author: Lora, J. S. C.

text:
    RALPH C. PETERSEN, DOROTHY C. PETERSEN, LOUISE E. GIBBONS, EDGAR H. GIBBONS, RUSSELL J. PEDERSON, BONNIE M. PEDERSON, HARRY H. CHAPMAN, JR., NANCY A. CHAPMAN, JOSEPH T. GOLDEN, DIANE B. GOLDEN, WILLIAM B. SINCLAIR, MARIE A. SINCLAIR, JOSEPH G. CHAFFEE, BARBARA H. CHAFFEE, VINCENT G. BRZEZINSKI, GEORGINE BRZEZINSKI, SILVIO GALTERIO, MARIE GALTERIO, YOLANDA GIANNELLA, J. EDWIN CAREY AND MARION G. CAREY, PLAINTIFFS, v. BEEKMERE, INCORPORATED, A NONPROFIT CORPORATION OF THE STATE OF NEW JERSEY, GLENDALE INVESTMENTS CORP., A CORPORATION OF THE STATE OF NEW JERSEY, CHESTER J. DECKER AND ELIZABETH J. DECKER, DEFENDANTS. BEEKMERE, INC., ETC., ET ALS., PLAINTIFFS, v. RALPH C. PETERSEN ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 19, 1971.

      Mr. Samuel M. Lyon, Jr., attorney for plaintiffs.

      Messrs. HirschMau and Wasserman, attorneys for Beekmere, Inc. (Mr. Morton HirschMau appearing).

      Mr. Peter Calda, attorney for defendants Glendale Investments Corp. and Chester J. Decker and Elizabeth J. Decker.
   Lora, J. S. C.

This is a class action to construe a covenant compelling purchasers of property in a subdivision, known as Allison Acres, to purchase a share of stock in a community association, Beekmere, Inc. Said action has been consolidated with a county district court suit instituted by Beekmere against each of the plaintiffs herein for $100 for a required stock subscription, and for $75 representing the 1969 annual assessment as against each of them.

The pertinent facts reveal that the original tract surrounding a small lake was owned by Glendale Investments Corp., which subdivided said tract into five sections, the fifth and final subdivision being filed March 18, 1968. The principal stockholders of Glendale, Charles and Elizabeth Decker, formed Beekmere, Inc., a corporation for profit under Title 14 of the Revised Statutes (now N. J. S. A. 14A), said corporation’s ostensible purpose, as gleaned from its certificate of incorporation, being the development of land for recreational pursuits, the sale of merchandise incidental thereto, the operation of a private club for the limited membership of lot owners in various real estate developments, and to deal in lands generally.

On January 31, 1961 Glendale conveyed to Beekmere the lake and a certain access lot to the lake in Section Two of the subdivision. A set of covenants, one of which is at issue herein, was not annexed to the deed. On June 29, 1962 Beekmere conveyed back to Glendale; no restrictions were involved. Thereafter, on October 16, 1967 Glendale reconveyed to Beekmere the lake and access lot together with an easement retained by the grantor over two lots with access to the lake in Section Eive of the subdivision; no covenants were annexed to the deed.

Individual lots were conveyed by Glendale to purchasers who were predecessors in title of the within plaintiffs, and a copy of the covenants were annexed to all deeds in these original conveyances. In subsequent conveyances by these individual lot owners to plaintiffs, the covenants were not annexed to some of the deeds. The covenant in dispute, set forth in a document annexed to such deeds and entitled “Covenants for Insertion in Deeds Allison Acres/ Sections * * recited:

Whereas, the Purchaser (hereinafter designated as the Owner), agrees to apply for membership in Beekmere, Incorporated (hereinafter designated as Beekmere), and member to purchase one share of the common stock of said Beekmere, for a sum not in excess of S100.00 and to comply with and conform to the Constitution and ByLaws of said Beekmere * * *.

The threshold question for the court is whether this covenant, being affirmative in nature, can be enforced at law through the medium of the county district court action, or in equity, by plaintiffs5 action to construe the covenant. Plaintiffs argue that under the law of this State affirmative covenants cannot be enforced, relying on Furness v. Sinquett, 60 N. J. Super. 410 (Ch. Div. 1960), which involved an action against subsequent grantees for the enforcement by mandatory injunction of a covenant to construct sidewalks in front of their homes and to remove certain obstructions in street areas.

It appears from the opinion that each original conveyance from the common developer contained the covenant. Testimony was adduced that partically all the lots upon which residences were constructed were made subject to the covenant, the respective parties involved having obtained possession by mesne conveyances, and defendants did not deny that a similar covenant was contained in their chain of title. The court noted that plaintiff had proved a “neighborhood scheme55 by showing that the grantor had inserted in each deed, like restrictions concerning the use of the lands from the original owner, but stated that the fact that such a “neighborhood scheme55 had been shown did not alter the fact that the covenant sought to be enforced was affirmative rather than negative in nature.

The court in Furness stated that beginning with the English ease of Spencer’s Case, 1 Smith’s Lead. Cas. 145, 5 Coke 16a, and followed in New Jersey by Brewer v. Marshall and Cheeseman, 19 N. J. Eq. 537, 546 (E. & A. 1868), our courts have refused enforcement of affirmative covenants, quoting dictum from De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 332-333 (Ch. 1892), aff'd p. c., 67 N. J. Eq. 731 (E. & A. 1894) :

It is settled that a court of equity will restrain the violation of a covenant, entered into by a grantee, restrictive of the use of lands conveyed, not only against the covenantor, but against all subsequent purchasers of the lands with notice of the covenant, irrespective of the questions whether the covenant is of a nature to run with the land, or whether it creates an easement; provided, however, that its enforcement is not against public policy. [Citations omitted] * * * This rule of equity being an encroachment on the general doctrine of the common law, that the burden of a covenant does not run with the land [citations omitted], its application is not to be extended beyond the class of eases in which it has been heretofore enforced [citation omitted], and is to he confined to negative covenants.

However, whether affirmative covenants are enforceable at law or in equity does not appear to be settled in this State. The De Gray case, upon which the court relied in Furness v. Sinquett, supra, involved a negative rather than an affirmative covenant, and thus tire Court of Errors and Appeals did not pass on the question. Javna v. D. J. Fredericks, Inc., 41 N. J. Super. 353, 360 (App. Div. 1956), noted but likewise did not rule thereon. In addition to De Gray v. Monmouth Beach Club House Co., supra, the cases of Brewer v. Marshall and Cheeseman, 18 N. J. Eq. 337 (Ch. 1867), aff'd 19 N. J. Eq. 537 (E. & A. 1868), and Costigan v. Pennsylvania R. R. Co., 54 N. J. L. 233, 242 (Sup. Ct. 1892), contained some very early statements that the burdens of covenants, affirmative or otherwise, do not run at law except as between landlord and tenant.

The court in Conover v. Smith, 17 N. J. Eq. 51, 55 (Ch. 1864), while it did not have the question of affirmative covenants directly before it, stated by way of dictum that if a lessee covenanted for himself and his assigns to make a new wall upon the demised premises, the assignee was bound; and Child v. C. H. Winans Co., 119 N. J. Eq. 556 (E. & A. 1936), which involved a covenant by the grantee to pay taxes and assessments on land retained by the grantor, although held not to be a covenant running with the land, allowed enforcement against a subsequent purchaser under a theory of an equitable lien.

A view of other jurisdictions indicates that the weight of authority permits the enforcement of affirmative covenants, although courts have not distinguished between the rubrics under which such enforcement is effected, whether it be by covenant running with the land at law, or as an equitable servitude enforceable against a subsequent purchaser with notice. Adaman Mutual Water Co. v. United States, 278 F. 2d 842 (9 Cir. 1960); Note, “Affirmative Duties Running with the Land,” 35 N. Y. U. L. Rev. 1344 (1960), and appendix at 1365-1369; 7 Thompson, Real Property § 3153 at 78 (1962); 2 American Law of Property (Casner ed. 1952), § 9.36, at 438-439; 20 Am. Jur. 2d Covenants, Conditions and Restrictions, § 37 at 607, where it was stated that courts make no distinction between affirmative and negative covenants regarding their running with the land, the chief consideration in running being whether the covenant relates to the land so as to enhance its value and confer benefit, rather than whether it is affirmative or negative in nature. See also, Annotation, “Affirmative Covenants as Running with the Land,” 68 A. L. R. 2d 1022, § 4 at 1026 (1959), and cases in earlier annotations at 41 A. L. R. 1363 (1926), 51 A. L. R. 1326 (1927), 102 A. L. R. 781 (1936) and 118 A. L. R. 982 (1939).

In New York the courts adhered to the old English rule that affirmative covenants did not run with the land so as to charge the burden of performance upon a subsequent grantee. Miller v. Clary, 210 N. Y. 127, 103 N. E. 1114 (Ct. App. 1913). However, such position has been eroded in that state due to recognized exceptions, and in subsequent cases that in all but letter appear to overrule Miller v. Clary. In accord with the view that New York has thus changed its position, see 7 Thompson, Real Property, § 3153 at 78, note 7 (1962); 2 American Law of Property (Casner ed. 1952), § 9.36 at 438; 20 Am. Jur. 2d Covenants, Conditions and Restrictions, § 37, p. 607, 5 Powell, Real Property, § 677 at 195 (1970). Cf. Tarantelli v. Tripp Lake Estates, Inc., 63 Misc. 2d 913, 314 N. Y. S. 2d 21 (Sup. Ct. 1970), for an apparent statement that an affirmative covenant will not run. In Nicholson v. 300 Broadway Realty Corp., 7 N. Y. 2d 240, 196 N. Y. S. 2d 945, 949-950, 164 N. E. 2d 832, 835 (1959), which involved a covenant to furnish heat, the Appellate Division stated:

The burden of affirmative covenants may be enforced against subsequent holders of the originally burdened land whenever it appears that (1) the original covenantor and covenantee intended such a result; (2) there has been a continuous succession of conveyances between the original covenantor and the party now sought to be burdened; and (3) the covenant touches or concerns the land to a substantial degree.

The Appellate Division relied on a case very similar on its facts to the present one: Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, 278 N. Y. 248, 15 N. E. 2d 793 (Ct. App. 1938). In that case an action was brought by an association of property owners, as assignee of the original covenantee, to foreclose a lien upon defendant’s land, the lien arising from a covenant contained in a deed from the original owner-developer to defendant’s predecessor in title. The covenant required payment of an annual charge to be devoted to maintenance purposes of roads, parks, beach and such. Foting that this was an affirmative covenant to pay money for use in connection with, but not upon, the land, the court in a well reasoned opinion stated:

It has been often said that a covenant to pay a sum of money is a personal affirmative covenant which usually does not concern or touch the land. Such statements are based upon English decisions which hold in effect that only covenants, which compel the covenanter to submit to some restriction on the use of his property, touch or concern the land, and that the burden of a covenant which requires the covenanter to do an affirmative act, even on his own land, for the benefit of the owner of a ‘dominant’ estate, does not run with Ms land. * * * [t]here were some exceptions or limitations in the application of the general rule. Some promises to pay money have been enforced, as covenants running with the land, against subsequent holders of the land who took with notice of the covenant. [Citations omitted.] It may be difficult to classify these exceptions or to formulate a test of whether a particular covenant to pay money or to perform some other act falls within the general rule that ordinarily an affirmative covenant is a personal and not a real covenant, or falls outside the limitations placed upon the general rule. At least it must ‘touch’ or ‘concern’ the land in a substantial degree, and though it may be inexpedient and perhaps impossible to formulate a rigid test or definition which will be entirely satisfactory or which can be applied mechanically in all cases, we should at least be able to state the problem and find a reasonable method of approach to it. It has been suggested that a covenant which runs with the land must affect the legal relations — the advantages and the burdens — of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general, such as taxpayers or owners of other land. [Citations omitted]. That method of approach has the merit of realism. The test is based on the effect of the covenant rather than on technical distinctions. Does the covenant impose, on the one hand, a burden upon an interest in land, which on the other hand increases the value of a different interest in the same or related land?
Even though we accept that approach and test, it still remains true that whether a particular covenant is sufficiently connected with the use of land to run with the land, must be in many cases a question of degree. A promise to pay for something to be done in connection with the promisor’s land does not differ essentially from a promise by the promisor to do the thing himself, and both promises constitute, in a substantial sense, a restriction upon the owner’s right to use the land, and a burden upon the legal interest of the owner. On the other hand, a covenant to perform or pay for the performance of an affirmative act disconnected with the use of the land cannot ordinarily touch or concern the land in any substantial degree. Thus, unless we exalt technical form over substance, the distinction between covenants which run with land and covenants which are personal, much depend upon the effect of the covenant on the legal rights which otherwise would flow from ownership of land and which are connected with the land. The problem then is: Does the covenant in purpose and effect substantially alter these rights? [278 N. Y. at 256-258; 15 N. E. 2d at 795-796]

It would thus appear, by the weight of authority and logic, that the distinction between “affirmative” and “negative” covenants is an anachronism which all too often precludes an analysis of the covenant itself in order to determine whether it should be enforced, whether at law as a covenant running with the land or in equity as an equitable servitude enforceable against the original grantee and all successors having notice. See Caullett v. Stanley Stilwell & Sons, Inc., 67 N. J. Super. 111, 116 (App. Div. 1961), where the court used the law and equity analysis in its review of a restrictive covenant. Por the position of treating affirmative and negative covenants similarly, see, in addition to authorities heretofore cited, Berger, “A Policy Analysis of Promises Respecting the Use of Land,” 55 Minn. L. Rev. 167, 190-193 (1970). See, also, a critical analysis of the Furness v. Sinquett, supra, decision at 15 Rutgers L. Rev. 290 (1961).

The Appellate Division in Caullett, supra, set forth the requirements of a covenant directly restrictive of title to land. Of the primary requirement that it “touch and concern” the subject property, the court stated:

To constitute a real rather than a personal covenant, the promise must exercise direct influence on the occupation, use or enjoyment of the premises. It must he a promise ‘respecting the use of the land,’ that is, ‘a use of identified land which is not merely casual and which is not merely an incident in the performance of the promise.’ 5 Restatement, Property, Scope Note to Part III, pp. 3147-3148 (1944) [67 N. J. Super. at 116]

The meaning of the “touch and concern” requirement is unclear, especially with respect to affirmative covenants, in Yew Jersey. Although Caullett v. Stanley Stilwell & Sons, Inc., supra, and Brewer v. Marshall and Cheeseman, supra, 19 N. J. Eq. 537 (E. & A.), spoke in terms of the physical use of the land, both cases involved negative covenants (that the grantor reserved the right to build the ■original building on the premises, and a covenant not to sell marl). In addition, New Jersey seems to distinguish between burden and benefit as they relate to the “touch and concern” requirement. Compare Brewer, supra, and National Union Bank at Dover v. Segur, 39 N. J. L. 173, 186 (Sup. Ct. 1877); and see 5 Powell, Real Property § 678 at 197— 199 (1970).

The covenant here under consideration requires individual lot owners to purchase stock in a property owners’ association, and make payment of assessments, which ostensibly will be put to use for the development and maintenance of the lake area. Under such a scheme both the burden and benefit of the covenant would be linked to each parcel found subject to the covenant.

As was stated in Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, supra:

In order that the burden of maintaining public improvements should rest upon the land benefited by the improvements, the grantor exacted from the grantee of the land with its appurtenant easement or right of enjoyment a covenant that the burden of paying the cost should be inseparably attached to the land which enjoys the benefit. It is plain that any distinction or definition which would exclude such a covenant from the classification of covenants which ‘touch’ or ‘concern’ the land would be based on form and not on substance. [278 N. Y. at 260, 15 N. E. 2d at 797]

For other cases enforcing similar covenants, see Harrison-Rye Realty Corp. v. New Rochelle Trust Co., 177 Misc. 776, 31 N. Y. S. 2d 1005 (Sup. Ct. 1941); Lawrence Park Realty Co. v. Crichton, 218 App. Div. 374, 218 N. Y. S. 278 (App. Div. 1926); Kennilwood Owners Ass’n v. Jaybro R. & D. Co., 156 Misc. 604, 281 N. Y. S. 541 (Sup. Ct. 1935); Rodruck v. Sand Point Maintenance Comm’n, 48 Wash. 2d 565, 295 P. 2d 714 (Sup. Ct. 1956) (where the amounts of the individual assessments were governed by a set standard, “according as the area of such tract bears to the entire area of the tracts assessed, that is, on the square footage basis, and without reference to the value of the front footage thereof; * * *”); Maher v. Cleveland Union Stockyards Co., 55 Ohio App. 412, 9 N. E. 2d 995 (Ct. App. 1936).

Examining the covenant therein nnder consideration, the court in Caullett v. Stanley Stilwell & Sons, Inc., supra, 67 N. J. Super at 118, stated that prerequisite to a conclusion that a covenant runs with the land at law is a finding that both burdened and benefited properties exist and were intended to be so affected by the contracting parties. That the properties were intended to be so affected in the present case appears evident by the incorporation of Beekmere with its ostensible purpose of subdivision development, together with the pattern of original conveyances by the grantor annexing the restrictions to all deeds. As to the existence of burdened and benefited properties, it would seem that both are merged into the individual lots of Allison Acres subject to the covenant, since they reap the benefits of lake area development and provide the source for necessary funds.

Although not discussed in Caullett v. Stanley Stilwell & Sons, Inc., supra, there perhaps is an additional requirement in order for a covenant to run at law, namely, privity of estate. Early eases in this State seems to require a tenurial relationship in order to constitute privity. See Costigan v. Pennsylvania R. R. Co., 54 N. J. L. 233 (Sup. Ct. 1892) (negative duty held unenforceable in the absence of a landlord-tenant relationship); The Inhabitants of City of Bordentown v. Anderson, 81 N. J. L. 434 (E. & A. 1910), writ of error dism., 223 U. S. 714, 37 S. Ct. 521, 56 L. Ed. 626 (1911) (burden of a covenant will not run with the land in the abesnce of lessor-lessee relationship). For a contrary view, see Clark, Real Covenants and Other Interests Which “Run With the Land” (2d ed. 1947), 111-137, which takes the position that logically and historically the only privity requirement is that between the promisor and the assignee which is satisfied by a succession to the estate of the promisor. While the covenant herein under consideration might perhaps fail at least as to the privity requirement, such is not a problem when the covenant is sought to be enforced in equity under a theory of equitable servitude.

The English doctrine of equitable servitudes was based on notice. In that country (which had no recording system) notice had to mean principally actual notice. In this country which has had a well-developed recording system since its beginning, the record was deemed to be notice to the subsequent purchaser, and thus so long as the agreement was recorded, it was a stable and sure way to bind subsequent parties to private use arrangements. [Berger, A Policy Analysis of Promises Respecting the Use of Land, supra, 55 Minn. L. Rev. at 186 (1970)]

As to the privity requirement it has been stated that “Problems as to the existence of ‘privity’ have no significance when * * * [t]he controversy is in equity for the enforcement against a successor of the promisor of a promise with notice of which the ownership has been acquired * * 5 Powell, Real Property, § 674 at 171, citing Restatement, Property, § 539, comment (a) (1944). Likewise, our courts have “consistently enforced the covenantal rights of an owner of benefited property against a successor, with notice, to the burdened land, even though the covenant did not run with the land at law.” Caullett v. Stanley Stilwell & Sons, Inc., supra, 67 N. J. Super. at 118; Cotton v. Cresse, 80 N. J. Eq. 540 (E. & A. 1912).

Thus, although the question whether an affirmative covenant is enforceable at law as a covenant running with the land is here expressly left open, it is the conclusion of this court that such a covenant is, in equity, enforceable as an equitable servitude against a subsequent grantee who takes with notice. That the covenant was not annexed to all of plaintiffs’ deeds is of no consequence since they acquired title with notice of the covenant, its presence in their chain of title charging them with such notice. Olson v. Jantausch, 44 N. J. Super. 380, 388 (App. Div. 1957).

The right to urge enforcement of a servitude against the burdened land “ ‘depends primarily on the covenant’s having been made for the benefit’ of other land, either retained by the grantor or part of a perceptible neighborhood scheme.” Caullett v. Stanley Stilwell & Sons, Inc., supra, 67 N. J. Super. at 119. Since Glendale Investments Inc. has conveyed all the lots in Sections One through Pour of Allison Acres, and is likewise conveying out the lots of Section Five, equitable enforcement of the covenant herein under consideration is predicated on the finding of such a scheme.

As set forth in Olson v. Jantausch, 44 N. J. Super. 380, 386 (App. Div. 1957), there must be a clear intent to establish a neighborhood scheme of restrictions. To be effective and enforceable, such a scheme must be (a) universal, the restrictions applying to all lots of like character brought within the scheme; (b) reciprocal, the restrictions constituting a benefit to all lots involved which are subject to the burden imposed, and (c) reasonably uniform as to the restrictions imposed; they need not be identical but any variations must be such as not to create an inequitable burden or benefit. Auerbacher v. Smith, 22 N. J. Super. 568, 573 (App. Div. 1952), certif. den. 11 N. J. 498 (1953); Weinstein v. Swartz, 3 N. J. 80, 86 (1949); Scull v. Eilenberg, 94 N. J. Eq. 759, 771 (E. & A. 1923). Neighborhood schemes are the product of covenant:

* # * They arise wiien there is a general plan made public by the owner of the tract for the development of bis property, ‘to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan * * De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 340 (Ch. 1892), affirmed 67 N. J. Eq. 731 (E. & A. 1904). [Anders v. Greenlands Corp., 31 N. J. Super. 329, 342 (Ch. Div. 1954)]

Plaintiffs contend that no neighborhood scheme exists or, alternatively, that the common grantor has abandoned it if one is found to exist. The evidence supports the conclusion that it was the intent of the common grantor, Glendale Investments Inc., to create an integrally related lake community as to all sections of Allison Acres. The tax map reveals that portions of Sections One, Two, Three and Five actually border on the lake and a part of Section Eour is adjacent to the lake. In any event, the property furtherest removed from the lake in Section Eour is no further from the lake than its counterpart in Section Five. Easements over the two lake access lots in Section Five were reserved by the grantor and were to be used by the property owners for access to the lake on its easterly bank; a similar arrangement was created on the westerly bank where Beekmere retained the only unsold access lot. (It should he noted that in a separate action Beekmere has been ordered by judgment entered October 13, 1970 by another court to release its easements in Section Five except for the limited purpose of maintaining the lake.) The sheet of restrictions annexed to some of plaintiffs’ deeds refers to Allison Acres, designating the sections thereof. Finally, Glendale has conveyed a number of lots in Section Five subject to the restrictions, these appearing in a document entitled “Covenants for the Insertion in Deeds ‘Allison Acres’, Sections 1, 2, 3 & 4 and 5.”

However, it is stipulated and appears from a report of title examination before the court that not all lots sold by Glendale have been made subject to the covenant under consideration. The question then becomes whether this action by Glendale destroys the neighborhood scheme.

A neighborhood scheme may be created in a number of ways. * * * ‘The most complete way, of course, is by a reciprocal covenant, whereby the grantor covenants to insert, in apt language, like covenants in all deeds of his remaining lots or lands for the common benefit of all of his grantees and their assigns. Another way is for him to offer his lots for sale, and to sell them, on the representation that all lots will be conveyed subject to like covenants for the common benefit, in which case purchasers with notice or knowledge will be bound by the covenant. But, in the absence of either of these methods (as was the case here), the courts will only spell out such a scheme from a plan of lots and sales therefrom where all the deeds from the common grantor for the lots making up any particular neighborhood group of common benefit therefrom, are made subject to the common covenant. If, under these circumstances, the covenant is omitted from a deed of one lot so located that a violation on that lot of the provisions of the covenant would deprive the other lots of the benefit to be derived by them from the common observance of the restriction, there is, in the absence of knowledge or notice of the scheme on the part of the grantee in the deed for such omitted lot, a failure to make out a neighborhood scheme, at least as to that lot and as to such other lots as would lose the benefit of the scheme if it were violated on the lot not subjected to the covenant.’ [Margate Park Protective Ass’n v. Abate, 22 N. J. Super. 550, 554-555 (Ch. Div. 1952), quoting from Scull v. Eilenberg, 94 N. J. Eq. 759, 771 (E. & A. 1923)]

According to Weinstein v. Swartz, 3 N. J. 80, 85-6 (1949) :

It is not necessary that all lots in an entire area be made subject to restrictions in order to constitute a neighborhood scheme. The absence of restrictive covenants by the common grantor in some of the properties conveyed by him may be evidence of an intent not to create a neighborhood plan but this evidence is not conclusive. There are other factors which must be considered. As stated in Humphreys v. Ibach, 110 N. J. Eq. 647, 652 (E. & A. 1932), whether such a plan has been established ‘is a question of fact to be answered, not only by the wording of the deeds, but by the surrounding circumstances and the acts of the parties’. McComb v. Hanly, 128 N. J. Eq. 316 (Ch. 1940), reversed on other grounds 132 N. J. Eq. 182 (E. & A. 1942).
A restrictive covenant is a contract. Rankin v. Brown, 142 N. J. E. 180 (Ch. 1948). Any neighborhood scheme that flows from the terms thereof must be effective and enforceable apply to all lots of a like character brought within the scheme. The consideration to each lot owner for the imposition of the restriction is that the same restrictions are placed upon the lots of others similarly located.
* * * It suffices if all the deeds for the lots making up any particular neighborhood group are made subject to uniform covenants in order that the benefits and burdens of the lots encompassed by the general scheme are subject to mutual burdens and benefits. Sanford v. Keer [80 N. J. Eq. 240], supra; Scull v. Eilenberg [94 N. J. Eq. 759], supra; Humphreys v. Ibach [110 N. J. Eq.], supra, p. 653 [at 85-86]

Finally, it was stated in Margate Park Protective Ass'n v. Abate, 22 N. J. Super. 550, 558 (Ch. Div. 1952), that in order to prove an abandonment or modification oí a neighborhood scheme, the materiality oí the violations alleged is to be determined by the circumstances of each case, and the question to be resolved is whether the violations are such as to indicate an abandonment of the original general plan and to make its enforcement inequitable because of the changed conditions of the property, citing inter alia, La Fetra v. Beveridge, 124 N. J. Eq. 24 (E. & A. 1938), and Pancho Realty, &c. v. Hoboken Land, &c., Co., 132 N. J. Eq. 15 (E. & A. 1942).

The “neighborhood scheme” in Section Five of Allison Acres must fail due to the inconsistency of making only some similarly situated lots subject to the covenant. Further, since each section is an integral part of the entire lake community subdivision, the entire scheme must fail. It would be inequitable to enforce the burden of the covenant against only those lot owners who were unfortunate enough either to have had their predecessors in title or themselves purchase lots with the restrictions annexed to their deeds. The benefit of maintaining the lake, and indeed developing it further, accrues to all property owners throughout the subdivision. When some owners are released by the common grantor from sharing in the expense attached thereto, the other property owners are forced to tender larger proportionate amounts albeit such noncontributing neighbors will derive at least some if not all of the benefits of a well maintained lake. See also Houston Petroleum Co. v. Automotive Products Credit Ass’n, 9 N. J. 122 (1952) (covenant held unenforceable, one portion of a tract having been released from the restrictions of similarly situated portions of the tract).

Assuming arguendo that a neighborhood scheme were sustainable, tlie covenant herein would still be unenforceable due to its vagueness of terms and consequent restraint on alienation. Other jurisdictions have held that covenants similar to the one at hand have been enforced; however, their terms were far more precise. See Lawrence Park Realty Co. v. Chrichton, supra, 218 App. Div. 374, 218 N. Y. S. 278 (covenant which required payment of maintenance costs for roads, walks, etc., held enforceable where the covenant set forth a formula for assessment, a maximum charge and a termination date); Kennilwood Owners Ass’n v. Jaybro R. & D. Co., supra, 156 Misc. 604, 281 N. Y. S. 541 (covenant for payment of maintenance costs upheld where maximum amount was specified, and the proceeds were required to be so applied) — in both of which cases large expenditures had already been incurred unlike the case under consideration herein; Nassau County v. Kensington Ass’n, 21 N. Y. S. 2d 208 (Sup. Ct. 1940), which involved a covenant to pay a stipulated sum annually to a property owners’ association organized for the common welfare of its members. The court noted that the association was not committed by the terms of the covenant to use the funds collected for any particular purpose, or in fact to spend the money at all. Speaking about the “touch or concern” requirement, the court stated that it:

* * * may not be distorted into an optional arrangement leaving the survient contributors of the funds to the mercy of the collecting dominant agency. If a covenant that levies an assessment is to uncloak its apparent personal nature and run with the land, that covenant itself should provide that the land burdened by the payments should be benefited when money collected from the servient lot owners is expended. The agreement at bar merely provides for the payment of dues in sort of a property owners’ association. Such an arrangement is without the importance or dignity of a real covenant, [at 215]

See also Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, supra, 278 N. Y. 248, 15 N. E. 2d 793 (convenant specified that the funds collected would be devoted to maintenance purposes), and Rodruck v. Sand Point Maintenance Comm’n, supra, 48 Wash. 2d 565, 295 P. 2d 714 in which the court read the articles of incorporation, bylaws and deeds together and sustained a covenant under which the corporation would make improvements and maintain strips and parking areas, and would assess owners in the manner set forth in the by-laws. Again there was a specified standard for assessment, and the money was required to be spent on the designated purpose. (In addition, unlike the case before this court, purchasers became members of the nonprofit corporation and received a share of stock without the payment of an additional fee.)

Although the precise facts are not apposite to the present case, Mountain Springs Ass’n of New Jersey v. Wilson, 81 N. J. Super. 564 (Ch. Div. 1963), sets forth the general rule with regard to vagueness of terms in covenants restrictive of title:

It is also firmly established that the policy of the law is against the imposition of restrictions upon the use and enjoyment of land, and that such restrictions are to be strictly construed. The foundation of this policy is that while restrictions tend to protect property, they also impair alienability. Hammett v. Rosensohn, 46 N. J. Super. 527, 535 (App. Div. 1957), affirmed 26 N. J. 415 (1958) ; Bruno v. Hanna, 63 N. J. Super. 282, 285 (App. Div. 1960). Furthermore, ambiguities and uncertainties are resolved in favor of the owner’s unrestricted use of his land, [at 575]

(The court relied in part on Wayne Lakes Park v. Warner, 104 Ohio App. 167, 147 N. E. 2d 269 (Ct. App. 1957), in which injunctive relief was denied to a grantor where the deed contained a provision that the grantee shall at all times maintain annual membership in a property owners’ association operated by the grantor.) Thus, if the covenant is vague or ambiguous, it should not be construed to impair the alienability of the subject property. See Caullett v. Stanley Stilwell & Sons, Inc., supra at 67 N. J. Super. 115, which involved a covenant by which the grantor reserved the right to construct the original building on the premises, and the cases cited therein. It should also be noted that in Mountain Springs Ass’n of New Jersey v. Wilson, supra, the argument was advanced that a covenant restricting the sale of property to members of the association implied that all purchasers of property in the Mountain Springs area must become members of the association. After stating that the express covenant was void and unenforceable because it restricted the alienation of land, the court stated that the implication advanced would likewise restrict alienation for the reasons pertaining to the express covenant.

In the covenant before this court there is no formula by which to calculate future assessments, thus binding property owners to unspecified obligations and leaving open the possibility of inequitable assessments as to each member of the lake community. See Moorestown Mgmt. v. Moorestown Bookshop, 104 N. J. Super. 250 (Ch. Div. 1969), in which a provision in a shopping center lease requiring tenants to become members of an incorporated association of all tenants, to pay dues and to be bound by the by-laws of the association, was not found invalid where the by-laws, which were incorporated by reference into the lease, provided a formula for establishing dues. Cf. Syrian Antiochian Orthodox Archdiocese of N. Y. v. Palisades Ass’n, 110 N. J. Super. 34 (Ch. Div. 1970) (covenant preventing erection of structures unless plans were approved by grantor, held valid despite lack of objective standards). Uor is there any limitation on the duration of the covenant in question, unlike covenants upheld in decisions in other jurisdictions. See also Mountain Springs Ass’n of New Jersey v. Wilson, supra, in which a covenant restricting the alienation of land except to members of a property owners’ association so long as the association was in existence was held void, partially on the grounds that it was unlimited in duration.

Beekmere, Inc., according to its certificate of incorporation, has perpetual existence. Further, there is no requirement that the assessment money must be spent on the land from which the funds were received. In Glendale’s conveyances to Beekmere, the latter was not bound to the restrictions which attached to the individual property owners; the covenant itself does not require that the money must be expended for the development of Allison Acres, nor is there anything in Beekmere’s certificate of incorporation or by-laws that requires the funds to be so expended. Indeed, Beekmere is not restricted to dealing solely with the subdivision known as Allison Acres. Finally, property owners are required to purchase a nontransferable share of stock in a corporation for profit. When they leave Allison Acres they cannot recover their capital investment nor transfer the stock to a new purchaser as part of the consideration. Having paid $100, they have no further interest or rights in the stock if they leave Allison Acres.

These ambiguities, uncertainties and shortcomings likewise militate against the enforcement of this covenant in equity.


source: Caselaw Access Project

author: Byrne, J. S. C.

license: Public Domain

text:
    ROSE THERING, PLAINTIFF, v. AGNES REINKEMEYER AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 22, 1971.

      Mr. Samuel A. Gennet for the Plaintiff (Messrs. Gennet & Methfessel, attorneys).

      Mr. Donald B. Connolly for the Defendants (Messrs. Oppenheim and Oppenheim, attorneys).
   Byrne, J. S. C.

This case has come before the court on cross motions by both plaintiff and defendant for summary judgment on two issues. The issues involved are whether defendant’s insurance company is liable to the plaintiff under the two forms of coverage that were contained in defendant’s policy, viz., medical payment coverage annd liability coverage. The action arose from an automobile accident.

Defendant contends both she and plaintiff are co-employees. Plaintiff says that while this may be so in the theological sense, it is certainly not so within the provisions of Title 34 of the New Jersey Statutes Annotated. Both the plaintiff and defendant are nuns within religious organizations set up under the hierarchy of the Catholic Church. The defendant, Sister Agnes Reinkemeyer, is employed as a member of the faculty of Seton Hall University. The plaintiff, Sister Rose Thering, is a member of the Sisters of Saint Domenie of Kaeine, Wisconsin. Plaintiif had been working in the area of Catholic-Jewish relations in the Chicago area prior to coming to Seton Hall. While still in Chicago, the plaintiff was interviewed by a Monsignor Oesterreicher who is the Director of the Institute of JudeoChristian Studies which is located at Seton Hall. Subsequently, plaintiff was offered a contract to come to Seton Hall to act as the Academic Coordinator of the Institute of Judeo-Christian Studies for the academic year commencing in September 1968 and ending in June 1969. The offer was accepted by plaintiff who arrived at Seton Hall in August of 1968 in order to assume the position. Prior to her arrival arrangements had been made for her to reside in a house owned and furnished by the University at 107 Woodbine Avenue which is located close to the campus. Plaintiff was not under any requirement to live there and was free to reside wherever she pleased but chose to accept this location because of its convenience. The understanding was that the University was to receive a rental of $200 per month of which plaintiff paid one-third since there were two other nuns living there, one of whom was the defendant.

After the plaintiff had been residing at the home for approximately one month, she and the defendant, Sister Keinkemeyer, found that they did not care for certain bedspreads that had been furnished to them by the University as part of the consideration for the rent, and they decided to exchange them at the store where they had been purchased. It was on the trip to the store for this purpose and also to possibly do some shopping that the accident occurred. The two sisters were on their way to the store in the defendant’s car with the defendant driving when suddenly the defendant lost control of the car and it swerved into a utility pole causing the plaintiif to be severely injured. At the time of this accident the defendant had an insurance policy issued by State Farm Mutual Automobile Insurance Company and said policy included both liability coverage and medical payment coverage.

Through their respective motions, both parties have asked for summary judgment both as to the medical payment and as to liability. Plaintiff’s contention is that she is a third party beneficiary of the insurance contract as to the medical payment and that as to the liability coverage, there is a presumption of negligence under the doctrine of res ipsa loquitur when a car leaves the road, which according to the contention of plaintiff should prevail since defendant has not introduced any references to any other intervening causes. On the other hand, the insurance company, through the defendant, relies on the contention that plaintiff is not entitled to either medical payment or liability because she is allegedly a co-employee of defendant and, therefore, barred by N. J. S. A. 34:15-8.

In determining whether or not plaintiff is entitled to the medical payment coverage it is necessary to examine both N. J. S. A. 34:15-8 and 17:28-1. The first of these two statutes reads in part:

If an injury or death is compensable under this article [Workmen’s Compensation], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

The second of the two statutes reads in part:

Any policy of liability insurance * * * may contain a provision for payment on behalf of the injured party or for reimbursement of the assured for payment of medical, hospital, surgical and funeral expenses incurred, as a result of an accident, irrespective of legal liability of the assured * * *.

Therefore, while it might appear from the first of these statutes that plaintiff would be barred from holding defendant liable, it can now be seen that the later statute authorizes the payment of medical expenses regardless of the assured’s position of liability. This being the case with the policy at hand, it is not necessary to determine if defendant is liable and plaintiff is entitled to be treated as a beneficiary under the medical payment coverage. Under these circumstances summary judgment is appropriate.

The “co-employee” defense cannot prevail because “the immunity attaches to the co-employee only when the co-employee is acting in the course of his employment.” Konitch v. Hartung, 81 N. J. Super. 376, 382 (App. Div. 1963). It is necessary to determine whether or not they were acting within the scope of their employment at the time of the accident, for if they were not, then the co-employee defense is inapplicable, but if they were then it becomes necessary to determine if they were actually co-employees in the first place.

In the case of Cavalcante v. Lockheed Electronics Co., 85 N. J. Super. 320 (Cty. Ct. 1964), it was stated that:

[AT n accident arises ‘in the course of emjiloyment when it occurs (a) within the-period of employment, (b) at a place where the employee may reasonably be, and (c) while he is fulfilling the duties of the employment, or doing something incidental to it. [at 324]

The critical section of this test is part (e), and since they were clearly not fulfilling a duty of their employment, the question is whether they were doing something incidental to it. In order to show that the occurrence was incidental to the employment it must lie shown that there was a relationship to it, but here, although both parties worked at the campus, and may even have been co-employees, there is absolutely no indication that the happening of the accident could be tied into the employment relationship picture. The pursuit of the bedspreads simply did not bear upon their employment standing. Doth parties paid rent to the university for the privilege of living in the house which was not on the campus itself. It should also be noted that plaintiff has stated that she was not compelled to live there but rather was free to reside wherever she chose while, at the same time, there was no statement on the part of defendant to indicate that she had to live there. The logical conclusion to be drawn from these facts is that the relationship between the parties and the university, in regards to the house, was one of landlord and tenant, and not one of employment. Furthermore, the general rule as stated in 1 Larson, Workmen’s Compensation, § 24.40 at 438-439, is that “When residence on the premises is merely permissive, injuries resulting from such residence are not compensable under the broad doctrines built up around employees required to reside on the premises.”

One method of bringing acts remote to the employment into the category of being within the scope of employment as incidental to it, is the mutual benefit doctrine. This doctrine is employed to classify such activities as being reasonably incidental to the employment and therefore brings them within the scope of employment where there is a mutual benefit to both employer and employee. See Barbarise v. Overlook Hospital Ass’n, 88 N. J. Super. 253 (Cty. Ct. 1965), where a nurse was injured while off-duty in a residence provided by the hospital where she worked. She was not required to live in the residence and the injury was not related to her work. Nevertheless, the court found that such residence provided mutual benefit to both employer and employee, and while she was making use of such residence she was acting reasonably incidental to her employment. In the instant case, however, the facts are clearly discernible. Here it is not simply a question of the residence being mutually beneficial, but rather the issue goes to the extent that the doctrine can be used to cover. If it can be employed to cover the exchange of bedspreads, one can only wonder how many infinite variations others might come up with.

The Workmen’s Compensation Act is remedial in nature and the cases have generally held that a liberal interpretation should be applied in construing it. Cuna v. Board of Fire Comm’rs, Avenel, 42 N. J. 292, 298 (1964); Diaz v. Newark Industrial Spraying, Inc., 35 N. J. 588, 590 (1961); Volek v. Deal, 83 N. J. Super. 58, 63 (App. Div. 1964). Neverthless, there is an extent beyond which even a liberal interpretation cannot justifiably go. In Anderson v. Chatham Electronics, 70 N. J. Super. 202 (App. Div. 1961), the court held that an employee who was injured when returning from a doctor’s office to which she went for a medical clearance slip following surgery so that she could return to work was too remote to be considered incidental to her employment.

Although a factual issue may exist with regard to the existence of a common employer, none exists with respect to “the course of employment.” The accident did not arise out of or occur in the course of their employment.

The accident here occurred when defendant’s automobile drove off the Toad and struck a pole. Driving a ear off the roadway is evidence of negligence. Summary judgment is sought on the basis of demands for admissions which admit that defendant drove off the highway and that no other negligence contributed to the happening of the accident. Defendant is answering this motion makes no suggestion of any defense or any answer to the inference of negligence arising from the undisputed fact that the car was driven off the highway. See Bevilacqua v. Sutter, 26 N. J. Super. 394 (App. Div. 1953).

Under the circumstances where no real factual dispute exists or is posited, a summary judgment as to liability is appropriate.


author: Lane, J. A. D.

text:
    THE CITY COUNCIL OF THE CITY OF GARFIELD, MICHAEL GLOWA, NICHOLAS VIOLANTE, GEORGE FABRICI AND ALFRED SONDEJ, PLAINTIFFS-APPELLANTS, v. CARMINE J. PERRAPATO, CHIEF OF POLICE OF THE CITY OF GARFIELD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 9, 1971
    Decided November 17, 1971.

      Before Judges Kilkenny, Labkecque and Lane.

      Mr. Ralph W. Ghandless argued the cause for appellants (Messrs. Ghandless, Weller & Kramer, attorneys; Mr. Ghandless, of counsel).

      Mr. Vincent P. Rigolosi argued the cause for respondent.
   The opinion of the court was delivered by

Lane, J. A. D.

The complaint sought a declaratory judgment that the “assignments to duty of the individual plaintiffs by the defendant Chief of Police were illegal and beyond the power and authority of the defendant Chief.” Before answer filed defendant moved to dismiss the complaint on the grounds that the individual plaintiffs had failed to exhaust their administrative remedies; that the plaintiffs were estopped by a judgment in a prior action by the defendant against the city council (Visotcky v. City Council, Garfield, Docket No. L-16516-69); and that the defendant was entitled to judgment “as a matter of law on the merits.” The trial comt granted judgment in favor of defendant and against plaintiffs. As near as wo can make out from the trial court’s oral opinion, the basis for the judgment was that the ordinances under which the city council made the appointments of the individual plaintiffs to positions in the police department were invalid as an illegal intrusion of the legislative branch of the municipal government into the executive branch of the municipal government. Plaintiffs appeal.

Initially we point out that the trial court’s reason for holding the ordinances invalid, separation of powers, is without foundation in law. “While the separation doctrine is applicable to the Federal Government and to our State Government, it generally has no applicablity to our city governments.” Eggers v. Kenny, 15 N. J. 107, 120 (1954).

The City of Garfield is a second class city incorporated under L. 1899, c. 135, p. 283 (N. J. S. A. 40:107-1). In 1957 it adopted the Civil Service Act pursuant to N. J. S. A. 11:19-2.

On December 29, 1969 the city council adopted ordinance No. 1420 and resolution No. 50. In the earlier action (Docket L-16516-69), the validity of that ordinance and that resolution was attacked. Ordinance 1420 was a supplement to an ordinance entitled, “An Ordinance to Establish, Maintain, Regulate and Control a Police Department and To Fix the Compensation of the Members Thereof, in the City of Garfield, Bergen County, New Jersey.” Section 1 provided that the police department shall consist of the chief of police and such other superior officers, patrolmen and any and all other members as may from time to time be appointed thereto. Appointment of the chief of police was to be by the mayor upon confirmation of the city council. Appointment of all other members was to be made by the city council. Section 2 provided that subject to the ultimate control of the city council the chairman of the public safety committee was to be the “Chief Executive officer of the Police Department.” It further provided that such chairman was to make “any and all assignments to duty of the several officers and members of said Department. Subordinate to the Chairman of the Public Safety Committee and in his absence the Chief shall be in command of the said Police Department.” Section 3 established the office of supervisor of traffic who was to be appointed by the city council “from among those members of the Department who shall have served as a superior officer not less than ten years.” Resolution 50 apparently placed certain members of the police department under the command of the supervisor of traffic. In the earlier action the Law Division held that ordinance 1420 was invalid “insofar as the establishment of the Chairman of the Public Safety Committee to be the chief execution officer of the Police Department” was concerned. However, the Law Division further held that insofar as the ordinance established a position of supervisor of traffic and provided that such supervisor was to be appointed by the city council, it was valid. The appointment of plaintiff Michael Glowa as supervisor of traffic was held to be proper. Eesolution 50 setting forth which members of the police department were assigned to traffic duty under the command of the supervisor of traffic was declared invalid. No appeal was filed.

Following the judgment in the earlier case the city council adopted ordinance 1426 and ordinance 1427.

Ordinance 1426 is as follows:

A FURTHER. SUPPLEMENT TO AN ORDINANCE ENTITLED “AN ORDINANCE TO ESTABLISH, MAINTAIN, REGULATE AND CONTROL A POLICE DEPARTMENT AND TO FIX THE COMPENSATION OP THE MEMBERS THEREOF, IN THE CITY OF GARFIELD, BERGEN COUNTY, NEW JERSEY.”
BE IT ORDAINED by the City Council of the City of Garfield, Bergen County, New Jersey, as follows:
1. There is hereby created in the Police Department the position of automobile mechanic. Said automobile mechanic shall be appointed by the City Council from among the members of the Police Department. He shall receive the salary of a patrolman together with any and all other benefits to which he might be entitled as a patrolman. He shall be in charge of the repair and conditioning of motor vehicles owned by the City.
2. A Traffic Bureau is hereby established in the Police Department. The City Council is empowered to appoint as members of such Traffic Bureau two motorcycle policemen and two traffic officers. Said motorcycle policemen and traffic officers shall be appointed from the members of the Police Department and shall do motorcycle and traffic duty on regular tours of duty. The City Council shall also appoint from time to time such number as school marshalls as may appear needed whose duty shall be to perform services in the regulation of traffic for the safety of school children attending schools in the City. It shall be the duty of the Supervisor of Traffic to supervise the performance of the duties of the motorcycle policemen, traffic officers and police school marshalls.
3. All parts of ordinances inconsistent with this ordinance are hereby repealed as to such inconsistent parts and this ordinance shall take effect after passage and publication in the manner provided by law.

Ordinance 1427 is as follows:

AN ORDINANCE TO CREATE THE POSITION OE DETECTIVE IN THE POLICE DEPARTMENT IN THE CITY OE GAREIELD, TO PROVIDE POR THE APPOINTMENT OE DETECTIVES AND TO AMEND AND SUPPLEMENT THE SEVERAL ORDINANCES OE THE CITY OE GARFIELD PERTAINING TO THE POLICE DEPARTMENT.
BE IT ORDAINED by the City Council of the City of Garfield,
1. The position of Detective in the Police Department in the City of Garfield is hereby created.
2. The City Council shall appoint eleven (11) detectives, each of whom shall have served not less than five (5) years as a member of the Police Department of the City of Garfield.
3. The said Detectives shall be paid a salary of $8,700.00 per annum at the same time and in the same manner as other officers and employees of the City are paid. In addition to such salary, said Detectives shall be entitled to receive any and all other benefits and emoluments generally payable to other members of the Police Department.
4. All parts of ordinances inconsistent with this ordinance are hereby repealed as to such inconsistencies and this ordinance shall take effect after passage and publication in the manner provided by law.

The complaint alleged the appointment by the city council of Michael Glowa as supervisor of traffic, of Nicholas Violante as automobile mechanic and of plaintiffs Rabrici and Sondej as two of the 11 detectives. It further alleged that defendant chief of police had refused to recognize such appointments and had given the individual plaintiffs duties inconsistent with their appointments by the city council.

In his affidavit in support of the motion to dismiss, defendant readily admits that he has refused to recognize the actions of the city council in the appointments of Rabrici and Sondej as detectives, of Violante as automobile mechanic and of Glowa “to the command of motorcycle policeman, traffic officers and police school marshalls.” On appeal defendant takes the position that the ordinances involved strip him of his statutory authority as executive head of the police department and, therefore, are illegal.

The primary dispute between the parties is whether the city council may establish positions of automobile mechanic and detective within the police department and appoint the holders of those positions. The question of whether the city council can assign specific policemen to the traffic bureau is also raised. The establishment of the position of supervisor of traffic and the appointment of Michael Glowa to that position was ruled valid in the earlier litigation. No appeal was taken from the judgment in that ease.

N. J. S. A. 40:47-1 in force at the time the ordinances involved were adopted, now replaced by N. J. S. A. 40A :14-118 effective July 1, 1971, provided:

The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of article 3 of this chapter (§ 40:47-21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation.

N. J. S. A. 40:48-1 grants authority to the governing body of every municipality to “make, amend, repeal and enforce ordinances to * * *”

Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all officers and employees; and to provide for the employment and compensation of such officials and employees, in addition to those provided for by statute, as may be deemed necessary for the efficient conduct of the affairs of the municipality; * * *. [subd. 3]

However, under the grant of authority in these sections, a city council may not substantially reduce in authority or effectively displace a chief of police. Edelstein v. Asbury Park, 12 N. J. Super. 509 (App. Div. 1951); Mc Gonnell v. Board of Commissioners of Orange, 98 N. J. L. 642 (Sup. Ct. 1923); Harrington v. Carteret, 1 N. J. Misc. 167 (Sup. Ct. 1923).

Defendant chief of police does not deny the fact that the governing body may adopt ordinances to regulate and control the police department pursuant to N. J. S. A. 40:47-l. He argues, however, that the effect of the ordinances involved is to assign to the governing body, constituting elected officials, the power to control the internal operation of a professional law enforcement department, thereby stripping him of his statutory authority as the executive head of the police department. He relies on L. 1899, c. 135, § 38 (N. J. S. A. 40:107-1) which provides:

The chief of police and the chief of the fire department shall each hold office for the term of two years, and they shall respectively be the executive head of the police and fire department, and shall be responsible for its efficiency.

Plaintiffs argue that this section has been superseded by the provisions of the Home Rule Act, specifically N. J. S. A. 40:47-5 and 6, now replaced by N. J. S. A. 40A:14-132 and 147 effective July 1, 1971, providing in part that municipal officers and men employed in the police department shall hold their employment during good behavior and shall not be removed except for certain specific causes. They argue that obviously L. 1899, c. 135, § 38, was superseded since otherwise the chief of police would hold office for only two years. In view of N. J. S. A. 40:42-3 (providing that any power or authority held by any officer, board or body prior to the act shall not be affected), the provisions of N. J. S. A. 40 :47-5 and 6 affected only that part of section 38 which pertains to the term of office. The powers of the chief of police under section 38 cannot be deemed to have been taken from him. L. 1899, c. 135, p. 283 has not been expressly repealed. See N. J. S. A. 40:107-1. Implied repealers of statutes are not favored in the law. Brewer v. Porch, 53 N. J. 167, 173 (1969); Dept. of Labor and In dustry v. Cruz, 45 N. J. 372, 380 (1965); Goff v. Hunt, 6 N. J. 600, 606 (1951); Chester Tp. v. Panicucci, 116 N. J. Super. 229, 237 (App. Div. 1971); Isola v. Belmar, 34 N. J. Super. 544, 549-550 (App. Div. 1955). When the Legislature enacts a statute, it is presumed that it is fully conversant with its own legislation. Brewer v. Porch, supra, 53 N. J. 167, 174. The intent to repeal will be found when a later statute is so inconsistent with an existing statute on the same subject as to preclude any reasonable possibility of their standing together. Id., at 173; Dept. of Labor and Industry v. Cruz, supra, 45 N. J. 372, 380. The provision of section 38 of L. 1899, c. 135, pertaining to the term of the office of a chief of police is inconsistent with N. J. S. A. 40 :47-5 and 6. However, that part of section 38 providing that the chief of police is the executive head of the department is not on its face so inconsistent as to indicate an implied repeal. Cf. McGonnell v. Board of Commissioners of Orange, supra, 98 N. J. L. 642, 644. It cannot, however, be construed in such a way as to preclude or deny the effectiveness of the powers of the governing body pursuant to N. J. S. A. 40:47-1 and N. J. S. A. 40:48-1 (subd. 3.)

Under the statutory grants referred to above, the city council has power to establish a table of organization for its police department. The establishing of a traffic bureau with a supervisor of traffic in charge, the position of detective and the position of automobile mechanic is a proper exercise of the authority granted to the city council.

The position of automobile mechanic is clearly distinguishable from that of patrolman. To fill that position is not a question of detailing duties to a patrolman. The position requires skills and abilities not necessary for a patrolman. It has nothing to do with the duties normally carried out by policemen. It therefore falls without the normal assignment of a patrolman to duties within a police department. It is a position to be filled by appointment by a city council.

The position of detective falls in the same class. The salary of detectives is established at $500 more than patrolmen. That fact indicates that it is in the nature of a promotion. Cf. Civil Service Rule 4:2-41; N. J. S. A. 40:17A-148.

To us it is apparent that the duties and qualifications of detectives are different and separate from those of patrolmen. A detective must have special capacities insofar as personality, dependability, initiative, intelligence and experience are concerned. Usually detectives work on cases after crimes have been committed, whereas patrolmen walk a beat for the purpose of preventing crime and preserving the peace. A detective must have skills not necessary for a patrolman. The separate position of detective, having been established by ordinance, will be recognized by the Civil Service Commission. See Jersey City v. Babula, 56 N. J. Super. 533, 536 (App. Div. 1959).

The appointments to the positions of superintendent of traffic, detective and automobile mechanic by the city council were valid, but they were temporary, a permanent appointment to await a Civil Service examination and certification of an employment list. Civil Service Rule 4:12-1 et seq. Even though the city council may appoint the automobile mechanic, the supervisor of traffic and the detectives, they will be responsible to the chief of police and will operate under his supervision.

On the other hand there is no appreciable distinction between the duties that will be performed by those policemen in the traffic bureau and the duties performed by other policemen on the force. Assignment to the traffic bureau is no more than a routine detail of duties to available personnel. Therefore, this is clearly a function for the chief of police and not an appointment to be made by the city council.

Of course, the appointments to be made by the city council must be made in accordance with the Civil Service Law.

We hold:

As to ordinance 1426:
Section 1 — This section relating to the appointment of an automobile mechanic is valid in its entirety.
Section 2 — Insofar as this section establishes a traffic bureau, places at its head the supervisor of traffic, and prescribes the duties of that office it is valid. In all other respects it is invalid. The provision for the appointment of an unspecified number of “school marshalls” is invalid under Keegan v. Bayonne, 81 N. J. L. 120, 122 (Sup. Ct. 1911).
As to ordinance 1427 :
This ordinance is valid.

Our determination of the partial validity of the ordinances and of the powers of the city council and the chief of police harmonizes the powers granted to the city council under N. J. S. A. 40:47 — 1 and 40:48 — 1 with the powers granted to the chief of police by L. 1899, c. 135, § 38.

We emphasize the necessity of full and wholehearted cooperation between the council, the chief of police and all other members of the police department if respect for law and those charged with its enforcement is to be maintained in this municipality.

Upon remand a declaratory judgment will be entered in accordance with this opinion. We assume that thereafter the chief of police will recognize the actions taken by the city-council under those portions of the ordinances that have-been declared valid. In the event that he fails to recognize appointments by the city council under the ordinances and attempts to detail appointees to duties inconsistent with the office to which they are appointed by the city council, plaintiffs may apply to the trial court for further relief. We do not mean to deprive the individual plaintiffs or the-city council of any other remedy that may be available to-them. Ho costs.


author: Lake, J. A. D.

text:
    ERNEST HURWITZ, RUTH HURWITZ, MALCOLM PARKER, TERRY PARKER AND CARL NORMAN LUCK, PLAINTIFFS-APPELLANTS, v. J. WILLIAM BOYLE, ALFRED E. SANDERS, HARRY N. FRANK, JR., TOBIAS H. MAYER, AUGUST J. DAESENER, JR., WALTER J. KOZLOSKI, ROGER J. KANE, HENRY T. LEFKOWICH AND THE BOROUGH OF FREEHOLD, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 16, 1971
    Decided November 29, 1971.

      Before Judges Kilkekky, Labkeoque and Lake.

      Mr. Robert I. Ansell argued the cause for appellants (Messrs. Anschelewiiz, Barr, Ansell & Bonello, attorneys; Mr. Ansell, on the brief).

      Mr. Jerry Bohol argued the cause for respondents.
   The opinion of the court was delivered by

Lake, J. A. D.

Plaintiffs appeal from a denial of their motion for summary judgment to declare invalid ordinance No. 562 of the Borough of Freehold known as “Parade Ordinance for the Borough of Freehold.” The trial court held certain specific sections invalid and declared the balance of the ordinance valid. Thereafter the borough passed an amendatory ordinance in accordance with the trial court’s ruling. We consider the ordinance as amended.

Plaintiffs argue that the ordinance violates due process and is void (1) for substantive vagueness in that it sweeps too broadly and brings within its terms totally innocent and constitionally protected activity; (2) for procedural vagueness in that it fails to give fair and adequate notice to the citizenry of the activity which it intends to prohibit and the requirements necessary to avoid criminal liability, and (3) in that it constitutes a prior restraint on freedom of speech, assembly and the right to petition the government and fails to provide specific procedural safeguards prior to implementation of final action of the governing body. Plaintiffs further argue that the ordinance violates the provisions of the United States Constitution and the New Jersey Constitution providing for freedom of speech, freedom of assembly and the right to petition the government.

In section II the ordinance defines “parade” as “any parade, march, ceremony, show, exhibition, pageant, procession of any kind, or any similar display in or upon any street, park, or other public place in the Borough of Freehold.”

Section III prohibits any parade unless a permit has been obtained from the municipality. Among the exceptions are funeral and wedding processions, a governmental agency acting within the scope of its function, and students participating in educational activities under the authorization of the proper school authorities of the borough. This section also establishes a two-dollar fee for the issuance of a permit.

Section IY sets forth the contents of the application for a permit and provides for its filing at least 20 days before the scheduled date of the parade.

Section Y provides that a permit shall issue upon a finding that:

(a) The conduct of the parade will not substantially interrupt the safe and orderly movement of other traffic contiguous to its routes;
(b) The conduct of the parade will not require the diversion of so great a number of police officers of the Borough of Freehold to properly police the line of movement and the area contiguous thereto as to prevent normal police protection of the Borough of Freehold;
(c) The conduct of such parade will not require the diversion of so great a number of ambulances as to prevent normal ambulance service to portions of the Borough of Freehold other than that to be occupied by the proposed line of march in areas contiguous thereto;
(d) The concentration of persons, animals and vehicles at assembly points of the parade will not unduly interfere with the proper fire and police protection of or ambulance service to areas contiguous to such assembly areas;
(e) The conduct of such parade will not interfere with the movement of fire fighting equipment enroute to a fire;
(f) [Deleted by amendment.]
(g) The parade is scheduled to move from its point of origin and to its point of termination expeditiously and without unreasonable delays enroute;
(h) The parade is not to be held for the sole purpose of advertising any product, goods or event, and is not designed to be held purely for private profit.

Section YI provides:

If the Mayor and Council shall approve the applicant, they shall mail to the applicant at least five days prior to the date of the parade, a notice of their action. In the event that such application shall not be approved, like notice shall be sent at least five days prior to the date of such parade setting forth the reason for such denial of the permit.

Section VII provides:

(a) The Mayor and Council in denying any application for a parade permit shall be empowered to authorize the conduct of the parade on the date, at a time or of a route different than that named by the applicant. Any applicant desiring to accept an alternate permit, shall within three days after notice of the action of the Mayor and Council file a written notice of acceptance with the Borough Clerk. An alternate parade permit shall conform to the requirements of, and shall have the effect of a parade permit under this Ordinance.
(b) The Mayor and Council shall be prohibited from the approving of more than one parade permit for any one 24 hour period. Where there is more than one parade application for the same date, the application received first in time will be granted the parade permit provided all the conditions of the ordinance are complied with.
(c) The engaging in, participating in, aiding, forming or starting any parade before 1:30 run. on Sunday shall be prohibited.

The other section to which objection is made is section XIV which provides:

The Mayor and Council shall have the authority to revoke a parade peimit issued hereunder upon application of the Standards for Issuance as herein set forth. It shall be a ground for revocation when any such application shall fail to contain all the contents as set forth under Section IV and other Sections of this Ordinance.

Section XV fixes as penalty for a violation of the ordinance “a fine of not more than $200.00 or imprisonment in the county jail for a term not exceeding thirty days or both.”

Plaintiff s’ attack is primarily based on the argument that the ordinance inhibits freedom of speech. The rights of free speech 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. The control and government of travel on the streets is a clear example of governmental responsibility to insure this necessary order. “A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.” Cox v. Louisiana, 379 U. S. 536, 554, 85 S. Ct. 453, 464, 13 L. Ed. 2d 471, 484 (1965); Cox v. New Hampshire, 312 U. S. 569, 574, 61 S. Ct. 762, 765, 85 L. Ed. 1049, 1052-1053 (1949).

While the First Amendment does not afford the same kind of freedom to those communicating ideas by conduct such as patrolling, marching and picketing on streets and highways as afforded to those communicating by “pure speech,” such conduct may nonetheless constitute methods of expression entitled to First Amendment protection. See Shuttlesworlh v. City of Birmingham, Ala., 394 U. S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Cox v. Louisiana, supra; 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471; Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963); Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). The constitutional right of free speech and assembly cannot be abridged simply because others may take offense at what is being said or advocated and create a disturbance. See Bachellar v. Maryland, 397 U. S. 564, 567, 90 S. Ct. 1312, 1314, 25 L. Ed. 2d 570, 574 (1970) ; Street v. New York, 394 U. S. 576, 592, 89 S. Ct. 1354, 1366, 22 L. Ed. 2d 572, 585 (1969); Cox v. Louisiana, supra, 379 U. S. at 550-551, 85 S. Ct. 453; Edwards v. South Carolina, supra, 372 U. S. at 237-238, 83 S. Ct. 680; Terminiello v. Chicago, 337 U. S. 1, 4-5, 69 S. Ct. 894, 896, 93 L. Ed. 1131, 1134-1135 (1949)

Plaintiffs concede that a municipality has the right and duty to regulate and control traffic on its streets.

It is our duty to construe the ordinance to render it constitutional if such a construction is reasonably susceptible. State v. Profaci, 56 N. J. 346, 350 (1970); Camarco v. Orange, 116 N. J. Super. 531 (App. Div. 1971).

The activity that the ordinance seeks to control is a parade in the usual sense of the word. We construe “parade” as used in section II of the ordinance to mean what is generally understood to be a parade, i. e., a large group of persons with or without animals or vehicles in a public procession or march in or upon any street, park or other public place in the borough.

Plaintiffs argue that sections V(b) and (c) are invalid because they refer to interference with “normal” police protection and ambulance service in the borough. Within the context that that word is used, it means a substantial interference with the police and first aid men so that other parts of the borough would be left unprotected during the course of the parade. We see nothing vague in such use of the word. The standards set up in section V for issuance of a permit being directly related to the borough’s control of its streets and protection of its residents are reasonable.

Plaintiffs argue that the ordinance constitutes a prior restraint upon First Amendment rights. They argue that the ordinance vests arbitrary discretion in the governing body to deny an application for a permit. We point out that the ordinance does not vest complete discretion in the governing body. It sets forth standards in section V that must be followed in the consideration of any application. All of the standards in section V are reasonably related to the borough’s interest in keeping streets, public ways and public grounds open and free for the use of the community. The ordinance is clear that a permit shall be issued if the parade will not substantially interrupt the safe and orderly movement of other traffic or require such use of police and ambulances as to leave the rest of the borough unprotected or will not interfere with fire fighting apparatus. These requirements are reasonable. There is no indication that the licensing power is to be used to discriminate against First Amendment rights. There is very little discretion in the governing body.

The requirement of a two-dollar fee is reasonable. See Cox v. New Hampshire, supra, 312 U. S. at 576-577, 61 S. Ct. 762. The contents of the application are related to the standards for issuance of a permit. The information called for in the application does not place an undue burden on an applicant, and the requiring of such information by the borough is reasonable and necessary to allow it to determine if-the parade will comply with the standards for issuance.

Plaintiffs’ main argument under this point is directed towards section VI in that notice of rejection may be given as late as five days before the scheduled date of the parade and the ordinance sets forth no means for review of a rejection by the governing body. They draw the conclusion that the effect of these provisions is to make the denial by the governing body final.

Legislation allowing prior restraints of Pirst Amendment rights comes into court bearing a heavy presumption against its validity. Carroll v. President & Comm’rs of Princess Anne, 393 U. S. 175, 181, 89 S. Ct. 347, 351, 21 L. Ed. 2d 325, 331 (1968); Freedman v. State of Maryland, 380 U. S. 51, 57, 85 S. Ct. 734, 738, 13 L. Ed. 2d 649, 654 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584, 593 (1963). Even where this presumption might be overcome, the Supreme Court has required careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. Carroll v. President & Comm’rs of Princess Anne, supra. A noncriminal process of prior restraints “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, supra, 380 U. S. at 58, 85 S. Ct. 734.

The Rules of Court grant to an applicant whose application has been rejected speedy, adequate judicial relief from the rejection. Such an applicant can bring a summary action pursuant to R. 4:67 et seq. However, an applicant is unlikely to obtain relief by a proceeding under that rule when there is only five days between the notice of rejection and the date for which the parade is scheduled. The provision of section VI allowing the governing body to withhold a determination until five days before the scheduled date of the parade is unconstitutional. The invalidity of this section would normally require that the entire ordinance be declared invalid. However, at the oral argument the borough indicated that it was willing to amend the ordinance to comply with any constitutional requirements. To comply with constitutional requirements, the ordinance must be amended to provide that the governing body will give notice of its action on any application within five days of the filing of the application. By this we do not mean that the governing body will act five days after the filing of the application, hut that notice of the action of the governing body will be given to the applicant no later than five days from the date of the filing of the application. The defendants are given 45 dajrs to adopt an amendment in accordance with the views we have expressed.

We see no constitutional infirmity in limiting the number of parades to one in any 24-hour period. The 24-hour period referred to means one day. It does not mean from 12 noon of one day until 12 noon the next day. It means from 12:01 a.ai. to 12:00 midnight.

On the other hand, we see no justification for prohibiting parades on Sundays before 1:30 r.M. On Sunday mornings municipal streets do not have the average shopper or the average office worker. In our experience the streets are less crowded oil Sundays than at any other time during the week. It is possible that because of church attendance a particular street might be congested. If that be the case, however, the governing body under section VII (a) can prescribe an alternate route bypassing the small congested area surrounding the church. Section VII (c) is invalid.

We see no justification for section XIV which allows a revocation of the permit. The determination of whether the application complies with the standards for issuance is made before the governing body directs the issuance of the permit. We conceive of no situation that would warrant the governing body in revoking a permit. If the fear of the governing body is that the information contained in the application may have been false and its falsity discovered after the issuance of the permit, the governing body has a remedy by applying to the court for an injunction. Section XIV is invalid.

Ordinance No. 562 of the Borough of Freehold as construed in this opinion, with the exception of sections VII (c) and XIV, is valid, but only if section VI is amended as we have suggested.

The judgment is modified in accordance with this opinion.