author: Pee Cukiam.

text:
    ELIZABETH A. SALSMAN (FORMERLY ELIZABETH A. ODGERS), INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ARTHUR J. ODGERS, DECEASED, PLAINTIFF-RESPONDENT, v. NATIONAL COMMUNITY BANK OF RUTHERFORD, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, v. HAROLD BRESLOW AND THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, THIRD PARTY DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 10, 1969
    Decided March 19, 1969.
    Before Judges Sullivan, Poley and Lewis.

      Mr. William B. Morrison argued the cause for appellant (Messrs. Morrison> Lloyd & Griggs, attorneys).

      Mr. John B. Weigel argued the cause for respondent (Messrs. James L. B. Lafferty and James L. McKeon, Jr. of counsel; Messrs. Lafferty, Bowe, McMahon & McKeon, attorneys).
   Pee Cukiam.

The judgment herein is affirmed substantially for the reasons expressed by Judge Botter in his opinion reported at 102 N. J. Super. 482 (Law Div. 1968). Affirmed.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    GEORGE W. SCHULTZ, PUBLISHER, PETITIONER-APPELLANT, v. BOARD OF EDUCATION OF THE BOROUGH OF WANAQUE, PASSAIC COUNTY, NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted March 10, 1969
    Decided March 20, 1969.

      Before Judges Coneobd, Kilkenny and Leonaed.

      Messrs. Young & Sears, attorneys for appellant (Mr. Harry L. Sears, on the brief).

      Messrs. Grabow, Very & Rosenfelt, attorneys for respondent Board of Education of the Borough of Wanaque (Mr. Robert Chimileslci, on the brief).

      Mr. Arthur J. Sills, Attorney General, attorney for State Board of Education (Mr. Robert H. Greenwood, Deputy Attorney General, of counsel).
   Pee Cueiam.

The critical issue here presented is whether petitioner’s newspaper, The Wanaque Bulletin (Bulletin), is, within the meaning of N. J. 8. 18A :22-ll, published in the Borough of Wanaque.

In the latter part of 1966 petitioner applied to respondent board of education of Wanaque (hereinafter local board) to have the Bulletin exclusively used in the publication of notices of the local board. Particularly, he sought publication of the notice of the public hearing to be held on the school budget and of the siatcment annexed to the budget for the years 1966-67 and 1967-68. He asserted that since the Bulletin was the only newspaper published in Wanaque, N.J.S.A. 18:7-77.1 (now N. J. S. 1SA:22-11) prohibited the local board from publishing these notices in any other newspaper. His application was denied and the local board ordered the requisite notices to he placed in the Paterson Evening News, a newspaper admittedly not published in Wanaque.

Petitioner appealed to tile Commissioner of Education and, upon the latter’s affirmance of the decision of the local board, he appealed to the State Board of Education. The latter, in affirming the Commissioner, determined that the Bulletin was not published in Wanaque. We disagree.

N. J. S. 18A : 2 2-11 provides as follows:

“The board of education shall cause notice of such public hearing and the statement annexed to the budget to be published at least once in at least one newspaper published in the district and if no newspaper be published therein, then in at least one newspaper circulating in said district not less than seven days prior to the date fixed for such public hearing.”

The local hoard concedes that if it be determined that the Bulletin is published in Wanaque, then the cited statute mandates publication therein of the pertinent items.

The "place of publication of a newspaper is where the paper is first put into circulation, where it is first issued to bo delivered or sent, by mail or otherwise, to its subscribers.” Montesano v. Liberty Warehouse Co., 121 N. J. L. 124, 125 (E. & A. 1938). See also Wildwood, etc., Pub. Co. v. Wildwood, 35 N. J. Super. 543, 547 (Law Div. 1955). A newspaper may be considered published in a place where it is not printed. Montesano, supra, 121 N. J. L., at p. 125.

It is not disputed that a second-class mailing permit has been accorded to the Bulletin by the Wanaque postoffice since 1950. The paid circulation of the newspaper varies from 450 to 720 issues. Of this amount, 325 are mailed through the Wanaque postoffice. The balance are sold through three newsstands and carriers within the borough.

Although the paper is printed in Butler and River-dale, the Bulletin maintains an office (a counter and a desk) in a store in Wanaque. This office is listed on the masthead of the paper as the publication office. The office is open between 9 a. m. and 5 i?, m. on weekdays and someone is there during these times for the transaction of business. Mail is received, news items are left, advertising space is ordered and paid for, and bills are paid at that office. Further, some news articles are prepared for printing in the newspaper on these premises.

Under all the circumstances here present we find that the Bulletin is “first put into circulation” in Wanaque. Consequently, we conclude that it is, within the meaning of N. J. 8. 18A :22-ll, published in that borough. Therefore, the local board must cause the notice of public hearings of its budget and the statement annexed thereto to be published in the Bulletin.

Reversed and remanded to the State Board of Education for the entry of an order in conformity herewith.


author: Goldmafn, S. J. A. D.

text:
    GARDEN STATE PARKWAY EMPLOYEES UNION, LOCAL 196, A. F. T. E., AFL/CIO AND FRANCIS A. FORST, INTERNATIONAL REPRESENTATIVE, PLAINTIFFS - APPELLANTS, v. NEW JERSEY HIGHWAY AUTHORITY, GARDEN STATE PARKWAY, AND RICHARD R. O’CONNOR, TREASURER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 17, 1969
    Decided March 21, 1969.

      Before Judges Goldmantst, .Kolovsky and Cabton.

      Mr. Bernard L. Greenberg argued the cause for appellants.

      Mr. Theodore W. Geiser argued the cause for respondents {Messrs. Pindar, McFlroy, Connell & Foley, attorneys).
   The opinion of the court was delivered by

Goldmafn, S. J. A. D.

The single question here is whether the Yew Jersey Highway Authority, established by N. J. 8. A. 27:125-4, and which constructed, maintains and operates the Garden State Parkway under N. J. S. A. 27:125-20, is subject to the provisions of L. 1967, c. 310, § 1 (N. J. S. A. 52:14-15.9e), which reads in pertinent part:

“Whenever any person holding employment, whose compensation is paid by this State * * * or by any board, body, agency or commission thereof shall indicate in writing to the proper disbursing officer his desire to have any deductions made from his compensation, for the purpose of paying an employee’s dues to a bona fide employee organization, designated by the employee in such request, and of which said employee is a member, such disbursing officer shall make such deduction from the compensation of such person and such disbursing officer shall transmit the sum so deducted to the employee organization designated by the employee in such request.”

Plaintiff is a bona fide union, and some 150 of its members, employees of the Authority, gave proper written notice to defendant O’Connor, the Authority treasurer, to deduct union dues from their wages. Their request was turned down.

Plaintiff argues that the Authority is a board, body or agency of the State, constituted as “an instrumentality exercising public and essential governmental functions,” N. J. 8. A. 27:125-4, and therefore subject to the 1967 statute. We disagree. The latter statute contains no reference to independent authorities such as defendant. Although the Authority admittedly exercises public and essential governmental functions, our cases have recognized the distinction which exists between an ordinary state agency operating as an arm of the Executive Branch and the various authorities which the Legislature has created as entities independent of the State. See New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, 243-244 (1949), and State v. Maas & Waldstein Co., 83 N. J. Super. 211, 219 (1964).

It is to be noted that whenever the Legislature intended to include authorities within the ambit of certain legislation, it expressly so provided. See N. J. S. A. 43 :15A-73 making the Public Employees Retirement System applicable to various authorities and commissions; N. J. S. A. 34:13A-3(c), part of the 1968 New Jersey Employer-Employee Relations Act (.L. 1968, c. 303), which makes the act applicable to “any authority, commission, or board, or any branch or agency of the public service”; and N. J. S. A. 52:14-17.35, which includes the New Jersey Highway Authority among “employers” subject to the State Employees Health Benefits Act. Cf. Jacobs v. New Jersey State Highway Authority, 101 N. J. Super. 572 (App. Div. 1968); Kingston Bituminous Products Co. v. New Jersey Turnpike Authority, 80 N. J. Super. 25 (App. Div. 1963).

Since defendant Authority is not a state administrative agency, it does not come within the purview of B. B. 4:88-8. It is a body corporate and politic which may be sued in the trial divisions. N. J. S. A. 27 -.12B-5{d). Plaintiffs’ action was therefore properly instituted in the Chancery Division and should not have been transferred to this court. However, in the interest of preserving judicial time, we have dealt with this matter on the merits.

The complaint is dismissed. No costs.


author: Pee GufiiAM.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. KENNETH HEARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 10, 1969
    Decided March 25, 1969.

      Before Judges G Attlees', Qollestek and Labkecqxje.

      Mr. Gerald T. Foley, Jr., Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Neil S. Cooper, Assistant Prosecutor, argued the cause for respondent {Mr. Leo Kaplowitz, Union County Prosecutor, attorney).
   Pee GufiiAM.

Defendant was convicted upon an indictment which charged that he “did willfully and maliciously set fire to a motor vehicle * * * with intent to burn the said motor vehicle,” contrary to N. J. S. 2A :89-2. He appeals on three grounds: (1) “Arson was not committed because there was no burning, merely a scorching”; (2) “the judge in his charge told the jury that Heard had thrown the bomb,” and (3) “the shirt which the state claimed belonged to Heard should not have been admitted into evidence.”

Defendant allegedly threw a lighted gasoline bomb at a fire truck. He states that “the portion of the truck hit by the bomb was a metal turntable * * *. It did not burn. It merely had to be cleaned because it had been scorched. The only thing that burned was the gasoline on the metal. When the fire went out, the metal remained intact. Its identity had not changed, it was not altered or destroyed in any way.” Defendant argues that this was not sufficient to constitute “arson,” citing State v. Morris, 98 N. J. L. 621 (Sup. Ct. 1923), affirmed 99 N. J. L. 526 (E. & A. 1924), State v. Schenk, 100 N. J. Super. 122 (App. Div. 1968), and similar cases. However, defendant was not charged with “arson,” either as defined by the common law or by N. J. S. 2A :89—1. He was charged with violation of N. J. S. 2A :89—2, which is quite different from N. J. S. 2A :89-l. See State v. Pirone, 78 N. J. Super. 158, 160 (App. Div. 1963) ; State v. Quatro, 31 N. J. Super. 51 (App. Div. 1952). N. J. S. 2A :89-2 provides:

“Any person who willfully or maliciously burns or sets fire to with intent to burn:
a. Any building, whether it be his own or that of another, not a part of a dwelling house; or
b. Any ship or other vessel, vehicle, motor vehicle or aircraft, whether it be his own or that of another, or
c. Any church, meetinghouse, or public building —
Is guilty of a high misdemeanor.”

We hold that the burning required for arson under the common law or under N. J. S. 2A :89-l is not essential to establish setting fire with intent to burn under N. J. 8. 2A :89-2, and that what happened here constituted such setting fire. So, for example, if one spreads inflammables in a building, vessel, vehicle, etc., and ignites them with intent to burn, but the property fails to burn because it is fireproof, he is guilty under N. J. 8. 2A :89-2 no matter how slight the resulting damage.

We find no merit in the remaining points raised by defendant.

Affirmed.


author: Sullivan, S. J. A. D.

text:
    NEW JERSEY STATE HOTEL-MOTEL ASSOCIATION, A CORPORATION NOT FOR PROFIT OF THE STATE OF NEW JERSEY, ET AL., PLAINTIFFS, v. RAYMOND F. MALE, COMMISSIONER, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued March 10, 1969
    Decided March 25, 1969.

      Before Judges Sui/livan, Eoley and Lewis.

      Mr. Andrew A. Valeriani, Jr., Deputy Attorney General, argued the cause for defendant {Mr. Stephen L. STcillman, Deputy Attorney General, of counsel; Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Gerald Weinstein argued the cause for appellants {Messrs. Lloyd, Megargee, Steedle, Weinstein & Horn, attorneys).
   The opinion of the court was delivered by

Sullivan, S. J. A. D.

This is an action under B. B. 4:88-10 brought by the New Jersey State Hotel-Motel Association and its individual members to review the validity of Wage Order No. 3, governing employment in hotel and motel occupations, promulgated by the defendant Raymond P. Male, Commissioner, Department of Labor and Industry, State of New Jersey, on May 7, 1968 and effective November 6, 1968. The action also seeks to review the validity of certain interim administrative regulations which embodied the provisions of Wage Order No. 3 and which operated until the order became effective. The wage order and regulations fix a minimum wage rate with overtime provisions for employees in hotel and motel occupations, including employees under the age of 18 years, and also provide that cash wages shall not fall below a specified percentage (depending on the occupation) of the minimum wage rate per hour after allowances are made for gratuities, food and lodging.

It is unnecessary to review the history of minimum wage legislation in this State. Suffice it to note that the present law (New Jersey State Wage and Hour Law) provides for a minimum rate of pay and an overtime rate applicable to employers and employees in the State, with certain exceptions. In addition, the law empowers the Commissioner to issue a wage order establishing minimum fair wage rates for employees in a particular occupation or occupations. The law outlines the procedure to be followed before a wage order may be issued. This includes the appointment of a wage board to make recommendations to the Commissioner. The Commissioner is empowered to issue interim administrative regulations to be operative until a wage order has been promulgated and becomes effective.

It is first contended by plaintiffs that since the wage board did not file its report within the time limitation set forth in the law (60 days of its organization), its attempted report was a nullity and the wage order and the administrative regulations based on the report must fail.

It is also argued that the Commissioner was required by the law to approve or disapprove the wage board’s report within ten days after the public hearing on the recommendations contained in the report, and that his failure to do so invalidates the wage order and the regulations.

We see no merit to these contentions. The time limitations provided in the law are clearly intended to be directory only and not jurisdictional. Cf Howell Tp. v. Division of Tax Appeals, 99 N. J. Super. 11 (App. Div. 1968).

The omission of the wage board and the Commissioner (assuming the Commissioner was required to act on the report within ten days after the public hearing) to meet the time limitations did not invalidate their actions. The only sanction provided in the act for failure of the wage board to submit its report within 60 days of its organization is: "the commissioner may constitute a new wage board.” N. J. S. A. 34:ll-o6al4. The Commissioner’s jurisdiction over the subject matter is admitted. No prejudice is asserted to flow from the alleged delays. The law is social legislation designed to correct abuses in employment. It would be a miscarriage of justice to invalidate the Commissioner’s efforts to remedy abuses in employment in hotel and motel occupations on technical grounds unrelated to the merits of the question.

Plaintiffs also argue that the Commissioner had no power to issue a wage order or regulations, providing for overtime pay to hotel employees, or extending coverage to persons under the age of 18, because the Legislature had provided otherwise in the enabling law. We do not agree. Coneededly, the provisions of the law establishing a minimum wage with overtime provisions, applicable generally throughout the State, contain certain exceptions. Thus, it is provided that the minimum wage rates “fixed in this section” shall not be applicable to (among others) persons under the age of 18. The law also provides that “the provisions of this section” for overtime pay shall not apply to (among others) hotel employees. N. J. S. A. 34:11-56a4. However, this does not circumscribe the Commissioner’s power via a wage order and regulations to establish minimum fair wage rates covering employment in a particular occupation or occupations.

Under N. J. S. A. 34:11-56a13 the wage board may recommend the “establishment” of an overtime rate in the particular occupation for which the wage board was appointed. Since overtime is provided for under N. J. S. A. 34:11-56a4 as to all occupations, save those specifically excepted, manifestly a wage board recommendation for the “establishment” of an overtime rate would have to be in one of the occupations excepted from the overtime provisions of N. J. S. A. 34:11-56a4.

The same reasoning applies equally to the exception as to persons under the age of 18 from “the wage rates fixed in this section.” N. J. 8. A. 34:11-56a4. It seems clear that the Legislature did not intend to completely exclude this class of employees from the protection of the act. Rather, the Commissioner was empowered, via wage order and regulations, to formulate a flexible standard of minimum wage rates for persons under the age of 18, taking into consideration the particular occupation or occupations involved and other relevant factors.

Plaintiffs also contend that the Commissioner erred in including in his wage order provisions that, in the various occupations in hotels and motels, cash wages .shall not fall below specified percentages of the applicable minimum wage rate per hour after allowances are made for gratuities, food and lodging. It is plaintiffs’ contention that, under the law, they are entitled to credit against the minimum wage established, the actual value of gratuities, food and lodging, and that the Commissioner has no power to fix a limitation on the amount of credit that the employer may receive. The law (N. J. S. A. 34:11-56a1 (d)) provides:

“ ‘Wages’ means any moneys due an employee from an employer for services rendered or made available by the employee to the employer as a result of their employment relationship including commissions, bonus and piecework compensation and including any gratuities received by an employee for services rendered for an employer or a customer of an employer and the fair value of any food or lodgings supplied by an employer to an employee. The commissioner may, by regulation, establish the average value of gratuities received by an employee in any occupation and the fair value of food and lodging provided to employees in any occupation which average values shall be acceptable for the purposes of determining compliance with this act in the absence of evidence of the actual value of such items.”

The Attorney General’s Office, appearing on behalf of the Commissioner, relies on N. J. S. A. 34:11-56a16, which provides that the Commissioner may include in a wage order regulations “defining and governing * * * deductions for board, lodging * * * supplied by the employer; * * * excluding gratuities.”

It, is argued that this latter provision permits the Commissioner to establish maximum allowances for board and lodging. However, it is conceded that while the Commissioner may establish the average value of gratuities received by an employee, the employer would be entitled to a credit for the actual amount of such gratuities if they exceed the average value established by the Commissioner and provided he can substantiate such actual value. To this limited extent the Attorney General concedes that Wage Order Ho. 3 should be modified.

We are in full agreement with the position taken by the Attorney General. We understand the law to permit the Commissioner, not only to establish the fair value of food and lodging provided an employee which shall be acceptable for the purposes of determining compliance with the wage order, hut also to set a maximum credit against the wage rates fixed, which an employer may take for such food and lodging. Otherwise an employee might receive no cash wages at all if the employer could produce evidence that the actual value of the food and lodging furnished exceeded the minimum wage rate fixed.

Gratuities are in a different catgory. They are cash which the employee actually receives. The Commissioner has the power to fix the average value of such gratuities which shall be acceptable for the purposes of determining compliance with the wage order, but the law provides that such average value shall be acceptable only in the absence of evidence of the actual value of such gratuities. N. J. S. A. 34:11-56 a1(d).

In short, we conclude that the Commissioner may fix a maximum credit for food and lodging but not for gratuities. As to the latter, he may establish an average value which shall apply in the absence of evidence of actual value.

We note that the interim regulations expired on November 5, 1968 during the pendency of this appeal. Accordingly, judgment will be entered upholding the validity of Wage Order No. 3, except insofar as a limitation is placed on the amount of gratuity credit that can be taken by an employer.


author: Pee Cubiam.

text:
    AARON MATHIS, PLAINTIFF-RESPONDENT, v. MICHAEL FANTOZZI, DEFENDANT-APPELLANT. J & R AUTO SALES, INC., ET AL., PLAINTIFF-RESPONDENT, v. AARON MATHIS, DEFENDANT-RESPONDENT, AND MICHAEL FANTOZZI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 24, 1969
    Decided March 28, 1969.

      Before Judges Goedmann, Kolovskx and Cabton.

      Mr. Harold J. Ruvoldt, Jr. argued the cause for appellant (-Me&srs. Ruvoldt & Ruvoldt, attorneys).

      Mr. Marie A. Aurigemma argued the cause for respondent Mathis (Mr. Samuel H. Stein, attorney).
    Respondent J & R Auto Sales, Inc. relied on the brief filed on behalf of respondent Mathis (Mr. Victor F. DeVito, attorney).
   Pee Cubiam.

Defendant Eantozzi appeals from separate judgments entered on a jury verdict in these consolidated actions, awarding plaintiff Mathis $1,470 for his personal injuries and plaintiff J So R Sales, Inc. $925 for property damage. He also appeals from the denial of his motion for a new trial.

We agree with the trial court that since both Mathis and Eantozzi acknowledged that drivers using the Hudson County Boulevard stop at the nearest corner when the lights on the Boulevard are red against them — a practice which both said they followed — that practice was appropriately a factor to be considered by the jury in determining the issue of negligence. Accordingly, we find no merit in the claim that it was error to admit testimony as to such custom and usage. 2 Restatement, Torts 2d, § 295A, p. 62 (1965); 2 Harper and James, The Law of Torts, 977 et seq. (1956); Annotation, “Custom or practice of drivers of motor vehicles as affecting question of negligence,” 172 A. L. R. 1141 (1948), 77 A. L. R. 2d 1327 (1961). Nor was there prejudicial error, in the circumstances here present, to permit evidence of the custom even though it had not been specifically pleaded. See 38 Am. Jur., Negligence, § 267, p. 957 (1941).

We have examined the trial judge’s charge and, contrary to defendant’s contention, find no error therein.

Affirmed.


author: Lane, J. C. S.

text:
    EUSTACE WHITE AND ARNOLD TANNER, CO-EXECUTORS UNDER THE WILL OF THOMAS E. CATCHPOLE, DECEASED, PLAINTIFFS, v. JAMES WHITE, ROGER WHITE AND MARGARET W. TANNER, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 19, 1969.

      Mr. Arnold Tanner, attorney for plaintiffs.

      Mr. Daniel J. O’Hern for defendant James White (Messrs. Abram,off, Apy & O’Uern, attorneys).

      Mr. William B. Blair, Jr. for defendants Roger White and Margaret W. Tanner (Messrs. Parsons, Oanzona, Blair & Warren, attorneys).
   Lane, J. C. S.

This action was instituted by the executors under the will of Thomas E. Catchpole, deceased, to obtain a construction of his will executed November 25, 1953. Defendant James White, a grandnephew of decedent, is the devisee of a house and lot under paragraph Third. Defendants Roger White and Margaret Tanner are given an interest in the proceeds of a sale of the real property devised under paragraph Third. In addition, Roger White benefits under the residuary clause. These three persons are brothers and sister. The matter is before the court on final hearing.

Paragraph Third of the will provides as follows:

“I give, devise and bequeath to James AVhite, son of my nephew, Eustace White, my house together with my furniture, except such antiques, linen and glassware as shall be selected and taken by Margaret Tanner, as provided hereinafter, located at 164 South Street, in the Borough of Eatontown, County of Monmouth and State of New Jersey. In the event my said grandnephew, James White shall sell said house within fifteen years after the date of my death, I direct that he shall give my grandniece, Margaret Tanner, and grandnephew, Rodger [sic] White, notice in writing of his intention so to do, and I further direct that he shall divide the proceeds from said sale equally between himself, said Margaret Tanner and said Rodger [sic] White, their heirs and assigns, per capita and not per stirpes.
(a) In the event said Rodger [sic] White has not attained the age of twenty-five (25) years at the time of the sale, said share so bequeathed to him shall be paid to my trustees for distribution to him in accordance with the provisions of the trust hereinafter provided for him.”

The house referred to in that paragraph had been occupied by decedent as his residence for a number of years. The White family (parents of James, Roger and Margaret) lived one house away from the property. Mrs. Catchpole died in April 1953. There had been a close personal relationship between decedent and James White and his wife. James White acted as a son towards decedent. He and his wife did the shopping for him; they arranged for doctors; they were available whenever decedent needed help.

On January 12, 1968 a fire partially destroyed the premises. In that fire decedent received injuries from which he died on January 26, 1968. During the interval between the date of the fire and the date of death, decedent did not have the capacity to change his will. At the time of the fire there was a policy of fire insurance covering the premises. A claim was made under the policy which was adjusted after Catehpole’s death for $7,738.81, out of which $92.46 was spent for the protection of the premises. James White claims the insurance proceeds under paragraph Third. Roger White claims that the proceeds of the insurance policy constitute personalty, an entirely different asset than the house, and therefore should pass under the residuary clause.

Since the fire James White has repaired the house, incurring obligations in the neighborhood of $10,000 as well as contributing a substantial amount of his own labor.

Roger White relies primarily upon New York cases and particularly upon In re Wright’s Will, 7 N. Y. 2d 365, 197 N. Y. S. 2d 711, 165 N. E. 2d 561 (CL App. 1960). That case hold that where personal property had been lost prior to testator’s death, there was an ademption so that the legatee was not entitled to the insurance proceeds paid to the estate on account of the loss. The basis of the decision was given by the court as follows:

“As indicated above, we deal with the problem of ademption. Although, in the early days of our law, ademption was based on the intention of the testator, today in New York, as well as in many other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically bequeathed has been given away, lost or destroyed during the testator’s lifetime.” (197 N. Y. S. 2d, at p. 711, 165 N. E. 2d, at p. 562)

There is some support for the proposition that such was the law in this State at one time. Wyckoff v. Perrine’s Ex’rs, 37 N. J. Eq. 118, 122 (Ch. 1883). Since that time, however, it has become clear that probable intent of the testator is the determining factor.

In In re Cooper’s Estate, 95 N. J. Eq. 210 (E. & A. 1923), Chief Justice Gummere quotes with approval a rule laid down by the Supreme Court of New Hampshire:

“In the case of Morse v. Converse, 80 N. H. 24, 113 Ail. Rep. 214, a decision of the supreme court of New Hampshire, Parsons, chief-justice, in discussing the doctrine of ademption, thus defines its scope: ‘A legacy which is specific is adeemed when the particular thing given is wholly lost or destroyed; or is disposed of by the testator during his life; or is so altered by him in its form as to indicate a change of testamentary purpose on his part, an intentional partial revocation of his will.’ This, in our opinion, is an accurate statement of the law of ademption and of its limitations.” (at p. 212)

The rule of nonexistence of the subject of a specific legacy at the time of death evidencing ademption was clearly labeled by Vice-Chancellor Berry as Cíbut a rule of evidence.” In Donath v. Shaw, 132 N. J. Eq. 545 (Ch. 1942), the vice-chancellor stated:

“In construing a will we start with the proposition that the intention of the testator as gathered from the language used is controlling unless contrary to law, or to public policy, which is a part of every law. That rule should be a constant guide to the end and the intention, if apparent, should control all presumptions and assumptions. The rule that the non-existence of the subject of a legacy evidences its ademption is but a rule of evidence, rebuttable by other evidence indicating that ademption was not intended.” (at p. 549)

Testamentary intention is the criterion. In Arenofshy v. Arenofsky, 29 N. J. Super. 209 (App. Div. 1954), Justice (then Judge) Francis stated:

“The test of ademption of a specific legacy in this State is whether the subject is ‘lost, destroyed, or subsequently disposed of by testator, or so altered in form, by testator’s subsequent acts, as to indicate a change of testamentary intent on his part. Conversely, if the subject, although somewhat changed in form, be not sufficiently changed to indicate change of testamentary intent, there is no ademption.’ Chase National Bank v. Deichmiller, 107 N. J. Eq. 379, 382 (Ch. 1930) ; In re Cooper's Estate. 95 N. J. Eq. 210 (E. & A. 1923) ; Annotation, 16 A. L. R. 2d 1404.” (at p. 213)

Accord, In re Hall’s Estate, 60 N. J. Super. 597, 600 (App. Div. 1960); Wyckoff v. Young Women’s Christian Ass’n, 37 N. J. Super. 274, 278-279 (Ch. Div. 1955).

Cases such as Righter v. First Reformed Church of Boonton, 17 N. J. Super. 407 (Ch. Div. 1952), having to do with the execution of a contract for the sale of premises specifically devised, are not applicable for the obvious reason that in such cases the testator has evidenced his intention for a testamentary change.

Here the partial destruction of the house did not occur through any voluntary act of decedent but rather as the result of an unfortunate accident. The mere fact that this fire occurred evidences no change in decedent’s intention that James White was to receive the house in which decedent was living. It does not show that he intended that White receive the house partially destroyed by fire. It would be completely contrary to decedent’s probable intent, as evidenced by paragraph Third of his will, to hold that by the unfortunate circumstance of the fire the proceeds of the fire insurance policy would fall into the residue. Fidelity Union Trust Co. v. Robert, 36 N. J. 561 (1962); 5 N. J. Practice (Clapp, Wills and Administration) (3d ed. 19-62), § 255, n. 10 (1968 Supp.). The purpose of the proceeds was obviously to repair the house in the event of partial destruction by fire.

Where a testator has specifically devised real property upon which a house stands, which house is destroyed or damaged by fire before death and the testator dies without regaining capacity to indicate a contrary intention, the proceeds of fire insurance on the house replace the house and pass under the devise. Lee v. Honea, 349 S. W. 2d 110 (Tex. Civ. App. 1961), application for writ of error refused, 163 Tex. 129, 352 S. W. 2d 717 (Sup. Ct. 1961); In re MacDonald’s Estate, 133 Cal App. 2d 43, 283 P. 2d 271 (D. Ct. App. 1955). Cf. Millville Aerie No. 1836, F. O. of E., v. Weather-by, 82 N. J. Eq. 455 (Ch. 1913). The proceeds of the insurance poliej'" are payable to James White under paragraph Third.

James "White contends that the provision in paragraph Third requiring that he divide with Margaret Tanner and Boger White, his brother and sister, the proceeds of any sale made within 15 years after the decedent’s death, is invalid as a restraint on alienation.

Paragraph Third gave James White an estate in fee simple. Galante v. Silverstein, 98 N. J. Eq. 52 (Ch. 1925). It then sought to have him give up two-thirds of the proceeds if the property is sold within 15 years.

In Magie v. German Evangelical Dutch Church, 13 N. J. Eq. 77 (Ch. 1860), affirmed o. b. 15 N. J. Eq. 500 (E. & A. 1862), Chancellor Green stated:

“An unlimited power of alienation is an inseparable incident of an estate in fee simple, and cannot be restrained by any provision or condition whatever. 1 Cruise’s Dig., Tit. 1, § 53; 4 Cruise’s Dig., Tit. 32, c. 23, § 1, 2; Co. Litt. 206, c. 223 a; Litt. § 360.” (at p. 79)

Under this statement of the law the reasonableness of a restraint was immaterial. Any restraint was invalid.

There was some indication in Cornelius v. Den ex dem. Ivins, 26 N. J. L. 376, 385 (Sup. Ct. 1857), and in Feit v. Richards, 64 N. J. Eq. 16, 20 (Ch. 1902), that a limited or partial restraint might be valid. However, these indications were not followed in Battin v. Battin, 94 N. J. Eq. 497 (E. & A. 1923); Wrubel Realty Corp. v. Wrubel, 138 N. J. Eq. 466 (Ch. 1946), and Krueger v. Frederick, 88 N. J. Eq. 258 (Ch. 1917). See Annotation, 42 A. L. R. 2d 1243 (1955).

As pointed out in 6 American Law of Property (A. J. Casner ed. 1952) § 26.2, the fundamental basis of the rule is a matter of public policy, i. e., to keep property alienable. Two of the important objections to restraints are their discouragement of improvements and their possible effect in respect to creditors of the owner of the property subject to the restraint. These objections are expressed in 6 American Law of Property, § 26.3, at pp. 413-414:

“Another evil growing out of a restraint is its effect to discourage improvements when it is imposed upon an interest in land. A landowner will be reluctant to make improvements upon land that he cannot sell during the period of restraint, which may be a long term of years, or even his whole life. In many instances, therefore, the restraint deters the owner of land from obtaining the maximum enjoyment of it; it may also retard the development of a particular section of the community and prevent the increase in taxable values whicli would otherwise naturally occur. This effect of the restraint to prevent the utilization of land in the most effective manner is unquestionably one of the most vital objections that can be urged against the validity of the restraint. If a substantial portion of our land were subject to restraints upon alienation, the resultant effect ujjon social and economic life would be serious.
The concluding argument against the validity of a restraint is based upon its possible effect in respect to creditors of the owner of the property subject to the restraint. Ilestraints commonly appear to be directed primarily against voluntary transfer by act of the owner of the property affected. In many instances, however, the restraint may expressly or impliedly apply to cases of involuntary transfers, such as execution sales, foreclosure sales, etc. Insofar as the restraint may operate to prevent a creditor from resorting to the property of his debtor for satisfaction of Ms claim, it works an obvious iiardship upon him. While a creditor may not rely definitely upon the debtor’s ownership of particular property as a specific means for payment of his demand, he undoubtedly is influenced in extending credit by the general reputation of the debtor as a person of financial ability, and by the appearance of prosperity that the latter's enjoyment of property enables him to sustain. A system of restraints which permits a debtor to continue in the enjoyment of the benefits of property of substantial value, and at the same time to refuse payment of his just debts, does not commend itself to the ideas of moral justice entertained by a considerable portion of society. Such a system of restraints may undermine popular confidence in our whole legal scheme.”

Tlie type of restraint before tbe court was discussed in G American Laio of Properly, § 26.68, at p. 513:

“Occasionally, however, they require payment to a third person, and do not contain an express clause of forfeiture. In this type, of case, they should he construed lo create either covenants to pay or conditional equitable charges upon the lands. Considering such a provision ro create an equitable charge, conditioned upon alienation, its actual nature and effect become more apparent. It amounts virtually to a gift over of a partial interest in the land upon alienation ; it differs only in degree from a complete gift over, and should, therefore, be void. If land has been conveyed with reservation of a rent charge, any provision increasing the rent upon alienation of the land is void, since it has the same effect as a provision requiring payment of a portion of the sale price upon transfer.”

Although here the owner of the fee has expended his own sums to improve the property, the effect of the provision in the average case would of necessity be to discourage improvements. It is doubtful whether the fee owner could obtain a mortgage because of the uncertainty of the correct construction of the provision for division. Suppose credit was extended to James White and thereafter James White defaulted and a judgment was obtained against him. Under an execution sale, would two-thirds of the proceeds go to people other than James White, thereby substantially reducing the amount available to the creditor? Surely such a situation is against public policy.

This State adheres to the policy of favoring alienation of property and its ready marketability. Highway Holding Co. v. Yara Engineering Corp., 22 N. J. 119, 133 (1956). The provision in paragraph Third of the will for a division of the proceeds upon a sale within 15 years is invalid. Dunlop v. Dunlop's Ex’rs, 144 Va. 297, 132 S. E. 351 (Sup. Ct. App. 1926); Wieting v. Billinger, 50 Hun 324, 3 N. Y. S. 361 (N. Y. Sup. Ct. 1888); In re Surovy’s Will, 215 N. Y. S. 2d 845 (Sur. Ct. 1961). Even if the law in New Jersey today were that a restraint of this nature is valid if it is reasonable under the circumstances (see Brace v. Black, 51 N. J. Super. 572 (App. Div. 1958), certification granted 28 N. J. 349 (1958) as to preemptive provisions), the restraint in this case would not be valid. It is unreasonable for the reasons referred to above. In this day and age of rapidly changing neighborhoods the provision could very well cause the owner to refuse to sell even though a sale would be of great benefit to the community. As pointed out, here the owner has put substantial funds of his own into the property. Certainly it would not be equitable to have two-thirds of those sums go to others upon a sale within 15 years.

It is argued by Roger White and Margaret Tanner that because of an in terrorem clause contained in the will, James White should take nothing. Paragraph Thirteenth of the will provides:

“In the event that any provision of this, my last will and testament, is contested by any of the parties mentioned herein, the portion or portions of the estate to which such party or parties would be entitled shall be disposed of in the same manner as though their name or names had not been mentioned herein.”

Their position is not well taken. In Bottomley v. Bottomley, 134 N. J. Eq. 279 (Ch. 1944), Vice-Chancellor Woodruff stated:

“Although decisions of the courts of the several states reflect a lack of uniformity touching the enforcement of no-eontest provisions, the clear weight of the authorities exempts from forfeiture a beneficiary who participates, in invitum, in proceedings for construction only.” (at p. 298)

In terrorem clauses are strictly construed against a forfeiture. Marx v. Rice, 1 N. J. 574, 587 (1949). Here James White is before the court in invitum in a proceeding for the construction of a particular paragraph of the will. The fact that he has raised a question as to the legality of a provision of that paragraph and that the court has held such provision to be against public policy does not result in a forfeiture of his interest. 6 N. J. Practice (Clapp, Wills and Administration) (3d ed. 1962), § 665, p. 217, n. 17. If the question of the validity of the restraint had not been raised by Janies White after he was brought into court by the executors seeking a construction of the paragraph containing the restraint, it might have been overlooked and the resultant decision approving sub silentio the restraint looked to by attorneys drawing wills in the future as some indication of the validity of such a restraint.


author: Peel, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DOUGLAS ZOLD, DEFENDANT-PETITIONER.
    Superior Court of New Jersey-Law Division — Criminal
    Argued January 17, 1969
    Decided March 14, 1969.

      Mr. Robert L. Messick, Assistant Prosecutor, appearing for plaintiff-respondent (Mr. A. 'Donald Bigley, Prosecutor).

      Mr. Herbert I. Wachstein, Assistant Deputy Public Defender, appearing for defendant-petitioner.
   Peel, J. C. C.

(temporarily assigned). This matter arises upon a petition for post conviction relief filed by defendant, Douglas Zold, pursuant to R. R. 3 :10A-1 et seq. Defendant seeks relief from a judgment of conviction entered in the Camden County Court on Indictment No. 836-65 charging him with robbery in violation of N. J. 8. 2A: 141—1. On March 10, 1967, defendant was sentenced to not less than six nor more than nine years in the New Jersey State Prison. Eollowing said sentence, defendant filed a motion for a new trial based on newly discovered evidence, that the verdict was contrary to the weight of the evidence, and for reconsideration of the sentence. The motions were heard on May 4, 1967, and denied. Thereafter, an appeal was taken in the Appellate Division which affirmed on January 11, 1968. A notice of petition for certification to the Supreme Court of The State of New Jersey was submitted and denied on May 14, 1968, 51 N. J. 574.

Post conviction relief had previously been applied for by petitioner, but at his request that application was dismissed. Thereafter, defendant filed an affidavit for leave to petition as an indigent and a second petition for post conviction relief. A hearing was held before this Court on January 17, 1969, at which time the petitioner was represented by counsel from the office of the Public Defender, and testimony of the petitioner and his brother, Emery Zold, was received followed by argument on the issue.

Although petitioner’s petition is improperly drawn in that it consists primarily of argument in violation of B. B. 3 :10A-8, in the interest of justice, the substance shall be treated rather than the form. B. B. 1:27A.

At the hearing before this Court, counsel for petitioner acknowledged that all but one of petitioner’s contentions were previously raised and expressly adjudicated in petitioner’s earlier appeal taken in the Appellate Division, and are, therefore, expressly precluded from being raised in an application for post conviction relief. R. R. 3:10A-5. State v. Smith, 43 N. J. 67 (1964) certiorari denied 379 U. S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706, rehearing denied 380 U. S. 938, 85 S. Ct. 945, 13 L. Ed. 2d 826 (1964).

Petitioner’s remaining contention is that he was deprived of both a fair trial and effective assistance of counsel. Petitioner contends that Michael Melissas, Esq., his trial counsel was employed as a municipal attorney by the Law Department of the City of Camden at the time he was retained by petitioner’s brother, and later when he defended petitioner before the Camden County Court in this criminal matter. This, petitioner alleges, constituted a conflict of interest at the time of trial which deprived petitioner of his right to a fair trial and effective assistance of counsel at the trial. In effect, petitioner argues that denial of relief on said account would be contrary to fundamental justice or to the Constitution of New Jersey B. B. 3:10A-4 (6).

In his petition, petitioner maintained that he was not aware of his counsel’s position as legal assistant for the City of Camden at the time of his appeal, inferring thereby that relief be granted under the provisions of B. B. 3 :10A-4, i. e. that the issue could not have been raised in prior proceedings. This argument likewise was abandoned at the hearing before this Court, and rightfully so, because the testimony of the petitioner in this respect was contrary to the allegation in his petition.

At the hearing, Emery Zold, petitioner’s brother, testified that he retained Melissas to represent his brother before the Camden County Court without knowledge that Melissas also held the position of Assistant Municipal Attorney for the City of Camden. He stated that he had obtained the name from someone he had met in a Camden restaurant. Both Emery Zold and petitioner testified that Melissas had previously prosecuted petitioner in the Camden Municipal Court on a number of disorderly conduct charges. They both stated that this information was obtained by checking work records and discovering that Melissas was on duty as Municipal Prosecutor on those particular days. However, petitioner claimed that he did not recognize Melissas at trial. Petitioner testified that he first remembered meeting Melissas in 1966 at a Haddon Heights Municipal Court hearing when Melissas represented him before that Court at a preliminary hearing on another charge. Petitioner stated that he did not know who had retained Melissas for his defense at that time. Both petitioner and his brother testified that Melissas never informed either of them of his position with the Law Department of the City of Camden either, before, during, or after this trial. Petitioner testified he first learned Melissas was a Municipal Attorney, who occasionally served as Municipal Prosecutor in March, 1967, from fellow prisoners in the Camden County Jail while awaiting sentence in this ease. Further, petitioner testified that he told his counsel on appeal of Melissas’ position as Municipal Attorney.

It is undisputed that Melissas is a Legal Assistant in the Department of Law in the City of Camden; that he was first appointed to the position on July 26, 1962, and left on March 31, 1965; that he was thereafter reappointed on September 19, 1966, and has from then to the present continued to serve in such capacity. Further, it is undisputed that members of the legal staff of the Department of Law of the City of Camden alternate in the capacity of prosecutor before the Camden Municipal Court.

Since petitioner learned of • Melissas’ employment while awaiting sentence, prior to entry of the judgment of conviction, the issue could reasonably have been raised in the appeal.

There remains for consideration the issue of whether denial of relief because of the alleged conflict of interest of trial counsel would be contrary to fundamental justice or to the Constitution of New Jersey.

In support of his contention, petitioner has filed a memorandum of law with the Court which was not prepared by his counsel.

Numerous federal cases are cited for abstract principles of law. A reading of the cases cited reveals that none are pertinent to the issue before us, and that all of the citations are taken from the case of United States ex rel. Platts v. Myers, 253 F. Supp. 23 (D. Q. 1966), which case also is not applicable to the issue. In Plaits, the Court held that a state prisoner had been denied his constitutional right to effective assistance of counsel when the same court-appointed attorney represented not only the defendant, but also co-defendants who entered pleas of guilty and who, before sentence testified as witnesses for the prosecution against him.

In his memorandum, petitioner cites the following New Jersey cases which are readily distinguishable on the facts and law from this case: In re Blatt, 42 N. J. 522 (1964); Schear v. City of Elizabeth, 41 N. J. 321 (1964); In re Kamp, 40 N. J. 588 (1963); Williams v. Reed, Fed Cas. No. 17, 733, 3 Mason 405, 418 (C. C. Maine, 1824); In re Rothman, 12 N. J. 528 (1953); In re A. B. C., 7 N. J. 388 (1951); Ahto v. Weaver, 39 N. J. 418, 431 (1963).

Further, petitioner cites the following opinions of the New Jersey Advisory Committee on Professional Ethics: Opinion 69, 88 N. J. L. J. 97, 103 (1965); Opinion 8, 86 N. J. L. J. 718 (1963); Opinion 54, 87 N. J. L. J. 689 (1964) ; Notice to the Bar, 86 N. J. L. J. 713 (1963). He also cites Drinker’s Legal Ethics, pp. 104, 120 (1953), and American Bar Association Opinions of the Committee on Professional Ethics & Grievance, 89, 183 (1957). These citations are to be found in In re A. and B., 44 N. J. 331 (1965) which decided that municipal attorneys cannot ethically serve the potentially conflicting interests of land and building developers whose projects are located within the same municipality where counsel holds such office.

In his Petition, and/or memorandum, petitioner refers to Rules 1:26-2, 1:26-9; 1:26-5 (c); 1:26-5 (e), and argues in his petition, “The entire context of the Supreme Court Pules * * * leads incontrovertibly to the conclusion that respondent violated in spirit, if not in law, the rules of ethics in so represent (ing) [sic] petitioner in Camden County Court in a Criminal Matter.” Petition p. 13.

Rule 1:26-9 was deleted December 6, 1962 to become effective January 2, 1963. The subject matter of that rule was incorporated in R. R. 1:26-6 adopted on December 6, 1962 to become effective January 2, 1963. The rule now provides:

“It shall be the duty of every judge and magistrate to abide by and enforce the provisions of Rule 1:26, the Canons of Judicial Ethics and the Canons of Professional Ethics.”

Erom the subject matter of petitioner’s petition, it appears that he refers to the former R. R. 1:26-5 (c) now incorporated in R. R. 1:26-3 (c) effective January 2, 1963 which provides as follows:

“An attorney shall not represent any defendant in the municipal court of the municipality of which' he is the municipal attorney, except in the performance of his official duties as municipal attorney.”

A reading of Rules 1:26-l et seq. reveals that Rule 1:26-3 (c) is the only rule limiting the practice of law by attorneys who are municipal attorneys. The plain meaning of Rule 1:26-3 (c) does not prohibit petitioner’s trial counsel while a municipal attorney from defending the petitioner in a criminal matter before the County or Superior Court. Had the Supreme Court intended to prohibit such practice, the Court would have promulgated such a rule. It is established by our case law that where the wording of a rule is precise and free from ambiguity on its face, there is no need for judicial interpretation, reliance upon extrinsic material or exercise of discretion. See State of N. J. in Interest of L. B., 99 N. J. Super. 589 (1968).

The Court is not aware of a case in which the constitutional issue raised here has been decided by a Hew Jersey Appellate Court. But see Harris v. Thomas, 341 F. 2d 560 (6th Cir. 1965), and State v. Chance, 71 N. J. Super 77, 79 (1961), where the factual circumstances and the constitutional question are strikingly similar to the case at bar.

Harris v. Thomas, supra, came before the United States Court of Appeals on appeal from an order of the United States District Court for the Western District of Kentucky, denying a writ of habeas corpus to William C. Harris, petitioner-appellant therein. Analogous to the background of the Zold case, petitioner Harris was tried before a jury and convicted on an indictment charging him with armed robbery. The Court of Appeals stated that Harris’ sole basis for relief was his claim that his constitutional rights under the Sixth and Fourteenth Amendments of the Constitution of the Hnited States had been violated because of an alleged conflict of interests. As similarly argued by Zold at his hearing before this Court, Harris urged that “his counsel by virtue of his position (as City Attorney) had conflicting interests, was hostile to his cause, and could not have been effective in assistance.”

It is significant that the statutory duties of a City Attorney of a fourth class city in Kentucky are remarkably similar to the duties of a Municipal Attorney in Camden. In Camden the various Municipal Attorneys rotate in serving as Municipal Prosecutor. Analogous to the duties of Harris’ attorney, a Camden Municipal Prosecutor also “prosecutes all pleas of the Commonwealth and all warrants or proceedings instituted for violation of the ordinances or municipal regulations of the City in the Police Court.” See Section 69.560 K. R. S., cited in Harris v. Thomas, supra, 341 F. 2d, at p. 561.

The court in Harris, in holding that a City Attorney is not per se disqualified to represent a petitioner in the County Court by reason of his office, took the following factors into consideration: (1) Petitioner made no claim that his case ever came within the scope of the City Attorney’s duties in the Police Court; (2) No cases were cited by petitioner in support of his claim that a City Attorney is disqualified ex officio to defend an accused in the County Court; and (3) the specific examples of ineffective assistance of counsel charged by the petitioner are in effect aspects of trial strategy properly within the discretion of trial counsel.

The analysis approach of the Harris court is readily applicable to the case before us.

Nothing in the record indicates that petitioner expressly claims his case came within and conflicted with the duties of his trial counsel as a municipal attorney. In addition, a review of the record of the trial reveals that no issue arose which petitioner’s attorney would be obliged to prosecute as municipal prosecutor in a municipal proceeding, nor does the State’s charge of robbery for which petitioner was convicted come within the jurisdiction of the Camden Municipal Court. N. J. S. 2A:8-21. State v. Le Jambre, 42 N. J. 315 (1964). Nor has petitioner presented cases to substantiate his claim that trial counsel was disqualified to defend him before this Court by reason of his position as a Municipal Attorney.

Specific examples of trial counsel’s alleged ineffective assistance due to conflict of interest are enumerated both in petitioner’s petition and in the record of the hearing. Namely, they are:

(1) failure to call character witnesses to testify;

(2) failure to introduce testimony concerning weather conditions, degree of visibility, and lighting conditions on the night of the robbery;

(3) eliciting from petitioner on direct examination that he had been convicted on disorderly conduct charges, and repetition of this fact in summation to the jury;

(4) failure to object timely to Prosecutor’s use of the phrase, “mug shots”, when referring to photos from which the petitioner was identified by the victim of the robbery; and

(5) prior experiences as Municipal Prosecutor in prosecuting petitioner in the Camden Municipal Court on a number of disorderly conduct charges impaired his ability to fully represent petitioner.

On the contrary, examples Nos. 1, 2, 3, and 4 are matters of trial strategy clearly within the discretion of an experienced trial counsel. The entire record of the trial reflects an unrestrained and bona fide attempt on the part of trial counsel to faithfully defend petitioner. Furthermore, petitioner’s last example also lacks merit. Trial counsel’s prior experience in prosecuting petitioner instead of hampering his defense may have enabled him to more effectively formulate a plan of trial strategy. Prosecuting the petitioner may have given trial counsel considerable insight into petitioner's capabilities of maintaining his composure and effectively responding while testifying.

Since an application for post conviction relief is but a modernized, expanded version of the habeas corpus proceeding, the burden of proof of establishing the right to such relief is still with the petitioner. Petitioner must make such a showing “by a fair preponderance of the believable evidence.” See In re Lenkowski, 17 N. J. 191, 193 (1955); State v. Cynkowski, 10 N. J. 571, 576 (1952); State v. Jacobson, 28 N. J. Super. 226, 231 (App. Div. 1953); State v. Bowens, 101 N. J. Super. 193 (Law Div. 1968). After reviewing the testimony of the petitioner, the arguments of respective counsel and all other evidence, it is the opinion of this Court that the petitioner has not sustained his burden, and that a denial of relief because of an alleged conflict of interest of trial counsel in this case is not contrary to fundamental justice or to the Constitution of New Jersey.


author: Rimm, J. C. C.

text:
    JOSEPH KUSHNER, PLAINTIFF, v. PRESIDENT OF ATLANTIC CITY, INC., A NEW JERSEY CORPORATION, t/a the PRESIDENT HOTEL, DEFENDANT.
    Atlantic County Court Law Division
    Decided March 27, 1969.

      Messrs. Perslde and Neustadter, attorneys for plaintiff (Mr. Robert Neustadter on the brief).

      Messrs. DeBrier and Wallen, attorneys for defendant (Mr. Daniel DeBrier on the brief).
   Rimm, J. C. C.

This is an action by plaintiff to recover the sum of $6,000, the agreed value of plaintiff’s automobile, which was not delivered to plaintiff upon demand after storage with defendant.

The parties have submitted this matter to the court without a jury upon an agreed stipulation of facts, which are as follows:

(1) Defendant is a New Jersey corporation which, during July 1967, was the owner and operator of certain motel premises known as the President Motel, located at Albany Avenue and the Boardwalk, Atlantic City, New Jersey.

(2) Defendant, in consideration of a stipend or fee paid to it, furnished lodgings, food, rooms and other accommodations to transients and travelers.

(3) On July 7, 1967 plaintiff, in consideration of a sum of money paid by him to defendant, requested of it a room in its premises, and on said date was accepted by defendant as a transient or guest in its motel premises.

(4) Plaintiff used as a means of transportation to defendant’s motel a 1967 Cadillac sedan automobile. Upon arrival at the motel and upon being accepted by defendant as a guest, loft his automobile, together with the keys permitting the operation thereof, with an employee and received as a receipt therefor a check or ticket.

(5) The automobile was then left with an employee of the defendant as aforesaid, parked or garaged by defendant, its servant or employee in the parking area of the motel.

(6) The parking area for guests of defendant in July 1967 was the ground level of its motel building. The area .was surrounded by the structure on three sides, the only open portion thereof being the side abutting on Albany Avenue, from which access is made to the area. There was space for approximately 200 automobiles. The automobiles were parked in rows, in such manner that there were normally four aisles affording ingress and egress to and from Albany Avenue.

(7) Most of the guests’ cars were parked by attendants, although guests who infrequently requested to park their own automobiles were permitted to do so. Whenever a guest submitted his vehicle for parking he was issued a receipt, and before a guest’s vehicle was returned to him he was required to produce and surrender that receipt.

(8) There was always at least one attendant on duty at the parking area throughout the night. During the day there were two to four attendants. Each midnight the attendant on duty parked and locked a car at the street end of each of the above-mentioned aisles in such manner as to block all exits from the area. The exits were kept blocked in that fashion until 8 A. m., unless it became necessary to move one of the locked cars in order to permit a guest’s car to enter or leave the parking area.

(9) Defendant alleges that its parking area was well illuminated at night, that its attendants patrolled the parking area continuously so as to maintain surveillance of the vehicles parked therein, and that the attendants were supervised by the manager of the parking area and also by the desk clerk, the general manager and such other supervisory personnel as were on duty in or about the motel from time to time, all of which is denied by plaintiff.

(10) The parking facilities were furnished to plaintiff at no extra charge and as an accommodation to him.

(11) On July 8, 1967, when plaintiff requested the redelivery of his automobile, it could not be found, nor has it been found since. Neither of the parties has any knowledge or information as to what became of the vehicle.

(13) The agreed value of plaintiff’s loss herein is $6,000.

(13) It is plaintiff’s contention that he is entitled to recover of defendant the full amount of the agreed value of his automobile, to wit; $6,000. It is defendant’s contention that plaintiff is not entitled to recover from defendant or, if plaintiff is entitled to recover, he is limited to a sum not exceeding $100, as provided for in R. 8. 29 :2-3.

The matter herein is therefore limited to three questions: (1) Is an automobile included within the purview of R. 8. 29:2-3? (2) should the complaint be dismissed because fault or negligence has not been established? (3) If plaintiff is entitled to recover, are his damages limited to $100 ?

I

The first clause of R. 8. 29 :2-3 reads as follows:

“No proprietor of any hotel shall be liable in any sum to any guest in such hotel for the loss of wearing apparel, goods, merchandise or other personal property not mentioned in section 29 :2-2 of this title, where it shall appear that such loss occurred without the fault or negligence of such proprietor, * *

In construing the above clause it is noted that generally, absent a limiting statute, an innkeeper’s liability extends to all property customarily and ordinarily brought by a guest and received infra hospilium causa ¡íospilandi, i. e., "such properly as the guest has with him for the purposes his journey and as is necessarily incident to travel.” 40 Am. Jur. 2d, Hotels, Motels & Restaurants § 131, p. 1004; 43 C. J. S., Innkeepers § 16, p. 1157. The rule of absolute liability of innkeepers in Jingland prior to the enactment of limiting statutes was applied to means of conveyance, provided those were brought to and left by the guest at the inn. Bradley Livery Co. v. Snook, 66 N. J. L. 654 (E. & A. 1901). The automobile was a means of conveyance and a necessary incident of travel for a guest in 1906 and the court, prior to 1907 (the enactment date of R. S. 29 :2-3, L. 1907, c. 183, par. 4, p. 430; C. S., p. 3135, par. 47) would have extended an innkeeper’s absolute liability to an automobile brought to and entrusted to the innkeeper by the guest. Although no New Jersey reference can be found dealing with the identical problem here, prior to the effective date of the statute the court in Bradley Livery Co., supra, indicated that the innkeeper’s liability would be absolute for the delivery to and storage by the guest of a means of conveyance, namety, a team of horses and a wagon. The Innkeepers’ Act, R. S. 29:2-l et seq., as amended, is in derogation of the common law and must therefore be strictly construed. North Rivers Ins. Co. v. Tisch Management, Inc., 64 N. J. Super. 357 (App. Div. 1960).

Accordingly, the Legislature clearly intended to limit or replace the prior existing absolute liability for those personal articles of a guest of an inn customarily and ordinarily brought by the guest to the inn, and it would therefore be unreasonable to construe R. S. 29 :2-3 to exclude the loss of an article of personal property usually brought by a guest, such as an automobile. Nor does the rule of ejusdem generis apply to the above clause. That rule provides that when specific words of the same class are used in conjunction with a general word, the general word may be limited to that class. General Roofing Co. v. Borough of Belmar, 77 N. J. Super. 469 (App. Div. 1962).

The terms “goods” and “merchandise” in the statute have a much wider extension and different meaning than the term “wearing apparel.” Moreover, while the term “goods” is within the meaning of “merchandise,” the term “goods” has a wider meaning. See 18A Words & Phrases, p. 171 (1956). The use of both words in the statute (“goods” and “merchandise”) evinces a legislative intent to give wider scope to the term “goods.” See Sperry and Hutchinson Co. v. Margetts, 15 N. J. 203 (1954). Therefore, the words were not intended to operate as specific words of the same class and ejusdem generis is not applicable.

Further, as noted above, since the automobile was a means of conveyance in 1907 when the statute was adopted, and was a necessary incident of travel, the Legislature must have intended to include automobiles within the purview of the Innkeepers5 Act quoted above. See, also, 82 C. J. S. Statutes § 319, p. 558 et seq. Automobiles are within the purview of “conveyance,55 so that the Innkeepers5 Act would subsequently apply to them even assuming the Legislature had no knowledge of the automobile’s use

As to establishing negligence, the question arises whether B. S. 29:2—3 affords a guest the benefit of bailor-bailee “procedural presumption55 of negligence where he entrusts to an innkeeper an automobile which subsequently disappears.

As indicated above, the first clause of R. S. 29 :2-3 exempts a hotel proprietor from liability for loss of certain articles of personal property of a guest where it appears that the loss occurred without the fault or negligence of such proprietor. Defendant contends that the statute does not create any presumption of negligence in favor of plaintiff, procedurally or otherwise, as a plaintiff would ordinarily have in a bailment for hire arrangement. While it is true that the statute does not expressly state that there is a presumption, nevertheless, such presumption was contemplated and intended by the Legislature on the basis of bailor-bailee relationship. The intention of the statute was to abrogate an innkeeper’s absolute liability for personal property ordinarily and customarily brought to the inn by a guest, and it obviously did not intend to place the innkeeper in a more favorable position than any other common law bailees of automobiles, such as parking lot operators.

Where a parking lot operator or garage keeper knowingly accepts possession and control of an automobile, and particularly where the owner of said automobile surrenders the keys to the garage keeper or his agent, a relationship of bailor-bailee is created. Leonard v. Auto Parks, Inc., 12 N. J. Super. 113 (App. Div. 1951); Par nell v. Bohrer Chevrolet Co., 95 N. J. Super. 471 (App. Div. 1967); Rodgers v. Reid Oldsmobile, Inc., 58 N. J. Super. 375 (App. Div. 1959); Rauber v. Zinner, 125 N. J. L. 85 (Sup. Ct. 1940); McBride v. DeCozen Motor Co., 5 N. J. Misc. 552, 137 A. 558 (Sup. Ct. 1927) 7 A. L. R. 3d 934. Upon showing delivery by a bailor and damage to or failure to return the automobile while in the possession of the bailee there arises a procedural presumption of negligence requiring the bailee to come forward with evidence to show that the loss or damage occurred by reason of a cause other than its negligence, or if it cannot prove loss by reason of such cause, that it exercised due care. Rodgers, supra.

It is clear from the stipulated facts that a bailment for hire was created when plaintiff delivered his automobile to an agent or employee of defendant. The issue, therefore, remains to be resolved whether this statute denies plaintiff the benefit of a procedural presumption. This benefit should not be denied.

Generally, innkeepers are liable as insurers of goods of their guests, or only for negligence, and proof that the goods of the guests have been lost or injured establishes a prima facie case of liability and casts upon the innkeeper the burden of establishing such facts as will exonerate him. 43 C. J. S. Innkeepers § 21, p. 1171; Parnell v. Rohrer Chevrolet Co., supra. The bailment presumption is based primarily upon the policy consideration that the possessor of the goods at the time of the loss or damage is in a better position to explain the circumstances. Usually, one who returns to a parking lot and finds that his vehicle has vanished is at a loss to point to the particular breach of duty by the parking lot operator that permitted the loss to occur. 7 A. L. R. 3d 927, 934. Ho authorities have been found in Hew Jersey which interpret the applicable clause of the statute to the contrary. The general policy consideration mentioned above should and will apply in that plaintiff shall have the benefit of a procedural presumption of negligence upon proof that the automobile was entrusted to defendant and subsequently lost or stolen while in its possession. The procedural presumption of negligence arises upon such proof by plaintiff-bailor of the bailment and that the automobile was not returned to him by defendant-bailee. Upon submitting such proof, a prima facie case has been established and it is thereupon incumbent upon defendant-bailee to come forward with proof to meet the presumption of negligence of defendant-bailee. Rodgers v. Reid Oldsmobile, supra, indicates that defendant must meet or rebut the procedural presumption by coming forward with evidence to show that the loss or damage occurred by reason of a cause other than its negligence, or if it cannot do that, to show that it exercised due care.

The stipulation of facts does not indicate any evidence to prove the cause for the loss. Thus, the crucial issue posed is whether the stipulation of facts supports a conclusion that defendant was not negligent or did in fact exercise due care.

Defendant argues that the stipulated facts relating to the precautions taken by it against the theft from its parking lot, such as blocking the exits at night, employment of one or two men on duty each night, illuminating the parking area, refusal to return a car without first receiving the receipt, and constant surveillance of the parking lot, are sufficient to establish that due care was exercised to protect against the loss of a guest's car. However, this contention may be argued with relation to the precautions taken between midnight and 8 a. m., but there is little, if any, proof of precautions taken against theft during the remainder of the day. This failure of proof is apparent because of defendant’s lack of knowledge of the exact time when the loss of plaintiff’s automobile occurred. Defendant's answers to plaintiff's interrogatories state that the automobile was stolen sometime between 11:45 p. M. on July 7, 1967, and 11:30 a. M. on July 8, 1967. Thus, it is probable that the car was taken during that period of time when the nighttime precautions were not in effect. The issue of due care cannot be determined on the basis of precautions which might not have been in effect at the time of the loss, because such proof is lacking.

With respect to the proof of the daytime precautions, the facts stipulated show merely that defendant had two and four employees on duty at all times and that no car was returned without the guest’s surrender of his receipt. The court cannot find from these facts that the defendant exercised due care. In totality, the facts stipulated are in terms of precautions usually or customarily taken, and not as to facts concerning the precautions actually taken during the period of the loss. There is no proof establishing how many men were actually working on the night and day in question, the nature and extent of their duties, and their respective work areas in the parking lot. Such additional evidence could have materially assisted the court, sitting as a jury in this instance, in giving meaning to the phrase “on duty” used in the stipulation of facts. In the absence of such proof the court would be compelled to conjecture as to the effect of being “on duty” as used in the stipulation. Such proof is critical to the defendant’s contention because proof is lacking indicating that the parking area was under actual supervision by some employees during some period of time while the car was on the lot.

In evaluating all of the proof from the stipulation of facts this court should take notice of and consider the general rule, although not adopted in this case or in any reported decision in Hew Jersey, that a high degree of care is required where the keys are customarily left in the car because the car may be more readily stolen. Kaiser v. Poche, 194 So. 464 (La. App. 1940). The stipulation states that the automobile was left “together with the keys permitting the operation thereof, with an employee and [plaintiff] received as a receipt therefor a check or ticket.” The court should take into consideration, when making a factual finding as to whether due care has been exercised under the circumstances, the fact that defendant had control of the car with the kejrs. Thus, in some situations certain precautions would be sufficient when keys are not left in the car which may otherwise constitute lack of due care when the keys are left in the ear with a bailee.

In the present posture of the stipulated facts the court finds that defendant has not rebutted or overcome the procedural presumption of negligence, and therefore there is insufficient evidence to establish that tlie “loss occurred without the fault or negligence of such proprietor,” defendant-bailee.

Ill

Defendant contends that the second clause of 11. 8. 29 :2-3 limits plaintiff’s recovery to a sum not exceeding $100. The clause reads as follows:

“* * * n0j. s]iaji any sneli proprietor be liable in any sum for the loss of any article or articles of wearing apparel, cane, umbrella, satchel, valise, bag, box, bundle or other chattel belonging to such guest, the same not being in a room or rooms assigned to such guest, unless the same shall be specially intrusted to the care and custody of such proprietor or his duly authorized agent, and if such property shall be so specially intrusted, the proprietor shall not be liable for the loss of the same in any sum exceeding one hundred dollars.”

Defendant contends that the word “chattel” was intended to cover all kinds of property, including ail automobile, and therefore defendant hotel is only liable, if at all, to a sum not exceeding $100. The court does not agree. Any interpretation which would favor the innkeeper or other bailees of a means of conveyance would not be within the intendment of the Legislature, which only sought the abrogation of the absolute liability for loss of a guest’s personal property, infra hospitium causa hospilandi. Moreover, the rule of ejusdem generis would mitigate against the asserted interpretation made by defendant. The list of articles in the second clause of R. 8. 29 :2-3, other than the term “chattel,” is specific in scope, i. e., “articles of wearing apparel, cane, umbrella, satchel, valise, bag, box, bundle, or other chattel belonging to such guest, the same not being in a room or rooms assigned to such guest * * *” Hjusdem generis may be applied to general words in conjunction with words of specific meaning to limit them to the class expressly mentioned. General Roofing Co. v. Borough of Belmar, supra. The list of articles in the second clause of R. S. 29 :2-3, other than the term “chattel,” is specific in scope and is apparently descriptive of the general class “baggage” or “luggage,” i. e., articles of personal use, convenience, instruction or amusement. See 40 Am. Jur. 2d, Hotels, Motels & Restaurants, § 133, p. 1005; Cedar Rapids Inv. Co. v. Commodore Hotel Co., 205 Iowa 736, 218 N. W. 510, 56 A. L. R. 1098 (Sup. Ct. 1928). (automobile not within term “baggage” under innkeeper lien statute). The general term “chattel,” therefore, should be confined to those articles of personal use, convenience, instruction or amusement which the ordinary innkeeper and traveler at a hotel in 1907 would have regarded as baggage or luggage of the guest and which it was customary or reasonable to expect a guest to consign or keep within the room assigned to him by the innkeeper. Obviously, an automobile could not meet this test.

N. J. S. 2A :44-50 was not referred to by either party and the court notes that this statute is similar in wording and purport to R. S. 29:2-3. N. J. S. 2A :4L-50 employs, after an enumeration of specific items for which the innkeeper’s liability might be limited to $100, the word “property” rather than “chattel,” but that does not in the court’s opinion, warrant a different result. Moreover, N. J. S. 2A: 44-50 appears in a subtitle under “Liens” in the Revised Statutes, beginning with N. J. S. 2A :44-l through 2A :4Ar-186, whereas N. J. S. A. 29 :2-3 is under the title “Hotels.”

The amount of the loss is stipulated at $6,000. Plaintiff may submit an order for judgment against the defendant in the sum stated, consented to as to form by defendant.

        N. J. S. A. 29 :2-2 states that whenever the proprietor of a hotel provides a safe or other depository * *' * for safekeeping of “any money, jewels, furs, banknotes, precious stones, railroad tickets, ornaments, or negotiable or valuable papers belonging to guests in such hotel” and a notice stating the fact that such safe is available, if any guest neglects to deliver any of the stated items to the person in charge of the safe then the hotel shall not be liable for the loss of any such items. If the guest does deliver any sxxcli items to the person in charge of the safe in the hotel, the hotel proprietor shall not be liable for loss exceeding $500 unless by special agreement.


author: ScHNEiDEKMAisr, J. C. C.

text:
    IN THE MATTER OF THE PROBATE OF THE WILL OF ANTONIO FERRULLI, DECEASED.
    Hudson County Court Probate Division
    Decided March 17, 1969.

      Mr. Joseph G. Liebman, attorney for plaintiff (Messrs. Liebman & Liebman, attorneys).

      Mr. Joseph J. Talafous, attorney for defendant.
   ScHNEiDEKMAisr, J. C. C.

This action arises by virtue of an order to show cause why the judgment admitting the will of Antonio Ferrulli to probate by the Hudson County surrogate’s court should not be set aside.

Antonio Ferrulli died on March 5, 1968, survived by his sons John and Alfonse Ferrulli, and his daughters, Mary Cipoletti and Antoinette Nicoletti.

On April 5, 1968, John Ferrulli offered the document purporting to be the last will and testament of Antonio Ferrulli for probate to the surrogate’s court of Hudson County. Also appearing at that time was Joseph Critelli, one of the three witnesses to this last will and testament. Joseph Critelli made the required affidavit and the will was admitted to probate, with John Ferrulli appointed as the executor of the will.

On December 12, 1968 an order to show cause why the will should not be set aside was brought on behalf of Alfonse Ferrulli, which was later joined in by Mary Cipoletti and Antoinette Nicoletti.

The uncontested facts as gleaned from the affidavits are as follows: Mary Critelli, the person who assisted Antonio Ferrulli in the making of his purported last will, read it on April 3, 1968 to his four children. Some discussion of the will ensued. All four children received a photostatic copy of the purported will on or about April IS, 1968.

Was The Action Of The Surrogate Admitting The Will To Probate Proper?

The attestation clause of the will read as follows:

“WE, whose names are hereto subscribed, do certify that -........— the testat ________________, subscribed ________________ name to this instrument in our presence, and in the presence of each of us, and at the same time ______________ declared in our presence and hearing that same was _______________last Will and Testament, and requested us, and each of us, to sign our names thereto as witnesses to the execution thereof, and which we hereby do in the presence of the testat______________ and of each other, this 6th day of March 1967, the day of the date of said Will, and write opposite our names our respective places of residence.”

The opponents of the will contend that the will contained an incomplete attestation clause, which was a defect on the face of the will under R. R. 5:3-3 (a) (2). They therefore argue that the surrogate was without jurisdiction, and since his judgment is void, the limitation to contest the judgment is one year under R. R. 4:62-2, which reads:

“On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (d) the judgment or order is void * * The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) not more than 1 year after the judgment, order or proceeding was entered or taken.”

The proponent of the will relies on R. R. 5:3-4, which states:

“Any person aggrieved by a judgment of the surrogate’s court of any county may, without notice, move before the county court of the county for an order requiring the plaintiff to show cause why the judgment should not be set aside or modified; provided however the application for the order to show cause shall be made within 3 months after entry of the judgment, or within 6 months thereafter in cases where the moving party resided out of this State at the entry of the judgment.”

I find that the unfilled blanks in the attestation clause do not constitute a defect on the face of the will. Since the will was probated April 5, 1968 and the order to show cause not filed until December 12, 1968, and the aggrieved persons are residents of New Jersey, their action is controlled by R. R. 5:3-4.

The attestation clause recited all the requirements of N. J. S. 3A :3-2. The court in Allaire v. Allaire, 37 N. J. L. 312, Sup. Ct. (1874) stated that all that is necessary is that the attestation clause recite the requirements now embodied in N. J. S. 3A :3—2 :

“The statute does not prescribe any form in which the witnesses shall certify their attestation. A will signed by the testator and subscribed by a sufficient number of witnesses, may be established, by testimony aliunde, that the formalities which are necessary have been observed, but if there be no attestation clause, or if the attestation clause does not contain all the requisites to the making of a will, affirmative proof must be made of its exeevution in the manner and with the formalities prescribed by the statute.” (at p. 325)

The failure to fill in the empty blanks in the attestation clause, while an oversight, is of no significance and does not void the will. The Prerogative Court of New Jersey, in In re Sandmann, 68 A. 754 (1908), had a Will before it in which the address of the last-named witness was omitted. The court held this to be an insignificant oversight:

“Some criticism is made upon the fact that the last-named witness did not append his residence to his signature. This, while proper, is not required by any provision of law.” (at p. 754)

In the present ease the signature of the testator, impliedly filled in the blanks of the attestation clause. Such a name is of masculine gender; thus, “his” and “or” as opposed to “her” and “trix” goes into the blanks by implication.

The mere omission of the blanks is not enough to overcome the validity and evidentiary character of the attestation clause. In In re Sale, 21 N. J. 284 (1956), the court stated that an attestation clause is prima facie evidence of the facts stated in it, which may be overcome by clear and convincing proof to the contrarjr, either from the subscribing witnesses themselves or from the facts and circumstances actually incident to the execution. Such proof must be clearly irreconcilable with the recitations of the clause, citing In re Wherry, 131 N. J. Eq. 50J (E. & A. 1942), and In re Taylor, 28 N. J. Super. 220 (App. Div. 1953); and also Mundy v. Mundy, 15 N. J. Eq. 290 (1858).

The opponents are barred by the three-month limitation of B. B. 5 :3-4 and it is not in the court’s right to expand the limitation of this rule. The court in In re Schubert, 7 N. J. Super. 48, 53 (App. Div. 1950), spoke of R. R. 5:3-4 and the court’s duty to follow such a rule when it stated:

“It is within the lawful power of the Supreme Court to fix reasonable limitations of time within which such appeals must be instituted. The limitations so determined and announced must be respected.”

Does The Failure To Literally Comply With R. R. 4:99—7 Toll The Limitation Period Prescribed in B. B. 5:3-4(a)?

The opponents contend that they never received written notice within 60 days after the probate of the aforesaid will. B. B. 4:99-7 states:

“Within 60 days from the date of the probate of any will, the executor or administrator with the will annexed shall mail to all beneficiaries under the will, at their last known post-office addresses, a copy of the will and a notice in writing that the will has been probated, and the place and date of probate.”

In the present ease the opponents all received a photostatic copy of the alleged will some ten days after it had been probated, and they admit that they were at the house of Mary Critelli on April 3, 1968 when she read the will to them.

Antoinette Nicoletti and Mary Cipoletti admit in their affidavits that on April 26, 1968 they signed the following agreement:

“It is understood and agreed, that we the undersigned, accept the sum of EVe Thousand ($5,000.00) Dollars in full payment of our share of the late Anthony Ferrulli’s AVill and are fully satisfied.”

They also individually admit the receipt of a personal check of John Ferrulli, the executor, in the sum of $5,000.

The opponents allege that they were never told that the will which was read to them was to be probated. Mary Critelli and John Ferrulli state in their affidavits that the idea of probating the will in a couple of days after it was read on April 3, 1968 was discussed amongst the four children.

The court in In re Landow, 83 N. J. Super. 110 (App Div. 1964) was faced with the very same problem now before this court. The appellant there contended that

“* * * the failure of the executor to notify her in writing that the will had been probated and the date and place of probate, pursuant to R. R. 4 :99-7, tolled the running of the six-month period provided for under R. R. 5:3-4(a) in which a nonresident of the State could bring a motion to set aside probate of a will.” (at p. 114)

The contention of the opponents in the present case is answered by what the court said in Landow:

“We are satisfied that non-compliance with the literal requirements of R. R. 4:99-7 as to written notice by the executor, where it is undenied appellant, had actual notice, does not toll the limitation period prescribed in R. R. 5:3-4(a). We perceive no prejudice that has been visited upon appellant by reason of the failure to give the notice technically called for by the rule in question.” (at p. 115)

I find that all the parties had actual notice of the probate of the will. The judgment admitting to probate the will is affirmed.


author: Duffy, P. J., J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. YOUNGSTOWN CARTAGE CO., DEFENDANT-APPELLANT.
    Hudson County Court Law Division
    Decided March 19, 1969.

      Mr. Seymour Margulies argued the cause for appellant.

      Mr. Thomas J. Savage, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   Duffy, P. J., J. C. C.

This is an appeal from the County District Court wherein defendant was convicted of having a vehicle on the roads of New Jersey which weighed in excess of the weight listed on its registration certificate, in violation of 39:3-84.3. The truck and trailer were both registered in Rhode Island.

The State contends that the “overweight” statutes validly apply to all vehicles whether or not they are registered in New Jersejo As a general rule this is unassailable. This State may set reasonable weight limits on the vehicles that use its highways.

However, the question here is whether a state may convict one because he owns a vehicle registered in another state which has a weight in excess of that stated on the foreign state’s registration certificate, even though the vehicle’s weight is not in excess of that permitted to vehicles registering in New Jersey. This would put New Jersey in the position of enforcing the laws of Rhode Island. The conceded purpose of our overweight statutes is protection of the physical structure (roadbed, etc.) of our highways. If an owner improperly registers the weight of his vehicle when he is registering it in New Jersey, it is clear that our penal laws should apply to him and result in his punishment. However, this is not so where an owner has fraudulently or mistakenly registered his vehicle in a sister state. There is no damage to our highways unless the vehicle has a weight in excess of the weight permitted by our statute — a weight in excess of the registered weight is not of itself a cause of damage to the highways. In fact, the statute provides a procedure wherein an owner can receive special permission to register a vehicle in excess of the weight specifically stated in the statute (cf. 1st para, of N. J. S. A. 39 :3-84). The vehicle in the instant case comes well within the maximum weight provided for by our statute.

There have been two cases in the County Courts of New Jersey which have held that N. J. S. A. 39:3-84.3 applies to both resident and non-resident vehicles: State v. Levitan Interstate Transport, Inc., 58 N. J. Super. 345, 156 A. 2d 69 (Cty. Ct. 1959) and State v. Olean Transp. Corp., 39 N. J. Super. 236, 120 A. 2d 800 (Cty. Ct. 1956). However, these decisions cite no authority for their conclusions. They do emphasize that the law was conceived to protect our highways from overweight trucking. However, as has been stated, the truck in the instant case would not be damaging the highways since its weight — although improperly stated on the Rhode Island registration certificate — was not in excess of the maximum permitted by statute here.

There has been no showing that the weight of the vehicle might be considered a danger in Rhode Island. However, even if it were, this would still involve enforcing the penal statutes of Rhode Island. It is well settled that one state or sovereignty cannot enforce the penal laws of another * * * Application of Marino, 23 N. J. Misc. 159, 42 A. 2d 469 (C. P. 1945) ; People v. Hillman, 246 N. T. 467, 159 N. E. 400 (1927); People v. Buffum, 40 Gal. 2d 709, 256 P. 2d 317 (1953); 22 C. J. S. Criminal Law § 115.

Because of the views expressed supra it will not be necessary to pass upon the other points raised in defendant’s brief.

I find the defendant not guilty.