text:
    PATERSON REDEVELOPMENT AGENCY, ETC., PLAINTIFF-RESPONDENT, v. JACK BIENSTOCK AND MARIE BIENSTOCK, HIS WIFE, MAURICE SCHNEIGEIGER AND SONIA SCHNEIGEIGER, HIS WIFE, DEFENDANTS-APPELLANTS, AND ALEXANDER HAMILTON SAVINGS AND LOAN ASSOCIATION, ETC., DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided April 16, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Edward D. McKirdy argued the cause for the appellants (McKirdy and Riskin, attorneys).

      Mr. Charles T. Murphy, Jr., argued the cause for the respondent (Jeffer, Waller, Tierney, DeKorte, Kopkinson & Vogel, attorneys).
   Per Curiam.

Our review of the record persuades us that there was error in the trial of this proceeding prejudicial to defendants and requiring a, reversal.

The trial court should not have barred counsel for defendants from cross-examining plaintiff’s expert, out of the presence of the jury, on the question of the comparability of the Eebruary 11, 1969 sale of the premises at 21 Carroll Street, Paterson, since comparability is a question for the court in the first instance, In re Morris & Cummings Dredging Co., 96 N. J. L. 248, 254 (E. & A. 1921); In re Port of New York Authority, 28 N. J. Super. 575, 581 (App. Div. 1953). Moreover, it is apparent from the record that, at the time of the sale of 21 Carroll Street, it was not substantially similar to the premises condemned — the former had sustained fire damage sufficient to render 4 of the 11 dwelling apartments uninhabitable. Notwithstanding such damage and despite the further fact that the plaintiff’s expert was completely unaware of the damaged condition of the building and, when it was disclosed at trial, made no adjustment on account of it, the trial court declined to instruct the jury to disregard the sale. See State v. Probasco, 114 N. J. Super. 546, 552 (App. Div. 1970), aff’d 58 N. J. 372 (1971).

Likewise, the instructions to the jury with reference to burden of proof were erroneous. In this State the basic issue in a condemnation proceeding is the amount of just compensation which the owner is to receive for the property taken by the condemning authority — i. e., the fair market value where, as here, the property condemned is the whole of a residential property. N. J. Const. (1947), Art. I, par. 20; State v. Gallant, 42 N. J. 583, 587 (1964). The burden of proof concept has no place in such an inquiry. As stated by the Supreme Court of Alaska in State v. 45,621 Square Feet of Land, 475 P. 2d 553 (1970):

In a condemnation proceeding * * * where the sole issue is determination of just compensation, procedural rules involving the concept of risk of failure to persuade are inapposite. Here the focal point of the trier of fact’s inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska’s constitutional mandate requires that the owner be awarded just compensation for the property he has lost. In the usual condemnation case, the jury is confronted with conflicting opinions as to value. The jury is not faced with the necessity of finding a particular value or no value at all. As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party’s evidence. The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding, [at 555]

We have examined the other grounds urged by the defendants as error, and find no substance or merit to any of them.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: Handler, J. S. C.,

license: Public Domain

text:
    NEW JERSEY TURNPIKE EMPLOYEES’ UNION, LOCAL 194 OF THE AMERICAN FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO, PLAINTIFF-APPELLANT, v. NEW JERSEY TURNPIKE AUTHORITY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1972
    Decided April 18, 1973.

      Before Judges Carton, Mintz and Handler.

      Mr. Thomas L. Parsonnet argued the cause for appellant (Messrs. Parsonnet, Parsonnet Duggan, attorneys).

      Mr. Joseph B. Postizzi argued the cause for respondent (Mr. David W. Dowd, attorney).

      Mr. Francis A. Mastro argued the cause amicus curiae for The National Eight to Work Legal Defense Foundation (Messrs. Apruzzese & McDermott, attorneys; Mr. Rex H. Reed, Legal Director; Mr. Vincent J. Apruzzese, of counsel).
   The opinion of the court was delivered by

Handler, J. S. C.,

Temporarily Assigned. Plaintiff New Jersey Turnpike Employees’ Union, Local 194, of the American Federation of Technical Engineers (Union) appeals from an adverse decision on the validity of an agency shop clause in a contract with defendant New Jersey Turnpike Authority (Authority). On March 5, 1970, the New Jersey Public Employment Eelations Commission certified plaintiff union as the majority representative of the employees of defendant Authority. Thereafter, the union and the Authority engaged in collective bargaining negotiations and on August 12, 1970 entered into a collective bargaining agreement.

Article VT-D of that collective bargaining agreement contains the following language:

The Authority and Union agree to file a complaint seeking a “Declaratory Judgment” before a court of competent jurisdiction to determine the legality of an “Agency Shop” provision. Should such a provision be declared legal then Agency Shop shall be effective on the first day of the month of the second month succeeding the date of tlie decision.

Pursuant to this provision, the union filed such an action and proposed that, if its suit were successful, the 'following agency shop arrangement he added to the collective bargaining agreement:

It is therefore agreed that it is a condition of employment or continued employment that commencing on the thirtieth day following the initial employment of any employee covered by this agreement, all employees shall pay to the union an amount, equal to the amount of the regular dues of the union, plus an amount equal to the regular initiation fee of the union, and that failure to make such payments during the month when the same is due shall constitute good cause for, and require separation from employment. It is further agreed that all funds paid to the Union by or on behalf of persons not members of the union because of this agreement shall be used exclusively to defray the costs of collective negotiations, the negotiation and adjustment of grievances with the Authority and other expenses relating to the representation of such persons. Should it be determined that the funds thus paid by said non-members exceed their fair share of such expenditures, it is agreed that adjustments in said amount of initiation fee and/or dues shall be made to eliminate such excess.

On motion for summary judgment the court below declared the above provision invalid because it was contrary to the Yew Jersey Employer-Employee Relations Act, L. 1968, c. 303; N. J. 8. A. 34:13A-1 et seq.

On this appeal the union urges that the proposed agency shop is valid and does not violate any constitutional or statutory stricture and is consistent with public policy. The Authority contends in effect that any agency shop arrangement would be contrary to the specific provisions of N. J. 8. A. 34:13A-5.3 which confers the right upon individual employees to desist from union activity; that it would violate the constitutional guarantee to employees of the right to process their grievances individually or through their representatives, and that the proposal would also be at variance with statutory restrictions applicable to the hire of veterans and is otherwise illegal by compelling dues deduction; also, such a provision is not justified by considerations of equity.

An agency shop has been defined as an arrangement whereby, as a condition of continued employment, all employees not already members of the union and new employees hired thereafter must pay to the union, within a stated time after agreement or initial employment, a sum equal to the initiation fees charged to members of the union and monthly sums equal to regular membership dues required of members. Hopfl, “The Agency Shop Question,” 49 Cornell L. Q. 478 (1964). Eocusing upon the constitutional argument, the Authority contends that an agency shop is in direct conflict with N. J. Const. (1947), Art. I, par. 19. This provides:

Persons in private employment shall have the right to organize and bargain collectively. Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing.

More pointedly, it is asserted that the proposed agency shop requires payments by nonmember employees for the purpose of defraying the union’s expenses incurred for the processing of grievances. This, it is suggested, is at war with the constitutional right in public employees to process grievances individually or through their designated representatives. The thesis seems to be that under an agency shop non-union employees would either be compelled to forfeit this right to handle their own grievances or be discouraged in the exercise thereof. The argument is tendered notwithstanding judicial recognition that the constitutional guarantee does not confer the right upon individuals to bargain or negotiate terms and conditions of employment. Lullo v. International Ass'n of Fire Fighters, 55 N. J. 409 (1970). Nor do we perceive that it affirmatively confers such a right to process grievances, at least where an employee representative has been duly elected for that purpose by a majority of employees.

The trial court properly rejected this constitutional attack :

To interpret the constitutional language in Art. 1, par. 19, to bar individual public employees from presenting proposals as to terms and conditions of employment whenever there is a majority representative, but to safeguard their right to present grievances under all circumstances would be to create a dichotomy between “grievances” and “proposals” which has no basis in constitutional history or otherwise. [117 N. J. Super, at 351]

It may be noted that the Public and School Employees Grievance Procedure Study Commission, in proposing comprehensive legislation to govern public employment, recommended a rule which would recognize individual or minority handling of grievances. The Commission proposed:

When a majority of employees in a given negotiating group or unit indicate by secret election a preference for a specific representative organization, no other organization should be designated, certified, or recognized for the purpose of collective negotiations, but this should not preclude an employee’s right to process grievances individually. [Report, p. 22, par. (c) ]

The Legislature, in the adoption of the New Jersey Employer-Employee Relations Act, apparently adopted a different tack. N. J. 8. A. 34:13A-5.3 provides:

Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (h) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority representative; and (c) a minority organisation shall not present or process grievances. * * * [Emphasis added]

It is only

[w]hen no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, [that], he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted. ll’bid.J

There are cogent reasons sounding in public policy why the majority representative of a unit of public employees should be authorized to act as the sole or exclusive representative on behalf of all employees in the handling of grievances. As mentioned in Lullo, exclusivity in the processing of grievances is conducive to greater stability and minimizes unrest; individual employees secure greater leverage vis-á-vis their governmental employer and administrative efficiency is enhanced. Moreover, the responsibility is crystallized in the elected majority representative to process grievances in good faith without discrimination and with the same measure of devotion to dissident employees as it owes to its own constituents. Lullo v. International Ass’n of Fire Fighters, supra, 55 N. J. at 433-435. Cf. Vaca v. Sipes, 386 U. S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); N. L. R. B. v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 87 S. Ct. 2001, 18 L. Ed. 2d 1123 (1967)

We conclude that employees do not have a right of constitutional dimension to process their own grievances individually or through a minority representative organization. Therefore, the proposed agency shop provision, to the extent it contemplates payments by nonunion members for the purpose of defraying their pro rata share of the union’s expenses attendant upon the collective processing of grievances on behalf of all employees, does not suffer from any constitutional infirmity.

The Authority further contends that the proposed agency shop is contrary to the New Jersey Employer-Emploj^ee Delations Act and, in particular, the so-called “right-to-work” provision found in the introductory language of N. J. S. A. 34 ¡13A-5.3, viz:

Public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity.

A majority of states have provided for collective bargaining in one form or another on behalf of governmental employees. Most legislation which affords such an employee the right to join or associate with a union for the purpose of collective negotiation also protects the right to refrain from forming or joining a union. Four states •—• including New Jersey — go so far as to vindicate the right in an employee to refrain from assisting a public employee organization or union. Comment, “Impact of the Agency Shop on Labor Delations in the Public Sector,” 55 Cornell L. Rev. 547, 557-558 (1970).

The trial court, in rejecting the union’s contentions, determined that the proposed agency shop would be contrary to the New Jersey right-to-work statute. It reasoned:

Realistically there can be minimal doubt about the consequences of an agency shop. Defendant’s employees, who are not now members of plaintiff union, would join it if faced with assessments identical to union dues and initiation fees, except, it may be, for a recalcitrant handful.
The court will not compel that result in view of the legislative declaration of the right of public employees to refrain from union activity, even assisting a union, and in the absence of legislative authorization for an agency shop in public employment. [117 N. J. Super, at 352]

Much of the decisional law in the area would support this result. Eepresentative cases have held that where there is a constitutional or statutory confirmation of a right in public employees to refrain from joining or participating in an employee organization or to desist from organizational activities, the imposition of an agency shop applicable to nonmembers is invalid. E. g., Farrigan v. Helsby, 68 Misc. 2d 952, 327 N. Y. S. 2d 909 (Sup. Ct. 1971); Schermerhorn v. Local 1625 of Retail Clerks Int. Ass’n, 141 So. 2d 269 (Fla. Sup. Ct. 1962), aff'd 373 U. S. 746, 83 S. Ct. 1461, 10 L. Ed. 2d 678 (1963); Higgins v. Cardinal Mfg. Co., 188 Kan. 11, 360 P. 2d 456 (Sup. Ct.), cert. den. 368 U. S. 829, 82 S. Ct. 51, 7 L. Ed. 2d 32 (1961); Baldwin v. Arizona Flame Restaurant, 82 Ariz. 385, 313 P. 2d 759 (Sup. Ct. 1957); cf. Benson v. School Dist. No. 1 of Silver Bow City, 136 Mont. 77, 344 P. 2d 117 (Sup. Ct. 1959). Cor-relatively, the absence of any constitutional or statutory protection or any definitive recognition of such a putative right has led some courts to validate an agency shop applicable to governmental employees. E. g., Russell v. Bureau of Unemployment Compensation, 25 Ohio St. 2d 73, 266 N. E. 2d 844 (Sup. Ct. 1971) ; semble, Smigel v. Southgate Community School District 388 Mich. 531, 202 N. W. 2d 305 (Sup. Ct. 1972); Tremblay v. Berlin Police Union, 108 N. H. 416, 237 A. 2d 668 (Sup. Ct. 1968); Amalgamated Ass’n v. Las Vegas-Tonopah-Reno Stage Lines, 202 F. Supp. 726 (D. Nev. 1962); cf. Meade Electric Ca. v. Hagberg, 129 Ind. App. 631, 159 N. E. 2d 408 (App. Ct. 1959); also Note, 14 Wayne L. Rev. 1238 (1968).

The numerous cases treating the problem are not amenable to ready synthesis. They reflect diverse approaches taken in various jurisdictions and accordingly range a broad philosophical spectrum on the complex issue of employee organizational security. Compare N. L. R. B. v. General Motors Corp., 373 U. S. 734, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963) with Retail Clerks Int. Ass’n v. Schermerhorn, 373 U. S. 746, 83 S. Ct. 1461, 10 L. Ed. 2d 678 (1963). A predicate to most commentary upon the propriety of the agency shop in the public sector is the acknowledged duty of a public employees’ organization, anting as an exclusive representative, to conduct itself fairly and without discrimination on behalf of all employees, members and nonmembers alike. Lullo v. Intern. Ass’n of Fire Fighters, supra. Thus, where the manifest purpose and practical effect of an agency shop is to distribute among all employees in some equitable fashion the organization’s costs for benefits conferred in representing employees, and in that manner to eliminate the so-called “free ride” which would otherwise be enjoyed by nonmember employees, the validity of such a technique has been acknowledged. Town of North Kingston v. North Kingston Teach. Ass’n, R. I. 297 A. 2d 342 (Sup. Ct. 1972) (noting in particular the agency shop proposed here by the union, 297 A. 2d at 346, fn. 9). Nevertheless, in pursuing what might otherwise be considered the legitimate objective of eradicating the “free ride,” an employee’s organization should not be permitted to impose what is tantamount to a “forced journey” upon nonjoiners. Retail Clerks Int. Ass’n v. Schermerhorn, supra, 373 U. S. at 752—754, 83 S. Ct. 1461; cf. Board of School Dir. v. Wisconsin Emp. Rel. Comm’n, 42 Wis. 2d 637, 168 N. W. 2d 92, 97-98 (Wis. Sup. Ct. 1969).

The validity of the agency shop proposition must be gauged by the New Jersey statute, N. J. S. A. 34:13A-5.3. This, in dear terms, confirms a right in public employees not only to refrain from activity in the nature of forming or joining an employee organization but also to refrain from assisting such an organization. The agency shop arrangement suggested herein does purport to relate the payments to be made by nonmembers to the union’s expenses for collective negotiations and the handling of grievances. But it also mandates that payments to the union by nonmember employees are a condition of employment; the amount of such payments is the exact equivalent of initiation fees and regular dues, and failure to pay results in discharge. These clauses, though counterpoised with those which purport to relate such payments to union expenses, would have the predominant effect of inducing, if not compelling, union membership, participation and assistance on the part of nonmember employees. The court below, in our view, correctly determined that this proposed agency shop was invalid as contrary to N. J. 8. A. 34:13A-5.3.

The result reached herein obviates consideration and disposition of other contentions.

Affirmed.


author: Bischoef, J. S. C.

text:
    ELLENORE NOYES, PLAINTIFF, v. ESTATE OF SAMUEL C. COHEN, DECEASED ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 30, 1973.

      Mr. David M. Baer for plaintiff Ellenore Noyes (Messrs. Baer and Arbeiter, attorneys).

      Mr. William G. Horner for defendants Beal.
   Bischoef, J. S. C.

This matter is before the court on cross-motions for summary judgment. Two defendants, Estate of Samuel C. Cohen and Aneita Cohen having defaulted, they are not involved in these motions.

The facts are as follows:

Plaintiff Noyes recovered a judgment against Samuel C. Cohen, deceased, on February 17, 1972 in the Superior Court of Delaware, Kent County, for $179,300. Plaintiff continues to be the holder of this judgment which has remained unpaid since its date of entry.

Plaintiff began an action by attachment in the Superior Court of New Jersey, Law Division (Docket L-19162-72) against certain real estate owned by Samuel 0. Cohen, said real estate being located in the Township of Lower Alloways, Salem County, to obtain recovery on the Delaware judgment. The complaint was filed on March 8, 1972, and pursuant to such action a writ of attachment was issued out of the Superior Court, dated April 3, 1972. The writ of attachment was filed in the office of the Clerk of the Superior Court on April 3, 1972.

On February 14, 1972 Samuel C. Cohen, then still living, and his wife, Aneita Cohen, entered into an agreement of sale for a portion of the real estate subject to the attachment, with defendants Harry E. Beal and Lois F. Beal, and on April 27, 1972 conveyed said lands pursuant to said agreement to them.

On August 4, 1972 a special judgment was entered against the attached realty in favor of plaintiff and against Samuel C. Cohen in the sum of $179,300, with costs, in the Superior Court of New Jersey.

Plaintiff seeks by her motion for summary judgment to set aside the conveyance to the Beals of the realty as being void and of no legal effect.

Plaintiff contends that the conveyance should be set aside on the grounds that N. J. 8. A. 2A:26-1 et seq. makes such conveyances void from the time of the issuance of the attachment.

The pertinent portions of said statute are as follows:

2A:26-9. Lien of attachment on real estate of defendant; amendment of return; disposal of real estate; conveyances by defendant void.
The attachment from the time of its issue, shall constitute a lien on the real estate of the defendant in the state where the attachment issued out of the superior court, or in the county where it issued out of a county court, even though the officer fails to especially attach the same or part thereof; and the defendant cannot thereafter assign, transfer or convey the same or any interest therein. The attachment shall also be a lien upon all real estate acquired by defendant in the state or county, as the ease inay be, after such issue and before final judgment. The court may order the clerk to amend the return to the attachment by annexing thereto a description of such real estate, and may make orders for the disposal thereof. All conveyances by the defendant pending the attachment shall be void against the plaintiff. The said lien shall continue to be a lien until the claim of plaintiff is satisfied, the attachment is discharged or judgment is given against the plaintiff. [Emphasis supplied]

Defendants Deal on the other hand, argue that since plaintiff failed to file a lis pendens there was no way that they, as bona fide purchasers for value without notice, could have obtained notice of the attachment. Their argument is based on two sections of the Lis Pendens Act (N. J. 8. A. 2A :15—7 et seq.) which provide as follows:

2A :15-6: In every action, instituted in any court of this state having civil jurisdiction, the object of which is to enforce a lien, other than a mechanic’s lien, upon real estate or to affect the title to real estate or a lien or encumbrance thereon, plaintiff or his attorney shall, after the filing of the complaint, file in the office of the county clerk or register of deeds and mortgages, as the case may be, of the county in which the affected real estate is situate, a written notice of the pendence of the action, which shall set forth the title and the general object thereof, with a description of the affected real estate.
No notice of lis pendens shall be filed under this article in an action to recover a judgment for money or damages only.
2A :15-8: Unless and until a notice of lis pendens is filed as herein provided, no action, as to which such notice is required, shall, before final judgment entered therein, be taken to be constructive notice to a bona fide purchaser or mortgagee of, or a person acquiring a lien on, the affected real estate.

The crucial issue, then, is whether a creditor who proceeds under our present attachment statute (N. J. S. A. 2A:26-1 ek seq.) may set aside a conveyance to a purchaser after the writ of attachment has issued, if such creditor has not filed a lis pendens.

Defendants contend .that N. J. S. A. 2A:15-^6 required plaintiff to file a written notice of the pendency of her action against Cohen, and the failure to do so was fatal to her claim in that defendants had no notice or knowledge of the claim against the land which they were purchasing. That being so, they contend they were bona fide purchasers and cannot have the conveyance to them set aside. Plaintiff does not dispute the terms of N. J. S. A. 2A :15-6 but does disagree with the applicability thereof in the case at hand.

The argument that plaintiff cannot set aside the conveyance to defendants for failure to file a lis pendens is rejected. The aforementioned statute specifically provides that the plaintiff or his attorney shall file a written notice of the pendencj of the action in the appropriate county clerk’s office or register of deeds in every action “the object of which is to enforce a lien, * * *, upon real estate or to affect the title to a real estate or lien or encumbrance thereon.” The judgment that was secured by plaintiff was a foreign judgment. It was not a lien on New Jersey realty. N. J. S. A. 2A:15-6 requires that a written notice be filed in an action to enforce a lien or to affect the title to real estate, or a lien or encumbrance thereon. Plaintiff’s action is not in the nature of enforcing a lien since she only has a foreign judgment. To repeat, it was not a lien. Nor was her attachment action instituted for the purpose of affecting title to real estate. The Lis Pendens Act must be read to mean that one must have an existing lien before it becomes operative. A money judgment obtained in another state cannot be considered a lien on realty in this state. Furthermore, N. J. S. A. 2A.T5-6 provides that

No notice of lis pendens shall be filed under this article in an action to recover a judgment for money or damages only.

Plaintiff’s action in the Superior Court of New Jersey, Law Division, Salem County was an action for the recovery of money damages in the amount of $179,300. Had plaintiff attempted to lile a lis pendens she would have placed herself in jeopardy of a suit for removal of the lis pendens. Garfield v. Elmwood Stores, Inc., 17 N. J. Super. 513 (Ch. Div. 1952); Grabowski v. S & E Construction Co., Inc., 72 N. J. Super. 1 (Ch. Div. 1962).

N. J. S. A. 2A:26-1 provides that the attachment statute “shall be liberally construed, as a remedial law for the protection of resident and nonresident creditors and claimants.” In that light, to accept defendants’ argument that a lis pendens must be filed before the attachment is effective would be writing into the act a requirement not included by the Legislature. N. J. S. A. 2A:26-9 specifically provides that all conveyances by a defendant shall he void as against the plaintiff. This section presents an absolute bar to all conveyances by a defendant once an attachment has been issued.

Defendants claim that there was no possible way that they could have obtained notice of the suit for attachment. They argue that the levy by the Sheriff of Salem County was not noted on the records in the Salem County Clerk’s Office or its indices.

Defendants are not without remedy. First, defendants can proceed against the estate of their grantor for damages for the failure to convey a marketable title. Second, defendants may seek compensation from the party who insured the title which they received. (It was conceded at the time of oral argument that the action was being defended by the title insurance carrier.) Plaintiff has proceeded under the laws of this State to satisfy her judgment. Relying on N. J. S. A. 3A :36-l, she filed suit for attachment. She has been diligent in the protection of her interests.

The statute provides that the attachment is a lien on real estate within the territorial jurisdiction of the issuing court; that it is operative from the date of issuance by the court, and that the effect of the lien is to make absolutely void any conveyance by the defendant of the attached realty. “Attachment in Hew Jersey,” 11RLR 714, 733 (1956); 13 N. J. Practice Lieberman, Abstracts and Titles, §1313 at 690 (1966).

Since the writ of attachment was duly issued and entered in the Superior Court on April 3, 1973 and the conveyance to defendants was on April 37, 1973, this court must declare the aforementioned conveyance by Samuel C. Cohen and his wife to defendants Harry and Lois Beal void.

Defendants argue that even if plaintiff’s attachment were deemed effective as to defendants Beal, it cannot divest them of the title to the property but can only be used as a claim for the purchase money paid by defendants to the Cohens on the basis of the doctrine of equitable conversion. They argue that once the Cohens and Beals executed the real estate contract in Eebruary 1973, the Cohens merely retained legal title and a claim for the purchase price.

Our courts have regarded the doctrine of equitable conversion as a “mere fiction resting upon the principle that equity regards things which are directed to be done as having actually been performed where nothing intervened which ought to prevent such a performance.” Fidelity-Philadelphia Trust Co. v. Harloff, 133 N. J. Eq. 44, 56 (Ch. 1943). “That concept was devised to assure justice between the parties to a real property transaction. It is a fiction of law, and as such, cannot be extended beyond the special purposes which it was created to serve.” N. J. Highway Auth. v. Henry A. Raemsch Coal Co., 40 N. J. Super. 355, 361 (Law Div. 1956). And, “the doctrine will never be employed for the purpose of circumventing public policy or to sustain a fraud or a wrongful act.” 27 Am. Jur. 2d, Equitable Conversion, §3.

To accept tbe argument by defendants that the doctrine of equitable conversion should apply to the transaction between them and the Cohens would be to contravene the public policy stated in N. J. S. A. 2A:26-1 et seq., which is to protect residents and nonresident creditors.

Furthermore, “the doctrine [of equitable conversion] is most frequently applied in solving questions concerning the validity and execution of trusts, the legal character of the interests of the beneficiaries, the devolution of property as between real and personal representatives, and for other similar purposes.” 27 Am. Jr. 2d, Equitable Conversion, §3. In the case at hand none of these circumstances is presented. Consequently, for the aforementioned reasons this court rejects defendants’ argument that the doctrine of equitable conversion applies in this context.

Defendants’ next contend that N. J. S. A. 2A :26-9 and 10 axe intended to establish a priority of claims between an attaching creditor and a subsequent purchaser, and these sections do not authorize the setting aside of a conveyance of property as between a seller and a buyer, absent fraud. Defendants cite no authority to the court for such a proposition, and furthermore, if the court were to accept such a qualification of the statute, the rights of an attaching creditor under N. J. S. A. 2A :26—l et seq. would be emasculated. The plain intendment of that statute is that there is an absolute bar to all conveyances by a defendant after the issuance of the writ of attachment. (13 N. J. Practice Lieberman Abstracts and Titles) § 1213, p. 690 (1966).

Defendants have also raised a due process argument. They contend that if the attachment statute is not construed to include the lis pendens requirement of N. J. S. A. 2A :15-6 el seq., then the setting aside of the conveyance to defendants would deprive them of their property without due process of law, in violation of the New Jersey and United States Constitutions.

In considering this argument it is significant to note that the law oí attachment in statutory form first appeared in Yew Jersey in 1799. Tanner Associates, Inc. v. Ciraldo, 33 N. J. 51, 55 (1960). This case discussed at length the history of the Attachment Act up to the date of the decision. The act has been changed many times throughout the years since 1799 but it still has remained an act for the protection of creditors and claimants. Our courts have considered the applicability of the Attachment Act in its various aspects and have never expressed any doubt as to its constitutionality. Mueller v. Seaboard Commercial Corp., 5 N. J. 28 (1950); Whiteman Food Products Co. v. Alimentari, 31 N. J. Super. 277 (App. Div. 1954); Pomeroy v. Simon, 17 N. J. 59 (1954) ; Tanner Associates, Inc. v. Ciraldo, 33 N. J. 51 (1960); Russell v. Fred G. Pohl Co., 7 N. J. 32 (1951).

The argument that defendants have been deprived of their property without due process of law depends upon the applicability of the doctrine of equitable conversion. This is based on the contention that upon the execution of the real estate contract in February, 1972, the Cohens merely held bare legal title to the property and the Beals acquired equitable title. Since the court has rejected the equitable conversion argument, this argument ceases to have validity.

Furthermore, it is well established that a trial judge should not hold a statute unconstitutional except in a clear case. Grossm,an Furniture Co. v. Pierre, 119 N. J. Super. 411 (Cty. D. Ct. 1972); State v. Cannarozzi, 77 N. J. Super. 236 (App. Div. 1962); Chalmers v. Chalmers, 117 N. J. Super. 474 (Ch. Div. 1971). The Attachment Act (N. J. S. A. 2A:26-1 et seq.) is an act which has existed for a long period of time, to wit, since 1799. It has withstood many years of litigation and interpretation. That being so, it would be improper for this court to declare the act unconstitutional.

Finally, defendants contend that if the conveyance to them by the Cohens is declared void and set aside, there should be an appropriate allowance to them of monies expended in discharging a prior mortgage which encumbered the property at the time of the conveyance and monies expended by them in making improvements to the real estate after the property was conveyed to them.

This is a court of equity and while the statute does declare the conveyance void, this court feels that, as a condition to setting aside the conveyance, plaintiff should reimburse defendants to the extent that plaintiff would be unjustly enriched by defendants’ expenditures. If the parties can agree upon the dollar amount of this unjust enrichment, it may be included in the terms of an order setting aside the conveyance. If the parties cannot agree on this dollar figure, then the court will take testimony and determine what that figure should be.

In accordance with the terms of the preceding opinion, this court declares that the conveyance by the Cohens to the Beals is void and is hereby set aside.

The granting of summary judgment in favor of plaintiff is in no way intended to affect the merits of defendants’ cross-claim against the estate of Samuel Cohen, deceased.


author: Schwaetz, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. NATHAN SCHWARCZ, DEFENDANT.
    Middlesex County Court Law Division — Criminal
    Decided April 9, 1973.

      Mr. Robert F. Dato, Woodbridge Township Municipal Attorney, for plaintiff.

      Mr. Harold C. Cohen argued the cause for the defendant (Messrs. Wileniz, Goldman <& Spitzer, attorneys).
   Schwaetz, J. C. C.

This is an appeal from the Municipal Court of Woodbridge Township where the matter was decided on a stipulation of facts. Defendant, charged with violating “An Ordinance to regulate hours of operating and closing of barber shops etc.,” was found “not guilty.”

Among other things, it was agreed that “a male patron entered the defendant’s barber shop at approximately 7:26 p.h." and “received a haircut thereafter.” This violated the closing hour fixed by the ordinance. The stipulation also provided: “Defendant has moved pursuant to B. 7:4-2(e) thereby challenging the ordinance as unconstitutional on its face and as applied.”

The municipal court viewed the instant situation “in a different era” vis-á-vis Amodio v. West New York, 133 N. J. L. 220 (Sup. Ct. 1945), and concluded that since the beauty parlor ordinance did not regulate closing hours, it is “basically and intrinsically unfair, so unjust, has no relation to the piiblic health, safety and welfare”; “there is no logical distinction between the two,” and considering it unfair to “shun its responsibility” found defendant “not guilty.”

The township filed a timely notice of appeal (assuming it had a right to appeal).

Defendant urges finality of the municipal decision on the authority of State v. Cannorozzi, 77 N. J. Super. 236 (App. Div. 1962).

Ueither party drew any distinction between a notice of appeal and an application for leave to appeal. B. 3:23 limits the right to appeal from a municipal court to a defendant following conviction, presumably because an acquittal is final. Bd. of Health v. Tandy & Allen, Inc., 29 N. J. Super. 61 (Cty. Ct. 1953). Either party, however, may move to seek leave to appeal to the County Court from an interlocutory order entered before trial B. 3:24. Since the township’s only relief in these circumstances could be by way of leave to appeal from an interlocutory order, and defendant plainly sought an interlocutory determination under B. 7:4-2(e), I viewed the notice of appeal as application for leave to appeal. Eorm should not be exalted over substance. B. 1 :l-2.

State v. Cannorozzi, supra, illustrates the frustration of an appellate court unable to correct an unjust and erroneous result where, on a stipulation, as here, a state statute was ruled unconstitutional and the complaint dismissed. B. 3 :10~3 was thereafter adopted. It provides that a constitutional question must be raised before trial or after a verdict of guilty. “Such defenses shall not be considered during trial.” The rule was intended to prevent repetition of a Cannorozzi result. See Comment to B. 3 :10—3.

B. 3:10-3 is made applicable to the municipal court and ordinances by B. 7:4-2(e). Consequently, the constitutional issue decided in the municipal court is appealable. The contention that double jeopardy attaches as in Cannorozzi (the last reported word, in this context, prior to the present B. 3:10-3) is no longer tenable. Cannorozzi held that a judgment of acquittal entered at the end of a trial is not appealable even though based upon a conclusion that the ordinance is inapplicable by its terms or invalid. Here it was a ruling before trial. B. 3 :10-3 requires it before trial or after a verdict of guilty, and there was no verdict of guilty here. I granted leave to appeal and “simultaneously [proceeded to] decide the appeal on the merits * * See B. 3:24.

The barber shop ordinance regulates hours of opening and closing. The beauty parlor ordinance does not. Thus, defendant urges that barbers are not afforded equal protection of the law; that “in view of the unisexual nature of hairstyling services rendered in both barber shops and beauty parlors” it is discriminatory to leave hours of the latter unregulated. It is said that the “changing cultural milieu” has rendered decisions such as Amodio, supra, and Falco v. Atlantic City, 99 N. J. L. 19 (Sup. Ct. 1923) (while “controlling” and “on point”), antiquated and therefore not controlling as “stare decisis” bat “rather for their ratio decidendi” which are equally sound today and support the result sought here in that (the former Supreme Court) held “all persons engaged in the same business are thereby treated alike; are subject to the same restrictions; and are entitled to the same privileges under similar conditions.” Falco v. Atlantic City, supra, at 22; “The inquiry is whether there is discrimination against anyone within the prescribed limits of the regulation * * * ‘[and] if within the sphere of its operation it affects alike all persons similarly situated/ * * *.” Amodio, supra, 133 N. J. L. at 220. From this the logic advanced is that men patronize beauty parlors today and therefore it follows that beauty parlors and barber shops are engaged in the same business and are to be treated alike and entitled to the same privileges.

The questions raised are novel. Beauty parlors and barber shops cannot be said to be “engaged in the same business,” and a male seeking service and being accommodated in a beauty parlor does not make it so. Is the discrimination “within the prescribed limits of the regulation?” Are all within the sphere of its operation and similarly situated treated alike?

In Amodio v. West New York, supra, it was said:

Nor is the ordinance discriminatory because “beauty parlors and all other businesses, trades and professions are not affected thereby.” As noted the exigency in the particular case is for the judgment of the lawmaking power; and, unless there is an utter lack of basis for the classification, the action taken is not discriminatory in the constitutional sense. There is no invidious discrimination merely because the evil may in some degree extend to other occupations. The question of the relative need is essentially one for the legislative judgment. The inquiry is whether there is discrimination against anyone within the prescribed limits of the regulation. Special burdens are often necessary for general benefits; and if the restrictions operate alike upon all persons and property under the same circumstances and conditions, there is no just ground of complaint, [at 226; emphasis added]

This would be dispositive (in a period when men were served only in barbershops) since it is specifically in point. How, it is said to be anachronistic. The argument rests on the ambiance of our time, on current style. Hew regulations in Hew York State “at which men and women can use the same facility to obtain their hairdressing needs” is said to demonstrate this. However, that regulation requires that licensed barbers and hairdressers be employed to perform services requested by male and female patrons and such shops are to provide enclosed booths for privacy of a patron who desires it. I,ocal barber shop regulations in New York are not shown to lie inapplicable to a barber shop operating jointly with a beauty parlor under the New York regulation. A clipping (appended to the brief) from the Washington Post of July 16, 1972 also states that “until now, separate licenses were required for a beauty parlor and a barber shop and it was illegal to treat the two sexes together unless separate hours or separate parts of a shop were provided.” (Emphasis added).

I find no such comparable provisions in our statutes, i. e., that “it is illegal to treat the two sexes together * * Our statutes do not prohibit both men and women from being served on the same premises for such needs, although separate licenses are, in my judgment, impliedly required. N. J. S. A. 45 :4-l et seq. and N. J. S. A. 45:4A-1 et seq. It is noted that such shops do exist, but this is not to say they must.

The new New York regulation 166.27 of Title 19 of the Official Compilation of Codes, Bules and Regulations of the State of New York provides:

Discrimination between patrons on account of sex prohibited.
(a) No shop licensed pursuant to Articles 27 and 28 of the General Business Law shall discriminate between patrons on account of sex. Both male and female patrons may be served and accommodated in either a licensed barber shop or licensed beauty shop provided the owner employs licensed operators in each category to perform the services requested by the patron, in accordance with the qualifications of the operator specified and required by law.
(b) Any such licensed shop employing both licensed barbers and licensed cosmetologists shall provide an enclosed booth to insure the privacy of any patron, male or female, who requests it.
(c) Each such licensed shop employing licensed barbers and licensed cosmetologists shall post a sign, prominently displayed on the exterior of the premises, advertising the fact that services may be provided to both male and female patrons. [Emphasis added]

This does not support defendant. It is implicit (from the news clipping and the regulation submitted) that in New York a hair styler (beautician) was not licensed to serve men prior to the new regulation, nor is it sanctioned under the new regulation. Men and women can use the same facility under the new regulation provided both “licensed barbers and licensed cosmetologists” are employed “in each category to perform the service ■—■ in accordance with the qualifications of the operator specified and required by law.” The New York regulation referred to does not require the conclusion of unlawful discrimination or of deprivation of a constitutional right here. It does underscore the fact that theretofore a female was required to patronize one and a male the other. Nor does the New York regulation in any way compel such treatment of both sexes together, nor curtail the power of reasonable local regulation of each activity. It provides that “both male and female patrons may be served,” “provided the owner employs licensed operators in each category.” Moreover, the recognition in New York of a need for legislation to meet a reasonable requirement there would not ipso facto render a local regulation in this State unreasonably discriminatory. It is noted, too, that a shop operating under dual licenses “shall” post a sign that “services may be provided to both male and female patrons.” One apparent reason for this would be for the customer preferring privacy.

A beauty parlor serving a male performs the time-honored service of a barber and, in my opinion, is subject to the license requirement (certificate of registration) for a barber as well as local regulatory provisions in this State.

The advent of a “unisex” trend is stressed as demanding a new constitutional approach.

As noted above, it is not the male customer whose right is being directly espoused but the barber shop operator (who inferably suffers from competition when he must be closed). However, the male customer’s rights are involved incidentally. Does he have such right to be served in a beauty parlor? I have found no authority, nor has any been suggested, which holds that a licensed beauty parlor is required by law to serve a male patron. I hold that, excepting for a manicure, the statutory requirements for barbers and barber shops and ordinances regulating them must be met to lawfully serve a male.

It is said that "the distinction between a beauty parlor and a barber shop is a product of a byegone era * *

The Legislature has treated beauty parlors (N. J. S. A. 45:4A—5) separately from that of barbers (N. J. S. A. 45:4-28). It has made a distinction. The licenses and other indicia of authority are discrete requirements. "The Legislature is presumed to know the needs of the people and it may draw distinction based upon degrees of evil without being arbitrary.” Fried v. Kervick, 34 N. J. 68, 75 (1961). The statute dealing with beauty culture clearly implies service of women except in the one instance where (by definition of "beauty culture”) a male may be a patron for a manicure (N. J. S. A. 45:4A—5). Moreover, the beauty parlor ordinance of the township limits service to those "performed upon women.” The statutory definition of a barber shop clearly implies service to men when, for example, it refers to “shaving or trimming the beard.” N. J. 8. A. 45 :4—28. While similarities in the occupations are apparent and differences, in some instances, may be viewed as shadowy, it is for the legislative body to fix a new policy, i. e., that one license shall be sufficient to serve men or women. It is a legislative function to appraise the need and determine the remedy. Thorp v. Bd. of Trustees of Schools for Industrial Ed., 6 N. J. 498, 514 (1951). “If there is a rational basis for a * * * requirement in furtherance of the public welfare, the constitutional issue must be resolved in favor of the legislative power to ordain it.” Kennedy v. Newark, 29 N. J. 178, 183 (1959). In Kennedy it was also urged that changed circumstances demonstrated that an earlier ordinance was unreasonable. The court said this "may well invite the thoughtful consideration of the city government,” but “the power and responsibility are vested in another agency of government. The judiciary cannot exercise that power directly nor indirectly by measuring the policy determination hy a judge’s private view.” (At 185).

Traditionally at least, the distinction was not debatable. Men repaired to barber shops, while women indulged in the beauty parlor. The unisex thesis is not persuasive. Neither the Legislature nor local government is required to promptly meet each change in style or fancy. It would be a monumental task; instability would result. Eights would rest on quite a precarious foundation. Generally, both ordinances and statutes are governed by the same rules of interpretation. Wright v. Vogt, 7 N. J. 1 (1951).

Equal protection is not denied because a regulatory statute might have gone farther than it did, or might have included some persons or classes of persons who were excluded. Regulatory need in a particular field may appear to the legislative mind in different dimensions and proportions; as more acute in one area than in another. Consequently the reform may proceed one step at a time, addressing itself to the aspect of the problem which seems the most pressing. The Legislature may feel that a sufficiently identifiable group or class of people operating partly or wholly in the field under consideration and already subject to some regulation does not present the same problem as those seeking to practice in the field without having met any publicly imposed standards of competence. In short, equal protection does not demand immediate logical tidiness; nor is it violated because the legislation as enacted does not bring about the full reform or result intended to be produced. In an area of many competing pressures the constitution is satisfied if the Legislature, in responding to what it conceived to be living facts calling for regulation, did not disregard reason in drawing its lines. That those lines might have been drawn more suitably in light of the whole problem is not a matter for judicial re-examination. Classification is a perennial and difficult problem, capable of no doctrinaire solution. Basically the solution resides in the legislative domain and the judiciary will not intrude unless the classes established for separate treatment represent invidious discrimination, that is, treatment which has no rational basis in relation to the specific objective of the regulatory legislation. [N. J. Chapter, Amer. Institute of Planners, v. N. J. State Board of Professional Planners, 48 N. J. 581, 602 (1967)]

Assuming, arguendo, that beauty parlors’ opening and closing hours need attention in this locality, is the validity of the barber shop ordinance jeopardized? I think not. There is a strong presumption of constitutionality. W. H. Y. Y., Inc. v. Glassboro, 50 N. J. 6, 13 (1969). The lawmaking body may hit the evil where it is felt most. N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295, 300 (1957). To declare a statute unconstitutional is a judicial power that is delicately exercised. Wilentz v. Hendrickson, 133 N. J. Eq. 447, 487 (Ch. 1943), aff’d 135 N. J. Eq. 244 (E. & A. 1944).

We have no evidence of the purpose, reasoning, or objectives of these ordinances. Defendant has not established absence of need for a distinction beyond a reasonable doubt. “It is true that a classification may not be arbitrary, but the burden of proof is on him who asserts an unjust and illegal discrimination.” W. H. Y. Y., Inc., supra, 50 N. J. at 13. And the burden is an extremely formidable one. N. J. Restaurant Ass’n v. Holderman, supra, 24 N. J. at 300. We are concerned here with public interest in the limited sphere of a municipality. Local conditions may be a factor. Eor example, barber shops may need special attention or beauty parlors may not open as early as barber shops, and the health rationale supporting Amo dio is as valid today as in 1945. Distinctions will be presumed to rest upon a rational basis “if there be any conceivable state of facts which would afford reasonable support for them.” Wilson v. Long Branch, 27 N. J. 360, 377 (1958). And even if validity is fairly debatable the legislative judgment should be allowed to control. Katobimar Realty Co. v. Webster, 20 N. J. 114 (1955).

The Legislature need not regulate all or none. N. J. Chapter, Amer. Institute of Planners v. N. J. State Board of Prof. Planners, supra, 48 N. J. at 601.

As long as the class is reasonably selected there is no invidious discrimination. W. H. Y. Y., Inc., supra, 50 N. J. at 13. “It does not matter that the restriction directly serves a particular class, if thereby the interest of the community at large is also served * * * there is no infringement of the due process clauses.”

A statute will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for doubt. See Fried v. Kervick, supra.

I find no merit to other conclusions drawn by defendant, i. e., that a beauty parlor could employ a licensed barber and thus evade the closing hour regulation of barber shops. In my judgment it could not. I hold that a beauty parlor serving a male after barber shop hours, whether it employs a licensed barber or not, violates the ordinance.

The male trend to seek tonsorial needs in a beauty parlor raises the specter of economic loss to the barber. My analysis of beauty parlor authority places the solution of the unfair competition feature of defendant’s position, in enforcement of the barber shop ordinance and licensing requirements against a beauty parlor which transgresses them. In any case, if the classification is within lawful bounds, a burden on the class regulated is not denial of equal protection. Cf. Gilman v. Newark, 73 N. J. Super. 562, 585, 586 (Law Div. 1962). And cf. Borland v. Bayonne Hospital, 122 N. J. Super. 387 (App. Div. 1973), where it was said “the fact that in so doing, the plaintiff * * * has been put at a competitive disadvantage does no violence to the Constitution.” (p. 18). It must be borne for the general welfare.

It is argued that the Law Against Discrimination, N. J. S. A. 10:5-1 et seq., prohibits distinction on the basis of sex in the “opportunity to obtain employment, and to obtain all the accommodations * * * of any place of public accommodation * * *.”

Paterson Tavern & Grill Owners Ass’n v. Hawthorne, 57 N. J. 180 (1970), is submitted as illustrating the “current irrelevance of antiquated reasoning * * * when the ratio decidendi have been attenuated by time and changed circumstances.” Paterson, supra, dealt with an ordinance that prohibited employment of female bartenders and held (at 186) it to be an unreasonable exercise of the police power “in the light of current customs and mores.” In passing, the court there stated that the “intended scope of the statute (N. J. S. A. 10:1-1) is not entirely clear.” But it was “never intended to bar reasonable police power discriminations.” (At 183; emphasis added). (N. J. S. A. 10:5-4 was not mentioned in Paterson, but the intention cannot be distinguished). The court held the restriction unreasonable and beyond the public need “in the current climate.” It dealt with right to employment.

The opportunity to obtain employment or housing accommodations without invidious distinction is not involved here. Other considerations plainly apply.

N. J. S. A. 10:1-3 and 10:5-4 appear to overlap to some extent. Whatever the scope or sphere in which each act was designed to operate, it is clear that reasonable exercise of the police power was not intended to be curtailed. A proviso is noted in N. J. S. A. 10 :1-3 which permits restriction of accommodations to individuals of one sex “reasonably restricted exclusively to individuals of one sex.” This seems to but codify the concept that reasonable police power discrimination will not transgress civil or constitutional rights. N. J. S. A. 10:5-4 does not have the express proviso. However, that which is clearly implied is as much a part of the law as that which is expressed. “A statute often speaks as plainly by inference as by express words.” Juzek v. Hackensack Water Co., 48 N. J. 302, 314-315 (1966). Moreover, N. J. S. A. 10:1-3 and 10:5-4 should be read in pari materia. They. are both embraced statutorily by the rubric of civil rights. It would be an astonishing proposition that men have a civil or constitutional right to be accepted at a women’s spa, gymnasium, bath house or the YWCA.

Reasonable discrimination on the basis of sex is violative of no lawful right. N. J. S. A. 10:1-3 recognizes this.

The right of privacy suggests itself as a relevant consideration. It has not been raised or argued. Query: Are women entitled to that right in these circumstances? I have found no authority fitting the facts here.

The barber shop licensee must rest his general thesis on the subordinate proposition that a male customer has a constitutional right to receive his needs in a beauty parlor (not licensed as a barber shop). Assuming this to have merit, is he not met by the equally viable and countervailing constitutional right of women to enjoy privacy?

“It is now well settled that the right of privacy having its origin in natural law, is immutable and absolute, and transcends the power of any authority to change or abolish it.” See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101 (Sup. Ct. 1905). It is one of the natural unalienable rights our State Constitution recognized in Art. I, par. 1. McGovern v. Van Riper, 137 N. J. Eq. 24, aff’d 137 N. J. Eq. 548 (E. & A. 1945). (The 1947 Constitutional language is similar).

I do not believe it is necessary to pursue this aspect.

It is my opinion that the principle of autrefois acquit does not apply here; that the ordinance is a reasonable exercise of the police power, and that defendant is not deprived of any civil or constitutional right.

Submit an order consistent herewith including remand for disposition of the charge laid in the complaint.

       This is not to say males have an unqualified right to demand it.

       The Legislature thereafter acted in this area.

       it is literally a misnomer as applied here. It has been defined as “of only one sex” — “having only one type of sexual organ.” American Heritage Dictionary of the English Language (1969). The physical distinction between men and women is fixed and permanent “as far as human eye can see.” An ephemeral fad or fancy cannot alter the fact.


author: Beeslitst, R. W., J. C. C.,

text:
    ROSE MARSHALL AND RICHARD MARSHALL, PLAINTIFFS, v. FORCE MACHINERY CO., A NEW JERSEY CORPORATION, RUTH FORCE, EDYTH MARGOLIS AND EDWARD MARGOLIS, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 10, 1973.

      Messrs. Slaviit, Slrnitt & Fish, attorneys for plaintiffs.

      Messrs. Conant and McCreedy, attorneys for defendants Force Machinery and Ruth Force.

      Messrs. Sach and Sachs, attorneys for defendants Margolis.
   Beeslitst, R. W., J. C. C.,

Temporarily Assigned. This action evolves from a collision between two automobiles that occurred on January 29, 1969 on Mountain Avenue in the Township of Springfield, Union County, New Jersey. Plaintiff Rose Marshall and defendant Ruth Force were responding to an emergency call as members of the Springfield First Aid Squad. Pursuant to a prearranged plan, Mrs. Force had picked up Mrs. Marshall at the latter’s home and they were on their way to the First Aid Squad headquarters to obtain an ambulance. They were travelling in a vehicle driven by Mrs. Force and owned by defendant Force Machinery Co. when a collision occurred with a vehicle owned by defendant Edythe Margolis and operated by defendant Edward Margolis. Mrs. Marshall sustained injuries as a result of the collision and instituted the instant action against Mrs. Force and Edward Margolis for their allegedly negligent operation of the vehicle, and against Force Machinery Co. and Edythe Margolis, as respective owners of the two vehicles, on the basis of alleged agency relationships between said owners and the operators of the respective vehicles. Richard Marshall, Rose Marshall’s husband, asserts a per quod claim against the same defendants.

Motions for summary judgment have been filed on behalf of defendant Force Machinery Co. on the ground that the undisputed facts establish that Ruth Force was not its agent in operating the vehicle, and on behalf of defendant Ruth Force on the ground that the injury to Rose Marshall was compensable under the Workmen’s Compensation Act and therefore N. J. S. A. 34:15-8 precludes this claim as one against a co-employee.

In opposing the motion of defendant Force Machinery Co. plaintiffs rely on the familiar presumption that the operator of a motor vehicle was the agent of the owner and was operating the vehicle within the scope of the agency. Cowan v. Kaminow, 128 N. J. L. 398 (E. & A. 1942); Tischler v. Steinholtz, 99 N. J. L. 149 (E. & A. 1923). The presumption, however, is rebuttable, and if the owner presents uncontradicted evidence that the driver was not, in fact, his agent, the trial judge must decide the issue in favor of the owner. Harvey v. Craw, 110 N. J. Super. 68 (App. Div. 1970).

In the instant case it appears without dispute that at the time of the accident defendant Ruth Force was operating the vehicle for the purpose of responding to an emergency call in connection with her membership in the Springfield First Aid Squad. Such activity had nothing to do with the Force Machinery Co. The fact, brought out in the deposition of Mrs. Force, that her husband was the principal stockholder of the company and that she herself owned stock in the company in no way serves to support a finding of agency. That she had been given permission by Force Machinery Co. to use the vehicle is also irrelevant in the face of the undisputed fact that she was not serving the interests of the company at the time. The motion by defendant Force Machinery Co. for summary judgment must therefore be granted.

Plaintiff Rose Marshall received an award pursuant to the Workmen’s Compensation Act, N. J. S. A. 34:15-1 et seq., by a judgment of the Division of Workmen’s Compensation dated July 26, 1971. The award was based upon the injuries in the accident in question. Defendant Ruth Force contends that she is therefore entitled to the benefit of N. J. S. A. 34:15-8, which provides in relevant part:

If an injury or death is compensable under this article, 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.

Plaintiffs contend that it has not been established that the accident was one “arising out of and in the course of his or her employment,” N. J. S. A. 34:15-7, nor that the injury was therefore' “compensable under this article,” N. J. S. A. 34:15-8. Initially, the court finds it difficult to justify the instant claim against Mrs. Force since plaintiffs now attempt to abandon and disavow allegations that were implicitly made on Mrs. Marshall’s behalf in the proceeding before the Division of Workmen’s Compensation, i. e., that the accident was one arising out of and in the course of employment and was compensable under the act. Would it not be reasonable for the court to hold that plaintiffs are now estopped to make contrary allegations, or that a binding election was made when the compensation claim was filed and pursued to judgment? What plaintiffs attempt to do here is to be distinguished from a case where, after receiving a compensation award, an employee proceeds against a third party on the theory that, in fact, the injury was caused by the negligence of the third party, either solely or jointly with negligence imputable to the employer. Such a course of action is implicitly recognized by N. J. S. A. 34:15-40 (“Liability of Third Party”) and does not involve inconsistent allegations on the part of the employee, since pinpointing responsibility in negligence is not the object of the compensation proceeding. In the instant case plaintiffs legitimately proceed against Edythe and Edward Margolis for their alleged negligence. On the other hand, determinations as to whether the injury was employment-related and therefore compensable under the act are relevant to the compensation proceeding and, in fact, involve the very jurisdiction of the Compensation Division to render an award. However, the court will not dispose of this motion on an estoppel basis but instead will proceed to discuss the issue, which plaintiffs desire to have judicially determined, as to the compensability of Mrs. Marshall’s injuries under the Workmen’s Compensation Act.

Clearly, the act was made applicable to first aid squad workers by virtue of N. J. S. A. 34:15-43. Compulsory insurance for the benefit of such workers was mandated by N. J. S. A. 34:15-43. The heart of the instant issue is whether, under the facts of this case, the accident can be said to have arisen out of or been in the course of the employment of Mrs. Marshall and Mrs. Force as first aid squad workers since they were responding to an emergency call at the time of the accident.

A discussion of this issue necessarily requires mention of the so-called “going and coming rule,” by virtue of which, subject to exceptions, travel to and from a place of employment is considered unrelated to the employment to the extent that compensation is not authorized for injuries sustained by an employee during such travel. See, e. g., Moosebrugger v. Prospect Presbyterian Church, 12 N. J. 212 (1953); Grady v. Nevins Church Press Co., 120 N. J. L. 351 (E. & A. 1938); Gilroy v. Standard Oil Co., 107 N. J. L. 170 (E. & A. 1930). Eor a discussion of the rule see Note, “Arising 'out of’ and 'in the course of’ the employment under the New Jersey Workmen’s Compensation Act,” 20 Rutgers L. Rev. 599 (1966). The Supreme Court recently questioned the continued viability of the rule in Bergman v. Parnes Brothers, Inc., 58 N. J. 559 (1971). That exceptions to the rule have evolved is due, perhaps, to the fact that our courts have consistently held that the Workmen’s Compensation Act is to be construed liberally so as to bring as many cases as possible within its coverage. Thering v. Reinkemeyer, 117 N. J. Super. 176 (Law Div. 1971); Grant v. Blazer Coordinating Council of Youth Development, 111 N. J. Super. 125 (Cty. Ct. 1970), modified on other grounds, 116 N. J. Super. 460 (App. Div. 1971).

There is no need in the instant case to discuss the many reported decisions involving exceptions to the “going and coming rule” since the Legislature has, in effect, expressly mandated an exception in the case of volunteer first aid squad workers, and others, in N. J. S. A. 34:15-43. That statutory section provides, in relevant part that such workers are to be compensated under the act when injured while “doing public first aid or rescue duty.” The statute then defines the quoted phrase as including “the rendering of assistance [in connection with events affecting public health or safety] while such assistance is being rendered and while going to and returning from the place in which it is rew dered.” (Emphasis added). The instant case is controlled by said section. One can assume that the Workmen’s Compensation Division took particular cognizance of it in adjudging Mrs. Marshall’s entitlement to the compensation award. Since Mrs. Force and Mrs. Marshall responded to the emergency call from their homes, they were clearly on their way at the time of the accident to the place where their assistance was needed, notwithstanding the fact that they had to stop at headquarters to pick up an ambulance.

There is no merit to plaintiffs’ contention that N. J. S. A. 34:15-8 (immunizing co-employees from liability for compensable injuries) is not applicable to cases involving first aid squad workers. Nothing in the statute would indicate that such cases are to be treated differently from other cases, as far as co-employees are concerned. The Legislature has taken pains to be especially liberal in providing compensation recovery for first aid workers and the other types of workers enumerated in N. J. S. A. 34:15-43. However, along with receiving the benefits of the act, such workers must assume the ÍCburdens,” i. e., the loss of any common law rights as against the employer and co-employees. Volek v. Deal, 83 N. J. Super. 58 (App. Div. 1964).

Summary judgment must therefore be granted, dismissing plaintiffs’ complaint, including the per quod claim by Eichard Marshall, which is merely incidental to and dependent upon the claim of Eose Marshall. Konitch v. Hartung, 81 N. J. Super. 376 (App. Div. 1963).

The court now turns to a consideration of the motion by defendant Euth Force to dismiss the crossclaim by the Margolises for contribution. Since Mrs. Force has prevailed on her motion to dismiss the complaint, the crossclaim must now be considered, in effect, a third-party complaint. The claim, however, must be dismissed on the basis of N. J. S. A. 34:15-8 and the reasoning of Farren v. N. J. Turnpike Authority, 31 N. J. Super. 356 (App. Div. 1954).

In Farren the Appellate Division held that a third-party complaint for contribution would not lie against an employer by an alleged tortfeasor who had been sued by an injured employee. The third-party plaintiff had sought to establish that the employer had been guilty of negligence which contributed to a situation wherein the employee was injured. The court held that the Workmen’s Compensation Act rendered the employer liable by statute and not “liable in tort” within the meaning of N. J. S. A. 2A :53A-1, which defines “joint tortfeasors” for purposes of the Joint Tortfeasors Contribution Law, N. J. S. A. 2A:53A-1 ei seq. Contribution could therefore not be had under that law.

The instant situation is, perhaps, an even stronger one for nonliability than was Farren, in that a co-employee, according to N. J. S. A. 34:15-8, is “not * * * liable to anyone at common law .or otherwise” for a compensable injury sustained by a fellow employee through said eo-emplovee’s negligence. The co-employer is therefore entitled to invoke a complete statutory immunity in such cases, as compared to the statutory limitation of liability invoked by the employer in Farren.

For the foregoing reasons, the motions by defendant Force Machinery Co. and defendant Ruth Force for dismissal of all claims against them are granted.


author: Stallek, J. C. C.

text:
    RUSLAINE HOMES, A NEW JERSEY CORPORATION, PLAINTIFF, v. MARION D. GUEST AND PATRICIA A. HAFER, JOHN SCARPA AND CHELSEA TITLE AND GUARANTY COMPANY, A NEW JERSEY CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Cape May County Court, Law Division
    Decided April 13, 1973.

      Mr. Norman Zlot-nick for plaintiff (Messrs. Pershie and Qallinan, attorneys).

      Mr. Vincent Lamanna for defendants Marion D. Guest and Patricia A. Hafer (Messrs. Rubins and Lamanna, attorneys).

      Mr. Robert- Butler for defendant John Scarpa (Messrs. Tuso and Gruccio, attorneys).
   Stallek, J. C. C.

The defendants have moved to set aside, and to have declared invalid, the lien claim filed hy the plaintiff corporation under the provisions of N. J. 8. A. 3 A :44-75.

The defendants negotiated wtih the plaintiff, a builder, for the construction of two duplex homes. As a result of the negotiations, an agreement was entered into on April 16, 1972, between the defendants, designated as owners of the lands upon which the structures were to be erected, and the plaintiff, as building contractor. Thereafter on May 23, 1972, a further contract was executed by the defendants, designated as owners, and the building contractor. The difference between the two contracts was the completion date, the position of the structure on the land and the amount of consideration, it having been reduced by $600 in the second agreement. In both contracts, it was provided that the contract was to be “recorded” in the office of the Clerk of Cape May County prior to the commencement of any work being done. Both contracts, with specifications, were filed in the Clerk’s office on May 26, 1972; and the builder then commenced to build, continuing to work thru the next several weeks and months until August 2, 1972. Then on August 17, 1972, building contractor filed the lien claim, sought herein to be set aside.

Although the agreement executed by the defendants referred to them throughout as owners, the title had not, at that time, been conveyed. The defendants had an agreement to purchase the lands from one Scarpa; and settlement was had under that agreement of sale of the lands on June 10, 1972, at which time title was conveyed to them just 18 days after the date of the second agreement and 15 days after the date of filing.

During the time of construction, plaintiff paid subcontractors out of funds either received on account from the defendants or out of funds which plaintiff borrowed to meet payments to such subcontractors, who looked to the contractor because of the filed contract.

Defendants contend that the lien claim is invalid, not by reason of any improper procedure in its filing or suit thereon but because, at the time the contract was signed and filed, the defendants were not the record owners of the land as required by the statute; and this defect in the filed contract renders the subsequent filing of the lien claim nugatory.

The Mechanics Lien Act wtih respect to the filing of building contracts at N. J. 8. A. 2A -A4r-75 sets forth.

If a building is erected, constructed, completed, altered, repaired, or added to in whole or in part under a written contract, signed by the record owner of the estate or interest in the land which is to be charged with a lien under this article, the building and the land on which it stands shall, to the extent of the estate or interest so charged, be liable to the lien of the contractor alone for labor performed or materials furnished pursuant to the contract, if the contract or a duplicate thereof, together with the specifications accompanying the contract or a copy or copies thereof, are, before the labor is performed or materials furnished, filed with the proper county clerk. The plans need not be filed, whether or not referred to in the contract. The filing of such contract shall be in lieu of filing a mechanics notice of intention under this article. [Emphasis added]

The defendants rely solely upon Woodbridge Lumber Co. v. Varacska, et al., and Nielsen v. Varacska, et al., a decision of Circuit Court of New Jersey for Middlesex County in 1937, reported in 194 A. 392. Here the plaintiffs, apparently materialmen or mechanics or both, brought suit upon a lien claim against William and Julia Yaracska as owners, and against the builder, who filed no answer; and judgment was taken against him by default. The owners Yaracska answered that the contract had been filed and therefore the plaintiffs could not assert a lien claim against them. The plaintiffs moved to strike that portion of the answer on the ground that the filing of the contract was ineffectual to protect the premises against mechanics lien claims because it was not signed by the record owner. It had been signed by William Yaracska but not by his wife, Julia. The court refused to strike the Yaracska answers, in effect holding that the contract though signed by only one of the record owners was indeed effectual to bar the plaintiffs; and the material-men must look to the contractor, the Yaracska’s lands being free from claims of all others.

The holding in Woodbridge Lumber Co. does not support the contention asserted by defendants here. However the language of that decision is most significant to a consideration of the construction of the statute and its applicability to the ease sub judice.

It is to be remembered that what defendants are seeking here is to vacate from their lands a contractors’ lien for construction costs of buildings erected for their benefit. There are no materialmen, laborers or subcontractors asserting claims against the defendants. The only claim sought to be asserted is that of the contractor alone. The defendants seek to remove the very protection the Mechanics Lien Act was designed to afford by claiming that, although they were equitable owners of the land, they had not yet become the record owners when they signed the contracts which the contractor filed.

In Woodbridge, the court refused to burden the owners with having to pay the builder under the contract and again having to pay the materialmen for the same thing. In effect the Varacskas were protected from paying twice. Here the defendants ask this court to help them avoid a charge on their lands to compel them to pay even once. This, on the bare contention that the strict language of the statute gives them the right to avoid obligating their lands for the payment of a debt which may be due to the plaintiff.

The purpose of the statute, as set forth in Woodbridge, at 394 is “to secure to persons furnishing labor or materials for use in the construction of a building payment for such labor and materials .... it [is] also the purpose of the statute to provide a means by which owners might have a building erected for them without subjecting the land and building to a lien in favor of a person or persons to them unknown involving amounts over which the owner would have no control”.

The intention of the Legislature in enacting such a statute requiring signature by the record owner was explored by the Court in Woodbridge Lumber. It found that the statute had been enacted to eliminate conditions theretofore existing wherein courts had held that where a contract was filed, it did not necessarily need to be a contract with the owner, and it was therefore impossible for a materialman or laborer to know who the owner was without examining the record of the title. In such instances, where a construction contract was entered into by someone who had no connection with the owner, or, at best, was acting for an undisclosed principal, materialmen and laborers were unable to serve stop notices upon the owners but had to rely on the financial responsibility of the person making the contract. Where such person was in fact the owner, the materialman was given some security for his payment because if the owner disregarded the stop notice, proceedings could then be taken against the owner to obtain judgment and levy against his land. Thus, the court reasoned at 395, that since the one purpose of the statute was to secure payment to material-man, it was reasonable to require that land should not be exempt from a lien unless the owner was the one who signed the contract with the builder.

While it is true that the provisions of statutory lien should as a general principle be strictly construed, Key Agency v. Continental Casualty Co., 55 N. J. Super. 58, 63 (Ch. Div. 1959), aff'd. 31 N. J. 98, the provisions for enforcement of the lien thereby created are to be liberally construed to effectuate the remedial statutory policy of providing priority of payment of the price or value of the work performed or materials furnished in the erection or repair of a building. Friedman v. Stein, 4 N. J. 34-40 (1950); J. T. Evans Co. v. Fanelli, 59 N. J. Super. 19, 23 (Law Div. 1960); see Morris County Industrial Park v. Thomas Nicol Co., 35 N. J. 522, 526 (1961).

As was stated in American Homes v. Krantz, 131 N. J. Eq. 213, 213-215 (Ch. 1942).

The objective of the.statute is to give notice to persons other than the original contractor, who may be about to furnish material or labor for the construction of the building, that they cannot rely upon a lien for their payment.

And in J. R. Christ Construction Co. v. Willetex Associates, 47 N. J. 473, 478 (1966), the court stated.

Mechanics lien statutes are remedial and are designed to guarantee effective security to those who furnish labor or materials used to enhance the value of property of others, and, where the terms of the statute reasonably permit, the law should be construed to effect this remedial purpose.

It is obvious that the design and objective of the Mechanics Lien Act is to protect the materialman and laborer and, under N. J. S. A. 2A:44-75, the contractor as well. To permit the defendants to vacate the contractors’ lien on their lands would be to thwart that design and objective. The defendants hold no predominant position, as against the contractor who constructed buildings on their land, to set aside that contractor’s claim on the mere technicality that at the time they signed the building contract, which was then filed in good faith, they were not then the owners, but became the owners some two or three weeks later.

Moreover, even though the defendants were not record owners at the time they executed the contract and became owners a few weeks after the contract was filed, they could not prevail in any event to set aside the lien claim here. N. J. S. A. 2A:44-75 and its predecessors has been interpreted in numerous decisions to be applicable when the lien is filed. Where property is conveyed between the time of making the contract and the time of filing the contractors’ lien, the person or persons holding title when the lien is filed, are the proper ones to be made parties. Derrickson v. Edwards, 29 N. J. L. 468, 472-73 (E. & A. 1861); Robins v. Bunn and Barber, et al., 34 N. J. L. 322, 324 (Sup. Ct. 1870); Jacobus v Mutual Benefit Life Insurance Co., 27 N. J. Eq. 604, 627 (E. & A. 1876); Essex Sash and Door Co. v. Murphy, 11 N. J. Misc. 92, 94 (Hudson Cty. Ct. 1933). See Edwards v. Derrickson, 28 N. J. L. 39, 78 (Sup. Ct. 1859). Cf. Macintosh v. Thurston, 25 N. J. Eq. 242, 247-248 (Ch. 1874); Clark v. Butler, 32 N. J. Eq. 664, 667 (Ch. 1880); Stewart Contracting Co. v. Trenton, 71 N. J. L. 568, 573 (E. & A. 1905). Eor example, the Court of Errors and Appeals said, in Jacobus v. Mutual Benefit Life Insurance Co., supra, at 627:

. . . the owner who is to be made defendant to suits under our Lien Law, is he who stands in that relation, not when the building begins, but when the lein claim is filed, when first a record is made to which subsequent proceedings to enforce the claim must conform, and after which they may be said to be lis pendens.

The now owners, the defendants herein, are proper parties to this action against whom the lien claim may be enforced.

Here, where the defendants signed the construction contract as owners of record; where they subsequently became owners of record; where the lien claim on the construction agreed upon in the contract was filed after the defendants had become record owners; where the construction was continued after defendants had become owners of record, with their acquiescence to the continued construction which benefitted their property, the lien claim will not be set aside.

Motion denied. Submit order.