illiterate.

I recognize that the general rule in New Jersey is that a person is bound by his signature to a contract, even though he has not read it. Silvestri v. South Orange Storage Corp., 14 N. J. Super. 205 (App. Div. 1951); Moreira Constr. Co., Inc. v. Morterench Corp., 97 N. J. Super. 391 (App. Div. 1967).

But the rule that a person is bound by his signature has never been without limitation. There are legislative limitations on the contracts a person can make. Usury laws are an example of an ancient one. N. J. S. A. 31:1-1 et seq. There are others, e. g., wagering contracts (N. J. S. A. 2A:40-3); contracts to compound a crime (N. J. S. A. 2A:97-1). More recently the Legislature enacted a battery of statutes designed to protect persons in defendant’s unfavorable bargaining position, and prohibited certain contract provisions. Retail Installment Sales Act, N. J. S. A. 17:16C §§ 35, 36, 37, 64. By decision the courts have invalidated many contracts or contract provisions for illegality. One need only read the headings in 2 Restatment, Contracts, §§ 559-597 at 1065-1109 (1932), to appreciate the variety of undertakings which the law refuses to enforce because of illegality, violation of public policy or statutory prohibition.

Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960) and Unico v. Owen, 50 N. J. 101 (1967) expanded the circumstances under which a contract provision might be invalidated. In Henningsen the court struck down “the disclaimer of an implied warranty of merchantability by the dealer, as well as the attempted elimination of all obligations other than replacement of defective parts, [as] violative of public policy * * (32 N. J. at 408).

In Unico the court held that the buyer was not bound by a “so called waiver of defenses or estoppel” clause contained in the sales contract. Justice Francis, speaking for the. court, said:

In consumer goods transactions there is almost always a substantial differential in bargaining power between the seller and his financer, on the one side, and the householder on the other. That difference exists because generally there is a substantial inequality of economic resources between them, and of course, that balance in the great mass of cases favors the seller and gives him and Ms financer the power to shape the exchange to their advantage. [50 N. J. at 110]

Kuzmiak v. Brookchester, 33 N. J. Super. 575 (App. Div. 1955), a decision which preceded Henningsen, is also significant because a major basis for its ruling invalidating lease clauses exculpating a landlord from active wrongdoing was the inequality of bargaining power between landlord and tenant in periods of housing shortage.

The principle which unites these cases is that the law as a matter of public policy protects the weaker party from provisions which surrender economic rights where his bargaining position is grossly unequal. The basic principle was recognized in Moreira, supra, in which the contract was upheld, whore the court said:

Furthermore, in Henningsen the court noted that the clause in question was a standardized one used throughout the automotive industry, 32 N. J., at p. 390, thus leaving the consumer with no alternative but to accept the terms of the contract as stated. In 1958 defendant Moretrench Corp., was the world’s largest well point company: Ivy H. Smith Company v. Moretrench Corporation, 253 F. 2d 688, 689 (5 Cir. 1958). However, there was testimony to the effect that there were three competitors of defendant in the area and there was no showing that plaintiff was precluded from negotiating a contract on more favorable terms.
Exculpatory clauses in apartment house leases also have been held to be invalid because of inequality of bargaining power, Kuzmiak v. Brookchester, 33 N. J. Super. 575 (App. Div. 1955), but such clauses are normally valid in leases of industrial property since no inequality of bargaining power exists. Mayfair Fabrics v. Henley, 48 N. J. 483 (1967) ; Midland Carpet Corp. v. Franklin, Assoc. Properties, 90 N. J. Super. 42 (App. Div. 1966). [697 N. J. Super. at 395]

There are also equitable considerations which, under Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459 (1961); Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116 (1967), and Marini v. Ireland, 56 N. J. 130 (1970), a county district court is empowered to consider. The basic principle is stated in Keen v. James, 39 N. J. Eq. 527 (E. & A. 1885) :

Prof. Pomeroy, in his discriminating work on jurisprudence, very lucidly discusses the elements of fraud affecting contracts, and in treating of fraudulent concealments, lays down this proposition: “If either party to a transaction conceals some fact which is material, which is within his own knowledge, and which it is his duty to disclose, he is guilty of actual fraud.” 2 Pom. Eq. § 901. * * * The case must amount to a suppression of facts which one party under the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot, innocently, be silent, [at 540-541]

Where a party permits another to sign a contract knowing that he is under a misapprehension as to its terms, there is equitable fraud which warrants reformation or rescission. John A. Cozzone and Co. v. Redfield, 98 N. J. Eq. 41 (Ch. 1925), aff’d 103 N. J. Eq. 19 (E. & A. 1928); Lloyd v. Hulick, 69 N. J. Eq., 784 (E. & A. 1905); Simpson Plumbing & Heating Co. v. Geschke, 76 N. J. Eq. 475 (Ch. 1909), aff’d 78 N. J. Eq. 306 (E. & A. 1910). Even where an instrument, by reason of the draftsman’s mistake of law, fails to express the intent of the parties it will be reformed. Brodzinsky v. Pulek, 75 N. J. Super. 40 (App. Div. 1962). The evidence at this point in the case is that defendant did .not know that the contract contained a provision permitting retaking on default. The evidence shows also, and I am convinced from my own observation, that defendant was not capable of understanding the recapture clause as written. She is a woman of limited intelligence, utterly without business •experience. Intellectually and financially she was completely .at the mercy of plaintiff. One may speculate what her reae-tion would have been had the idea been brought home to her that when she had paid virtually all of the cash price and an amount equal to three-quarters of the time sales price, the goods which she had skimped so hard to pay for could be taken away by reason of a default. Fair dealing would dictate that at least she should have been told. This duty arises by reason of the disparate position of the parties. Hansen v. Janitschek, 57 N. J. Super. 418 (App. Div. 1959) rev'd on another ground, 31 N. J. 545 (1960), is relevant. The applicable facts are summarized:

Briefly stated, the court concluded plaintiff had proved that plaintiff and her brothers were part of a closely knit family group, inclusive of their late father, founder of the family business; plaintiff and her brothers were partners in the ownership of certain realty; plaintiff did not know the contents of the partnership and other agreements; plaintiff conveyed her one-third interest in certain of the partnership realty valued at $26,500 for $1,500 because of her brothers’ misrepresentations and fraud in failing to advise her of all the material facts; and that plaintiff was defrauded thereby. Based on these findings the court properly applied the well-settled rule of law that where one party, having superior knowledge, misrepresents material facts to another, or fails to reveal material facts which he is under a duty to reveal, and thereby induces such other party to enter into an unconscionable bargain, such conduct constitutes fraud which will move a court of equity to grant relief. Nicholson v. Janeway, 16 N. J. Eq. 285 (Ch. 1863) ; Jaeggi v. Andrews, 124 N. J. Eq. 155 (Ch. 1938) ; Stark v. Reingold, 18 N. J. 251 (1955). This principle of law is applicable even if we assumed no confidential or dominant relationship existed between the parties, [at 422]

If it be said that here there was no family duty, defendant was only a buyer, it is sufficient to say that the doctrine of caveat emptor is dead. Henningsen, supra; Unico supra; Newmark v. Gimbel’s Incorporated, 54 N. J. 585 (1969).

In other jurisdictions courts have deleted “fine print” provisions which were not called to the parties’ attention, without relying on the disparity of bargaining power premise.

In Arthur Philip Export Corp. v. Leathertone, 275 App. Div. 102, 87 N. Y. S. 2d 665 (App. Div. 1949), plaintiff ordered six drums of material from defendant. In small print on the right hand side in the lower center of the face of the order form appeared “(see also back).” On the reverse side appeared “this order further subject to the following terms,” one of which provided for arbitration.

The question was whether defendant was bound by the arbitration provision. The appellate court reversed the decision in favor of plaintiff, holding that it was a fact question whether the arbitration provision had been called to defendant’s attention by reason of prior dealings between the parties. In the course of its opinion, the court stated:

A party should not be bound by clauses printed on the reverse side of a document unless it be established that such matter was properly called to its attention and that it assented to the provisions there stated, [at 667]

Accord: Commercial Factors Corp. v. Kurtzman Bros., 131 Cal. App. 2d 133, 280 P. 2d 146 (D. Ct. App. 1955).

Putzer v. Vic-Tanny-Flatbush, Inc., 20 A. D. 2d 821, 248 N. Y. S. 2d 836 (App. Div. 1964), involved a suit for personal injuries allegedly caused by defendant’s negligence. Paragraph 5 of the membership contract entered into between plaintiff and defendant was construed as a valid covenant not to sue. The Court stated:

However, since this immunity provision was contained in ‘fine print’ on the reverse side of the instrument which plaintiff admittedly signed, it will be for the trier of the fact to decide whether this restriction upon his right to recovery was called to his attention when the instrument was executed and delivered, [at 837]

Accord: Tri-City Renta-Car and Leasing Corp. v. Vaillancourt, 33 A. D. 2d 613, 304 N. Y. S. 2d 682 (App. Div. 1969); Food Service Equipment Co. Inc. v. First National Bank of Atlanta, 121 Ga. App. 421, 174 S. E. 2d 216 (App. Ct. 1970), cert. denied May 21, 1970.

In 1 Corbin, Contracts (1963 ed.), § 33 at 129, the author, in describing “fine print provisions,” says:

Such provisions as these are effective to attain their purpose only in ease they are actually called to the attention of the other party to the negotiation or are so laid before him that he may be reasonably, and is in fact, believed to have been made aware of them.

Accord: Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102, 38 N. E. 899 (Sup. Ct. 1894) (invalidating conditions of sale printed on a letterhead); May Hosiery Mills v. G. C. Hall & Son, 77 Cal. App. 291, 246 P. 332 (D. Ct. App. 1926) (invalidating a fine print limitation of liability on the face of a signed order form).

Snch Now Jersey Law as bears on the problem exhibits a tendency in accord. Ingersoll-Rand Co. v. U. S. Fidelity &c. Co., 92 N. J. L. 403 (E. & A. 1918), involved the sale of certain pieces of machinery. The contract of sale provided that the size and dimensions were to be set forth in attached “specifications.” The unsigned specifications concluded with a statement that the title and right of possession were to remain in the seller until the equipment was fully paid for. The court stated the rule that where specifications are referred to for a specific purpose only, they become a part of the contract for such purpose only, and should be treated as irrelevant for all other purposes. It noted that the attached specifications were not in terms made a part of the contract and that the reference therein to them was in the clause describing the compressor as “of the size and dimensions as set forth in the attached specifications.” Nusbaum v. H. G. Harris Co., 98 N. J. L. 567 (E. & A. 1922), presented the same issue as Ingersoll-Rand supra, except in the context of replevin rather than conversion.

In Henningsen, supra, the court dealt with the problem, saying:

In assessing its significance we must keep in mind the general principle that, in the absence of fraud, one who does not choose to read a contract before signing it, cannot later relieve himself of its burdens. Fivey v. Pennsylvania R. R. Co., 67 N. J. L. 627 (E. & A. 1902). And in applying that principle, the basic tenet of freedom of competent parties to contract is a factor of importance. But in the framework of modern commercial life and business practices, such rules cannot be applied on a strict, doctrinal basis. The conflicting interests of the buyer and seller must be evaluated realistically and justly, giving due weight to the social policy evinced by the Uniform Sales Act, the progressive decisions of the courts engaged in administering it, the mass production methods of manufacture and distribution to the public, and the bargaining position occupied by the ordinary consumer in such an economy. This history of the law shows that legal doctrines, as first expounded, often prove to be inadequate under the impact of later experience. In such case, the need for justice has stimulated the necessary qualifications or adjustments. [32 N. J. at 386]

Justice Francis’ citation at 395 of Cutler Corp. v. Latshaw, 374 Pa. 1, 97 A. 2d 234 (Sup. Ct. 1953), in which an agreement to confess judgment buried among “ ‘conditions’ on the reverse side” was held unenforceable is more precisely in point.

Justice Francis’ dictum in Unico, supra, is also significant:

This provision is the fifth of 11 fine print paragraphs on the reverse side of the sale contract. The type is the same as in the other clauses; there is no emphasis put on it in the context, and there is no evidence that it was in any way brought to Owen’s attention or its significance explained to him. But regardless, we consider that the clause is an unfair imposition on a consumer goods purchaser and is contrary to public policy. [50 N. J. at 123]

On the basis of the foregoing I determine that in the present posture of the case there is ground for reformation of the contract to exclude the recapture clause. I am aware that this has not been done in any reported county district court case, but if a county district court may relieve against forfeiture, as the Supreme Court held it could in Vineland, supra, and Carteret Properties, Inc., supra, there is no reason why it may not give other equitable relief by way of defense. The evidence on final hearing may show that this clause was called to the attention of defendant and that she understood it. In such ease there may be a different ruling. However, on the basis of what is now before me, an order for the purpose of preserving the status quo is necessary. Caplan v. Pal ace Realty Co., 110 A. 584 (Ch. 1920), not in official reports; Isolantite, Inc. v. United Electrical, &c., of America, 130 N. J. Eg. 506 (Ch. 1941), aff'd 132 N. J. Eq. 613 (E. & A. 1942). This order will permit defendant to continue to retain the furniture which was restored to her by reason of the order made in conjunction with the order to show cause. It will also require plaintiff to continue to hold that portion of the furniture which was not restored to defendant. Both will be subject to court discipline in the event of an improper disposition of the items of furniture held by them. The case will be set down for early trial, with opportunity to- both parties to conduct discovery.

      On the 12th day of June, 1972, Fuentes v. Shevin and Epps v. Cortese sub nom. Parham v. Cortese, were reversed in 40 LW 4692 (June 13, 1972). [405 U. S.-, 92 S. Ct. 1983, 32 L. Ed. 2d 556].


author: Per Curiam.

text:
    CHARLOTTE L. TAYLOR, APPELLANT, v. RICHARD J. SULLIVAN, INDIVIDUALLY, AND AS COMMISSIONER OF DIVISION OF NATURAL RESOURCES IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (FORMERLY THE DIVISION OF RESOURCE DEVELOPMENT), NATURAL RESOURCE COUNCIL IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (FORMERLY THE RESOURCE DEVELOPMENT COUNCIL) BUREAU OF NAVIGATION OF THE STATE OF NEW JERSEY, WILLIAM T. CAHILL, GOVERNOR OF THE STATE OF NEW JERSEY, AND THE STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1971
    Decided June 15, 1972.

      Before Judges Coneord, Matthews and Eritz.

      Mr. Sidney FinTcel argued the cause for appellant (Mr. Harry Green, of counsel).

      Mr. Sherman T. Brewer, Jr., Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen STcillman, Assistant Attorney General, of counsel).
   Per Curiam.

The principal question here presented is whether the Commissioner of the Department of Environmental Protection has absolute discretion to cancel and revoke, prior to payment by the grantee and actual delivery of a deed, a prior resolution fully implemented by the appropriate agencies of the Department and state officials to grant a riparian interest to a qualified upland owner. We resolve that question in the affirmative.

Appellant owns a group of several small islands called collectively Elat Island, situated in Manahawken Bay and lying about 600 feet west of Long Beach Island. Her late husband, who died in July 1970, wrote to the then Division of Eesource Development in the Department of Conversation and Economic Development in April 1966 informally applying on behalf of himself and others for a grant of riparian title in connection with the proposed residential development of the island. On receiving informal approval, he submitted a formal application in July 1966 for a riparian lease or grant. A substantial expansion of the island by fill was contemplated. In September 1966 the Council advised Taylor that it had voted to issue the grant at $10 per front foot for 4,825.44 foet and $7.50 for 9,747.19 feet along the waterways. At request, Taylor forwarded $500 to the Council for preparation of the instrument.

The then Commissioner remained undecided about the matter for three years. But on November 21, 1969 a copy of the deed was submitted to Taylor for review and he was informed that if satisfactory the deed would be executed. On November 28, 1969 Taylor signified accord. On December 17, 1969 the deed was signed by then Governor Hughes, the then Commissioner of the Department and the appropriate subordinate agency heads and it was duly attested and acknowledged. On January 27, 1970 (after inauguration of Governor Cahill) the supervisor of grants and leases informed Taylor that the grant was ready for delivery and requested payment in the sum of $121,373.15, advising him that payment had to be made by April 27, 1970.

On April 8, 1970 the Council voted to grant joint requests by Taylor and the Mayor of Long Beach Township for a six months’ extension to October 27, 1970 for payment for the grant, Taylor having agreed to sell the island to the township and the extension being needed to afford the township voters time to approve the purchase by referendum. (Commissioner Sullivan took office April 22, 1970.) As the referendum date was later fixed for November 3, 1970, Taylor’s attorney and a township commissioner requested a further two-month extension, and the Council granted it on October 14, 1970, but, according to its minutes, expressly "without prejudice to delivery of the grant and to have it reviewed by the Commissioner and the Attorney General; and the validity of the grant be referred to the Attorney General’s office for an opinion.” (Emphasis added.)

On November 3, 1970 the referendum failed of passage and on the same day the Commissioner informed Mrs. Taylor by letter that the application was denied. She filed an appeal to this court December 17, 1970, and was informed on May 4, 1971 that at its January 27, 1971 meeting, upon the basis of the Commissioner’s action, the Council had voted to cancel the application and forfeit the filing and preparation fees paid by the applicant.

On this appeal appellant argues (1) she entered into an agreement with the State and is entitled to specific performance thereof; (2) respondents have no power to annul the grant; (3) respondents are barred by equitable estoppel, and (4) refusal to deliver the grant and its cancellation are arbitrary and capricious and in violation of appellant’s state and federal constitutional rights.

Eor a comprehensive discussion of the nature and history of the State’s interest in riparian lands and of the development of the common and statutory law concerning transfer of such interests by the State see Bailey v. Driscoll, 34 N. J. Super. 228 (App. Div. 1955, per Hall, J. A. D.) affirmed in part and reversed in part in 19 N. J. 363 (1955). The Appellate Division opinion in that case, without disapproval in that of the Supreme Court, establishes that action or inaction by the designated agencies and officers of the State in respect of grants of its riparian interests is not reviewable in terms of alleged abuse of discretion but solely on the basis of whether their action is within or without the bounds of the pertinent statutory limitations. 34 N. J. Super. at 253. “Of course, the Council is entrusted with complete discretion as to whether it will convey anything and, if so, at what price * * Ilid. Since, moreover, the statute provides that no such grant shall be effective “except when approved and signed by the Governor and the Commissioner * * N. J. S. A. 13:1B-13; and see N. J. S. A. 13 :1A-29, it is clear that the “complete discretion” of the Council is subject additionally to the equally comprehensive discretionary approval of the Chief Executive and the Commissioner. These statutory requirements evidence that in the administration of this subject matter the State’s proprietary interest is involved and the designated officers exercise the proprietor’s absolute discretion, subject only to the limitations stated in the controlling statutes, to convey or not, and on such terms as the Council and they may choose. Bailey v. Driscoll, supra, 34 N. J. Super. at 252-253.

In the light of this background, the grounds of appeal are seen to be devoid of merit.

1. The situation here is not to be analogized with that of private vendor and vendee of lands. The statute does not contemplate an executory agreement between the State to sell and the upland owner to buy. Rather does it fix conditions for consummation of the grant, and an essential such condition prerequisite is payment of the consideration by the grantee. N. J. S. A. 12:3—6; 12:3-10. The specified consideration was here never paid, or even tendered, by appellant. Until payment and acceptance thereof the intrinsic intent of the statutory scheme is that the State’s representatives are free to cancel the inchoate proposal.

2. The principle of estoppel does not apply here in law or in fact. See O’Neill v. State Hwy. Dept., 50 N. J. 307, 319 (1967). Discretion of the kind here reposed by the statute in the Commissioner and Governor is beyond judicial review. Id. at 315.

On the factual side, appellant and her predecessors in interest knew that if they did not produce the stipulated price of the grant by October 27, 1970 (date of the six-months’ extension) they were forfeit. They had not yet done so nor does the record suggest that they would or could have, by that date, as matters stood on October 14, 1970, when the additional two-months’ extension was allowed. Moreover, that extension was not unqualified. It was made expressly subject to review of the grant by the Commissioner. Thus, when the two-months’ extension was made, appellant had no assurance of consummation of the grant unless, at the very least, she made payment before expiration of the original unqualified six months’ extension (assuming, arguendo, incorrectness of our basic view that the Department could cancel the proposal at any time before payment). The element of substantial damage because of justified reliance upon governmental action is here absent.

3. In the light of what has been said above, the argument of arbitrariness in the actions of the Commissioner and Council is irrelevant. Moreover, the assertions of denial of constitutional rights are frivolous.

In view of the foregoing conclusions we need not consider the additional question argued as to whether a deed signed by the Governor and other departmental officials during their term of office could have efficacy thereafter for purposes of subsequent delivery in exchange for simultaneous payment by the grantee.

Affirmed; no costs.

      The Department and its constituent agencies have since undergone considerable legislative reorganization and change in nomenclature. Unless otherwise specified, references herein to the Commissioner and to the Council will be, respectively, to the department head and the administrative agency involved at the time of the action indicated.


text:
    BARBARA KNOBLOCK, PLAINTIFF-RESPONDENT, v. MICHAEL J. KNOBLOCK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 6, 1972
    Decided June 15, 1972.

      Before Judges Labkecqtje, Kolovsky and Allooen.

      Mr. Seymour G-elzer argued the cause for the appellant (Iaria and Oelzer, attorneys).

      Mr. John V. Burns argued the cause for the respondent.
   Per Curiam.

The county district court had no jurisdiction of this suit by a wife against her husband for arrearages under a support and maintenance agreement. The suit is cognizable only in the Chancery Division. Bendler v. Bendler, 3 N. J. 161 (1949); N. J. S. A. 2A:6-34; N. J. S. A. 37:2-5.

The judgment of the county district court in favor of the plaintiff is reversed, and the cause is remanded with directions that it be transferred to the Chancery Division of the Superior Court, Middlesex County, R. 1:13-4.


text:
    FRANK SCHERE, PLAINTIFF-APPELLANT, AND JACOB BLACK; ANNA BLACK; DAVID ROBINSON; LILLIAN ROBINSON; PLAINTIFFS, v. TOWNSHIP OF FREEHOLD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. LAWRENCE COHEN; BARBARA COHEN; AND SALLY TANNENBAUM, PLAINTIFFS-APPELLANTS, v. TOWNSHIP OF FREEHOLD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 12, 1972
    Decided June 23, 1972.

      Before Judges Coheord, Matthews and Eritz.

      Mr. William B. Blair, Jr. argued the cause for appellants (Messrs. Parsons, Canzona, Blair & Warren, attorneys).

      Mr. John A. Kaye argued the cause for respondent.
   Per Curiam.

We are satisfied from an examination of the whole record that the large parcels of land owned by the respective plaintiffs are, in very substantial degree, rendered beyond practical, reasonable utilization under the restriction thereof by the zoning ordinance of one-family residential development to lots of a minimum of 40,000 sq. ft., or almost an acre (R-40).

One of these tracts is 200 acres in area and the other is 100. Aside from one-family residences, these properties were restricted under the ordinance as of April 12, 1971, to farming, and, by way of special use exception, to garden apartments or planned adult communities. On September 27, 1971 the ordinance was amended to exclude garden apartments. On this appeal we are controlled by the current status of the ordinance. While plaintiffs might perhaps be required to attempt to devote at least part of their lands to the planned adult community use (if they can qualify therefor under the ordinance) before pleading confiscation, it certainly would not be reasonable to require them to resort to use of all of these large parcels for such a special purpose before complaining of a plainly unreasonable zoning requirement in relation to the most natural current and prospective utilization of such substantial aggregations of land in a rapidly growing community and area—single-family residential development.

Strong and convincing evidence in the form of expert testimony and otherwise was adduced by plaintiffs demonstrating that these tracts were not feasibly developable for residences on 40,000 sq. ft. lots—which would entail selling prices of $50,000 and up. No comparable residential development abuts or is near either tract. Instead, there are surrounding uses for either industrial purposes, 25,000, 20,000 and 9,000 square-foot residential developments, or vestigial farming operations, with an expressway imminently projected for one side of the Wardell tract. There was no contradiction by any of defendant’s witnesses of the fact that these properties were not developable for one-acre residences in the reasonably foreseeable future. A prognostication by one defense witness that when all the land now zoned for 25,000 square-foot development is used up (whenever that will be) there will then ensue a demand for homes on 40,000 square-foot lots in the township seems to us sheer speculation, unrooted in any rational explanation based upon evidence.

The opinions of the plaintiffs’ experts outlined above are strongly buttressed by the history, amply portrayed in the record, leading to the adoption of these zoning amendments. This indicates that the governing body’s adoption of the restriction here involved was designed to inhibit residential development in the municipality at a rate which would outstrip what the town fathers thought the voters and taxpayers would accept in fiscal outlay to supply ancillary municipal services (schools, etc.). It is implicit in the record that the 40,000 square foot restrictions imposed for the R-40 zones were believed to be effective for that purpose as not industrially acceptable to prospective builders. This appraisal has been borne out by the fact that there has been little or no development of homes on 40,000 square-foot lots since that restriction was first adopted by Freehold in 1965.

We do not here suggest that fiscal considerations may not properly be given some weight in zoning. But we do aver that such considerations will not justify imposing substantial functional non-utilization of a property owner’s lands. To do so is both confiscatory and to zone without “due regard to the character of the district and its peculiar suitability for particular uses.” Raskin v. Morristown, 21 N. J. 180, 198 (1956). We are constrained to the conclusion that this is what has occurred here, and we find no substantial credible evidence to support the trial judge’s finding to the contrary. Such zoning treatment of privately held lands is invalid. Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N. J. 539, 557 (1963); Gruber v. Mayor and Tp. Com. of Raritan Tp., 39 N. J. 1, 12 (1962). The presumption of validity of the questioned provision of the ordinance has been satisfactorily overcome.

It may also be observed that a deliberate governmental attempt to prevent by zoning the residential utilization of land, apt for the purpose, on behalf of the generality of the population in need thereof, in favor of reserving such land for future utilization by more affluent users, would seem to conflict with present-day judicial thought as to appropriate relationships between zoning policy and social housing needs. See Oakwood at Madison, Inc. v. Madison Tp., 117 N. J. Super. 11 (Law Div. 1971).

Defendant’s argument that plaintiffs’ rights to complain about the restriction are somehow depreciated because they purchased after the restriction was put into effect is without merit. See Wilson v. Mountainside, 42 N. J. 426, 452-453 (1964). Such a situation does not constitute a “self-created” hardship about which a property owner ordinarily may not complain. Ibid.

The zoning restrictions affecting residential development of plaintiffs’ properties are herewith declared invalid and are set aside. The township is allowed 90 days from the filing of this opinion to adopt reasonable zoning restrictions affecting residential development of plaintiffs’ lands. Upon the township’s failure so to do plaintiffs may develop their properties without regard to the area restriction in question (and any others directly related thereto such as dimensions and yards), but subject to all other applicable provisions of the zoning and other pertinent regulations of the municipality. No costs.


text:
    DOROTHY H. LIMPERT, PLAINTIFF-APPELLANT, v. FRANCIS J. LIMPERT, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 6, 1972
    Decided June 23, 1972.

      Before Judges Lewis, Hat,peen and Lojela.

      Mr. Robert 8. Solomon argued the cause for appellant (Messrs. Kirsten, Solomon and Friedman, attorneys).

      Mr. Alan M. Grosman argued the cause for respondent (Messrs. Grosman and Grosman, attorneys).
   Per Curiam.

Plaintiff, Dorothy H. Limpert, was divorced from defendant, Francis J. Limpert, in 1955, and granted custody of their IJ^-year-old son Gregory for whose support defendant was ordered to pay plaintiff $20 a week, plus necessary hospital, medical and dental expenses. Since plaintiff was working at the time, she did not seek alimony. Under an order entered October 27, 1961, the child support was increased to $27.50 a week, plus reasonable medical expenses.

By order to show cause, dated November 20, 1969, plaintiff instituted this action seeking (1) increased support for the son, Gregory, who was attending college in Boston; (2) support for herself, since she was then unable to work due to polymyositis; and (3) counsel fees. An application for an oral hearing was denied and the matter was heard on affidavits and interrogatories. The trial judge found that Gregory was emancipated and terminated support and maintenance for him as of January 16, 1970. He also denied plaintiff’s application for alimony at that time, but provided that if she were denied social security disability payments, further application for alimony could be made to the court. A counsel fee of $250, plus costs, was allowed plaintiff.

Plaintiff appealed from the whole of the order and the Appellate Division, in an unpublished opinion, reversed and remanded the entire matter for plenary hearing. Jurisdiction was not retained.

After such plenary hearing, the trial judge, by letter opinion dated April 26, 1971, found that the son was emancipated upon his graduation from high school and that defendant had no liability for the past, present, or future education of the son. He denied plaintiff’s application for alimony and allowed a counsel fee of $350. Plaintiff appeals from the whole of that order.

Emancipation in its general sense signifies a surrender and renunciation of the correlative rights and duties touching the care, custody and earnings of the child. Cafaro v. Cafaro, 118 N. J. L. 123, 124 (E. & A. 1936). According to Straver v. Straver, 26 N. J. Misc. 218, 222 (Ch. 1948), there is no age fixed in the law when a child becomes emancipated; prior to 21 years there is a presumption against it, and the burden of establishing the status by competent evidence is on him who asserts it.

In Straver the court rejected the contention of a divorced father that he was no longer obligated to make support payments pursuant to a divorce decree by reason of the fact that his 18-year-old daughter had become emancipated in that she had relinquished the use of his name and had become known by the name of her stepfather, and that she refused to visit him. The court pointed out that the mother had the custody and control of the child, that she lived with her, was subject to her parental domination, and was still attending school. Generally, as to voluntary acts of a child which will terminate a parent’s obligation to support, see Annotation, 32 A. L. R. 3d 1055 (1970).

Aside from the issue of emancipation, it appeared to be established law in this State that generally a father is under no duty to provide a college education for a son or daughter regardless of his financial capacity. Straver v. Straver, supra at 224. See also Rosenthal v. Rosenthal, 19 N. J. Super. 521, 526 (Ch. Div. 1952), mod. 26 N. J. Super. 400 (App. Div. 1953). However, there has been a trend in our courts towards providing greater education for children by including the expense of a college education as part of child support where the child shows scholastic aptitude and the parents are well able to afford it. See Khalaf v. Khalaf, 58 N. J. 63, 71-72 (1971), and the cases cited therein.

In the present case there is support in the record below for the trial judge’s findings that Gregory’s high school record demonstrated dubious scholastic ability and lackadaisical determination, and that neither the income of plaintiff nor defendant, nor both incomes combined, warranted the expense of a junior college in Boston in light of the availability of superior schools in this area at a far more reasonable cost.

It is noted that Gregory made some scholastic improvement after his first year at the junior college in Boston and, at the conclusion of his second year, was accepted for admission at the William Paterson College of New Jersey, in Wayne, New Jersey.

The trial judge, who had found that Gregory was emancipated upon graduation from high school, also found that he was capable of earning sufficient funds to pay his own way through school; that he had several excuses for not working continually in Boston; and that he had purchased a couple of hundred dollars worth of tools to work as an automobile mechanic during one summer, and should take cognizance of the opportunity of automobile mechanics. On this basis, together with testimony as to the poor relationship between Gregory and his father, the trial judge eliminated support payments for Gregory as of January 16, 1970.

Our reading of the record leads us to conclude that under the rationale of Straver v. Straver, supra, 26 N. J. Misc. at 222, 224, the trial judge’s finding of emancipation can hardly be sustained since the mother has custody of the boy and there is nothing in the record to suggest emancipation as far as the mother is concerned. It was her responsibility to raise the boy and determine what education was suitable for him under the circumstances.

As was stated in Straver:

In our case the petitioner, who has custody of the child under the order of this court is not seeking to impose on the father the cost of college education. She simply asks that he continue to support his daughter according to that order, while she assumes the burden of the tuition. When an order is made giving the custody of a child to a mother, there must be implicit in the order a grant of sufficient control to make the custody effective. In my judgment the mother in such a case is invested with the discretion to determine whether or not the child should receive education beyond that which is mandatory under the law. Having made a determination that the advanced education should be given, even though the cost thereof cannot be assessed against the father, his duty to maintain the child, having regard to her reasonable needs and to his financial condition, continues to exist. Petitioner had decided that her daughter should attend college. Such decision is her right under the custody order, and the defendant will be required to provide reasonable support, exclusive of the education cost, gauged by her needs and his means, [at 224]

Mrs. Limpert’s annual income, including social security benefits, is now reduced from $7900 to approximately $4680. Defendant Limpert’s income is approximately $16,600 annually.

Under the circumstances of this case, we have concluded that defendant, Francis J. Limpert, should pay the sum of $27.50 per week, retroactively to January 16, 1970, toward the support of his son Gregory while he successfully continues as a full-time student, and in regular course completes Ms undergraduate work at college. We further conclude that plaintiff, Dorothy H. Limpert, be awarded the sum of $25 per week by way of alimony retroactive to said January 16, 1970. The allowance of counsel fees in the sum of $350 for services rendered below is inadequate and, accordingly, said allowance is increased to $750.

Bemanded for entry of judgment in accordance with this opinion.


author: Polow, J. J. D. R. C.

text:
    VINCENT N. LOECHNER, PLAINTIFF, v. MILDRED LOECHNER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 15, 1972.

      Mr. Harold M. Savage for plaintiff Vincent N. Loeehner.

      Mr. Louis T. Gallo for defendant Mildred Loeehner.
   Polow, J. J. D. R. C.

(temporarily assigned). Defendant, by way of counterclaim, seeks equitable distribution of property acquired by plaintiff during the marriage, pursuant to N. J. S. A. 2A:34-23. Defendant had been successful in a prior suit for limited divorce in which a final judgment for divorce from bed and board was granted to her on July 8, 1965. The sole contested question of law is whether the entry of the limited divorce in favor of the wife seven years ago permanently fixed the property rights of either party against the other arising as a result of the marriage.

The wife now argues that since the husband is presently seeking an absolute divorce to which he was not entitled under the old law, he should suffer the consequences of the new statute as well as reap its benefits. By way of counterclaim she seeks equitable distribution of stock acquired by the husband in his own name prior to the limited divorce judgment seven years ago. While her argument has sentimental appeal, particularly since the husband was found guilty of and the wife free of marital fault, it nevertheless lacks legal merit.

The applicable statute, in effect then as now, N. J. S. A. 2A:34-6, provides:

For and during the time that any judgment for divorce from bed and board shall remain in force and effect all property rights of the parties shall be as though a judgment of absolute divorce had been entered.

The foregoing statute had the effect of vesting the property rights of each party as of the date of judgment of limited divorce in spite of the continued subsistence of the marital bond. The prior judgment of limited divorce had the same effect on the property rights of the parties as to each other as though a judgment for absolute divorce had been entered at that time. Lavino v. Lavino, 23 N. J. 635 (1957). The result must be the same regardless of which party obtained the relief.

Defendant-counterclaimant’s demand for relief by way of equitable distribution of property will be dismissed.


author: Seidman, J. C. C.

text:
    KARADIS BROS. PAINTING CO., INC., PLAINTIFF, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, AN INSURANCE CORPORATION OF THE STATE OF PENNSYLVANIA; SKYCLIMBER, INC., AND WESTERN GEAR CORPORATION, CORPORATIONS OF THE STATE OF CALIFORNIA; MOULTON LADDER CO., A PENNSYLVANIA CORPORATION; AND ANNE J. SMYTHE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN PATRICK SMYTHE, DECEASED, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided June 20, 1972.

      Mr. John Montis for plaintiff.

      Mr. Richard I. Wood for defendant Pennsylvania National Mutual Casualty Insurance Company (Messrs. Lewis, Siegel & Wood, attorneys).

      Mr. David, A. Parher for defendants Skyclimber, Inc., and Western Gear Corporation (Messrs. Parher, McCoy & Criscuolo, attorneys).

      Mr. Franh P. Addas for defendant Moulton Ladder Co. (Messrs. James & Addas, attorneys).

      Mr. Michael N. Kouvatas for defendant Anne J. Smythe, administratrix ad prosequendum of the estate of John Patrick Smythe, deceased.
   Seidman, J. C. C.

(temporarily assigned). Plaintiff, Karadis Bros. Painting Co., Inc. (Karadis), brings this declaratory judgment action to determine whether a policy of liability insurance issued to it by defendant Pennsylvania National Mutual Insurance Company (insurer) obligates the insurer to defend a third-party complaint in a lawsuit now pending in the Law Division, and to pay, within the limits of coverage, any judgment that may be rendered therein against the insured.

Other defendants, whose involvement will appear hereinafter, are Skyclimber, Inc.; Western Gear Corporation; Moulton Ladder Co.; and Anne J. Smythe, administratrix ad prosequendum of the estate of John Patrick Smythe, deceased.

Counsel have agreed to submit the issues to the Court for determination on the basis of the pleadings and memoranda of law.

These proceedings are the outgrowth of a death action instituted in the Law Division, Burlington County. The complaint in that suit relates, in substance, that, on October 17, 1969, John Patrick Smythe, an employee of Karadis, a contractor engaged to paint a water tower in Willingboro, was working on a scaffold attached to a mechanized hoist; and that, allegedly because of negligence in the design and manufacture of the hoist and in its maintenance, the scaffold collapsed, causing Smythe to fall to his death. It is asserted that Karadis was utilizing at the time a motor hoist device leased from Moulton Ladder Co. and manufactured and distributed by Skyclimber, Inc., a subsidiary of Western Gear Corporation. The complaint charges Skyclimber, Inc., Western Gear Corporation, and Moulton Ladder Co. with negligence and breach of warranty. In addition, it is alleged that Moulton Ladder Co. failed to inspect, maintain and repair the hoisting device. Karadis was not joined as a defendant, presumably because the decedent was its employee.

In their answer, Skyclimber, Inc., and Western Gear Corporation crossclaimed against Moulton Ladder Co. for contribution under the Joint Tortfeasors Act and for indemnification both on the theory of “vicarious liability” and under a written “'hold harmless” agreement.

Moulton Ladder Co. filed a third party complaint seeking indemnification from Karadis for any adverse judgment that might he recovered in the lawsuit. The first two counts are based upon “hold harmless” provisions of the rental agreement between it and Karadis. The third count claims a breach by Karadis of its alleged contractual obligation to supply insurance coverage for the lessor.

The existence of a general liability policy is not disputed; however, the insurer denies coverage and refuses to defend the third party complaint on the ground that the obligations, if any, of its insured to indemnify Moulton Ladder Co. are contractual ones excluded from the policy.

On September 30, 1969, Moulton Ladder Co. and Karadis executed a “Rental Contract and Receipt Eorm” whereby Skyclimber hoisting equipment was leased to Karadis to be used at a location described as “Willingboro Water Tank.” The equipment consists of motorized hoisting devices attached to each side of a scaffold and operating on suspended wire ropes fastened to the top of the structure.

Among the terms and conditions contained in the rental agreement are two paragraphs which provide, in pertinent part, as follows:

3. The lessee agrees to maintain said machinery and equipment in the condition as when delivered to it by lessor, usual wear and tear excepted, and to pay all claims and damages arising from defects therein or from the use or handling of said machinery and equipment, whether from injuries to persons or property and to pay for all damages to the equipment except the usual and ordinary wear and tear during the life of this contract * * *
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5. * * * the lessee agrees to hold the owner, manufacturer and dealer as lessor harmless from any claim of whatsoever kind or nature as a result of the use of the above enumerated equipment ... In no event shall the lessor be liable for contingent or consequential damages nor shall the lessor be liable for any damages' arising out of or by reason of faulty, improper or negligent use of the equipment. This hold harmless agreement shall encompass any claims arising from either or both personal injury and property damages caused as a result of the use or storage of this equipment both by the employer of the lessee or any third parties and the lessee also agrees to hold the lessor harmless from any and all claims arising out of or in connection with the active or passive use or storage of the lessor’s equipment while in the possession or control of the lessee or its agents, servants or employees * * *

Another provision in the agreement requires the lessee to protect the lessor with full insurance “to cover damage occasioned by fixe, theft, flood, explosion, accident, act of God, or any other cause that might occur during the life of this lease.”

It is evident that a resolution of the problem in this case turns on whether the claims asserted against Karadis in the third-party complaint, clearly contractual in origin, are encompassed within the insuring agreements of the liability policy involved herein. The policy provisions are quite complex and must be examined carefully in order to focus attention on what is actually a rather narrow issue. The applicable portions are summarized as follows:

1. The insuring agreement: It is to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury caused by an occurrence.

2. Exclusion: The policy does not apply to liability assumed by the insured under any contract or agreement except an incidental contract.

3. Incidental contract: Such contract means, among others, an elevator maintenance agreement.

4. Elevator: This is defined as “any hoisting or lowering device to connect floors or landings, whether or not in service, and all appliances thereof including any car, platform, shaft, hoistway, stairway, runway, power equipment and machinery; but does not include an automobile servicing hoist, or a hoist without a platform outside a building if without mechanical power or if not attached to building walls, or a hod or material hoist used in alteration, construction or demolition operations, or an inclined conveyor used exclusively for carrying property or a dumbwaiter used exclusively for carrying property and having a compartment height not exceeding four feet.”

It is not unusual for liability insurance policies to exclude from coverage liability assumed by an insured under a contract not defined in the policy, generally one in which the insured agrees to indemnify to save harmless a third party. See Annotation, Scope and effect of clause in liability policy excluding from coverage liability assumed by insured under contract not defined in policy, such as one of indemnity”, 63 A. L. R. 2d 1122, § 1. However, the exclusion clause does not preclude coverage, even though some sort of liabilty is assumed by contract, where the insured would have been liable regardless of his contractual undertaking. United States Fidelity & Guaranty Co. v. Virginia Engineering Co., 213 F. 2d 109, 63 A. L. R. 2d 1114 (4 Cir. 1954); Lumbermen’s Mutual Gas. Co. v. Town of Pound Ridge, 362 F. 2d 430 (2 Cir. 1966); Larson Construction Co. v. Oregon Automobile Ins. Co., 450 F. 2d 1193 (9 Cir. 1971); Abajian v. Aetna Casualty & Surety Co., 232 F. Supp. 710 (D. Vt. 1964); Home Insurance Co. v. Southport Terminals, Inc., 240 So. 2d 525 (Fla. Ct. App. 1970); Aetna Casualty & Surety Co. v. Starrett, 102 Ga. App. 278, 115 S. E. 2d 641 (Ct. of App. 1960); Board of Trade Livery Co. v. Georgia Cas. Co., 160 Minn. 490, 200 N. W. 633 (Sup. Ct. 1924); O’Dowd v. American Surety Co. of N. Y., 3 N. Y. 2d 347, 165 N. Y. S. 2d 458, 144 N. E. 2d 359 (Ct. of App. 1957); Modern Scaffold Co. v. Karell Realty Corp., 28 A. D. 2d 581, 279 N. Y. S. 2d 436 (App. Div. 1967); A. T. Morris & Co. v. Lumber Mut. Casually Ins. Co., 163 Misc. 715, 298 N. Y. S. 227 (Mun. Ct. 1937); Labberton v. General Cas. Co. of Am., 53 Wash. 2d 180, 332 P. 2d 250 (Sup. Ct. 1958).

See also Ohio Cas. Ins. Co. v. Flanagin, 44 N. J. 504, 520-522 (1965); Hackensack Water Co. v. General Accident, etc., Ltd., 84 N. J. Super. 479, 484 (App. Div. 1964).

Liability assumed by a contract not defined in the policy is excluded from coverage under such exclusion clause where the contractual obligation was one which would not have been independently imposed upon him by law. Union Paving Co. to Use of United States Casualty Co. v. Thomas, 186 F. 2d 172 (3 Cir. 1951); Larsen v. General Casualty Co., 99 F. Supp. 300 (D. Minn. 1951), aff’d General Casualty Co. of Wisconsin v. Larson, 196 F. 2d 170 (8 Cir. 1952); Employers’ Surplus Lines Ins. Co. v. Fireman’s F. Ins. Co., 266 Cal. App. 2d 183, 71 Cal. Rptr. 838 (Ct. of App. 1968); St. Louis Police Relief Ass’n v. Aetna Life Ins. Co., 236 Mo. App. 413, 154 S. W. 2d 782 (Ct. of App. 1941); Maryland Casualty Company v. Waumbec Mills, Inc., 102 N. H. 200, 152 A. 2d 619 (N. H. Sup. Ct. 1959); Weissblum v. Glens Falls Ins. Co., 40 Misc. 2d 964, 244 N. Y. S. 2d 689 (Sup. Ct. 1963).

In the instant case, the insured cannot be exposed to liability in the Law Division suit unless by reason of an obligation assumed by contract. Since the decedent was its employee, Karadis, in the absence of an express contractual undertaking, is protected by the workmen’s compensation statute from a claim for indemnity of for contribution as a joint tort-feasor because of injury to or death of the employee Public Service Elec. and Gas Co. v. Waldroup, 38 N. J. Super. 419, 436-438 (App. Div. 1955); Farren v. N. J. Turnpike Authority, 31 N. J. Super. 356, 360-361 (App. Div. 1954). See also Wellenheider v. Rader, 49 N. J. 1, 10 (1967). Coverage, therefore, must depend upon whether the insured’s obligation, if any, to indemnify Moulton Ladder Co. is a contractual one defined in the policy.

As noted above, the policy excludes liability assumed by the insured under any contract or agreement except an incidental contract, five kinds of which are listed. Four of the categories — leases of premises, easement agreements, undertakings to indemnify a municipality, and sidetrack agreements — are obviously not relevant. The fifth is an elevator maintenance agreement.

There is no doubt that so much of the third-party complaint as seeks indemnification by reason of Karadis’ alleged failure to provide full insurance coverage for the lessor, claimed to be required by the terms and conditions of the rental agreement, is not within the scope of the policy in question. Whatever liability was assumed by the insured in this respect is not within any of the incidental contracts listed in the policy. The Court concludes that the policy provides no coverage for this segment of the third-party complaint and that the insurer is under no obligation to provide a defense or to pay any sums which the insured might become legally obligated to pay as damages therefor.

The remainder of the third-party complaint presents a more difficult problem. The issue is whether the rental agreement herein, is, at least in part, an incidental contract for the maintenance of an elevator.

Since the agreement is directly related to the insured’s business of a painting contractor, it is, in that context, an incidental contract; that is, one which belongs to or is connected with what the insured has to do in the operation of its business. Paragraph 3 of the terms and conditions of the contract requires the lessee to maintain the machinery and equipment in the same condition as when delivered, usual wear and tear excepted. To this extent, the contract contains a maintenance provision. But before one can conclude that an elevator maintenance agreement is involved, one must first determine whether the hoisting device in question is an elevator as defined in the policy.

In a broad sense, an elevator is any hoisting or lowering device. See Williams v. Rheas, 99 Pa. Super. 438 (Super. Ct. 1930). The policy in this case defines it as “any hoisting or lowering device to connect floors or landings,” as well as the appurtenances thereto. The insurer contends that since the hoist in question does not go between floors and landings, there can be no coverage.

It was noted earlier that the term “elevator,” as defined in the policy, does not include, among other things, “a hoist without a platform outside a building if without mechanical power or if not attached to building walls.” Karadis reasons that although it is a hoist outside a building, the Skyclimber unit has a platform and is mechanically powered; therefore, since it is not excluded from the definition of “elevator,” the device is an elevator within the policy definition.

However, the Skyclimber unit is not an elevator as defined in the policy merely because the exclusion does not apply. It is true that the hoisting device and attached scaffolding here involved, the purpose of which was to raise or lower workmen engaged in painting a structure, can be considered an elevator. But the policy definition of an elevator qualifies and limits the “hoisting or lowering device” to one which connects floors or landings. The water tower being painted obviously had no floors and there is no proof that there were landings, which are, generally, the floor at the head or foot of a flight of stairs or a platform between flights of stairs. Random House Dictionary of the English Language (Unabridged Ed., 1966). In any event, it is clear that the sole purpose of the Skyclimber unit was to enable the workmen to paint the exterior of the water tower by raising or lowering them as needed, and not to connect floors or landings.

Courts are, of course, bound to protect the insured to the full extent that any fair interpretation will allow; and if the controlling language will support two meanings, one favorable to the insurer, and the other favorable to the insured, the interpretation sustaining coverage must be applied. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N. J. 1 (1961). The corollary principle, however, is that the words of an insurance policy must be given their ordinary and usual meanings and if there is no ambiguity, a strained or distorted construction will not be applied. Brynildsen v. Ambassador Ins. Co., 113 N. J. Super. 514, 518 (Law Div. 1971). See also Wiliams v. State Farm Mutual Auto Ins. Co., 99 N. J. Super. 377, 382 (Law Div. 1968), aff'd 104 N. J. Super. 403 (App. Div. 1969), aff'd 54 N. J. 580 (1969).

In the instant case, the definition of an elevator as a hoisting or lowering device to connect floors or landings is clear and unambiguous. The portion of the clause which excludes certain types of devices may be somewhat difficult to unravel, but it cannot have the effect of enlarging the definition. In short, the hoisting equipment involved herein, even though it had a platform suspended by wire ropes and a mechanically powered device to raise and lower it, and was outside the structure, could not thereby become an elevator as defined in the policy where, as here, the equipment did not and was not intended to connect floors or landings, but was, instead, to be used in the painting of a water tower.

It follows, therefore, that the liability, if any, assumed by Karadis under the rental contract did not involve an agreement to maintain an elevator as defined in the policy. The insurance provided by the policy does not apply to such liability. The insurer is not required to provide a defense to the claim for indemnification or to pay any sums which the insured might become legally obligated to pay as damages therefor.

The “hold harmless” provisions of the rental agreement are very broad, covering “any claim of whatsoever kind or nature as a result of the use of “the equipment in question”, “any claims arising from either or both personal injury and property damages caused as a result of the use or storage of this equipment,” and “all claims arising out of or in connection with the active or passive use or storage of the lessor’s equipment.” Since the contractual liability covered by the policy is limited to that arising out of an incidental contract, and since the pertinent incidental contract here must be one for the maintenance of an elevator, it is clear that any liability assumed by the insured beyond that resulting from the obligation to maintain the equipment (assuming it were an elevator as defined in the policy) would not be covered by the policy.

Judgment will be entered in favor of the insurer consistent with the conclusions set forth hereinabove. A form of such judgment should be submitted pursuant to B. 4:42-l.