author: Ackeema.n, J. S. C.

text:
    ANTHONY J. GIULIANO, CALVIN D. WEST, MICHAEL A. BONTEMPO, AND RALPH A. VILLANI, PLAINTIFFS, v. HARRY S. REICHENSTEIN, CITY CLERK OF THE CITY OF NEWARK, C. THEODORE PINCKNEY, RAMON ANESES, DONALD TUCKER, AND EARL HARRIS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 25, 1970.

      Mr. Nicholas R. Amaio attorney for plaintiffs.

      Mr. Anthony J. luliani attorney for defendant Harry S. Reich enstem.

      Mr. Morton Stavis for defendant C. Theodore Pinckney {Messrs. Stavis, Richardson, Koenigsberg & Rossmoore, attorneys) .

      Mr. Arnold K. MyteTka for defendants Ramon Aneses, Donald Tucker and Earl Harris {Messrs. Clapp & Eisenberg, attorneys).
   Ackeema.n, J. S. C.

This matter is before the court on a complaint filed on May 21, 1970 by Anthony J. Giuliano, Calvin D. West, Michael A. Bontempo and Ralph A. Villani, who were candidates for councilman-at-large at the regular municipal election for the City of Newark held on May 12, 1970. Defendants are Harry S. Reichenstein, the city clerk of Newark, and Ramon Aneses, Earl Harris, C. Theodore Pinckney and Donald Tucker, who also were candidates for councilman-at-large in the May 12 election.

The basic issue for decision is whether the bracketing and designations of the candidates not eliminated in the May 12 election must remain exactly the same in the upcoming run-off election or whether there may be a new bracketing and change in designations. On May 20, 1970, one day before the date fixed by the city clerk for the drawing of ballot positions for the run-off election to be held on June 16, 1970, the four plaintiffs filed a petition with the city clerk requesting that they be bracketed on the run-off ballot with a common designation, claiming the right to do so under N. J. S. A. 40:69A-155 and other pertinent statutes. The city clerk denied their petition and this suit was instituted. Upon application by plaintiffs, the court restrained the city clerk from drawing ballot positions and from the printing of ballots for the run-off election until Monday, May 25, 1970, the date fixed for hearing of the matter before the court. Such hearing has been held.

I

The facts are not in dispute. Pursuant to the Faulkner Act enacted in 1950 (N. J. 8. A., Title 40, c. 69A, Arts. 1 through 17), Newark has adopted the “Mayor-Council Plan C” form of municipal government as provided for in Article 5 of the statute (N. J. 8. A. 40:69A-55 through 60.4). See Horwitz v. Reichenstein, 15 N. J. 6 (1954); Trugman v. Reichenstein, 27 N. J. 280 (1958). Under this plan the city is governed by an elected mayor and an elected council consisting of four councilmen-at-large and five ward councilmen, all of whom serve four-year terms and are elected at “regular municipal elections.” See N. J. S. A. 40:69A-58 and 59.

Article 5 of the statute, which contains the provisions specifically relating to “Mayor-Council Plan C” municipalities, incorporates other provisions of the Faulkner Act, common to all optional plans provided for therein, including the provisions of Article 17 thereof relating to elections (see N. J. S. A. 40 :69A-150 through 162), and these are the statutory provisions directly involved here. As is apparent from the following summary of their provisions, most of these sections set forth details specifically relating to regular municipal, elections held in May, including a specific provision as to bracketing and designations, and there is only one section dealing with run-off elections, which is quite general in its terms. A question is presented as to the extent to which the provisions governing the regular election also apply to the run-off.

N. J. S. A. 40 :69A—150 provides that “regular municipal elections shall be held in each municipality on the second Tuesday m May in the years in which municipal officers are to be elected,” and N. J. 8. A. 40:69A-15'1 provides that “the municipal election shall be held at the same place or places and conducted in the sam.e manner, so far as possible, as the genera] election.”

N. J. S. A. 40:69A-153 nrovides that at least 46 daj^s prior to a regular municipal election the names of candidates for all offices shall be filed with the municipal clerk and, together with N. J. 8. A. 40 :69A-154, sets forth in detail the manner in which candidates shall be nominated by petitions of voters. Nominations are made on an individual basis without any connection to bracketing of candidates or designations.

N. J. 8. A. 40 ¡69A-155 specifically permits bracketings and designations. It provides:

Any candidate whose name is to be printed on the ballot may petition the municipal clerk to print opposite his name on the ballot, a designation, in not more than six words, as named by him in such petition, for the purpose of indicating either an official act or policy to which he is pledged or committed, but the designation shall not indicate political party affiliations. On the filing of such petition the clerk shall cause the designation to be printed opposite the name of such candidate upon the ballot. If several candidates for the same office shall petition that their names be grouped together and that the one designation named by them shall be printed opposite their names, the clerk shall group their names in a bracket, and opposite the bracket shall print the same designation as aforesaid. Petitions requesting a designation or grouping of candidates shall be filed with the clerk on or before the last day fixed for filing the petition for nomination. If two caedidates or groups select the same designation the clerk shall notify the candidate or group whose petition was last filed, and such candidate or group shall seleet a new designation.

N. J. 8. A. 40:69A-156, relating to the order of appearance of names on ballots and to the drawing of lots for ballot positions, provides:

The municipal clerk shall draw lots to determine the order in which the names of the candidates or groups of candidates shall appear upon the ballots. The names of the person or group of candidates first drawn shall occupy first place on the ballot, or voting machine, and the name of the person or group of candidates next drawn shall occupy second place, and so forth. The manner of drawing by lot shall be as follows: Paper cards with the name of each candidate or group of candidates written thereon shall be placed in a covered box with an aperture in the Top large enough to allow the cards to be drawn therefrom. The municipal clerk in the presence of any candidate shall draw from the box each card without knowledge on his part as to which card he is drawing. The municipal clerk shall at least two days prior to the drawing notify each candidate by registered mail of the time and place of the drawing. The candidate or his representative shall have the right to examine the cards prior to their being placed m the covered box.

N. J. 8. A. 40:69A-157, relating to publication of names of candidates in newspapers, provides:

Within 10 days after the expiration of the time for filing certificates, statement and petitions for candidates, and the drawing for position, the municipal clerk shall cause the names of the candidates as they are to appear upon the ballots to be published in proper form once in each of 2 newspapers having the largest circulation in such municipality, and published in this state, provided, however, if there is a newspaper of general circulation published in the municipality, 1 of the 2 notices should be published in such newspaper although it is not of the 2 in greatest circulation.

N. J. 8. A. 40:69A-159 contains specific provisions as to the form and printing of ballots and as to the distribution thereof by the municipal clerk to election officials at polling places.

N. J. 8. A. 40¡69A-159.1, which was not a part of. the original Eaulkner Act and was first enacted in 1959, provides for the counting of ballots and canvass of returns and provides, among other things, that on the day following the election the municipal clerk shall canvass the returns from election districts and the soldier and civilian absentee ballots and immediately file in his office and make public the result thereof.

N. J. S. A. 40:69A-160 provides, in general, that candidates must be elected by a majority of the votes cast and, in cases where more than one councilman-at-large is to be elected, specifically sets forth formulae to determine whether the required numbers of votes for election have been received by such candidates.

N. J. S. A. 40:69-A-161, which goes to the heart of this controversy, provides for a run-off election as follows:

In any regular municipal election referred to in section [40:69A-160] if a sufficient number of candidates do not receive a majority of the votes east to elect the required number of eouncilmen at large, or no candidate for mayor or no candidate for ward councilman receives a majority of the votes east for his respective office, a runoff election in the municipality or ward, as the case may be, shall be held on the fifth Tuesday next following such municipal election. The candidates for eouncilmen at large not elected at such municipal election, equal in number to twice the number of eouncilmen at large remaining to be elected, who received the greatest number of votes at such municipal election and the 2 candidates for mayor or for ward eouncilmen who received the greatest number of votes at such election, shall be the candidates for the office for which they were nominated, at such runoff election. Military service ballots shall forthwith be printed and distributed for the runoff election in the same manner, so far as possible, as for other municipal elections.
The candidate or candidates who receive the greatest number of votes at such runoff election shall be elected to the office or offices to be filled. If 2 or more candidates shall be equal and greatest in votes, for any of the purposes of chis section, they shall draw lots to determine which one shall enter the runoff election or be elected therein, as the case may be.
If any candidate to be voted for at the runoff election dies 7 or more days prior to the runoff election, the candidate for said office not theretofore included in the runoff election but next in highest number of votes for that purpose, shall be substituted at such election in the place and stead of the deceased candidate and his name shall be substituted on the ballots for that of the deceased candidate.

II

At the regular municipal election held on May 12, 1970 there were seven candidates for mayor whose names appeared on the ballot. Six of the seven had designations printed under their names. Ho mayoral candidate received a majority of the votes cast. Kenneth A. Gibson, who occupied the fourth ballot position and whose designation was “Community Choice,” received the largest number of votes for mayor. Hugh J. Addonizio, who occupied the first ballot position and whose designation was “For Peace and Progress,” received the second largest number of votes. In accordance with N. J. 8. A. 40 :69A-160, they are the two candidates for mayor in the run-off election and their positions and designations on the run-off ballot are not directly involved here.

There were 29 candidates for the four offices of eouneilman-at-large whose names appeared on the ballots at the regular election. The four plaintiffs and the four candidate defendants were the eight candidates who received the largest number of votes, but none received a majority and they are the candidates for councilman-at-large in the run-off.

The four defendants, Messrs. Harris, Pinckney, Aneses and Tucker, in that order, occupied the first four positions for the office of councilman-at-large on the ballots in the regular election and they were bracketed with a common designation “Community Choice,” the same designation used in the regular election by Mr. Gibson. They were the only candidates for councilman-at-large who were bracketed. The four plaintiffs had positions and designations as follows. Mr. West had the eighth ballot position and the designation “He Stood the Test.” Mr. Villani occupied the eleventh ballot position and had no designation printed under his name. Mr. Bontempo occupied the twelfth ballot position and had the designation “Twelve Years — Performance —• Not Promises.” Mr. Giuliano occupied the twenty-first ballot position and had the designation “Progress in a Safer Newark.” None of the 29 candidates for councilman-at-large in the May 12 election used the same designation as was used by Mr. Addonizio in that election.

As stated above, the four plaintiffs petitioned the city clerk on May 20, 1970 that they be bracketed on the runoff ballot with the common designation “For Peace and Progress,” the same designation used by Mr. Addonizio in the regular election and presumably to be' used by him in the run-off. Their petition was apparently filed after notice had been received by them from the city clerk in accordance with N. J. S. A. 40 :69A—156 that a drawing for ballot positions on the run-off ballot would be held on May 21, 1970. The city clerk denied their petition, ruling in substance that the run-off election was simply a continuation of the May 12 election; that all designations and bracketings, or the absence thereof, were fixed and were to remain the same as they were on the ballots for the May 12 election, and that in the drawings for the eight ballot positions for councilman-at-largo on the run-off ballots there should be five cards in accordance with N. J. 8. A. 40 :69A—156, with separate cards for each of the four plaintiffs and one card for the four bracketed candidate defendants. The plaintiffs contend that his ruling is a denial of their rights under the run-off statute and pray that an order be issued to permit their bracketing and the use of the common designation. In the alternative, they pray that if their right to bracketing and a common designation is denied, the four candidate defendants be denied the right to bracket and to a common designation on the run-off ballot.

Ill

I am of the opinion that, under the proper construction of the statutes involved, plaintiffs are entitled to be bracketed and to the use of the common designation in ■ the run-off election, and that the principal relief which they seek must therefore be granted. Their prayer that the candidate defendants be unbracketed is denied.

It is apparent that the language of the run-off statute itself does not clearly or expressly answer the problem presented here, and the few reported eases which deal with run-off elections under the Eaulkner Act do not bear directly upon the point. See Trugman v. Reichenstein, supra; McCarthy v. Reichenstein, supra; see Seminara v. Smith, 89 N. J. Super. 349 (App. Div. 1965); Batistich v. Brennan, 88 N. J. Super. 84 (App. Div. 1965), aff’d 45 N. J. 533 (1965); Brick Tp. v. Spivak, 95 N. J. Super. 401 (App. Div. 1967), aff’d 49 N. J. 400 (1967).

It is axiomatic that election laws are to be liberally construed so as to effectuate their purposes. Wene v. Meyner, 13 N. J. 185, 197 (1953). And, as stated by the Supreme Court in the recent case of Roman v. Sharper, 53 N. J. 338, 341 (1969), dealing with the recall provisions of Article 17 of the Faulkner Act, “We should assume that the Legislature intended a reasonable approach, and we should construe the statute to provide one if we can.” It is well settled that where the Legislature has not given directions to municipal clerks or county clerks in statutory enactments relating to elections, either in specific terms or in language from which the legislative intent can be discerned, as to matters pertaining to the conduct thereof, some decisions must rest within the discretion of such clerks. See Hawkes v. Gates, 129 N. J. L. 5, 11 (Sup. Ct. 1942). But, it is also clear, even in such cases, that if the course taken by the clerk in exercising his discretion is not rooted in reason, the bounds of his delegated authority have been exceeded and it is the duty of the court to say so. Richardson v. Caputo, 46 N. J. 3, 9 (1965). And, if a legislative enactment by its express terms or by a fair construction thereof charts a procedure prescribed by the Legislature for the clerk to follow, he does not have discretion in the matter. Axtell v. Caputo, 85 N. J. Super. 80 (App. Div. 1964). This case is of the latter type and I am of the opinion that the decision of the city clerk denying the right to plaintiffs to bracket and use a common designation in the run-off election cannot be sustained as a permissible exercise of his discretion in a delegated matter.

Here, as is apparent from the election provisions of Article 17 of the Faulkner Act referred to above, the only section of the act which expressly deals with run-off elections is N. J. S. A. 40:69A-161. It is general in its terms and does not expressly deal with certain matters which are presented in the conduct of every such election. Unlike the prior sections of the article which deal with the regular municipal election to be held on the second Tuesday in May, it makes no specific reference to bracketing or designations, to ballot positions or the drawing of lots therefor, to publication in newspapers of names of candidates as they will appear on the run-off ballots, nor to the exact form of run-off ballots and the general printing and distribution thereof. However, unlike the prior sections relating to the regular May election, which prior to 1959 made no mention in any way to military ballots, there is a specific provision in the run-off statute which was in the statute as originally enacted and which provides that military ballots shall be printed and distributed “in the same manner, so far as possible, as for other municipal elections.” This provision, as well as the scheme of the election provisions of the Faulkner Act as a whole and the reasons therefor, as well as those of the general election laws, incorporated in the Faulkner Act by N. J. S. A. 40:69A-151 “so far as possible,” clearly indicate that the Legislature intended that the run-off statute should not be construed in a vacuum, and that the provisions relating to regular municipal elections should apply to run-off elections “in the same manner so far as possible.”

In Seminara v. Smith, 89 N. J. Super. 349 (App. Div. 1965), the court said:

* * * the Faulkner Act as a whole was adopted as essentially one; integral comprehensive plan for local government. Its different cognate provisions, adopted at one time, lend significance to each other. * * * [at 354 [

See also Pritel v. Burris, 94 N. J. Super. 485, 490, 492 (App. Div. 1967).

And in Horwitz v. Reichenstein, 15 N. J. 6 (1954) Chief Justice Vanderbilt, writing for the court, stated with respect to another matter relating to elections arising under the Faulkner Act:

At the most, all that can be said for the appellant’s contention is that the language of the quoted section of the Faulkner Act is ambiguous. If so, it is our clear duty to choose that construction which will carry out the legislative intent of the statute as a whole * * ®
* * :¡; :¡í * $c
The Faulkner Act, moreover, does not purport to stand alone, despite the appellant’s contention to the contrary. Thus it provides that “the municipal election shall be * * * conducted in the same manner, so far as possible, as the general election.” N. J. S. A. 40:69A-151.
* % * * * $ * *
Nor are these the only instances of the dependence of the Faulkner Act on the general election laws. The Faulkner Act makes no provision for soldier voting except in run-off elections and no provisions at all for absentee voting as the general election laws do, N. J. S. A. 19:57-l et seq. It would be unthinkable to exclude soldiers and absentees from all elections held under the Faulkner Act, except soldiers in run-off elections, when they are permitted to vote in every other kind of election. Without continuing to demonstrate further .the instances in which the Faulkner Act necessarily depends upon the general election laws, we cannot agree with the appellant’s contention that the Faulkner Act must be construed as an entirely independent. legislative scheme separate and apart in every respect from the general election laws, [at 8-10]

It is, therefore, perfectly clear, applying the above precedents, that the run-off statute must be construed in harmony with the other provisions of the Faulkner Act relating to regular elections and that those provisions must be held applicable to run-off elections “so far as possible.” In the opinion of the court, this applies to all such provisions which may be applied to run-off elections, including the drawing fox ballot positions and the provisions relating to bracketing and designations.

Thus, for example, one might argue that the run-off statute is silent as to ballot positions and that the city clerk might reasonably decide in his discretion that (1) ballot positions should be fixed on the run-off ballots in accordance with the relative positions of candidates drawn for positions on the ballots at the regular election, or (2) ballot positions should he awarded in accordance with the number of votes received by candidates at the regular election, with those receiving the greatest number of votes receiving the first positions, or (3) the ballots should remain exactly as they were at the time of the regular election with the unsuccessful candidates simply deleted or “red penciled55 from the ballot and with the candidates in the run-off appearing on the ballot in exactly the same manner and in the same positions as they appeared in the ballot for the regular elections. The city clerk has, however, properly applied the provisions of N. J. S. A. 40 :69A-156 “so far as possible55 to the run-off election and has held that there must he a new drawing as provided in that statute.

In the court’s opinion, the city clerk must similarly apply the provisions of N. J. S. A. 40 ;69A-155 “so far as possible” with respect to bracketing and designations.

It was fox the Legislature to determine whether bracketing and designations would be permitted in municipal elections nnder optional plans for government of the type here involved, which call for nonpartisan as distinguished from partisan elections nnder the general election laws. Such elections are nonpartisan only in the technical sense that political parties, as such, are not involved and the primary system is not used. See Batistich v. Brennan, supra. The Legislature followed the recommendation of the Faulkner Commission that bracketing and designations not be permitted in the election of charter commissioners to study and recommend to voters of municipalities what optional method of municipal government should be adopted. See Dios v. Bonnie, 76 N. J. Super. 390 (App. Div. 1962); Final Report of-the Commission on Municipal Government (February 1949), at 31-32. However, although the original drafts of the election provisions of the act as proposed by the commission in its first report dated November 1, 1948, contained in Preliminary Statement of the Commission on Municipal Government, at 63-64 (see § 6-5), and in its Final Report, at 94-95 (see § 8-5), issued under date of February 14, 1949, contained no provision permitting bracketing and designations in municipal elections for elective officers, the statute as finally proposed by the Commission in the Second Report of the Commission on Municipal Government (February 1950), at 54-55 (see §§ 17-6 and 17-7) contained the provision permitting bracketing and designations in such elections, and that provision was adopted by the Legislature when the Faulkner Act was passed in 1950. N. J. S. A. 40:69A-155 and 156; Dios v. Ronnie, supra. Bracketing is also permitted in general elections. See N. J. S. A. 19 :14-10, 19:14-12; 19 :49-2. Although bracketings and designations admittedly may be of partisan advantage or disadvantage to candidates, they do group “certain of the candidates on the ballot under a mark or symbol which distinguishes them from other candidates,” Dios v. Ronnie, supra, 76 N. J. Super, at 394, and they do serve to convey information to the voter which helps him in exercising his franchise in the voting booth. See Richardson v. Caputo, infra; Harrison v. Jones, 44 N. J. Super. 456 (App. Div. 1957); Ehrhardt v. Bergen, 69 N. J. Super. 390 (App. Div. 1961).

The clerk has taken the view that since the run-off is a “continuation” or “completion” of the regular election, all bracketings and designations must remain frozen as they were in the regular election. It is the court’s view that this interpretation of the bracketing statute is unwarranted and not in accordance with the purpose of the municipal election statutes as a whole, nor is it an application of the statute to run-offs in the same manner as in regular municipal elections “so far as possible.” It is true, of course, that, in a sense, the run-off is simply a completion of the regular election. But it is also a new election, particularly in a case such as this where no candidate for office received a vote of the majority in the regular election and the number of candidates was large. See Brick Tp. v. Spivak, supra. The field of candidates has been narrowed and the entire electorate goes to the polls again to select candidates who will be approved and selected by a majority of the voters who exercise their right to vote. A fundamental tenet of the Faulkner Act is that elected municipal officers shall be selected by a majority vote. See Trugman v. Reichenstein, Seminara v. Smith and Brick Tp. v. Spivak, supra. The new election requires that if voters who voted at the regular election for eliminated candidates are to exercise their franchise, they must switch their allegiance and express now choices. Where no candidate has received a majority in the regular election, it serves only as an elimination contest, somewhat like a primary, and the run-off is a now election in much the same sense that a general election is a new election separate and distinct from a primary election.

Bracketings and groupings of candidates, permitted by the Legislature, do convey information to the electorate as to the policies and affiliations of candidates. As stated above, in a run-oif the field is narrowed and the candidates start from scratch. Circumstances have changed and it is almost inevitable, particularly where the original field was large, that, at least to some extent, old alliances and preferences, among candidates as well as the voters, will have been thwarted by eliminations and that new alignments will be made or crystallized. In the regular election candidates for multiple offices may bracket and use common designations simply by filing timely petitions therefor, regardless of the consent or wishes of opposing candidates. The statute provides that the municipal clerk “shall” grant such petitions and he has no discretion in the matter. To require bracketings and designations to remain frozen in all instances in a run-off would not only present complications where bracketings are split because some bracketed candidates have been unsuccessful, but might also render such bracketings and designations, or the lack thereof, sterile in view of changed adversaries and alignments. If the status quo were perpetuated, information might be withheld from the electorate rather than given to it. In the court’s view, the application of N. J. 8. A. 40:69A-155 and the related provisions of N. J. S. A. 40 :69A-156 to run-off elections “in the same manner, so far as possible, as for other municipal elections” requires that timely applications for new bracketings and designations be permitted in the run-off.

This interpretation is clearly justified and supported by the recent decision of the Supreme Court in Richardson v. Caputo, 46 N. J. 3 (1965). There the court, in holding that a county clerk exceeded the bounds of his delegated authority in the positioning on the ballot of multiple candidates of a party which had not attained the technical status of a “political party” within the meaning of the election laws, held that a prime object of election laws is to enable the voters to identify and find the candidates in order to intelligently exercise their franchise. Chief Justice Weintraub, writing for the court, said, among other things, that the county clerk should accord affiliated candidates a line exclusively their own,

* * * tiiat course is feasible ancl if in the context of the whole ballot it would afford all the voters a clearer opportunity to find the candidates of their choice, fat 8]

He also said:

The purpose of the ballot is to permit voters to record their will, and one must assume the Legislature intended a ballot so arranged that all voters may find their candidates with the least difficulty the total content of the ballot will permit. Here we can find no reason, and no one suggests a reason, to deny plaintifts, the benefit of their joint candidacy or to deny a voter who wants to advance the party or the principles of the candidates an easy opportunity to find all of them, [at 9]

With respect to the harmonious construction of statutes there involved relating to voting machine ballots and paper ballots, he said that they should be construed:

® * ® to the end that although the provisions for drawing do apply, the result of the drawing shall be portrayed upon the voting machine ballot in a way which will achieve the basic aim of assisting the voter to register his choice, [at 13]

He concluded:

We of course cannot anticipate and suggest guidelines for all situations. Nor should it be necessary. There is guidance in the polestar a ballot which will permit all the voters to express their will fully and as easily as circumstances will reasonably permit. [at 14]

See also Farrington v. Falcey, 96 N. J. Super. 409 (App. Div. 1967); Harrison v. Jones, supra.

It is, of course, clear that the provisions of the statute cannot be literally complied with since requests for changes in bracketings or designations or for new bracketings and designations can ho made only after the results of the inconclusive regular election are made known and candidates have a reasonable opportunity to act. Here, according to an affidavit tiled by the city clerk, there was a recount, and the plaintiffs’ application was made in advance of the date fixed for the drawing for ballot positions. In the circumstances, their application was timely and in compliance with the terms of the statute so far as possible. See Pritel v. Burris and Harrison v. Jones, supra.

An order will be entered directing the city clerk to grant the plaintiffs’ petition for bracketing and the use of the common designations, and further directing him to conduct any drawing for ballot positions in accordance with such bracketing. By the same token, if the candidate defendants desire a change in bracketing, such as a change in the order of their names as they appeared in their grouping in the bracket and on the ballot for the regular election, they are entitled to such change upon application to the city clerk therefor. Uo costs.

       Emphasis in quotations supplied by the court unless otherwise noted.

       Tho last paragraph of the statute was not a part thereof as originally enacted and was added by L. 1960, c. 86, apparently as a result of the decision in McCarthy v. Reichenstein, 50 N. J. Super. 501 (App. Div. 1958).

      The candidal es for mayor appeared on Lino A of the ballots, and the candidates for councilman-at-large appeared on Line B, and the candidates for ward councilman appeared on Line C?. The lines and balloting positions were staggered horizontally with the mayoral candidates occupying positions A-l through A-7, and the candidates for councilman-at-large occupying positions B-9 through B-37, and the candidates for ward councilman occupying positions commencing with C-39.


source: Caselaw Access Project

author: Owens, J. S. C.

license: Public Domain

text:
    NEW JERSEY TURNPIKE AUTHORITY, PLAINTIFF, v. BAYONNE BARREL & DRUM CO, A NEW JERSEY CORPORATION; FRANK LANGELLA; CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; NATIONAL STATE BANK OF NEWARK, A NEW JERSEY CORPORATION; PETER HOLDING COMPANY, A NEW JERSEY CORPORATION; T1LLIE HOLDING COMPANY, A NEW JERSEY CORPORATION; ECONOMY LEASING COMPANY, A PENNSYLVANIA CORPORATION; STATE OF NEW JERSEY; UNITED STATES OF AMERICA, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 27, 1970.

      Mr. Thomas G. Mitchell for plaintiff (Mr. Grover G. Rich-man, Jr., attorney; Mr. Thomas G. Mitchell on the brief).

      Mr. Joseph R. McMahon argued the cause for defendant Bayonne Barrel & Drum Co. (Messrs. Lum, Biunno & Tompkins, attorneys; Mr. Joseph R. McMahon on the brief).
   Owens, J. S. C.

The condemnee, Bayonne Barrel & Drum Co., has applied to the court for an award of legal fees and expert witness fees as an element of damages. This motion was made after a struck jury had returned a verdict of $3,767,000 as damages in the eminent domain proceeding. Prior to that the condemnation commissioners had made an award of $3,873,904 as representing just compensation for the taking of the defendant’s property.

An extended statement of facts is not necessary for the disposition of this motion. It is sufficient to state that plaintiff Turnpike Authority originally deposited the sum of $397,036 as the amount it believed would constitute just compensation.

The condemnee justifies its request on the theory that pursuant to the Eederal Constitution and the Constitution of the State of Hew Jersey the landowner must be made “whole” as a matter of equitable principles. These expenses, claims the condemnee, are necessary and unavoidable costs in the defense of a condemnation proceeding and thus are not “counsel fees” in the traditional sense. The argument developed asserts the manifest injustices placed upon a condemnee when a sovereign exercises the right to take land. The condemnor points to R. R. 4:55-7 (now R. 4:43-9) and states that counsel fees may be awarded only as permitted by the rule. It also cites several cases for the proposition that each litigant should bear his own counsel fees. Einally, the case of Housing Authority of Long Branch v. Valentino, 47 N. J. 265, 268 (1966), is cited as the present authority on the issue.

The Valentino case would appear to preclude this court from granting defendant’s motion. The facts in that case, however, seem to be of the ordinary garden variety. In the ease at bar the facts and circumstances dictate a further exploration.

It is axiomatic that in any condemnation proceeding the property owner is entitled to just compensation for his land. The Federal Constitution and the New Jersey Constitution (1947), Art. I, par. 20, provide that “Private property shall not be taken for public use without just compensation.” What, then, does the term “just compensation” include? Does it include the expense of obtaining expert witnesses? Does it include the expense of representation by counsel? The court is aware that as a general proposition of law, costs are not recoverable unless allowed by statute. State v. Pellini, 75 N. J. Super. 161, 169 (App. Div. 1962), Metler v. Easton and Amboy R. R. Co., 37 N. J. L. 222 (Sup. Ct. 1874). Metier further states that if costs are given by statute their allowance in any case will depend upon the terms of the statute.

Presently there are two rules which allow costs in condemnation proceedings. One is B. 4:73—5 (formerly R. R. 4:92-5) :

On the motion of any party, including the commissioners, the court may, in its discretion, on proper showing, allow such fees, expenses and costs of the commissioners as it deems adequate, to be paid by plaintiff. [Emphasis added]

The other rule is B. 4:73-8 (formerly B. B. 4:29-8).

Costs of the appeal shall be taxed against the plaintiff-condemnor in all cases except those in which the appeal is brought by the defendant-eondemnee and the judgment is for the same or a lesser sum than that awarded by the commissioners.

To iterate, B. 4 :73-5 refers to costs of the commissioners, B. 4:73-8 to costs of the appeal. Does either or both of these rules include counsel fees and expert witness fees?

Generally, the courts in most jurisdictions throughout the United States have construed condemnation statutes which provide for “costs” and “expenses,” without specifically mentioning legal fees or expert witness fees, as not intending to provide for the payment of such fees, declaring that they are not part of the costs or just compensation. See 26 A. L. B. 2d 1295. Authority supporting this view is found in this jurisdiction in the case of In Re Canda Realty Co., 17 N. J. Misc. 346, 9 A. 2d 305 (Sup. Ct. 1939). The court there interpreted B. S. 20.T-14, which was repealed July 1953. However, its meaning and language became instilled in B. B. 4:92-5 (now B. 4:73-5). See State, Toy State Highway Com'r v. Dilley, 48 N. J. 383, 386 (1967).

The Canda Bealty court held that the statute allowing costs to the commissioners could not be construed to include an allowance of counsel fees for the landowners. The court specifically stated:

R. S. 20 :1-14 likewise, in my opinion, is inapplicable. It provides that “the justice of the Supreme Court * * * shall, upon application of either party on reasonable notice, tax and allow such costs, fees and expenses of the commissioners, clerks and other persons performing any of the duties prescribed in section 20:1—1 to 20:1—13 of this title as he shall think proper, which shall be paid by the petitioner.” None of the charges for which the owner seeks an allowance is on behalf of a commissioner, clerk or other person performing any duty prescribed in those sections of the statute which precede 20:1-14.

This court feels that Canda Bealty is not stare decisis. The statute construed in that case, B. S. 20:1-14, was, as is the present B. 4:73-5, discretionary with the court. Ac-cor dingly, even if the holding in that case was proper for the particular facts presented therein, it cannot be said that such a holding would preclude a contrary interpretation of judicial discretion by another court under a different set of facts. This court is therefore capable of exercising its own judicial discretion if it finds a distinction.

The question is, should this court divert from the traditional approach of not allowing legal and expert fees in a condemnation case when the statute provides only for costs ?

Ordinarily when a point of law has been settled by decision, it forms precedent from which there should be no departure. This is based on the theory that security and certainty require that accepted and established legal principles, under which rights may accrue, be recognized and followed in order to sustain our present legal system. Precedent alone, however, cannot he permitted to compound injustice. With the passing of time a precedent that was just and equitable in the past may become obsolete and inequitable. This was expressed by our Supreme Court in State v. Pennsylvania R R. Co., 9 N. J. 194. (1952) :

The principle espoused by these cases has stood for over 100 years. Mere antiquity, however, will not save it from the onslaughts being made if it is otherwise barren of reason or logic, equity or justice Time alone will not suffice to cause its re-embraeement. On the other hand, a firmly fixed and well settled rule should not be changed unless it is proved erroneous or, under present-day conditions, no longer sustains the basic principles of law and justice which originally evoked it. [at 2001

Under present-day conditions the traditional approach of requiring a condemnee, in all cases, to bear the expense of legal fees and expert witnesses is inequitable and an unfair burden placed upon the landowner. We are mindful that the condemnee is in a far different position than the average defendant. If the average defendant is in court, it is usually because, he has committed an act of commission or omission. A condemnee becomes a litigant merely because he owns land that the sovereign wishes to acquire. The sovereign must pay just compensation for such land. Does a condemnee receive just compensation or is he “made whole’’ if he must expend large sums of money to insure that he gets a fair price for his land? We think not.

The ease of In re Commissioners of Palisades Interstate Park, 83 Misc. 186, 144 N. Y. S. 782 (Sup. Ct. 1913), took the following approach in construing a statute similar to B. S. 20:.i—14 (now carried over into B. 4:73-5). That statute read:

The said court shall also tax and allow such costs, fees and expenses to the commissioners of appraisal and other persons performing any legal duty in the premises, as it shall think equitable and right, which shall be paid by the said board of park commissioners. [Emphasis added]

Asked to interpret “other persons,” the court said:

It is to be noted here that the expression “other persons” is very broad, viz., “other persons’ performing any legal duty in the premises as it [the court] shall think equitable and right.” It is the right of the claimant to be heard by the commissioners of appraisal, a right expressly given to him by statute; and if the statute did not in some substantial way accord 1o him such right, it would, upon elementary considerations, be unconstitutional as not affording due process of law. Hearing before such a commission necessarily involves representation by counsel and witnesses, * * * Such counsel, when so appearing and acting, are officers of the court, although paid by their clients, and eertainly it can be said that in so aotmg they perform a legal duty; and I think that the same thing may well be said of witnesses who testify under the responsibility of the pains and penalties of perjury statutes. * * *
Therefore it is my conclusion that, under the special statute here applying, the court has power to grant to the persons to whom awards have been made allowances to reimburse them for their necessary actual expenses incurred for counsel and expert witnesses. [Emphasis added.]

This seems to be a more practical and realistic approach in construing a condemnation statute. It is the Court’s view that the “just compensation” clause of the New Jersey Constitution would be more accurately upheld if the approach taken in In re Commissioners of Palisades Interstate Park, supra, was followed. It would he a closer hewing to the provisions of both the Federal and State Constitutions and their fundamental guarantees. One such guarantee is that a landowner receive “just compensation” for his land. If the agency taking the land cannot agree with the landowner as to the value, then the landowner has a fundamental guarantee of having an impartial commission decide the worth of his land.

The court now turns to the final issue. Does the present litigation and the facts surrounding it require the court to exercise its discretionary authority and grant defendant’s request for legal fees and expert fees. The court is of the opinion that the facts and circumstances of the present case impel the award of legal and expert fees as an element of damages. There can be no doubt that this extended litigation was forced upon defendant landowner by the condemning authority. The Turnpike Authority made a deposit of $397,036 as representing what it considered to be the true value of defendant’s land. It is obvious that the agency grossly misjudged the value of the property and thereby forced defendant into court. It compelled defendant to obtain counsel and experts. The burden of defending placed upon defendant an inordinate delay resulting in additional expenses. If created the type of problem Justices Jacobs and Schettino described in a concurring opinion in Bergen Builders, Inc. v. Horizon Developers, Inc., 44 N. J. 435:

The ever mounting problem of court congestion is referred to and the thought is voiced that adoption of the English practice, which widely allows prevailing parties to recover their legal expenses including attorneys’ fees, may serve to discourage much unjustifiable litigation. In some states the English practice has been followed. (Citations omitted.) In others, legal expenses including attorneys’ fees are allowed against vexations or oppressive litigants such as those who assert claims or defenses in had faith or without reasonable basis. fat 439 ; emphasis added!

See also 88 N. J. L. J. 728, “The High Price of Justice,” an editorial discussing the quoted case.

This court is also mindful of the guidance presented by our Supreme Court in State v. Nordstrom, 54 N. J. 50 (1969), which concerned the running of interest in a condemnation case. In affirming the trial judge’s allowance of interest on the jury verdict and fixing the time for the running of interest from the date the State filed its complaint until the return of the jury award, the court said:

Moreover, in such a situation the allowance of interest from the time of the filing of the complaint has the wholesome effect of stimulating the condemnor to prompt action, or at least to making a meaningful offer of settlement. In the present case the proceedings spanned a year and a half and the Slate’s highest offer of settlement was less than one-fifth the jury’s verdict. [54 N. J. at 57; emphasis added]

It is easily cognizable how the above reasoning, when applied to expenses such as legal fees and expert witness fees, would stimulate the condemnor to prompt action or at least the making of a meaningful offer. Prompt action was not taken, nor was a meaningful offer made. The original offer was approximately one-seventh the final jury award. Although the Turnpike Authority later increased the deposit to $900,000, this amount did not approach an “accurate and impartial appraisal” required by N. J. S. A. 27:23-5.

Finally, in addition to the ai'orestated reasons, this court finds further authority for its ruling in B. 1 :l-2, which reads as follows:

The rules in Part I through Part VII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes. [Emphasis added]

It is this oouit’s finding that under all of the facts and circumstances of this case substantial justice will prevail only if defendant eondemnee is awarded the counsel and expert fees necessitated by the condemnor’s handling of the case.

With respect to the amount of the award, the matter will be set down for the taking of oral testimony on May 15, 1970, at which time the parties may be heard with respect to the reasonableness of an award.


author: Conveky, J. S. C.

text:
    ROBERT FEUCHTBAUM AND JACQUELINE FEUCHTBAUM, HIS WIFE, PLAINTIFFS, v. ANSEHNO AND FRANCESCO CONSTANTINI, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 15, 1970.

      Mr. Richard M. Fishhin for plaintiffs (Messrs. Fishhin & Fleisher, attorneys).

      Mr. Salvatore L. Franchino for the Yew Jersey Unsatisfied Claim and Judgment Eund.
   Conveky, J. S. C.

Plaintiffs Robert Eeuehtbaum and Jacqueline Eeuehtbaum, his wife, make application for an order permitting them to serve defendants by substituted service upon the Uninsured Motorists Eund as defendants’ insurers since they cannot be served and are avoiding service, under R. 4:4^4(i), which provides:

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

This action arose out of an automobile accident on U. S. Route 1 in Lawrence Township, blew Jersey, on January 16, 1969. Suit was filed with the Superior Court clerk on December 4, 1969 and immediately sent to the sheriff of Middlesex County for service upon defendants at their last known address, 919B Village Drive East, blorth Brunswick, New Jersey, came back “defendants have moved.” A check with the Director of Motor Vehicles as to a new address listed the same 919B or 9198 Village Drive East, North Brunswick, New Jersey. Service was again attempted upon defendants at either of the above addresses, without success.

Defendants had heretofore, in May 1969, contacted an attorney for representation in this matter. Upon contacting the law firm plaintiffs were advised that defendants’ last known address was 919B Village Drive East, North Brunswick, New Jersey, and it had not heard from them for some months.

Defendants cannot be served at any of the addresses brought to plaintiffs’ attention. They know the pendency of this action. The Uninsured Drivers Fund has been given notice of the pendency and has participated in requesting information.

Counsel for the Unsatisfied Claim and Judgment Fund opposes this motion, relying on the recent case of Last v. Burns, 108 N. J. Super. 525 (Law Div. 1970). In that ease, similar on the facts to this case, a motion to permit substituted service on the Unsatisfied Claim and Judgment Fund in lieu of service upon defendants personally was denied. The court, in rendering its decision, concluded that there is no authority permitting the Fund to accept substituted personal service on a known but absent defendant.

While it is true that there is no explicit authority, in either statutory or case law, which provides for substituted service upon the Fund in lieu of service upon defendants themselves, this form of service is implicitly authorized by the purposes for which the Fund was instituted, and is proper under B. 4:4-4(i).

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

* * * The purpose of the Fund is to provide a measure of relief to persons who sustain losses or injury inflicted by financially irresponsible or unidentified operators of motor vehicles, where such persons would otherwise be remediless. Corrigan v. Gassert, 27 N. J. 227 (1958) ; Dixon v. Gassert, 26 N. J. 1 (1958). The statute is to be liberally construed to advance the remedy, due regard being bad to tbe protection of the Fund against fraud and abuse and to the fulfillment of tbe essential legislative policy. Giles v. Gassert, 23 N. J. 22, 34 (1956). [at 279]

The result reached in Last v. Burns, supra, is in my opinion violative of the legislative intent behind the Fund law in that it leaves remediless a class of persons for whose benefit that law was adopted: a person who has suffered injury at the hands of a financially irresponsible driver.

The facts of this cáse place plaintiffs midway between the two sets of circumstances in which the Fund is bound by statute to pay claims arising out of automobile accidents involving uninsured motorists. Plaintiffs’ automobile was struck by another vehicle driven by an uninsured motorist, one Francesco Constantini, against whom plaintiffs instituted suit but who now cannot be located and served. If it were possible to locate and serve Constantini the Fund could be brought into the ease under the procedure outlined in N. J. S. A. 39:6-65 through 70.

If defendant had fled immediately after the accident, rather than some time later, and had not been identified, the Fund could have been brought in under N. J. S. A. 39:6-78, which provides for “hit and run” cases. Here, however, we have the case of an uninsured defendant who is known but absent, and who is presumably avoiding service of process. To deny plaintiffs access to the Fund on these facts which, while they present a situation not specifically provided for, clearly include plaintiffs within the class of persons the Fund was instituted to protect, would be to disregard the legislative intent of the Fund statute.

The purpose of this statutory scheme is to provide all such innocent victims with a means to redress the injuries they have suffered. Our courts have recently permitted substituted service upon the insurance carrier of an insured defendant in a motor vehicle case where the defendant is known and avoids service of process. Young v. Bunny Bazaar, Inc., 107 N. J. Super. 320 (Law Div. 1969). To deny a plaintiff injured by an uninsured motorist, and who must look to the Fund for relief, a similar remedy against an uninsured defendant who avoids service, is inconsistent with the intent of our comprehensive statutory plan to provide protection for the innocent victims of automobile accidents.

Plaintiffs have given the Fund proper notice of the happening of the accident complained of and have made diligent efforts to serve defendants. Therefore, for the reasons stated above this motion is hereby granted.


author: Maeiajío, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROLAND J. ERNST, DEFENDANT-APPELLANT.
    Camden County Court
    Decided June 11, 1970.

      Mr. Andrew A. Kleplca for the appellant (Messrs. Turn-bull and Kleplca, attorneys).

      Mr. Alexander Feinberg for respondent.

      Mr. Anthony Bezich, Assistant Prosecutor, appeared on behalf of A. Donald Bigley, Camden County Prosecutor.
   Maeiajío, J. S. C.

Defendant appeals from a conviction in the Municipal Court of the Township of Winslow, Camden County, where he was charged with violating article 3.3(b) of the regulations promulgated by the Atlantic City Expressway Authority, in that he did, on or about August 12, 1968, operate his motorcycle on the said expressway. The trial here is de novo.

Defendant admits having operated his motorcycle on the expressway but contends that his conviction should be reversed because the regulation is unconstitutional in that (1) it is beyond the statutory power granted to the Expressway Authority; (2) it violates the 14th Amendment of the U. S. Constitution in that it abridges the privileges and immunities of citizens and denies to defendant equal protection of the laws; (3) the regulation is oppressive and discriminatory, and (4) it is arbitrary, capricious and unreasonable in that it bears no relationship to the public safety.

A brief recital of the legislative history dealing with the Atlantic City Expressway is not only necessary to a proper understanding of the issues involved but will also serve a useful purpose.

In 1962 the Legislature adopted the New Jersey Expressway Authority Act, N. J. 8. A. 27:120-1 el 'seq. Section 4 of the act created the Atlantic City Expressway Authority, which operates the Atlantic City Expressway. The Authority was given broad powers to acquire, construct and maintain a modern express highway in order to facilitate vehicular traffic and minimize hazards on congested highways in the State. N. J. 8. A. 27:12C-2. The Authority is authorized “to establish rules and regulations for the use of any project/’ N. J. 8. A. 27:120-11 (i).

On or about July 1, 1964 the Authority promulgated and adopted rules and regulations governing the use of the Expressway. This initial set of regulations contained no prohibition against the use of motorcycles on the Expressway. Thereafter, in May 1967, the rules and regulations were revised so as to totally prohibit the use of motorcycles on the Expressway. Such prohibition is contained in article 3.3(b) of the regulations and reads as follows:

3.3 Restricted Vehicles
The following vehicles are prohibited at all times from using the Expressway.
a. * * *
b. Bicycles, with or without motors, motor scooters and motor cycles.

T

Defendant initially alleges that his conviction should be reversed because the regulation prohibiting the use of motorcycles on the Expressway is unconstitutional as being beyond the statutory power granted the Authority. A similar contention was raised in State v. Hubschman, 81 N. J. Super. 452 (Cty. Ct. 1963), where defendant challenged the authority of the New Jersey Highway Authority (Garden State Parkway) to regulate the backing-up of motorists on the Parkway. The court upheld the rule-making powers of the Highway Authority with regard to the activities of motorists on that roadway since such powers had been adequately circumscribed by standards set down by the Legislature. The court said:

* * * Unquestionably the Legislature has the constitutional power to create administrative agencies, including highway authorities. The courts, in fact, look favorably upon the power given such agencies to promulgate rules in furtherance of the purposes for which they have been created.
It is equally well established that the Legislature may constitutionally delegate to the Authority the power to promulgate the rule here in question provided appropriate standards are set forth in the enabling law. [at 457]

A reading of the applicable provision of N. J. S. A. 27:120-37 clearly shows that the powers of the Atlantic City Expressway Authority are well circumscribed by definitive standards to guide it in its rule-making capacity and thus satisfy constitutional requirements concerning the delegation of powers.

II

Defendant also argues that his conviction should be reversed on the ground that the said regulation violates the 14th Amendment to the U. S. Constitution in that it abridges the privileges and immunities of citizens and denies to the defendant the equal protection of the laws. This contention is not well founded. Our former Supreme Court was presented with a factual situation similar to the one presently before this court in the case of Garneau v. Eggers, 113 N. J. L. 245 (1934), wherein it upheld a Jersey City ordinance which prohibited the use of commercial vehicles on the Pulaski Skyway where it passed through that municipality. In upholding the ordinance the court found a justification for the exclusion of commercial vehicles based upon that municipality’s police power to safeguard the welfare of its inhabitants by the curing of traffic evils within the municipality. In defining the extent of the police powers of the State and municipalities in this area, the court stated:

• * * The Fourteenth Amendment does not deprive the state of its exercise of police power, so long as such power is exercised in a manner having reasonable relation to the end in view and not arbitrarily.
* * # * ■■■ * * *
The regulation of motor vehicles on particular streets, even to their complete exclusion therefrom, when deemed necessary in the public interest, is within the police power delega! ed to municipalities, and, even though such regulation may be considered drastic in its operation, a court is not at liberty to substitute its judgment for that of a municipality as to the best and most feasible manner of curing traffic evils and traffic congestion in a specified area, in the interest of the welfare of the inhabitants and the persons who use the highway, where, as here, such regulation bears a direct relationship to the public safety and is reasonable and not arbitrary, [at 248-249]

A reading of the New Jersey Expressway Authority Act, N. J. 8. A. 27:12C-1 et seq., amply demonstrates that the Legislature has delegated sufficient police powers to enable the Authority to carry out the purposes for which it was created.

Ill

Defendant’s contention that article 3.3(b) is oppressive and discriminatory is without merit. While the regulation, by its terms, eliminates motorcycles from the Expressway, the effect thereof is merely to reroute motorcycles to other available roadways. Garneau v. Eggers, supra, at 252.

IY

N. J. 8. A. 27:12c-37(G) contains the standards designed to guide the Authority in the use of the limited police power delegated to it. The applicable portion of that section states:

* * * that prior to the adoption of any regulation for the control of traffic on any such project, including the designation of any speed limits, the authority shall investigate and consider the need for and desirability of such regulation for the safety of persons and property, including the authorities property, and the coniribution which any such regulation would make toward the efficient and safe handling of traffic and use of such project, and shall determine that such regulation is necessary or desirable to accomplish such purposes or 1 or some of them. * * * [Kmphasis added]

Thus, the court is brought to defendant’s final ground for reversal of his conviction, namely, that article 3.3(b) is arbitrary, capricious and unreasonable in that it hears no relationship to the safety of persons using the Expressway. Defendant bases this argument on the fact that the Authority, contrary to the standards imposed upon the exercise of its powers by N. J. 8. A. 27:12C-37 (g), has failed to follow the statutory mandate to “investigate and consider the need for and desirability of such regulation” and thus cannot now demonstrate what contribution, if any, the exclusion of motorcycles would make toward the efficient and safe handling of traffic on such project aud the safety of other users of the highway. Defendant’s position is not primarily based upon the Authority’s procedural failure to follow the guidelines contained in N. J. 8. A. 27:120-37(g), but rather on the fact that the Authority’s failure to investigate and consider the need for such a regulation demonstrates a substantive lack of relationship between the banning of motorcycles on the Expressway and the safety of persons using that roadway.

The only evidence produced by the Authority to show the relationship of the regulation in question to the public safety was testimony concerning a report prepared for the Garden State Parkway concerning the prohibition of motorcycles on that roadway, and a letter, written by Lieutenant Kloo of the N. J. State Police Barracks assigned to the Atlantic City Expressway, addressed to the Expressway Authority.

This court finds that such evidence is insufficient to clearly demonstrate an adequate connecting relationship between the banning of motorcycles and the public safetjr. The use of the Garden State Parkway report, which recommended the exclusion of motorcycles from the Parkway, to justify the prohibition of motorcycles on the Atlantic City Expressway, seems a rather inadequate effort on the part of the Authority to carry out its responsibility under N. J. S. A. 27:12C-37 (g) to “investigate and consider the need for and desirability of such regulation” before putting that regulation into effect. The said report was prepared seven years prior to the date the Authority adopted article 3.3(b) and deals with a completely different roadway, with different characteristics and mileage. Further, it was noted in that report that there was no way of relating the number of motorcycle accidents to the number of motorcycles using the Garden State Parkway.

The legal efficacy of Lieutenant KLoo’s letter as a basis upon which to adopt a regulation excluding motorcycles is also of doubtful value, considering the fact that it was based on his personal beliefs and observations rather than empirical data.

Considering the testimony presented at this de novo proceeding as a whole, this court finds that there was insufficient information before the Authority to adequately and properly enable them to form a basis for the adoption of this regulation as required by statute.

The Authority’s reliance upon the case of Garneau v. Eggars, supra, is misplaced. In that case, it was abundantly clear to Jersey City after its surveys and investigations that commercial traffic was the source of the difficulties it was experiencing. The municipality there had statistical evidence before it that 80% of the accidents on the Pulaski Skyway involved commercial vehicles, whereas only 11% to 17% of the traffic using that highway consisted of commercial traffic. Such evidence provided an extremely clear relationship between the ordinance banning commercial vehicles and the public safety.

In the instant case the Authority has failed to demonstrate anything in the way of establishing a relationship between the banning of motorcycles on the Expressway and the safety of persons and property on that roadway. In fact, the Authority admits that in the initial three-year period of Expressway operation, during which time motorcycles were permitted, no unusual occurrences involving motorcycles were experienced.

This court therefore finds that article 3.3(b) is arbitrary, capricious and unreasonable since there is no evidence which establishes a clear relationship between the regulation and the contribution, if any, which such regulation would make toward the efficient and safe handling of traffic on the Expressway and the public safety.

For the reasons expressed in Part IV of this opinion, this court finds the defendant not guilty of the offense with which he was charged.


author: Stamler, N. P., J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VICTOR BESSON, DEFENDANT-APPELLANT.
    Union County Court Law Division
    Decided May 27, 1970.

      Mr. Jack Wysok<er, for defendant (Messrs. Mandell Wysoker, Sherman, Glassner, Weingartner & Feingold, attorneys; Mr. Ronald 8. Levitt, on the brief).

      Mrs. Jean Lopatin, Assistant Prosecutor, for plaintiff (Mr. Karl Asch, Prosecutor of Union County, attorney).
   Stamler, N. P., J. C. C.

Defendant appeals to this court pursuant to R. 3:23-2 from the judgment of the Municipal Court of Roselle finding him guilty on two charges: (1) interfering with a school assembly contrary to N. J. 8. A. 2A:170-28, and (2) trespass of school property, contrary to N. J. 8. A. 2A:170-31.

On the first charge defendant was sentenced to the Union County jail for a period of three months, such sentence being suspended and defendant placed on probation for a period of one year. On the second charge there was suspension of any fine that might have been imposed.

For the purposes of this opinion, the foregoing charges will be considered separately.

I

The facts with reference to the interference charge indicate that on January 14, 1970 defendant, a teacher on the faculty of the Abraham .Clark High School in Roselle, was present at an assembly program to honor Dr. Martin Luther King. Previous to this date the board of education had denied a request to hang a particular mural in the high school. The nature of this mural, or the considerations leading to its rejection by the board, were not part of the record before this court. But during the course of the school assembly, immediately after the first guest, Father Salemi, had finished speaking, defendant suddenly stood up near the front of the auditorium and spoke several words to the effect of, “I’m leaving the building and won’t return until the mural is hung.” Defendant then walked to the rear and left the auditorium.

The effect that this outburst had on the assembly program is in sharp dispute. Witnesses for defendant, including one teacher, the mistress of ceremonies and other students testified that defendant spoke in a slow and deliberate manner; that there was some brief applause after he spoke, and that several students followed him out. There was no further disruption of the assembly.

In contrast, the three teachers who were witnesses for the State testified that defendant spoke loud enough for everyone in the auditorium to hear him; that as he left he made a motioning gesture with his hand, at which point a large number of students left the auditorium. One such witness stated that several hundred students actually followed defendant out of the assembly. It is not disputed that the program did continue, and that a second assembly program was conducted without incident.

Defendant contends that his remarks were spontaneous and were uttered on the spur of the moment as a result of Father Salemi’s talk. He urges that his remarks did not constitute such “noisy or disorderly conduct” as is contemplated by the statute. Further, he claims iho statute is unconstitutional as violating defendant’s First Amendment rights of free speech, if applied to convict him under the facts and circumstances herein. In support of this contention defendant argues that the statute is void for vagueness and being overly broad, in its lack of definite standards of enforcement.

N. J. 8. A. 2A:170-28 provides as follows:

Any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries and reading rooms, is a disorderly person.

This court is convinced that defendant’s conduct on January 14, 1970 resulted in the disturbance and interference with the quiet and good order of the school assembly. The record reveals that defendant had given a great deal of thought to the actions of the board of education in prohibiting the display of the mural; he had discussed this with others including his students. In short, this court finds that defendant's statements were not as spontaneous as he would have the court believe. Defendant is an experienced teacher, and as an intelligent person he must have known that the natural consequences of his actions would result in the disruption of the school program.

In State v. Smith, 46 N. J. 510 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966), defendant was arrested and charged with violating N. J. S. A. 2A :170-28 when he disrupted a city council meeting. The defendant had been creating a disturbance while others were speaking. He had been warned twice to remain silent, and upon his threat of further disturbances, he was escorted from the chamber. The court noted that the disturbance was not the basis of the conviction. Rather, it was defendant’s resistance to the efforts to remove him. By locking arms with the person next to him and “going limp,” he demonstrated his intent to remain and eventually had to be carried out of the room.

In State v. Moore, 101 N. J. Super. 419 (App. Div. 1968), defendant was arrested and convicted as a disorderly person when he persisted for almost a quarter of an hour in refusing to accept the rulings of the chair at a public meeting, or to leave the microphone and resume his seat.

Defendant herein, by citing the above cases, notes that he wras not guilty of refusing to keep quiet, or leaving when asked to do so, and hence did not frustrate the purpose of the assembly by preventing its continuance. The court finds such argument specious. The purpose of the statute in question is to insure that the good order and decorum of public assemblies will be preserved; that those in attendance may accomplish what they have set out to do without interference or disturbance.

In Burnside v. Byars, 363 F. 2d 744 (5 Cir. 1966), the court struck down a high school regulation prohibiting students from wearing “freedom buttons” as being arbitrary and unreasonable and an infringement upon the students’ protected right of free expression where it did not appear to hamper the school in carrying out its regular schedule of activities. But where the record, showed that an unusual degree of commotion, boisterous conduct, collision with the rights of others, and undermining of authority existed, the distribution of such buttons would be prohibited. Blackwell v. Issaquena County Board of Education, 363 F. 2d 749 (5 Cir. 1966).

Such was the situation that occurred at Roselle’s Abraham Clark High School on January 14, 1970. There was commotion following defendant’s remarks. Students left the auditorium and scattered throughout the building and school grounds. Those present at the assembly were denied the right to enjoy an uninterrputed program.

The interest of the State ill maintaining an educational system is a compelling one. Order is necessary to accomplish this, and the First Amendment cannot ho used as a device to defeat such necessity. The court in State v. Smith, supra, noted that Cox v. Louisiana, 379 U. S. S36, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), rejected the notion that lawlessness may pass in the garb of a constitutional guarantee, and quoted from that case wherein it was said:

From those decisions certain dear principles emerge. The rights of freí- speech and assembly, while fundamental in our democratic society, still do not mean that, everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. * * * [379 U. S. at 554, 85 S. Ct. at 464, 13 L. Ed. 2d at 484]

See also, Adderly v. Florida, 385 U. S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966).

This court is aware that the First Amendment rights of freedom of speech and assembly are available to teachers and students within the schoolhouse as well as without; “they do not shed such rights at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). But this court is equally concerned with the proper functioning of the school system. If defendant’s conduct is to be permitted in this instance, then the school authorities must allow any other student or teacher to arise in any other assembly program and speak his mind. This cannot be tolerated. As stated in United States v. Woodard, 376 F. 2d 136 (7 Cir. 1967) :

* * * public hearings of every character, executive, legislative, anti judicial, are most often “public” as to physical presence, but not as to participation. .As such, they must be conducted -with decorum. If each spectator were privileged to shout or even speak at will. pandemonium would likely result. When, as here, activity engaged in by a spectator prevents the orderly continuation of the hearing, it falls within the prohibition of the statute. Cf., State v. Smith, 46 N. J. 510 * * Tat 139-140]

Finally, defendant’s argument that the statute-is unconstitutional, as being void for vagueness if applied to convict him under the facts of this case, is without merit. The statute is valid on its face and as applied herein, for the reasons enumerated in State v. Smith, supra, at 518-519.

Defendant is guilty of violating N. J. S. 2A :170-28. Accordingly, the judgment of conviction is affirmed.

II

With respect to the trespass charge, the facts are that on January 16, 1970, at approximately 8:15 a.m., defendant was in the rear of the school parking lot with a fellow faculty member, some parents and several students. They were conducting what was characterized by defendant as a “vigil of protest” against the actions of the board of education (as referred to above). Approximately one-half hour later defendant was advised by the school’s principal that having been suspended the day before, he was trespassing and interrupting the educational program of the students who were in the parking lot, and that if he (defendant) did not leave within 15 minutes, the police would be summoned.

Defendant stated that he would leave in a few minutes, but that he would return at 1 p.m. At this point the principal again warned defendant, saying that if he did come back, and if he had students there, he would have him arrested.

At 1 p.m. defendant returned to the rear of the parking lot, again with some parents, one other teacher and several students (the exact number is in dispute, but it ranged between 20 and 30 students). At this point the police were called and defendant was placed under arrest and charged with violating N. J. S. A. 2A:170-31, which provides:

Any person who trespasses on any lands, * * * after being forbidden so to trespass by the owner, occupant, leasee or licensee thereof • * is a disorderly person and shall be punished by a fine of not more than $50.00.

It is not disputed that defendant and those with him were quiet and orderly. And further, that defendant remained standing in this one area of the parking lot, approximately 150 feet from the school building, never going into or out of said building.

The State contends that the school property is private in nature, with title vesting in the board of education. It is in this private capacity that the State, through its agents, is able to protect its property, and where an individual interferes with the use to which the property is lawfully dedicated a trespass charge will lie. Furthermore, in balancing the equities defendant’s rights under the First Amendment must give way to the interests of the State in preserving the property under its control.

Defendant, on the other hand, contends that the property in question is public property; that, as such, there can be no trespass where an individual is in the exercise of his First Amendment rights thereon. Even if such property were to be labeled “private,” defendant should nevertheless be permitted to partake in the conduct here involved. Lastly, he argues that the selective and discriminatory manner in which he alone was singled out for arrest was an attempt to restrict the exercise of his First Amendment right of free speech; that the absence of clearly defined and limiting standards in N. J. 8. A. 2A:170-31 render the statute void for vagueness and for being overly broad, if applied under these circumstances and against this defendant only.

In determining whether the defendant violated the trespass law of this State (N. J. 8. A. 2A:170-31) the court must thus decide to what extent the school property here involved is public in nature, and whether the State may prohibit the conduct in question without violating defendant’s constitutional rights of free speech and assembly.

N. J. 8. A. 18A:20-1 provides:

The title to the property, real and personal, of each school district, and the title to all property, real and personal, which shall be acquired for school purposes in the district, is vested and shall vest in the hoard of education of the district * * * and the board shall have the supervision, control and management of all such property.

There is no question but that under this statute the board of education has title to the school property, giving it the right to possession and control of same. However, it does not have such complete dominion over its property as would a private individual over land which he owns in fee. This is so because the members of the public are, in effect, the board of education; they support the institution and its property, and they are entitled to the benefits derived therefrom. 78 C. J. S. Schools and School Districts § 259, at 1236.

The ownership of school property is in the local school board as trustee for the public at large. Such property occupies the status of public property of the school district by which it is held or wherein it is located. 47 Am Jur., Schools. § 65, at 342.

As such, the school board has the right — the duty — to protect the property and the educational processes from any disturbance or interference. But this obligation must be balanced against the right of the public to enter thereon for lawful and legitimate purposes. See Tinker v. Des Moines Community School District, supra.

It is the opinion of this court that school property is of such public character that a mere entry thereon cannot, in and of itself, constitute a trespass. Black’s Law Dictionary (4th ed.), at 1674, defines trespass as “(A)n unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another.” It is a serious charge, and although a trespass does not become lawful because it was done with good intention, Taylor v. Borgfeld, 139 N. J. Eq. 177 (Ch. 1947), where the property involved is at least in some respects public in nature, and the First Amendment rights of an individual are in issue, the court has a duty to look at the total circumstances.

Labelling the school parking Jot here as “public property” does not mean, of course, that it may be used for any purpose at any time.

As stated in Adderly v. Florida, supra:

Thore may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other eases it may be necessary to adjust the right to petition for redress of keeping with the serenity of the statehouse or the quiet of the public property is normally put. See Poulos v. New Hampshire, 345 U. S. 395, 73 S. Ct. 760, 97 L. Ed. 1105 (1952).

Thus, if defendant’s actions were to take place within the confines of the school building, they would be treated by this courl in a much different manner — as was the case with the interference charge, supra. This would be so regardless of whether the school building was to be considered “public” or “private.” We are concerned here, however, with the sidewalks, parking lots and other “grounds” of such institutions, and they are to be considered in a different light. See State v. Kirk, 84 N. J. Super. 151 (Law Div. 1964), aff’d 88 N. J. Super. 130 (App. Div. 1965); Amalgamated Food Employees Union Local 590 v. Logon Valley Plaza, 391 U. S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968).

This court finds that defendant’s presence in the parking lot on January 16, 1970 did not constitute a trespass. His actions and conduct were confined solely to one area of the school’s parking lot; he and the others with him were quiet and peaceful. There were several students at his side, but they were not asked to leave their classes; they came of their own volition. This court is not unmindful of the conduct, quite often violently vicious and deliberately disruptive, that presently exists on our campuses and in our streets. The conduct here in question may have caused some slight inconvenience to those who may have been in the area, but this is not enough to deny defendant his right to be there. Cox v. Louisiana, supra. This court cannot find that defendant’s conduct interfered with the normal use to which such property is ordinarily put by the school district.

The issue before this court has not been decided on the grounds that defendant was singled out for arrest in an attempt to restrict the exercise of his First Amendment rights. A trespass charge certainly could not lie against the students or the other teacher in defendant’s presence who had not as yet been suspended. That parents standing in the vicinity were not arrested is not sufficient grounds to absolve defendant from any wrongdoing if his conduct were to be viewed as such.

Similarly, defendant’s ■ contention that the statute is void for vagueness is without merit. This court finds the statute constitutional and relies on the reasoning given in State v. Smith, supra.

Accordingly, the judgment of conviction with respect to the trespass charge is reversed.


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

text:
    ROSALIE O’NEILL AND THOMAS O’NEILL, PLAINTIFFS-APPELLANTS, v. SUBURBAN TERRACE APARTMENTS, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 25, 1970
    Decided June 18, 1970.

      Before Judges Kilkenny, Labbecque and Leonard.

      Mr. Bernard Chazen argued the cause for appellants (Mr. Malcolm G. Mercer, attorney; Messrs. Balcer, Garber, Chazen & Dufy, of counsel).

      Mr. Stanley M. Teich argued the cause for respondent (Messrs. Lieb, Teich & Berlin, attorneys).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

This personal injury, fall-down on an icy and snow-covered public sidewalk, negligence case resulted in a verdict in favor of the injured plaintiff wife in the sum of $8000 and in favor of plaintiff husband in the sum of $2000 for his damages per quod.

After return of the verdict the trial judge dismissed the action on defendant’s motion to dismiss made before submission of the case to the jury, the ruling on the motion having been reserved pursuant to B. 4:40-2. Plaintiffs appeal from the judgment of dismissal.

We note preliminarily that the standard for determining a motion for an involuntary dismissal under B. 4:40-1 is that the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could honestly differ, the motion must be denied. Bell v. Eastern Beef Co., 42 N. J. 126, 129 (1964) ; Hindle v. Morrison Steel Co., 92 N. J. Super. 75, 81 (App. Div. 1966).

The facts herein are simple and clear. On January 9, 1968 plaintiffs were tenants of an apartment in a large garden-type apartment house complex, consisting of over 200 units and covering approximately five city blocks. Defendant was the owner and landlord. On that day plaintiff wife left for work early in the morning. It had snowed some days prior and several inches of snow remained on the ground. With the help of a neighbor, plaintiff wife shovelled the walk in front of her apartment, inside the apartment complex. She walked through the complex to the sidewalk used by the general public as an easement outside the apartment house complex and adjacent to the public street, called Esplanade. There are private homes on the other side of this public street. After she had walked several feet along this public sidewalk, she fell and was injured. An eyewitness testified that the sidewalk was snow-covered and had not been shovelled siuce the snow had falien.

It was admitted in answers to interrogatories that defendant’s employees had been instructed to keep all sidewalks clean. There were sidewalks inside the complex. Plaintiff wife testified that at times this particular public sidewalk had been cleaned; at other times it had not. It is evident that no. snow removal had been undertaken as to this sidewalk after the snowfall preceding plaintiff’s injury.

The suit was based upon a claim of negligence. There was no proof of any contractual obligation on defendant’s part to remove the snow from this public sidewalk.

In deciding the motion for dismissal in favor of defendant, the trial court observed that defendant had done nothing to remove the snow and ice from the sidewalk where plaintiff fell. It correctly noted that the owner of property is under no duty to maintain public sidewalks abutting his land free from the natural accumulation of snow and ice. So, too, in clearing the snow and ice, there would be no liability unless in doing so there is added a new element of danger or hazard other than the natural forces. This latter factor is nor present here in view of the uncontradicted testimony that no snow or ice removal had been undertaken on this occasion.

Eor cases setting forth the lack of duty on the part of a landowner to maintain public sidewalks abutting his land free from the natural accumulation of snow and ice, see Sewall v. Fox, 98 N. J. L. 819, 821 (E. & A. 1923); Saco v. Hall, 1 N. J. 377, 381 (1949); Foley v. Ulrich, 94 N. J. Super. 410 (App. Div. 1967), reversed on dissenting opinion 50 N. J. 426 (1967). This same rule applies in the case of snow removal from the public sidewalk abutting an apartment building. See MacGregor v. Tinker Realty Co., 37 N. J. Super. 112 (App. Div. 1955), in which case it was also held that a landlord in the removal of snow from an adjacent public sidewalk does not owe a greater or different duty of care to his tenants than that owing to a member of the public.

Plaintiffs argue that defendant is liable for a failure to exercise due care to carry out duties it had assumed for the benefit of plaintiff.

If plaintiffs mean that a volunteer is liable for his absolute nonfeasance, the law is generally to the contrary. Volunteers, persons under no duty to act, have been held liable for misfeasance or malfeasance, for their negligence in performance; but they are ordinarily not liable for a mere failure to perform the promised act. “It is elementary that a volunteer must act with due care.” Freddi-Gail, Inc. v. Royal Holding Corp., 45 N. J. Super. 471, 474 (App. Div. 1957). See also, Wolcott v. N. Y. & L. B. R. R. Co., 68 N. J. L. 421 (Sup. Ct. 1902). But if the volunteer does not act at all, as here, he is generally not liable for his complete failure to act. As stated by Chancellor Kent in Thorne v. Deas, 4 Johns 84 (N. Y. 1809) :

* * * one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance but noc a nonfeasance.

This rule is cited with approval by our courts. See also, La Brasca v. Hinchman, 81 N. J. L. 367, 369 (Sup. Ct. 1911); Bauer v. 141-149 Cedar Lane Holding Co., 24 N. J. 139, 146 (1957).

Plaintiffs suggest that landlords of garden-type apartment houses should be treated differently from other landlords with respect to cases involving persons slipping and falling on ice or snow on an abutting public sidewalk. In MacGregor v. Tinker Really Co., supra, 37 N. J. Super. 112, the premises were an apartment house. Plaintiff tenant fell on the icy public sidewalk abutting defendant landlord’s property. A motion by defendant for an involuntary dismissal was granted and affirmed on appeal. We find no valid distinction between a fall on a public sidewalk outside and abutting a multiple, high-rise apartment dwelling and a fall on a public sidewalk outside and abutting a garden-type apartment house complex.

Plaintiffs rely upon Schedler v. Wagner, 37 Wash. 2d 612, 225 P. 2d 213, 230 P. 2d 600 (Sup. Ct. 1950), in which a tenant slipped on ice on a walkway within the apartment house area. There an award in favor of plaintiff was upheld. But in that ease, the sidewalk in question was within the complex and used exclusively in common by all tenants. Thus, the case is readily distinguishable on its facts from the instant situation.

Plaintiffs also rely upon Langley Park Apts. v. Lund, 234 Md. 402, 199 A. 2d 620 (Ct. App. 1964). In that case, the question was: “Does a landlord have a duty to remove, or render safe, natural accumulation of ice or snow on walkways under his control provided he knew, or should have known of the existence of a dangerous condition resulting from the ice or snow?” (Emphasis added). There, a tenant slipped and fell on a snow-covered “walkway in front of her apartment building” in this large scale multiple housing development. In that case, the landlord claimed that it had actually removed the snow that had fallen. Here, the landlord did nothing. Outside walkways and stairways used in common by the tenants, like the common steps, hallways and stairways inside multiple dwellings, are obviously under the landlord’s control and entail a responsibility on his part to maintain them in a safe condition. Our courts have never extended that responsibility to public sidewalks, abutting and outside the premises, enjoyed as a public easement. We are not concerned herein with walkways within the apartment complex.

The trial court in the instant case gave the case to the jury upon the. theory of the landlord’s possible voluntary undertaking to clear the sidewalk abutting the garden-type apartment complex of ice and snow, and whether there was reliance by the injured plaintiff upon such an undertaking. The doctrine of “reliance” was spelled out in Bauer v. 141-149 Cedar Lane Holding Co., supra, which held that, even assuming attempts by a landlord to correct a condition or remedy a defect, there must be reliance upon such action. So, too, in Johnson v. Souza, 71 N. J. Super. 240 (App. Div. 1961), where an injured plaintiff fell on the icy steps of defendant’s ■home, there was reliance by plaintiff on instructions given by defendant to her daughter, in plaintiff’s presence, to put some rock salt on the steps.

These eases are not comparable to the instant situation. The trial court, in granting the motion to dismiss, properly observed an absence of proof “that the plaintiff did in fact rely upon any instruction or any promise or any undertaking in this matter.” She herself, with the aid of a neighbor, had on that very morning shovelled the snow from the walkway in front of her own apartment. She had walked upon other walkways in the complex and had undoubtedly observed their condition before coming to the public sidewalk. She had traversed this public sidewalk several feet before she fell. She knew that sometimes the employees did shovel the walks, but it was not a customary pattern of behavior, because sometimes they did not do so. The snow had been on this sidewalk for some days before she fell and nothing had been done to remove it. The proofs did not create an issue of fact as to reliance.

The judgment of dismissal is affirmed.