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

text:
    MARGARET HOOVER, PLAINTIFF, v. EDWARD VOIGTMAN, DEFENDANT.
    Juvenile and Domestic Relations Court Morris County
    Decided November 26, 1968.

      Mr. Harold T. McGovern for plaintiff (Messrs. McGovern & Boseman, attorneys).

      Mr. Leonard Goodhin, for defendant (Mr. Irwin Xanengiser, attorney).
   Polow, J. J. & D. R. C.

Plaintiff seeks increased support for four children born of her marriage to defendant. Her application raises the question of whether this court has the power to require continued support for Edward, the eldest son, who is now 18 years of age and a college freshman. In addition to oral argument, counsel were given the opportunity to file briefs on this question. Testimony was taken concerning the background, education and financial status of both parents as well as Edward’s scholastic ability.

The marriage was terminated by foreign divorce in 1962. Both parties have since remarried. Plaintiff has had custody of the children since the divorce. Defendant’s obligation to support them was fixed by order of this court, entered on April 22, 1966; it provided for payments of $60 a week and satisfaction of any unusual medical and dental expenses. On June 10, 1966 the order was modified to require defendant to pay for eye care and dental expenses of the children in addition to the $60 weekly support. Defendant is presently in arrears on support payments. The cause is disputed. Plaintiff charges defendant with a deliberate reduction in support payments because he knew Edward intended to enter college in September of this year. Defendant attributes the arrears to his financial inability to meet his obligations.

Edward was born on December 26, 1949. He was a “straight A” student in high school. Because of his particular aptitude in the sciences, he received an Allied Chemical Corporation grant and apparently has an excellent chance that the grant will be renewed. He is enrolled at Rensselaer Polytechnic Institute. If his current year is successfully completed, he plans to apply for admission to Drexel Institute in Philadelphia. Defendant concedes that the boy is scholastically gifted. He is, in fact, proud of his son’s achievements. He testified that he would like his son to have a college education, but stated he was unable to afford it.

Defendant himself completed only three years of high school. Plaintiff is a high school graduate. Defendant is employed by Warner Chileot Laboratories in Morris Plains and earns $10,500 a year. His present wife is also employed and between them they have a net monthly income of approximately $1,030. They have no children in their household at present, but apparently defendant’s elderly father-in-law is partially dependent on his daughter.

Defendant argues against continuing support for his oldest son on three grounds —• financial inability; the availability of Rutgers University at a much lower cost than the yearly $3,200 charge for board and tuition at Rensselaer and the absence of legal authority in this court to order such support. On the last score, we were mindful at the time of oral argument of the decision in Nebel v. Nebel, 99 N. J. Super. 256 (Ch. Div. 1968). Defendant sees Nebel as inapplicable here since it was decided in the Chancery Division of the Superior Court. He argues that the Juvenile and Domestic Relations Court is limited in and to its statutory authority and is without jurisdiction to order a contribution toward college expenses. Indeed, he goes further and suggests that this court lacks the power to order support for any “child” who has reached the age of 18, relying upon R. R. 6:1-3 (b) which defines “child” as a person under that age, and upon R. R. 6:1-3 (c) which defines “adult” as a person 18 years of age or over.

Plaintiff disputes the disclaimer of financial inability. She also urges a different view of Nebel and the power of this court. She does not seek to impose the entire obligation of Edward’s education upon defendant; rather, she maintains that $15 a week for each child is no longer appropriate. She urges that circumstances have changed, living costs have increased, the children’s needs become greater as they grow older, and defendant’s income has increased substantially. She concludes that the support for each child should be increased accordingly and that defendant should be required to continue to provide weekly support for Edward despite the fact that he is over 18, has completed his high school education and is a college student.

The jurisdiction of the Juvenile and Domestic Relations Court is defined and limited by statute. Concerning support N. J. S. 2A :4-18 confers:

“* * * jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints: ********
b. Involving matters of support * * * as to which jurisdiction is vested in the superior court.”

The statutory language is clear. Concurrent jurisdiction means precisely that - i. e., the authority to hear matters cognizable in the Superior Court and to “base an award for support on the same obligations as are recognized” by that tribunal. Wilson v. Wilson, 86 N. J. Super. 61, 64 (App. Div. 1964); Daly v. Daly, 21 N. J. 599, 609 (1956), affirming, 39 N. J. Super. 117 (J. & D. R. Ct. 1956). “Aceordingly, resort may properly be had to precedents established as a result of proceedings in that court * * * to determine the extent of a father’s duty to support his child imposed or imposable under the law of this State * * Daly v. Daly, supra, 39 N. J. Super., at p. 122. Those precedents, codified into a direct holding in Neb el, indicate that, under appropriate circumstances, the obligation to support may include all or part of college educational expenses. See also e. g. Jonitz v. Jonitz, 25 N. J. Super. 544 (App. Div. 1953); Rufner v. Rufner, 131 N. J. Eq. 193 (E. & A. 1941). Thus, under the grant of concurrent jurisdiction this court has the power to order a father to contribute toward payment of such expenses.

Defendant’s broader argument does not in essence contradict this conclusion but, instead, focuses upon the authority of this court to order support of any kind for children who have attained their 18th birthday. The resolution of this argument lies in the nature and intent of the statutory grant of jurisdiction itself.

A substantial change has taken place in our concept of the specific stage of education which is regarded as a “necessary,” to which a child is entitled at the expense of the parent. Certainly, the old rule limited the obligation to a “common public school and high school education.” Ziesel v. Ziesel, 93 N. J. Eq. 153 (E. & A. 1921). However, restrictive common law concepts of support, a reflection of then existing judicial and social policies, have given way to enlargement by statute and modern judicial decision. See Jonitz v. Jonitz, supra, 25 N. J. Super., at p. 553); Daly v. Daly, supra, 21 N. J., at p. 610; Bonanno v. Bonanno, 4 N. J. 268 (1950). Consistent with such advances is the realization that age alone is not the determinative factor in evaluating an obligation to support. With specific reference to age 18, precedents suggest an unemancipated infant does not necessarily reach maturity at that point but rather “becomes a sui generis person and therefore no longer a child” at age 21. Johnson v. State, 18 N. J. 422 (1955), certiorari denied, 350 U. S. 942, 76 S. Ct. 318, 100 L. Ed. 822 (1956); Leith v. Horgan, 24 N. J. Super. 516, 517-8 (App. Div. 1953), reversed on other grounds, 13 N. J. 467 (1953); Cohen v. Cohen, supra, 6 N. J. Super., at p. 30. Beyond this perhaps equally formalistic approach, it is the totality of the facts and circumstances in each particular case which determines whether a child 18 or over is still properly the subject of a parental obligation to support:

“We are not aware of any decisional or statutory law now prevailing that absolutely inhibits the exercise of the power of the court to provide for the custody and maintenance of a minor child who has arrived at the age of 18. We have no doubt of the power of the court to make such provisions where the circumstances warrant until the unemancipated minor has at least reached the age of 21. The exercise of the judicial authority is governed by the circumstances of the parties and the nature of the individual case.” Jonitz v. Jonitz, supra, 25 N. J. Super., at p. 554.

In my opinion, the circumstance of attendance at college by an 18 year old son with the aptitude exhibited by Edward, together with all of the other attendant circumstances, fully warrants the exercise by the court of the power to declare that he is still entitled to be provided for as the beneficiary of a child support order.

Turning to the statutory grant of jurisdiction itself, the scope and intent of the expressed legislative purpose accords with the foregoing and with common sense. N. J. S. 2A :4-18 draws no age distinctions and sets forth no limitation of judicial authority to children under age 18. All implications are to the contrary. The statute confers concurrent jurisdiction without limitation. It must he liberally-construed “so that the court may accomplish its purposes.” Wilson v. Wilson, supra, 86 N. J. Super., at p. 64; D. v. D., 56 N. J. Super. 357, 361 (App. Div. 1959); N. J. S. 2A :4-1. Technical and narrow limitations on support obligations are to be avoided and, consistent with liberal construction, the court necessarily has the inherent power to compel acts necessary to effectuate the purposes for which jurisdiction was conferred. Ricci v. Ricci, 96 N. J. Super. 214, 223 (J. & D. R. Ct. 1967). To suggest an implied age barrier to the court’s jurisdiction is contrary to the very purpose of concurrent jurisdiction, to the legislative objective and intent, and to the effective discharge of the functions for which the court was created.

Accordingly, I find no jurisdictional limitation in this court restricting its power to order support only to children under 18. The definitions in the Supreme Court rules cannot inhibit the scope of the legislative grant and, in fact, were never intended to do so. They are merely designed to clarify the meaning of terms used in the rules and to assist in differentiating between adult and juvenile delinquency causes.

Under the grant of concurrent jurisdiction, then, this court may order a contribution toward college expenses and may order support for children 18 or over where the circumstances so warrant. The latter is the type of request made in the present case.

I find that the circumstances in the present case warrant a continuation of support by defendant for his son Edward. Since plaintiff requests only a weekly contribution rather than costs of tuition and board, it is not necessary for us to consider the propriety of the college selected by Edward as compared to Rutgers University. I have considered the testimony concerning changes of circumstances regarding needs of the children as well as the defendant’s financial situation and I conclude that an increase is warranted. I will order support for all four children, including Edward, in the sum of $80 a week.

       On October 14 1968, the Appellate Division affirmed on the opinion below. Nebel v. Nebel, 103 N. J. Super. 216 (App. Div. 1968).

       The record shows that defendant’s gross income has been increased by the sum of $1,900 annually since the last hearing in June 1966, and that a son of his present wife, who was living with them at that time, is now in the Navy.

       In this connection, N. J. S. 2A :4-17 offers an interesting comparison. It preserves the court’s jurisdiction over juvenile offenders who reach and pass their 18th birthday. See Johnson v. State, supra (18 N. J., at 432); In re Smigelski, 30 N. J. 513 (1959). Age is, of course, a jurisdictional limitation for juvenile delinquency matters and the statutory direction is, therefore, necessary. It is not necessary, however, in areas of concurrent jurisdiction if the grant was intended to be complete. And the absence of a reference to age in N. J. S. 2A :4-18 confirms this to be the legislative intent.


source: Caselaw Access Project

author: Mountain, J. S. C.

license: Public Domain

text:
    NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION, A PUBLIC AGENCY, PLAINTIFF, v. CITY OF NEWARK, TOWN OF BLOOMFIELD, TOWN OF NUTLEY, TOWN OF KEARNY, BOROUGH OF WEST CALDWELL, CITY OF ELIZABETH, TOWNSHIP OF CEDAR GROVE, BOROUGH OF GLEN RIDGE, VILLAGE OF SOUTH ORANGE, BOROUGH OF VERONA AND CITY OF BAYONNE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 26, 1968.

      Mr. Oscar B. Wilenshy for plaintiff.

      Mr. Norman N. Schiff for defendant City of Newark.

      Mr. Joseph D. Lintott for defendant Town of Bloomfield.

      Mr. Robert J. Citrino, Jr. for defendant Town of Nutley.

      Mr. Robert J. McCurrie for defendant Town of Kearny.

      Mr. John J. McDonough for defendant Borough of West Caldwell.

      Mr. Edward W. McGrath for defendant City of Elizabeth.

      Mr. Joseph A. De Stef ano for defendant Township of Cedar Grove.

      Mr. George II. Callahan for defendant Borough of Glen Ridge.

      Mr. Donal G. Fox íot defendant Village of South Orange.

      Mr. Emil E. Mascia for defendant Borough of Verona.

      Mr. James P. Dugan for defendant City of Bayonne.
   Mountain, J. S. C.

This dispute arises from the efforts, extending over at least the last decade, that have been put forth by the State of New Jersey, the North Jersey District Water Supply Commission, a large number of municipalities and other interested persons and public bodies to make available an additional water supply to certain areas of the State and particularly the heavily populated and industrialized northeastern section. The plan that was evolved, in very broad outline, contemplated that the State would acquire and make available a new supply of water, to be transmitted and delivered to interested municipalities by means of facilities assembled, constructed and operated by the North Jersey District Water Supply Commission. An important legislative step was taken by the enactment of the New Jersey Water Supply Law, 1958, N. J. S. A. 58:22-1 et seq., which made provision for the acquisition and construction of a reservoir of approximately 55 billion gallons capacity in Round Yalley and a smaller reservoir of 10 billion gallons capacity on Spruce Run. Both locations are in Hunterdon County; the contemplated source of the water to fill the reservoirs is the Raritan River. Four years later the Water Transmission Facilities Act, L. 1962, c, 167, and an amendment thereto, L. 1962, c. 184, now N. J. S. A. 58:5-31 et seq., gave to the North Jersey District Water Supply Commission the authority, and placed upon it the responsibility, to assemble, acquire, operate and maintain transmission facilities adequate to carry this new water supply to those municipalities in the northern part of the State that wished to and could take advantage of it.

A contract, dated as of July 13, 1965, was prepared by the Commission and submitted to a number of municipalities. It sets forth the terms upon which the Commission will agree to deliver water, the amount which each “contracting municipality” agrees to receive (designated as its “proprietary allotment”), refers to the manner in which the cost of the water is to be determined, and provides for the handling and resolution of various foreseeable eventualities. An important article of the contract reads:

“The Agreement shall be in full force and effect and be legally binding upon the Commission and upon all of the Contracting Municipalities which shall then have executed the same upon its execution and delivery by the Commission and by municipalities named as parties in the title thereto having Proprietary Allotments aggregating at least 50 million gallons (herein called the ‘Effective Date’) and the Commission shall forthwith proceed with the Project.”

Not until September 12, 1966, when the City of Bayonne became a contracting party, was this minimum requirement reached. Bayonne was the eleventh municipality to become a contracting party, and by its adherence the proprietary allotments came to total 60.925 million gallons daily. The contracting municipalities are Bayonne, Bloomfield, Cedar Grove, Elizabeth, Glen Ridge, Kearny, Newark, Nutley, South Orange, Verona and West Caldwell. Newark became party to the agreement on October 1, 1965. On April 6, 1966 it executed a document entitled “Cooperation Agreement Between City of Newark — North Jersey District Water Supply Commission — Contracting Municipalities,” the purpose of which was to make available to certain of the contracting municipalities the utilization of its transmission or distribution system and its pumping facilities and to provide, where appropriate, for the “exchange” of water from its Wanaque supply for water from the Raritan River to be received under the new arrangement. A number of municipalities became parties to this cooperation agreement.

Following the effective date of the contract and pursuant to its terms the Commission entered into agreements with engineering consultants and made preliminary financing arrangements. In February 1967 Newark took action by resolution and ordinance to rescind the cooperation agreement as well as the underlying agreement that presumably had become effective September 12, 1966. The reason for this rather precipitate and apparently unheralded action has not been made entirely clear to the court, but presumably it was provoked by some belated feeling of dissatisfaction with the terms of the arrangement. Be that as it may, upon learning of what had taken place in Newark, the Commission promptly commenced this action by complaint and order to show cause, joining all contracting municipalities as parties defendant but really seeking relief only against Newark. The relief sought is a declaratory judgment to the effect that the principal contract became binding and effective in respect of all parties thereto, including Newark, on September 12, 1966; that the cooperation agreement likewise took effect in accordance with its terms; that the acts of Newark purporting to rescind these arrangements be deemed null and void, and finally, that the city be restrained from “taking any further action to impair the validity of the aforementioned agreements.”

The order to show cause was made returnable March 14, 1967. However, all parties to the suit, as well as the State of New Jersey, apparently being anxious to effect a settlement, the court very willingly acceded to requests for adjournment and the matter was not actually brought on for oral argument until December 15, 1967. At that time all municipalities that were represented supported plaintiff’s position. The State of New Jersey appeared, and although making no application for formal intervention, recounted the efforts that had been made to bring about a settlement •— efforts with respect to which it had been a principal participant; emphasized the importance of the project in its relation to the serious water shortage that has existed in recent years, and expressed the hope and desire that the proposal would go forward without delay.

The case is now before the court on complaint, order to show cause, affidavits, counter-affidavits and briefs. Additionally, Newark has filed an answer denying certain allegations set forth in the complaint and including, as separate defenses, claims that the matters in issue have been settled and that the underlying contract is void and unenforceable. The denials in the answer raise no issue of merit not covered by the two separate defenses.

As to the alleged settlement, it is true that ever since this action was started in February 1967, vigorous efforts appear to have been made to resolve the dispute amicably. As indicated above, the State itself, acting through the Department of Conservation and Economic Development, extended its good offices in the general public interest and, among other things, agreed to underwrite to the extent of $250,000 an economic feasibility study of the whole project. By some time in December of last year it was generally felt that a definitive settlement had been reached. At the last minute, however, when the “settlement agreement” was being reduced to writing, obstacles arose that have resisted resolution. It is clear that no contract modifying or superseding the earlier compact has ever come into being in the sense that such later “agreement” can be given binding force. Not only has there been no complete meeting of the minds but there has been no formal action undertaken by any of the parties involved such as would be necessary under the circumstances. No municipality has adopted any appropriate resolution or ordinance, nor has the Commission itself taken any formal action such as would be necessary to constitute a legally effective act of the sort here suggested.

It is further urged that the contract of September 12, 1966 is void and unenforceable for vagueness and uncertainty and that certain of plaintiff’s statements or representations have misled the city. The city, in its brief, contends that the court is being asked to decree specific performance of the contract and that such relief will not be forthcoming in respect of a contract the terms of which are uncertain in any significant respect. Such indeed is the law. It is also true that on oral argument the court itself suggested that the relief sought might be tantamount to specific performance. A careful examination of the pleadings, however, makes clear that plaintiff does not seek this form of relief but rather a declaration that the contract is valid. This position is repeated in its reply brief. The court -will limit its adjudication to the issue presented.

The city contends that the provisions of the agreement setting forth the manner in which the cost of water to each municipality is to be determined are so vague as to be unenforceable. The contract gives the Commission the power to fix rates for all water to be supplied, but such rate-making power may not be exercised capriciously. According to the contract, the rates must be adequate to meet all operating expenses, to pay the cost of certain additions, alterations and replacements, and to cover debt service on bonds or other obligations of the Commission. The rates must also be sufficient to provide for the creation of such reserves or sinking funds as may be required by the terms of any bondholders’ agreement. They may not be fixed initially or subsequently revised except after a hearing at which all contracting municipalities may be heard. The Commission is required to prepare an annual budget of projected operating expenses for each year, and to hold a hearing where objections to the budget may be offered by the municipalities.

The terms of the contract in large part follow and reflect the provisions of the enabling legislation which, in turn, indicate quite clearly that the rates are in general to be limited in amount to what may be needed to make the enterprise self-sustaining. Thus, N. J. S. A. 58:5-37 provides that payments to be made to the Commission by the municipalities shall be sufficient “to meet the cost of purchase of water, operating and maintenance expenses and debt service including any payments into reserve or other funds for the security of bondholders and to meet or discharge other obligations to bondholders.” Also, the Commission must annually’- prepare a budget of - its projected expenses for the ensuing year which shall “be apportioned among participants in proportion to the amounts of water contracted to be used by each.”

Further,

“At the end of eacli year the commissioix shall apportion the actual cost of the operation of such system which it operates pursuant to the original act among' participants upon the basis of the actual water consumed by each municipality, but such amount shall be in no event less than the quantity contracted for. In apportioning such cost, no municipality shall be charged with any item of interest or rental upon, or the cost of operation of, any part of a water supply system which is not used in supplying water to the municipality. Each participant and contracting municipality shall be charged with the amount so apportioned and credited with any amount previously paid on account of the estimated operating expenses for such year.” N. J. S. A. 58:5-40.

It is, of course, clear that the North Jersey District Water Supply Commission is not a private corporation seeking to make a profit. It is a public body, politic and corporate, exercising public and essential government iunctions in the interest of the public health and welfare. N. J. S. A. 58:5-35. In very general terms, Its function is to assist municipalities located within the district to secure and maintain adequate supplies of potable water. N. J. S. A. 58:5—1 et seq. The court must assume that rates to be fixed by the Commission will take account of the criteria set forth in the contract which themselves so carefully follow the statutory requirements.

Furthermore, it must be borne in mind that the contract was entered into by Newark freely and advisedly. It had full opportunity to make its own studies and surveys of probable cost, if it saw fit. It is now suggested that the cost may be greater than was first anticipated or than was projected by the Commission. Even if this he so, it is no warrant or justification for the action taken by the city. An estimate is not a guaranty. If any of the contracting municipalities saw fit to rely upon estimates presented by the Commission, they may not now be heard to complain if, because of lapse of time or otherwise, some revision seems probable. As a practical matter, it would not seem possible to make any precise determination of cost of water at a particular delivery point until the transmission and distribution systems with their related facilities have been substantially completed. This is a fact of which the Legislature has elsewhere taken cognizance. N. J. S. A. 58:5-12 provides that where the Commission is authorized in general to enter into contracts with municipalities for a water supply (as distinguished from the special authorization appearing in the Water Transmission 'Facilities Act) the contract may be based entirely upon estimates as to probable cost. So, also, in Nelson v. Town of Kearny, 4 N. J. Misc. 157 (Sup. Ct. 1926), in interpreting a similar contract for a water supply between the North Jersey District Water Supply Commission and the Town of Kearny, the court recognized that the size and difficulty of the project and the likelihood that unforeseen contingencies might arise dictated a need for contractual terms to some extent flexible. It characterized these provisions as supplying “necessary elastic^” (at p. 161).

A situation very similar to the one before this court was presented in the case of Middlesex County Sewerage Authority v. Borough of Middlesex, 74 N. J. Super 591 (Law Div. 1962), affirmed 79 N. J. Super. 24 (App. Div. 1963). There the Sewerage Authority (which, like the Commission in this case, was a public corporation) undertook to construct and operate a regional sewage disposal system. It also entered into contracts with various eligible municipalities and, as is here the case, complaint was made that rates were excessive and contrary to initial estimates. The court pointed out that an estimate is not intended to import accuracy but can be taken only as a rough calculation; that where both parties to a contract have, or can acquire, the same information as to..relevant subject matter, one party will not be heard to attack the contract by alleging reliance on representations made by the other. 74 N. J. Super., at pp. 605-606. (The court examined a line of New Jersey decisions holding that municipal contracts stand on the same footing as contracts between natural persons, and that courts will not inquire into the reasonableness of the terms of such contracts in the absence of had faith, fraud or capricious action. It was observed that

“If the municipalities, or their agents, had the power to make them [the contracts under review] then the question whether it was wise to do so and whether their terms wore advantageous was solely for their consideration and resolution, * * ®.
In essence, the disputing municipalities contend that a bad or hard bargain was struck. Even were this so, this court, under its limited equitable jurisdiction, cannot relieve from hard bargains simply because alleged as such. It is not the functtion of a court to make a better contract for the parties than they have made for themselves. There could be no virtue or stability in the statutory right conferred upon municipalities to contract for the service of an authority if, after such agreement is made and during the period covered thereby, its terms may be altered.” (Id., at p. 609)

hi summary, the court holds that there has been no agreement, whether by way of novation or otherwise, in any way altering the terms of the contract that took effect September 32, 1966; that the contract is neither vague nor uncertain hut entirely clear, valid and enforceable, nor does any estimate or prophecy of the plaintiff afford the city a legal right to complain. Finally, it is determined that the acts of the Oity of Newark in the form of a resolution and an ordinance seeking to rescind the contract are null and void and will be set aside.

As set forth above, ihe complaint asked that Newark be restrained from taking any further action to impair the validity of the agreements. I do not think that at this time, and upon the facts before the court, any restraint of this sort should issue. The prayer is couched in the most general terms, and at least in the present posture of the case, a restraint in equally general terms would not be appropriate. Accordingly, the judgment to he entered will be confined to adjudicating the matters with respect to which a declaratory judgment has been sought.


author: Lewis, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VINCENT ZITO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 12, 1968
    Decided December 10, 1968.

      Before Judges Sullivan, Eoley and Lewis.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney; Mr. Richard Newman, Deputy Public Defender, of counsel).

      Mr. Robert II. Altshuler, Assistant Prosecutor, argued the cause for respondent {Mr. John G. Thevos, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendant Vincent Zito, together with Charles Miller and Karl Shucai, was indicted and convicted for the offense of breaking and entering in violation of N. J. S. 2A :94-1 and for larceny in violation of N. J. S. 2A :119-2. Defendant was sentenced to the New Jersey State Reformatory for males for an indeterminate term.

On appeal to this court Zito contends that (1) his arrest under the Disorderly Persons Act was illegal and therefore the items seized in a search incident thereto were inadmissible as evidence at his trial, (2) his confession was erroneously admitted in evidence because the State failed to establish that he voluntarily and knowingly waived the right to be represented by counsel, and (3) the Disorderly Persons Act offends due process of law by its creation of an impermissible presumption and, in any event, it is void for vagueness.

The trial judge believed the pretrial hearing testimony of the police officers which reveals the following. At 2:50 A. m. on October 10, 1966, defendant and his two co-defendants were seated in an automobile, owned by Shucai, which was parked on Prince Street in Paterson, across the street from Silvio Savastano’s tavern. Savastano, being suspicious, as the car had been parked there about 45 minutes, notified the police. Upon their arrival, Savastano informed Sergeant Malzone that he recognized the men; they had been in his tavern the previous night and, after they had left, he discovered that the latch of the window in the washroom had been “tampered with.” Malzone and Officer Santoro then approached the parked vehicle and, while the occupants were being questioned, Malzone noticed, in plain view, a pipe wrapped in black adhesive tape “resembling a club” on the floor of the automobile between the driver and the man “sitting in the middle.”

No response was given to tlie officers’ questions concerning the pipe. When the men were asked to identify themselves, to explain “what they were doing there,” they stated, “We’re just sitting in the car.” One of them remarked that they were waiting for two girls. It was also learned that defendant and Hiller were on parole.

The officers ordered the occupants out of the car and advised them that they w'ere under arrest on a disorderly persons charge. Upon an ensuing search a toy water gun was found in Shuoai’s pocket, and six boxes of new spark plugs and a large iool box coniaining mechanics’ tools were discovered in the trunk of the car.

Defendant and his two companions were forthwith taken to police headquarters. At this point we note that within 24 hours prior to the arrest and search, the Prince Street Garage in Paterson was broken into and mechanics’ tools and spark plugs were stolen. While in custody Zito was advised by Detective Di Nardo that he was also under arrest on charges of breaking and entering and larceny at the aforesaid garage, the offenses for which the three men were subsequently indicted, tried and convicted.

The detective testified that before interrogation as to those charges he informed Zito as to his constitutional rights, including the rights to remain silent and to have the services of an attorney. According to DüSTardo, defendant replied that he did not want an attorney and later made a voluntary confession as to his participation in the alleged crime; he also signed a, waiver and written statement. The testimony of DiNardo was corroborated by Detective Rogers who was present during the interrogation. Both officers gave evidence that defendant was not threatened, promised or maltreated.

The contrary version of the three accused as to what transpired at the scene of apprehension and at police headquarters was not believed by the presiding judge who concluded that the officers, in the circumstances, had probable cause to make the arrest on a disorderly persons charge. There is no evidence to support defendant’s argument that the police made the arrest to legalize the search. The court found that the search was incident to a valid arrest and, accordingly, the joint motion of the defendants to suppress the tangible evidence, found as a result of the search, was denied. The taped pipe was held to be admissible in evidence since it was in plain view at the time of apprehension.

At the same pretrial hearing the evidence and arguments of counsel addressed to the voluntariness of Zito’s confession were considered. The court recognized the conflict in the proffered testimony and decided on the facts presented that the State had sustained its burden of proof. It held that “defendant was warned of his full rights as set forth in Miranda [Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 94 (1966)] opinion,” the oral inculpatory statement had been voluntarily given, and the right to counsel was expressly and effectively waived when defendant stated that he “did not want an attorney.”

We are satisfied from our review of the record that the challenged rulings of the trial court are firmly supported by the evidence. The State adequately demonstrated that defendant voluntarily and knowingly waived his right to the assistance of counsel and that his oral confession, as well as the tangible evidence seized by the police, was properly admitted in evidence.

We turn now to the attack leveled at the validity of the Disorderly Persons Act (N. J. S. 2A :170—1) which provides:

“Any person who is apprehended and cannot give a good account of himself, * * * and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself * * * is prima facie evidence that he is present in this state for an unlawful purpose.”

The argument that the statute creates an impermissible presumption of guilt is not persuasive. Plainly, the failure to give a satisfactory explanation to a police officer may be a failure to give a good account of oneself, but such fact alone will not be sufficient to support a conviction. As stated in State v. Salerno, 27 N. J. 289 (1958):

“Usually provisions for a good account are associated with conduct or circumstances in themselves offensive or suggestive of an intent to commit a crime.” (27 N. J., at p. 296)

Here there is a sufficient rational connection, under the Disorderly Persons Act, “between the fact proved and the ultimate fact presumed.” McNeilly v. State, 119 N. J. L. 237, 242 (Sup. Ct. 1937). The statute shifts merely the burden of coming forward with the evidence and not the burden of proof. Compare Tot v. United States, 319 U. S. 463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519, 1524 (1943).

It is also urged that the statute is void for vagueness under the Due Process Clause of the Eifth Amendment, and we are cited to United States v. Margeson, 259 F. Supp. 256 (E. D. Pa. 1966), wherein it was so held by reason of the words “give a good account of himself.” This court, however, has declared that the holding in Margeson is not binding upon the judiciary in New Jersey. State v. Speciale, 96 N. J. Super. 1, 7 (App. Div. 1967), certif. denied 50 N. J. 291 (1967).

Similar statutes in other jurisdictions have been successfully invalidated, see e. g., Landry v. Daley, 280 F. Supp. 968 (N. D. Ill. 1968); Baker v. Bindner, 274 F. Supp. 658 (W. D. Ky. 1967); Alegata v. Commonwealth, Mass., 231 N. E. 2d 201 (Sup. Jud. Ct. 1967). But see authorities in jurisdictions where such legislation has been upheld, e. g., Ricks v. United States, 228 A. 2d 316 (D. C. Ct. App. 1967); People v. Merolla, 9 N. Y. 2d 62, 211 N. Y. S. 2d 155, 172 N. E. 2d 541 (Ct. App. 1961), certiorari denied 365 U. S. 872, 81 S. Ct. 906, 5 L. Ed. 2d 861 (1961). Note, Annotation, “Vagueness as Invalidating Statutes or Ordinances Dealing with Disorderly Persons or Conduct,” 12 A. L. R. 3d 1448, 1453 (1967).

The constitutionality of the statute in question was considered in McNeilly v. State, supra. It was there’ contended that the act set forth no ascertainable standard of guilt, a contention which was deemed by our former Supreme Court to be based upon a misconception of the legislation since more is required than mere proof that the accused was unable to give a good account of himself. In its opinion the court observed that the statute “sets forth an additional fact which must be proved, namely, that the accused die present in the state for an unlawful purpose.’ ” Id., 119 N. J. L., at p. 240. It was said, in declaring the enactment to be a valid exercise of police power and not vague

“While the language of the act is broad, we do not share the opinion that it is either indefinite, uncertain or vague. On the contrary, we think the language of the act evinces a clear, definite and ascertainable standard of guilt * * (at pp. 240-241).

Our present Supreme Court discussed the statute in State v. Salerno, supra, and there made the comment that “the constitutional issues are formidable,” but found it unnecessary in the factual complex of that litigation to reach those issues. 27 N. J., at p. 296. McNeilly, however, was not overruled and it still prevails as an authority to be recognized and followed by this court, and, in so doing, we hold that the Disorderly Persons Act (N. J. S. 2A: 170-1) is not void for vagueness. We hold also that the statute is constitutional as applied to defendant. He had fair warning, within the pronouncements of State v. Moretti, et al., 52 N. J. 182, 192-193 (1968), that his conduct at the time of arrest was proscribed.

The judgment of conviction is affirmed.


author: Larner, J. S. C.

text:
    A & B AUTO STORES OF JONES STREET, INC., A CORPORATION, ET AL., PLAINTIFFS, v. CITY OF NEWARK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 29, 1968.

      Messrs. Herman D. Michels and Samuel A. Gennet for plaintiffs {Messrs. Herman I). Michels, Marvin A. Sachs, Lester Sandies, Stanley M. Teich and William J. McGee, attorneys for committee representing plaintiffs in consolidated actions).

      Mr. Norman N. Schiff for defendant City of Newark {Mr. Philip E. Gordon, Corporation Counsel of the City of Newark, attorney).
   Larner, J. S. C.

Approximately 450 suits were instituted against the City of Newark, involving thousands of claims for property damage resulting from riots alleged to have occurred in the city between July 12 and 17, 1967. All such actions were consolidated for trial pursuant to court order and in accordance with a cooperative plan whereby a representative committee of attorneys was designated to conduct all legal proceedings in the litigation. Under the terms of said order all parties are bound by the determination of the court in the consolidated proceeding.

In an effort to dispose of certain issues and clarify others prior to trial, counsel for both sides of the controversy brought on several pretrial motions. The determination of these motions at this time will serve to limit and clarify the factual and legal questions to be considered at the plenary trial, and this opinion is intended to encompass only the issues raised by these motions.

The major facet of plaintiffs’ claims against the city is the statutory liability based upon the provisions of N. J. S. 2A :48—1. In addition, plaintiffs found their claims upon a charge of common law negligence. The current motions and this opinion, however, do not involve the validity of the cause of action or defenses in negligence. The scope of the court’s determination at this time is limited to the legal issues raised by the motions addressed to the statutory cause of action.

I

JUDICIAL NOTICE OE EXISTENCE OE RIOTS

The legal source of liability alleged by plaintiffs is N. J. S. 2A :48-1, which provides:

“When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or injured for the damages sustained thereby, recoverable in an action by or in behalf of such person.”

The sine qua non for the city’s responsibility by the City under plaintiffs’ factual allegations is the existence of a “riot” in the City of Newark on the days in question and a causal connection between such riot and the claimed damages. Plaintiffs assert that the court should take judicial notice of the existence of “riots” in the city between July 12 and 17, 1967 so as to obviate the necessity of proof thereof at the trial.

It is manifest that the term “riot” in the statute is a word of art representing a determination based upon a mixed question of fact and law. “Riot” is not defined in the legislation creating the cause of action, and resort must therefore be had to the common law definitions developed under the criminal law.

In State v. Lustig, 13 N. J. Super. 149 (App. Div. 1951), the Appellate Division defined a riot in the context of an indictment for the common law offense of incitement to riot as follows:

‘‘A riot is a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner.” (at p. 152)

Feinstein v. City of New York, 157 Misc. 157, 283 N. Y. S. 335, 339 (Mun. Ct. 1935), involved a claim for property damage against the city under the New York counterpart of N. J. S. 2A :48-1 et seq. The Municipal Court of the City of New York related and applied the definition of “riot” that had been applied by English courts under the English Riot (Damage) Act (49 and 50 Vict., c. 38, § 2):

“v * * a ri0t consists 0f following elements: (1.) number of persons, three at least; (2.) common purpose; (3.) execution or inception of the common purpose; (4.) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; (5.) force or violence not merely used in demolishing, but displayed in such ■ a manner as to alarm at least one person of reasonable firmness and courage.”

Corpus Juris Secundum defines the term as follows:

“* * “ a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.” 77 C. J. S. Riot § 1 (1952).

Cf. 9 Halsbury, The Laws of England 471 (1912). See Marshall v. City of Buffalo, 50 App. Div. 149, 64 N. Y. S. 411 (App. Div. 1900).

At this juncture of the case the court is not called upon to verbalize the definitive language which will determine the meaning and limits of a riot within the intent of the applicable legislation. The foregoing definitions are reviewed rather for the purpose of setting the background for determining whether the court can or should take judicial notice of the existence of riots during the pertinent period.

Rule 9(2) of the Rules of Evidence (1967), N. J. S. 2A:84A-16, c. II, Rule 9(2), provides:

“Judicial notice may be taken, without request by a party, of (a) the decisional, constitutional, and public statutory law and rules of court of every other state, territory and jurisdiction of the United States, private acts and resolutions of the Congress of the United States and of the legislature of this State, and of every other state, territory and jurisdiction of the United States, and duly enacted ordinances and duly published regulations and determinations of governmental subdivisions or agencies of the United States, of this State, and of every other state, territory and jurisdiction of the United States; (b) records of the court in which the action is pending and of any other court of this State or federal court sitting in or for this State; (c) the law of foreign countries; (d) such facts as are so generally known or of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute; and (e) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources of reasonably indisputable accuracy.”

Plaintiffs contend that the court should take judicial notice of the existence of riots pursuant to the discretionary authority of section (d) of the aforesaid rule.

Although it is generally known that there were civil disturbances in various sections of the City of Newark in July of 1967 (see State v. Chandler, 98 N. J. Super. 241, 243 (Cty. Ct. 1967)), knowledge of such occurrences in the generic sense does not suffice to obviate the necessity of proof of riots in the statutory sense. The relevant proofs would involve the nature and extent of the disturbance, the number of persons involved, the presence or absence of a common purpose, the time and place of a particular disturbance, and the causal connection between such disturbance and the damage. Whether such riots existed and whether they proximately resulted in the damages claimed by plaintiffs are thus ultimate issues in this case to be determined by the trier of the facts in accordance with the applicable law. This court should not take judicial notice of such an ultimate fact question which depends upon definitive legal criteria. Plaintiffs’ application is therefore denied.

II

SUBROGATION' CLAIMS

A substantial portion of the claims in these consolidated actions are subrogative in nature, having been instituted by insurance companies which covered the losses involved.

Defendant has moved to dismiss these subrogation claims on the ground that the statute contemplates payment only to the property owners who have suffered losses and should not be extended to afford recovery to insurance carriers in the absence of specific statutory authority. It is urged that since the statute is in derogation of common law, having created a cause of action which imposes liability without fault upon the municipality where none existed before, it must be strictly construed and recovery limited only to the property owners who are affirmatively included in the legislation.

The insurance companies, on the other hand, point out that subrogation is a right arising aliunde the statute, and that their subrogative claims are founded upon general equitable principles and contractual rights contained in the policies of insurance.

Among the arguments advanced by the city in this connection is the assertion that N. J. S. 2A :48-7, which is a part of the overall legislation under consideration, grants a right of subrogation to the municipality against the rioters after payment to the claimants. It is suggested that this express provision for subrogation negates a legislative intent to permit recovery by any other subrogee against the city. This contention is without merit. This statutory right of subrogation is created in favor of the city against the active tortfeasors; it has no bearing upon the subrogative interest of an assignee of the claimant against the city. Such a statutory right of subrogation to the city does not per se affirm or negate the subrogative rights of the insurance companies.

Whether or not the Legislature in 1864, when the statute was first adopted, even considered the question of compensation for subrogative claims is impossible to determine from the legislation or any available interpretive aids. As far as the court can ascertain, the express, implied or apparent intent of the Legislature on this issue cannot be derived from the statute itself. Does it therefore follow, as urged by defendant, that legislative silence on the subject bars subrogees from the benefits created by the legislation P

Subrogation has always been highly favored in the law, Brewster & Son v. Catalytic Construction Co., 17 N. J. 20, 30 (1954), and, as a general rule, “an insurer, on paying a loss, is subrogated in a corresponding amount to the insured’s right of action against any other person responsible for the loss.” 6 Appleman, Insurance Law and Practice, § 4051, p. 517 (1942).

As observed by the Supreme Court in Standard Accident Insurance Co. v. Pellecchia, 15 N. J. 162 (1954):

“Subrogation is a device of equity to compel the ultimate discharge of an obligation by the one who in good conscience ought to pay it, Camden Trust Co. v. Cramer, 136 N. J. Eq. 261, 264 (E. & A. 1944); Restatement of the Law of Security, § 141, comment (a). It is a right of ancient origin, having been imported from the civil law to serve the interests of essentia] justice between the parties, Sullivan v. Naiman, 130 N. J. L. 278, 280 (Sup. Ct. 1943). It is most often brought into play when an insurer who has indemnified an insured for damage or loss is subrogated to any rights that the insured may have against a third parly, who is also liable for the damage or loss. In such a case it is only equitable and just that the insurer should be reimbursed for his payment to the insured, because otherwise either the insured would be unjustly enriched by virtue of a recovery from both the insurer and the third parly, or in the absence of such double recovery by the insured the third party would go free despite the fact that he has the legal obligation in connection with the loss or damage.” (at p. 171)

The statute in question created a new canse of action imposing strict liability upon a municipality for property damage caused by riots. Snch a canse of action required legislative pronouncement because it eliminated in the field of municipal riot damage liability the negligence concept and the defense of governmental immunity. It represented a declaration of policy by the Legislature in this limited area in order to make the entire community responsible for the damage to innocent property owners resulting from a breakdown in law enforcement. Clark Thread Co. v. Board of Chosen Freeholders of Hudson, 54 N. J. L. 265, 266 (Sup. Ct. 1891); Wells Fargo & Co. v. Mayor, etc., of Jersey City, 207 F. 871, 874, 878 (D. N. J. 1913), affirmed 219 F. 699, 700 (3 Cir. 1915), certiorari denied, 239 U. S. 650, 36 S. Ct. 284, 60 L. Ed. 485 (1916); County of Allegheny v. Gibson’s Son & Co., 90 Pa. 397, 412, 418 (Sup. Ct. 1879).

Whether a cause of action exists by common law or statute is of no significance on the right of a subrogee to enforce its claim against the obligor or tortfeasor. Accord, Dworak v. Tempel, 17 Ill. 2d 181, 161 N. E. 2d 258 (Sup. Ct. 1959); 46 C. J. S. Insurance § 1209, n. 20 (1946). Similarly, it is clear that there is no significant distinction between the nature of the right of action created by this statute from other statutory causes of action or common law causes of action resulting from the development of judge-made law. If an insurance carrier has a right to enforce a claim of its assured against any tortfeasor, there would appear to be no valid reason for barring its claim against a municipality under the circumstances herein merely because the underlying cause of action is founded upon statute or strict liability. In fact, it would be unjust to permit the municipality to avoid its statutory responsibility because of the fortuitous circumstance that the injured person had insurance coverage. Standard Accident Insurance Co. v. Pellecchia, supra, 15 N. J., at p. 171; Also cf. the collateral source doctrine, Long v. Landy, 35 N. J. 44, 55 (1961); Durr v. Freehold Construction Co., 9 N. J. Misc. 267, 269 (Sup. Ct. 1931).

There are no reported cases in this State dealing with the right of an insurance company subrogee to recover under the civil right statute. The issue has been considered in a limited number of cases in foreign jurisdictions which have parallel legislation granting civil recovery against governmental entities for damages resulting from riots.

In Northern Assurance Co., Ltd. v. City of Milwaukee, 227 Wis. 124, 277 N. W. 149, 151 (1938), the Wisconsin Supreme Court sustained the subrogative cause of action under the statute in favor of an insurance company on the simple articulation that its right was no different from that of an insurance carrier under an automobile collision policy.

A similar conclusion was reached by the Supreme Court of California in a case involving an individual who had been assigned claims arising under a mob violence statute. Agudo v. Monterey County, 13 Cal. 2d 285, 89 P. 2d 400 (1939).

Defendant points to Sun Indemnity Co. of New York v. Board of Education of City of New York, 264 App. Div. 73, 34 N. Y. S. 2d 475 (App. Div. 1945), as a contrary precedent. That case involved a New York statute which compelled the board of education to indemnify a teacher for liability incurred through activities arising out of his employment. The teacher’s liability carrier, who had paid the injured person on his claim against the teacher, sought recovery against the city by virtue of its subrogation rights under the insurance policy. The court held that the indemnity statute was intended for the personal benefit of the teacher alone and that the carrier, as subrogee, was not contemplated as a beneficiary thereof.

The Sun Indemnity case is clearly distinguishable. The indemnity provided by the statute therein was based upon the employer-employee relationship between the board of education and the teacher, and the legislative policy to reimburse the teacher for expenses incurred as a result of payment by him to a claimant arising out of his teaching activity. The purpose and policy of that legislation was manifestly for the personal reimbursement of the employee-teacher, and the moneys were paid by the board as a matter of legislative policy and not because of any wrongdoing on its part.

tinder the riot statute, however, the city in effect is a wrongdoer. The Legislature has designated it as such for failure to enforce the laws and control its inhabitants. Even though its wrongdoing is passive and the damage is directly caused by an active wrongdoer, nevertheless its liability is founded upon a legislative declaration motivated by the municipality’s failure to protect property in its confines. The limited personal purpose of the teacher indemnification statute cannot be found in the civil riot statute.

In the absence of an affirmative prohibition in the statute or an overriding equity, the insurance carriers as subrogees in effect step into the shoes of their insureds and are granted or denied recovery based upon the rights of those insureds as aggrieved property owners under the statute. The motion of the defendant to dismiss the subrogation claims is denied.

Ill

LIMITATIONS

N. J. S. 2A :48-2 provides that “No action under this article shall be instituted unless commenced within 3 months after the loss of or injury to the property.” By this section the Legislature established a specific statute of limitations applicable to claims brought under the Civil Riot Act, and it therefore cannot be disputed that any actions instituted against the city more than three months after the loss are barred.

When the extensive losses and damages occurred in the City of Newark, the insurance companies who covered real and personal property for riot damage in the affected areas were faced with the destruction of their potential subrogation claims against the City unless they took some legal action within three months. The number of claims and the problems of appraisal and adjustment made it apparent that payment to assureds and the vesting of the rights of subrogation could not be consummated within the limitation period. It was also apparent that the individual assureds would not undertake the burden of instituting suits against the city in view of their absolute right of recovery under the insurance policies.

Therefore, in an effort to preserve their rights, the insurance carriers instituted actions in the Chancery Division which set forth the names of the companies, the names of their assureds, the statutory cause of action and the companies inchoate right of subrogation which would become vested upon payment. Subsequently, upon payment to the particular assureds, the companies filed suits in the Law Division in the names of their respective assureds, some of which were instituted within the three-month period and others beyond that period.

The city contends that all actions in the Law Division filed after the expiration of three months from the accrual of the damages are barred regardless of their inclusion in the Chancery Division actions instituted in the names of the insurance carriers. The city urges that in the absence of payment to the assureds, the carriers had no rights as subrogees which would sustain the cause of action in the Chancery Division, Schmid v. First Camden National Bank and Trust Co., 130 N. J. Eq. 254, 269 (Ch. 1941); Meredith v. The Ionian Trader, 279 F. 2d 471 (2 Cir. 1960); and that as a consequence, the filing of the Chancery action within three months is ineffective to avoid the bar of the statute of limitations.

The statute (N. J. S. 2A:48-2) requires only that “an action” bo instituted, and the Chancery actions were in fact instituted within the designated period. Hence, the city had notice within that period of the pendency of claims by the insurance carriers, as potential subrogees of named claimants, for damages resulting from the July 1967 civil disturbances. The city does not and cannot point to any prejudice resulting from the procedural techniques utilized by the carriers in their effort to comply with the statute.

Since the policy of the statute of limitations to avoid stale claims and give early notice to the city has been satisfied, fairness and equity dictate that plaintiffs should not he deprived of their remedy by the city’s plea.

New York Central and Hudson R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294 (1920), involved an amendment to a complaint alleging an essential element of the cause of action and filed subsequent to the running of the statute of limitations. Mr. Justice Holmes observed:

“* * * but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of [the] opinion that a liberal rule should be applied.” (at p. 346, 43 S. Ct., at p. 123)

Although the rights of the carriers had not yet matured when the Chancery actions had been instituted, they did have a type of equitable interest arising out of the subrogation clause of the insurance contract and the claims pending against them by the assureds. Such an equitable interest may not be sufficient to invoke the jurisdiction of a court of law, but it is adequate for the granting of relief by a court of equity, with its flexible power to lend its aid in unusual situations. Crane v. Bielski, 15 N. J. 342 (1954); Brown v. Fidelity Union Trust Co., 10 N. J. Misc. 555 (Ch. 1932); Britton v. Supreme Council of Royal Arcanum, 46 N. J. Eq. 102, 112 (Ch. 1889). affirmed 47 N. J. Eq. 325 (E. & A. 1890).

Furthermore, even if the companies had no status to bring the actions at the time they were initiated, so long as the Chancery suits were in fact brought within time, the subsequent payment of losses by the carrier plaintiffs relates back to validate the status of these plaintiffs and the actions commenced by them. Such a result was reached by the Appellate Division in an analogous situation in City of Trenton v. Fowler-Thorne Co., 57 N. J. Super. 196, 203 (App. Div. 1959), affirmed, 32 N. J. 256 (1960).

In that case the suit by the municipality was initially instituted without authority of the governing body. After the expiration of the statute of limitations the governing body ratified the action of the single commissioner in bringing the lawsuit. Defendant moved to dismiss on the basis that the limitation period had run and it therefore had a vested right to the repose of the statute. The motion was denied by the trial court.

The Appellate Division, in affirming, stated that a principal’s ratification of an agent’s unauthorized act will validate the act from its inception in the absence of intervening rights of third persons who may have acquired interests with which it would 'be unjust to interfere. 57 N. J. Super., at p. 204. It found that the rights of the defendant were not so substantial as to require immunity from continuation of the action, and that “the date of its actual institution should ordinarily, in logic and principle, continue to control as to the incidence of limitations.” At p. 206. It held that under the circumstances surrounding the case the timely institution of suit did subserve the policy objectives of the statute of limitations notwithstanding the technical deficiency in the authority to bring the suit in the first place. At pp. 207-208.

Similar principles of justice and fairness have impelled courts to refuse to enforce strictly the statute of limitations in the comparable situation of a suit instituted by a party who lacks legal capacity to do so, Norko v. Rau, 107 N. J. L. 479, 481, 482 (E. & A. 1930), or the situation where correction of improper parties is permitted after the statute has run, Lehigh Coal & Navigation Co. v. Central R. R. Co., 42 N. J. Eq. 591 (Ch. 1887); Annotation, 74 A. L. R. 1266, 1275 (1931); Kansas Electric Power Co. v. Janis, 194 F. 2d 942 (10 Cir. 1952); Kilbourn v. Western Surety Co., 187 F. 2d 567 (10th Cir. 1951); Levinson v. Deupree, 345 U. S. 648, 652, 73 S. Ct. 914, 97 L. Ed. 1319 (1953); McDonald v. State of Nebraska, 101 F. 171, 174-181 (8 Cir. 1900).

As observed by Judge Conford in the analogous ease of City of Trenton v. Fowler-Thorne Co., supra:

“The New Jersey courts apply two tests in determining whether or not a defective suit brought in good time may be cured after the time has run and still preclude the defense of statute of limitations. These are, first, that the defect must be of such a nature that it is curable without the necessity of dismissing the suit and beginning anew; second, that the cure itself must not subject the defendant to liability of a greater or substantially different kind from that of the original action, that is, the cause of action must remain unchanged. See Levey v. Newark Beth Israel Hospital, 17 N. J. Super. 290, 293 (Cty. Ct. 1952); Russo v. Wright Aeronautical Corporation, 1 N. J. 417 (1949); Welsh v. Board of Education of Tewksbury Tp., 7 N. J. Super. 141, 145-146 (App. Div. 1950); O’Shaughnessy v. Bayonne News Co., 9 N. J. Misc. 345 (Cir. Ct. 1931), affirmed 109 N. J. L. 271 (E. & A. 1932); Magliaro v. Modern Homes, Inc., 115 N. J. L. 151, 157 (E. & A. 1935).” (57 N. J. Super., at p. 207)

In light of this language, it is the court’s conclusion that the alleged defect involving nonpayment of the claims by the insurance companies is not of such a substantive nature that it would require the dismissal of the suits, and that the relation back of the subsequent payments does not subject defendant to any greater or different kind of liability from that of the original action.

As a result, all claims filed under the statute within three months of the damage, either in the Law Division or Chancery Division by individual claimants or their carrierssubrogees, will be adjudicated on their merits, and the defense of the bar of limitations will be stricken as to them. It follows, therefore, that the defense of the statutory limitation will constitute a bar to all claims filed subsequent to the expiration of the three-month period, as well as to those subrogative claims of insurance companies which have not matured by payment to the assureds before the date of trial.

IV

DAMAGES RECOVERABLE UNDER STATUTE

The city has moved to bar recovery for all losses resulting from theft or looting. This motion is based upon the contention that the language of N. J. S. 2A :48-1 reflects a legislative intent to limit recovery only to losses resulting from physical damage and destruction of real and personal property. The pertinent portion of the statute provides:

“When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality * * * shall be liable to the person whose property is or was so destroyed or injured." (Emphasis added)

There are no cases in New Jersey which construe the applicability of the statute to losses resulting from theft or looting, and foreign jurisdictions are in conflict in construction of their own civil riot statutes.

Defendant cites Yalenezian v. City of Boston, 238 Mass. 538, 131 N. E. 220 (Sup. Jud. Ct. 1921), in support of its position. The Massachusetts statute in issue is similar to ours, providing compensation for property destroyed or injured by a riot or mob. Mass. Ann. Laws, c. 269, § 8 (1966 Supp.). The Supreme Judicial Court of Massachusetts in construing that statute held that the legislation did not contemplate recovery for theft. Its rationale was expressed as follows:

“A theft of property does not signify that the thing stolen has been destroyed or injured; it imports only an injury to the possessory right of the general or special owner to use and enjoy the thing which is capable of being stolen, by taking and carrying it away. By theft the owner does not lose the title or right to possession of the stolen property. He may retake it whenever and where-ever he can find it; and he can have for his assistance any force of the criminal and civil law. The statute awards compensation within its terms, to owners of property destroyed or injured as a matter of favor, of public policy and not of right. It follows that there can be no incongruity in denying compensation for injury to property and property rights which are without the purview of the statute.” (131 N. E., at p. 222).

The Supreme Court of Bhode Island came to the same conclusion under a similar statute in Goldman v. Forcier, 68 R. I. 291, 27 A. 2d 340 (1942). General Laws of Rhode Island, 45-15-13 (1956). In interpreting the language of the statute, the Bhode Island court stated:

“In using the words destroy and injure in direct connection with the word property, and by addressing itself solely to the destruction and injury of property in dealing with the amount of recovery allowed under the statute, the legislature used language that is clear and unmistakable. The words destroy, injured, destruction and injury do not mean, nor necessarily imply either in law or in ordinary speech, the felonious taking and carrying away of the property of another.
* * * *****
The fact remains that if the legislature had intended to allow compensation for property stolen during a riot, nothing would have been simpler than for it to say so. By limiting recovery to a certain percentage of the ‘property’ that is ‘destroyed’ or ‘injured’ in a riot, the legislature precluded the inference that it intended the statute to also cover property that was neither destroyed nor injured, but was taken and carried away with intent to steal it. If the omission of terms or language sufficient to indicate that it was the intention of the legislature to allow recovery for property stolen during a riot was due to accident, then it belongs to the legislature to supply such terms or language.” (27 A. 2d, at p. 343.)

Unlike Massachusetts and Rhode Island, courts of other states with parallel statutes have reached a contrary result. New York has a statute which provides that a city shall be liable to a person “whose property is destroyed or injured therein by a mob or riot for the damages sustained thereby.” N. Y. General Municipal Law, McKinney’s Consol. Laws, c 24, (1965), currently suspended by N. Y. Unconsol. Laws, § 9193 (McKinney 1961). The New York courts have had no difficulty in construing their statute to include damages resulting from theft or looting. Sarles v. Mayor, etc., of City of New York, 47 Barb. 447, 451 (Sup. Ct. 1866); Solomon v. Kingston, 24 Hun 562 (Sup. Ct. 1881), affirmed, 96 N. Y. 651 (Ct. App. 1884). In the latter case the Supreme Court reasoned:

“The evident meaning of the act, chapter 428, Laws 1855, is to compensate persons who suffer in their property by reason of mobs and riots. It could make no real difference whether the rioters actually destroyed the personal property on the premises of Solomon, or whether they took it out of his premises and then actually destroyed it. And whether they destroyed 'the books and shoes by cutting them to pieces, or by -wearing them out would matter very little to the plaintiff. We think that the fair meaning of the act is that given in Sarles v. New York (47 Barb. 447) ; that the property was destroyed, as to the plaintiff when the rioters carried it off. Plunder, as well as wanton injury, is usually the work of such rioters; and the result to the injured person is the same from either wrongdoing.” 24 Hun at p. 564.

Illinois, Wisconsin, Montana, Pennsylvania and Maryland have also permitted recovery for theft and looting under their riot statutes. Spring Valley Coal Co. v. City of Spring Valley, 65 Ill. App. 571, 590 (App. Ct. 1896); Febock v. Jefferson County, 219 Wis. 154, 262 N. W. 588, 101 A. L. R. 95 (Sup. Ct. 1935); Butte Miner’s Union v. City of Butte, 58 Mont. 391, 194 p. 149, 13 A. L. R. 746 (Sup. Ct. 1920); Burgis v. County of Philadelphia, 169 Pa. Super. 23, 82 A. 2d 561 (Super Ct. 1951); Braid v. County of Philadelphia, 169 Pa. Super. 244, 82 A. 2d 564 (Super. Ct. 1951); Mayor, etc., of Baltimore v. Poultney, 25 Md. 107 (Ct. App. 1866).

The history of the legislation is of some interest in seeking dues to legislative intent. The statutory liability of municipalities for riot damage had its genesis in England in 1285 when the Statutes of Winchester provided a remedy to the victim against one or more inhabitants of the “hundred,” a division of a county in early England, for damage caused by robbery. Statute of Winchester, 13 Edw. I, Stat. 2, c. 2 (1285), reenacted by 28 Edw. III. c. 2 (1354). A subsequent statute provided for the assessment of damages against all the inhabitants of the hundred after a recovery against one or more. 27 Eliz., c. 13 (1585). In 1714 the Eiot Act of George I provided that; in the event of destruction of a church or dwelling house by an unlawful mob, the inhabitants of the hundred were liable for the value. 1 Geo. I, c. 5 (1714). Thereafter, all laws on the subject in England were embodied in the Riot Damages Act of 1886, 49 & 50 Vict., c. 38 (1886), section 2 of which imposes absolute liability upon English police districts “[w]here a house, shop or building * * * has been stolen or destroyed or where property therein has been injured, stolen, or destroyed.” See Johnson, “The Insurer and Civil Disorders,” 35 Insur. Counsel J. 417 (1968); County of Allegheny v. Gibson’s Son & Co., supra, 90 Pa., at р. 405; Wells Fargo & Co. v. Mayor, etc., of Jersey City, supra, 207 F., at pp. 876, 880.

These statutes were first transplanted to this country by the Commonwealth of Pennsylvania in 1841. Act of May 31, 1841, Pamph. L. 416. New York followed in 1855. L. 1855, с. 428. The New Jersey statute, first adopted in 1864, was patterned after the foregoing legislation and provided recovery against a municipality for damages sustained “whenever any buildings or other real or personal property shall be destroyed or injured, in consequence of any mob or riot.” L. 1864, c. 150; Clark Thread Co. v. Board of Chosen Freeholders of Hudson, supra. This language in the statute was retained until the adoption of the Revised Statutes of 1937, when the surplusage 'buildings or other real or personal property,” was eliminated from the statute without any apparent intent to change its meaning and the language of the current statute was substituted: “When, by reason of a mob or riot, any property, real or personal, is destroyed or injured * * *.” 1 Second Draft of Proposed Revision and Consolidation of Public Statutes of New Jersey, § 2:63-1 (1936); R. S. 2:63-1 (1937).

It is of interest that although the English genesis of the New Jersey statute dealt with damages resulting from robbery in that specific language, American statutory counterparts have not made particular reference to damages from robbery, larceny or other forms of theft. They have all resorted to the general language of destruction or injury to property.

The shibolleths of statutory construction to the effect that penal statutes shall be strictly construed and remedial statutes shall be liberally construed are of no value in this instance because the statute is both remedial and penal in nature; it seeks simultaneously to grant relief to the innocent member of society who sustains damage from a riot and to penalize the municipality for its failure to prevent destruction of property by riotous mobs. County of Allegheny v. Gibson’s Son & Co., supra, 90 Pa., at p. 418; Marshall v. City of Buffalo, supra, 50 App. Div., at p. 415, 64 N. Y. S. 411. Hence, it is more meaningful to seek the intent of the Legislature through a common sense approach.

It is manifest that the Legislature intended to grant relief for destruction and damage to property, while it did not intend to include all damages and losses resulting from the riots. Nevertheless, as observed by the majority of courts of other states who have passed upon the issue, the loss to the owner is the same whether the personal property is totally destroyed or removed or stolen. For all practical purposes, he has been deprived of its value and use in either event. And if the Legislature intended that he be compensated for damage or destruction, it undoubtedly intended that he be compensated for its theft or removal, provided that such theft or removal is the proximate result of the riot. The reasoning of the Massachusetts court in Yalenezian v. City of Boston, supra, and the Rhode Island court in Goldman v. Forcier, supra, is too narrow and does not have the force of logic or justicie to lend persuasive weight to their conclusion.

It is more reasonable and realistic to interpret the legislative intent as including damage from theft or looting, particularly since rioting involving damage to real and personal property usually is accompanied by indiscriminate theft and looting. It may reasonably be assumed that such acts were contemplated by the Legislature when it adopted in 1864 the law patterned after the statutes of New York and Pennsylvania.

It is therefore determined that plaintiffs may recover not only for physical damage or destruction of property but also for the loss of such property from theft or looting. Of course, underlying the right of recovery for such losses is the prerequisite that plaintiffs establish that the riot or riots were the proximate cause of the claimed damages.

The city also attacks another area of damage asserted by plaintiffs — namely, losses from business interruption, loss of profits and good will, and other losses of an intangible nature.

As already noted, the Legislature did not intend and did not couch the language of the statute to include all damages and losses resulting from riots. In fact, personal injuries are not encompassed within the recovery granted by N. J. S. 2A :48—1. Such damages are recoverable up to a maximum of $5,000 when caused in the limited situation of a mob of 5 or more persons who are “assembled for the unlawful purpose of offering violence to the person or property of anyone supposed to have been guilty of the violation of a law, or for the purpose of exercising correctional powers or regulative powers over any person, by violence and without lawful authority * * N. J. S. 2A :48-8.

It is evident that the Legislature did not create a cause of action which carried with it all damages naturally flowing from the wrong as in the ordinary tort action. Instead, it saw fit to impose responsibility upon the governmental unit and all its taxpayers for a limited portion of the resultant losses —namely, that associated with the damage, destruction or loss of tangible, physical property. This unusual limitation of damages accompanying the creation of a new cause of action was undoubtedly the product of a balancing of the plight of the property owner against the financial ability of municipalities and their taxpayers to undertake payment of a broad spectrum of damages and losses. The result was a form of compromise, granting partial rather than total reimbursement to the riot victim.

In this context, it is meaningless to indulge in the use of artificial rules of statutory interpretation leading to a conclusion of strict construction merely because the act is “in derogation of common law.” It is more meaningful to consider the realistic impact upon a municipality and its tax structure if the statute were to be interpreted to encompass all the potential intangible losses resulting from the occurrence of the riots. Such claims could be so extensive and substantial that the burden of their payment might destroy the financial stability of many of our municipalities. And since the Legislature did not clearly and unmistakably permit recovery for all losses or damages, a provision which could have been accomplished by the use of a few simple words, a court cannot expand the recoverable damages beyond the express language of the statute.

The case of Wells Fargo & Co. v. Mayor, etc., of Jersey City, supra, is the only case dealing with this issue under the New Jersey statute and, in fact, is the only case in the country squarely passing upon the question. But see the dictum in Palmer v. City of Concord, 48 N. H. 211, 218 (Sup. Ct. 1868). The Federal District and Circuit Courts, relying in part upon the former language of the statute, “buildings or other real or personal property,” held that intangible property losses were not recoverable. In support of its conclusion the District Court stated:

“Can it be that,, merely because the statute used the word ‘property’, the Legislature intended to burden its municipalities with all the injurious consequences resulting from the mob’s interference with the use of tangible property? A construction fraught with such appalling consequences is not to be adopted unless the legislative intent that such is its purpose is clear and unmistakable.” (207 F., at p. 880).

As already observed, the change in language in the current statute came about with the 1937 revision. It is the court’s opinion that this change was not substantive and was solely for the purpose of eliminating awkward surplusage. The 1937 Legislature clearly did not undertake to change the meaning of the act to expand the recoverable damages. In any event, whether the statute be considered in the pre-1937 form or in its current form, the same rationale applies, leading to the conclusion that the law was not intended to grant recovery for intangible property losses.

Plaintiffs endeavor to support their position by reference to the broad meaning of “property” as normally including both tangible and intangible assets. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112 (Ch. 1894). They also point to the general definitions applicable to all New Jersey statutes which include the following:

“ ’Personal property’ includes goods and chattels, rights and credits, moneys and effects, evidences of debt, dioses in action and all written instruments * * (N. J. S. A. 1:1-2)

If these general definitions were the true criterion, intangible property would normally be included in a statutory reference to “personal property.” However, the opening paragraph of N. J. S. A. 1:1-2 contains the caveat that the words and phrases shall have the designated meanings “[u]nless there is something in the subject ox context repugnant to such construction * *

It is evident that the subject matter and context of N. J. S. 2A:48-1 are repugnant to the alleged construction, and that the general definitions are not applicable.

The motion barring recovery for intangible property losses is granted.

Y

NOTICE

One of the conditions for recovery under N. J. S. 2A :48-1, et seq., is the notification requirement in N. J. S. 2A :48-3:

“Nor shall a recovers' he had unless the claimant used all reasonable diligence to prevent the destruction or injury and shall have, immediately after being- apprized of a threat or attempt to destroy or injure his property by a mob or riot, notified the mayor or chief executive officer or chief of police of the municipality or the sheriff of the counts', as the ease may be, of the facts brought to his knowledge.”

Plaintiffs have moved to strike the 11th separate defense which states, “Plaintiff (s) failed to apprise the defendant or other law enforcement agencies of the threat or attempt to destroy or injure their property.”

The motion addressed to this defense was not accompanied by affidavits, and it must therefore be considered as purely a motion to strike the defense as insufficient in law. Despite the protestations in plaintiffs’ brief as to the nature of the disturbances, the lack of opportunity to give notice and the uselessness of notice under the circumstances, the court cannot determine this motion on such assertions. It is obvious that the defense on its surface is a valid one under the applicable provision of the statute. Whether claimants were required to give notice because of a prior threat or attempt to destroy their property, and whether such actual notice was necessary even if there were prior threats, must await the development of underlying facts at a plenary trial. It would be meaningless for the court to discuss in the abstract the legal principles applicable to the notice requirement until all the facts are fully explored.

The motion to strike this defense is therefore denied.

VI

DEFENSE OF GOVERNMENTAL IMMUNITY

Plaintiffs have moved to strike the defense of municipal immunity. Although this defense has been asserted as to both the common law negligence and statutory causes of action, the court will limit its ruling at this time to the claim brought under the statute.

It is abundantly clear that the affirmative creation of a cause of action against a municipality by the Legislature impliedly eliminates the defense of municipal immunity to that cause of action. The statute specifically deals with the liability of municipalities and counties and therefore negates the continued availability of immunity which had existed prior thereto.

The defense of municipal immunity is stricken as to the statutory cause of action.

VII

EFFECT OF GOVERNOR’S EMERGENCY PROCLAMATION

Defendant has alleged that on July 14, 3967, at 2:45 a.m., the Governor of the State of New Jersey proclaimed a state of emergency in the City of Newark pursuant to the provisions of N. J. S. A. App. A :9-30 et seq. It is asserted that as a consequence of this proclaimed emergency, the Governor called out the National Guard and issued various regulations, thereby assuming control of the city and the disturbances oceurring therein. N. J. S. A. App. A :9-34, 9-45; Governor’s Select Commission on Civil Disorder, Report for Action, 117 (1968). Because of this assumption of control by the State, defendant contends that it is not liable for any damages or losses occurring subsequent thereto.

Plaintiffs have moved to strike this defense as insufficient in law.

It is noteworthy that neither the aforesaid provisions nor any other legislative enactment has declared that the cause of action created by N. J. S. 2A :48-1 is barred or suspended in part or in whole during the existence of the proclaimed emergency.

The cause of action under the statute arose at the time of the occurrence of the alleged riots; the city became liable for all the damage to property proximately caused by those riots. The declaration of the emergencjq with its implementation by National Guard troops and imposition of restrictions and regulations was but a step in the control of the disturbances that did not in any way limit or suspend the duties of the city and its liability under the statute.

In County of Allegheny v. Gibson’s, Son & Co., supra, decided under the Pennsylvania statute, the county also raised the defense that after the appearance of the military forces of the state pursuant to the order of the chief executive, the responsibility of the county ceased. The court pointed to the fact that although the issue was not specifically raised, recovery was permitted against the local governmental unit despite the use of military power to quell the disturbances in the cases arising out of the “No Popery” riots of London in 1780, the Philadelphia riots in 1844, and the draft riots of New York in 1863. The court stated:

“® * * where liability for mob violence is imposed without qualification, it is not within the scope of judicial power to write exceptions into the law which the legislature, in its wisdom, has not seen proper to place there.” (90 Pa. 397, at p. 419).

In addition:

“The law will not tolerate the spectacle of a great city looking on with indifference, while property to the value of millions is being (iestroyed by a mob. To prevent just such occurrences was one of the objects of the Act of 1841. The fact that the state, when called upon, rendered its assistance, and sent, a portion of its military to the scene, did not absolve the county from its implied obligation to preserve the peace, nor from its responsibility for a neglect of duty. Were it otherwise, it might be to the interest of a municipality to increase the size of the mob.” (at p. 420).

As a consequence, it affirmed the ruling of the trial court in rejecting a request of defendant to charge the jury that the takeover by the state militia relieved the county from any liability for losses occasioned thereafter. Ibid., at p. 417.

It is therefore determined that the declaration of the emergency by the Governor and the use of National Guard troops did not relieve or lessen the liability of the city for all the property damage contemplated by the statute which is causally connected with the riots. The defense advanced by the city has no basis in law and will be stricken.

APPENDIX

Por general discussions of municipal liability under civil riot statutes, consult the following:

Note, “Compensation for Victims of Urban Riots,” 68 Colum. L. Rev. 57 (1968)
Note, “Municipal Liability for Riot Damage,” 81 Harv. L. Rev. 653 (1968)
Note, “Communal Liability for Mob Violence,” 49 Harv. L. Rev. 1362 (1936)
Note, “Riot Insurance,” 77 Yale L. J. 541 (1968)
Legislation, “Inability of the Municipality for Mob Violence,” 6 Ford L. Rev. 270 (1937)
Note, “Municipal Tort Liability: Statutory Liability of Municipalities for Damage Caused by Mobs and Riots: New York General Municipal Law Section 71: Suspension of the Statute,” 50 Cornell L. Q. 699 (1965)
Note, “Municipal Liability for Riot Damage,” 16 Hast. L. Rev. 459 (1965).

At the time of the filing of this opinion, a bill has been introduced in the Legislature of New Jersey to amend N. J. S. 2A :48-1 to provide as follows:

“When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or injured for the damages sustained thereby, recoverable in an action by or in behalf of such person, in an amount not to exceed $10,000.00 for the aggregate of damage done to all such property, both real and personal, at each separate location within a municipality, provided; however, that no person, and no subrogee of such person, having insurance coverage in whole or in part for the said destruction or injury, shall have a cause of action against such municipality or county pursuant to the provisions of this act. For the purpose of this section, insurance coverage means insurance obtained through any source whatsoever, including insurance purchased through any insurance pool, placement facility, plan of operation, or any other plan established pursuant to Federal or State law.” Senate, No. 913 (1968).