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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DENNIS P. MICKSCHUTZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 6, 1968 —
    Decided June 18, 1968.

      Before Judges Gaulkih, Lewis and Kolovsky.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for defendant-appellant {Mr. Peter Murray, Public Defender, attorney).

      Mr. Martin J. Queenan, Burlington County Prosecutor, argued the cause for plaintiff-respondent {Mr. Myron H. Oottlieb, on the brief).

      Mr. Eugene T. Urbanialc, Deputy Attorney General, appeared for the Department of Institutions and Agencies {Mr. Arthur J. Sills, Attorney General, attorney).
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

Defendant pleaded guilty to three accusations, each of which charged him with impairing the morals of a different minor girl in violation of N. J. S. 2A :96-3. Pursuant to N. J. S. 2A :164-3 et seq., he was committed to the Diagnostic Center for examination. The Center reported that defendant “falls within the purview of N. J. S. 2A :164-5 of the Sex Offender Act requiring a program of specialized treatment,” and recommended (with some qualification) that he “be placed on probation, (N. J. S. 2A: 164-6(a)).” N. J. S. 2A :164-6 provides:

“The disposition to be made by the court of such person, upon written report and recommendation of the diagnostic center, shall include 1 or more of the following measures:
a. The court may place such person on probation with the requirement, as a condition of said probation, that he receive out-patient psychiatric treatment in the manner to be prescribed in each individual case.
b. Such person may be committed to an institution to be designated by the commissioner of institutions and agencies for treatment, and upon release shall be subject to parole supervision.
In the event that the court shall order a commitment of the person as provided in this section, such order of commitment shall not specify a minimum period of detention, but in no event shall the person be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted.”

The trial judge elected to reject the recommendation of the Center that' defendant be placed on probation and, on August 26, 1965, committed him under N. J. S. 2A :164-6 (6) to an institution designated by the Commissioner of Institutions and Agencies, namely, the State Prison Earm at Rahway. Impairing the morals of a minor is a misdemeanor, which carries a maximum penalty of three years. The judge ordered that the commitment be

* * for an indeterminate period on each accusation, with the maximum on each accusation of three years * * * and these periods of commitment run consecutively.. This means that the period of your commitment to the Diagnostic Unit of the State Prison Farm is for an indefinite period, subject to that maximum limitation of nine years, but means that you will receive the treatment there that I think that, you need, and can be discharged when the experts in that institution feel that in their opinion you may safely be released to regain your place in society.”

Defendant contends that the trial court was bound to follow the recommendation of the Center to place him ou probation, and the court had no right to commit him lo an institution. We disagree.

A trial court has no right to ignore the Center’s finding that a defendant falls within the purview of the act and sentence him as an ordinary criminal. State v. Thompson, 84 N. J. Super. 173, 177 (App. Div 1964). But the court does have the right to commit the defendant under 6(6) even though the Center recommends that the defendant be placed on probation under 6(a). We need not decide whether a court has the power to place a defendant on probation under 6(a) against the Center’s recommendation that a defendant be committed under 6(6), but the language of 6(a) indicates plainly that the Court is not compelled to accept a recommendation of probation. 6(a) states that the probation shall be “with the requirement, as a condition of said probation, that •he receive out-patient psychiatric treatment in the manner to be prescribed in each individual case.” There may be many reasons why probation in a given case is'impractical or undesirable, and we are convinced that the Legislature intended to leave it to the discretion of the court whether to follow a recommendation of 6(a) probation. See also State v. Schreffler, 63 N. J. Super. 148, 150 (App. Div. 1960).

If that be so, defendant argues that here it was an abuse of the court’s discretion to ignore the recommendation of the Center. We doubt whether this question may be raised in an application for post-conviction relief, especially after defendant has been confined since 1965. In any event, we find here no abuse of discretion.

Defendant argues that consecutive sentences under the Sex Offender Act are prohibited. We find nothing in the statute or the cases which supports that contention. See State v. Johnson, 91 N. J. Super. 426 (App. Div. 1966). Since the maximum term for each offense was three years, the trial judge doubtless felt that the period of possible confinement or parole should be nine years rather than the three years which concurrent sentences would provide, and we think that the Legislature meant to give that discretionary power to the court.

When the case was presented to us we learned that the Parole Board was treating consecutive sentences under the Sex Offender Act as it does consecutive sentences for ordinary crimes. As the Board said in a letter dated March 15, 1968 to the Public Defender:

“Where a sentence is within the framework of the Sex Offender Law, such sentence is indeterminate in character. Since there is no direct provision in the law for aggregating consecutive indeterminate sentences to produce a single sentence, the prisoner commences service of the first sentence. In order to commence service of the second sentence, lip must either he paroled on the first sentence or serve the maximum of the first. Then the same procedure must be repeated as to the second, parole or service of maximum, as the case may be.
It should be noted that as to the sex offenders this Board considers such cases for parole only upon the recommendation of the Special Classification Review Board, and in absence of such Board having referred a case to this agency for consideration, the prisoner would not be afforded parole consideration.”

Since this seemed to us a questionable interpretation of the law, we requested the Department of Institutions and Agencies to participate in the oral argument, which it did. Thereafter, on May 23, 1968, we addressed the following letter to all counsel, the Department of Institutions and Agencies and the Parole Board:

“It is our present view that the philosophy of the Sex Offender Act requires that consecutive sentences thereunder must be aggregated, so that a defendant may be paroled on the aggregated sentences as soon as the Special Classification Review Board finds him ‘capable of making an acceptable social adjustment in the community’ and ready for parole. IVe intend to file an. opinion which will direct that Michschutz’s sentences be so aggregated and that the Special Classification Review Board re-examine and report upon his fitness for parole in the light of such aggregation.
This letter is written to you to inquire whether you disagree with our tentative conclusions. If you do, please state your reasons in a letter and state whether you wish oral argument.”

We received no word of disagreement in answer to our letter.

The philosophy of the Sex Offender Act is that those who come within it require treatment, not punishment. State v. Wingler, 25 N. J. 161 (1957); State v. Newton, 30 N. J. Super. 382, 386 (App. Div. 1954), affirmed 17 N. J. 271 (1955); State v. Thompson, supra, at p. 178. The purpose of the act is cure of a defendant. That is the prime justification for the provision of the act that, regardless of the circumstances of the offense or the willingness of the victim, a defendant is subject to confinement until he is “capable of making an acceptable social adjustment in the community,” even though that be for the period equal to that provided by law as the maximum punishment for the crime of which he was convicted. This may be for as much as 30 years for a single offense and for longer than the facts would have warranted if he had been sentenced as a criminal not subject to the act. State v. Johnson, supra, at p. 433. From this it follows that justice requires and the Legislature intended that defendant be released on parole as soon as, pursuant to N. J. S. 2A :164-8, he is found to be so capable by the State Parole Board, after recommendation by the Special Classification Review Board.

The judgment appealed from is affirmed. However, the Special Classification Review Board should determine and report to the Parole Board as soon as possible whether defendant is capable of making an acceptable social adjustment in the community. If the report and recommendation satisfy the Parole Board that he is, defendant must then be paroled, pursuant to N. J. S. 2A :164-8.


source: Caselaw Access Project

author: Lane, J. S. C.

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, A BODY CORPORATE AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, PLAINTIFF, v. RAYMOND GRILLON AND GEORGE A. BRADLEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Argued May 13, 1968 —
    Decided May 23, 1968.

      Mr. Ralph W. Campbell for plaintiff (Messrs. Campbell, Mangini, Foley é Lee, attorneys).

      Mr. Thomas T. Warshaw for defendant, Raymond Grillon (Messrs. Drazin, Warshaw, Auerbach & Rudnick, attorneys).
   Lane, J. S. C.

The complaint seeks a declaratory judgment relieving the plaintiff (Allstate) of liability under an automobile liability insurance policy in connection with an action now pending in the Law Division entitled “Raymond Grillon v. George A. Bradley and Kenneth Douglas” and bearing Docket No. L-l 7880-65. The Law Division action has been stayed pending the outcome of these proceedings. No service was made upon the defendant Bradley in this action although notice was given to him by publication. He has not entered an appearance. The matter is before the Court on final hearing.

On August 13, 1964, Raymond Grillon (defendant herein and plaintiff in the Law Division action) was injured when he was struck by a parked automobile which in turn had been struck by an automobile owned by Kenneth Douglas and operated by George A. Bradley. At the time of the accident there was in force a policy of automobile liability insurance issued by Allstate to Kenneth Douglas covering the vehicle driven by Bradley. Proper notice of the accident was given to Allstate which promptly commenced its investigation. A copy of the police report was obtained on or about August 19, 1964 which indicated that another vehicle may have caused or contributed to the accident by cutting Bradley off. A detailed written statement was taken from Bradley in early September 1964. This statement indicated that there was no agency between Bradley and Douglas at the time of the accident and also that there would be a substantial defense on the question of liability for the accident.

Shortly after the accident Allstate attempted to interview Grillon but was unable to do so at first because of his condition and later because it was advised that Grillon was represented by an attorney.

As a result of the accident Grillon sustained a compound fracture of the right tibia and fibula. He was taken to Patterson Army Hospital where he remained until April 28, 1965 except, for periods of convalescent leave. While he was at the hospital, there were three operations performed. The United States Government has asserted a claim for hospital care in the amount of $4,151. Allstate was advised by Grillon’s attorney that he had received no civilian medical care, but that he was to be examined by a civilian doctor for evaluation purposes.

On June 27, 1965, Allstate requested a physician, chosen by it to evaluate Grillon’s injuries, to obtain a physical examination of him. When the doctor was unable to arrange the examination, Allstate contacted the attorney representing Grillon on July 27, 1965, October 8, 1965, October 15, 1965, October 27, 1965 and May 9, 1966. On each occasion there were protestations of cooperation, but Allstate was never able to obtain a physical examination. The attorney who at that time was representing Grillon knew the interest of Allstate, its claim file number and the name of the claim'sman in charge.

The Law Division action was instituted Eebruary 24, 1966 against both Bradley and Douglas. Summons and complaint was served personally upon Bradley on March 21, 1966. No service was made upon Douglas. Upon being served with the summons and complaint, Bradley made no attempt to send it to Allstate or to notify Allstate of the institution of suit although he knew that Allstate was the automobile liability insurer. He left the State of New Jersey and went to California on April 9, 1966 without notifying anybody that he was going. Since that time Bradley has returned to New Jersey briefly on about seven occasions. He testified that under no circumstances was he going to tell Allstate where he could be located. It was not until October 25, 1967 —• one year, seven months and four days after service upon Bradley —that Allstate was advised that suit had been commenced. The advice and a copy of the summons and complaint was received from Grillon’s present attorneys, who were not substituted in the Law Division action until shortly before October 25, 1967, on which date the substitution of attorney was filed.

The insurance policy provides in Condition No. 2:

“If claim is made or suit is brought against, the insured, he shall immediately forward to Allstate every demand, notice or summons received by him or his representative.”

Although at the time of the accident Bradley was not operating the vehicle as the agent of the policyholder, he was operating the vehicle with the policyholder’s permission. Bradley was, therefore, under the terms of the policy an additional insured. The condition as to forwarding suit papers is applicable to him. No excuse was offered for Bradley’s failure to forward the summons and complaint to Allstate. The Court finds that there was a breach of Condition No. 2 by Bradley.

Recently (after the institution of this action) in Cooper Government Employees Ins. Co., 51 N. J. 86, 94 (1968), the Supreme Court held in a case involving notice of accident that to be relieved of liability for the breach of that condition, an insurer has the burden of not only proving the breach but also of showing that the breach resulted in “a likelihood of appreciable prejudice” to it. Allstate does not contest the applicability of Cooper to a breach of condition to forward suit papers immediately but argues that Cooper is not applicable because it should not be given a retrospective application. Such position is not tenable. The same argument was made when the rule of charitable immunity was abrogated by the Court. The Supreme Court held that the prevailing doctrine that the overruling of a judicial decision is retrospective should be applied. Dalton v. St. Luke’s Catholic Church, 27 N. J. 22 (1958). See also, Fox v. Snow, 6 N. J. 12 (1950); Ross v. Board of Chosen Freeholders of Hudson, 90 N. J. L. 522 (E. & A. 1917).

In its attempt to show the likelihood of appreciable prejudice, Allstate asserts the following:

(1) It was unable to obtain a reasonably early physical examination of Grillon although, had summons and complaint been sent promptly to it in accordance with the terms of the policy, it would have been in a position to require Grillon to submit to such examination. As closely related ground, Allstate asserts that it was deprived of an opportunity to take Grillon’s deposition and to examine him concerning his activities dxtring the time that he was receiving care and upon his discharge, as well as the depositions of other persons who may have had knowledge in that area but who now may be unavailable. Grillon was in the Army at the time of the accident and received all his treatment in an Army hospital. How long after the accident he remained in the Army was not shown.

(2) At the time the complaint in this action was filed and in fact up to the second day of the trial, May 13, 1968, Allstate was unable to locate Bradley, whereas had the summons and complaint been sent to it in accordance with the policy terms, Allstate would have contacted him and thus have been able to keep a check on his whereabouts.

(3) At this late date, the Law Division may not grant time for discovery.

These assertions will be dealt with in inverse order.

Ho default was entered against Bradley in the Law Division action. The attorneys representing Grillon in that action have consented to the filing of an answer on behalf of Bradley out of time. They also will not oppose an application for an extension of the time for discovery. It is inconceivable that the Law Division would not extend the time for discovery if this Court declares that Allstate is obligated to defend Bradley. Item (3) above does not lead to the likelihood of appreciable prejudice.

The evidence showed that had the summons and complaint been forwarded to Allstate immediately after service upon Bradley, it would have done nothing about keeping a check on Bradley’s whereabouts. In fact, it would not have tried to contact Bradley until about one week before the trial unless, of course, notice was given that his deposition was to be taken. Allstate’s efforts to locate Bradley could have been more vigorous. Notwithstanding this fact, however, in all probability Allstate would have been unable to locate him because he admitted that he willfully withheld from Allstate information as to his whereabouts. He testified that he was not under any circumstances going to tell Allstate where he was. As noted above, Bradley appeared on the second day of the trial before this Court. His presence was obtained by Grillon who in a circuitous way had located Bradley when he was temporarily in New York City. Bradley testified that he appeared at the trial of this case because he was afraid that if he did not he would lose his license which would have resulted in his being unable to continue his job as a truck driver. The proof noes not sustain Allstate’s assertion in Item (2).

Did the failure of Bradley to immediately forward the summons and complaint to the plaintiff result in “a likelihood of appreciable prejudice” based upon the contentions in Item (1) ?

In the Law Division action the nature, extent and duration of Grillon’s injuries will be a vital issue. It is a matter of common knowledge that it is of prime importance in the defense of a personal injury action where the injuries are as serious as those alleged by Grillon that the defendant have its own doctor make a physical examination of the claimant within a reasonable time after the accident. A claims representative of Allstate testified that in an accident resulting in injuries such as those sustained by Grillon, Allstate in order to adequately protect its insured would attempt to obtain a physical examination of the claimant about nine months after the accident. The actions of Allstate show that it was following this procedure in the instant case.

Had the summons and complaint been forwarded immediately to Allstate, it would have moved under R. R. 4:25-1 for an order compelling Grillon to submit to a physical examination. This Court is not aware of any procedure under our Rules of Court by which a prospective defendant can compel an injured person who is expected to bring an action to recover damages for personal injuries to submit to a physical examination prior to the institution of suit. There is authority out of State where courts acting under a provision similar to our R. R. 4:17-1 have required an injured person to submit to a physical examination prior to suit. See, e. g., Block v. Superior Court of Los Angeles County, 219 Cal. App. 2d 469, 33 Cal. Rptr. 205, 98 A. L. R. 2d 901 (Dist. Ct. App., 2d Dist. 1963). See also Martin v. Reynolds Metals Corporation, 297 F. 2d 49 (9th Cir. 1961). There are no reported decisions in this State granting or denying to a prospective defendant the right to obtain a physical examination prior to suit under R. R. 4:17-1. This Court is aware of at least one instance where a trial court denied such an application. In the Matter of the Petition of Erna J. Grotz to Perpetuate the Testimony of Gino Miraglia, Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-18206-65. Although Grillon could have waited for one year and 364 days before instituting suit and thereby have prevented a physical examination that long, once suit had been started Allstate had it been notified immediately would have promptly moved for an examination and obtained it. In no event would it have waited for a period of more than three years.

Cooper v. Government Employees Ins. Co., supra, does not give any guidelines as to what is meant by “a likelihood of appreciable prejudice” because it was not necessary to reach that issue. (51 N. J., at pp. 94-95.)

“Prejudicial” has been defined as meaning “disadvantageous; harmful; hurtful; injurious.” 72 C. J. S. p. 481. Such a definition is of little aid.

The meaning of prejudice can be found in an analogous situation where the equitable defense of laches is pleaded. To establish that defense there must be a finding of prejudice. West Jersey Title, etc. Co. v. Industrial Trust Co., 27 N. J. 144, 153 (1958) ; Pavlicka v. Pavlicka, 84 N. J. Super. 357, 368 (App. Div. 1964); Auciello v. Stauffer, 58 N. J. Super. 522, 530 (App. Div. 1959) ; Tierman v. Carasalio Pines, 51 N. J. Super. 393, 410 (App. Div. 1958).

The meaning of this general rule requiring a showing of prejudice is stated in 2 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 419 (d), pp. 178-179:

“Ladies in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he. iakes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel (see § 816) against the assertion of the right.”

The same standard should be applied to determine whether a breach of condition in an insurance policy has resulted in prejudice or in “a likelihood of appreciable prejudice” to the insurer. If it is clear that the position of the insurer with reference to the proper defense of the insured has become so changed by reason of the breach that the insurer cannot be restored to the position it would have been in had there been no breach, it must he held that the breach resulted in prejudice to the insurer. If it is clear that the position of the insurer with reference to the proper defense of the insured may have become so changed by reason of the breach that the insurer cannot be restored to the position it would have been in had there been no breach of condition, it must he held that the breach resulted in “a likelihood of appreciable prejudice”. The answer of necessity will depend upon the facts of each case.

Of course, Allstate may now obtain a physical examination of Grillon. Such examination would show the permanent disability of Grillon. It would, however, be of little aid on the question of the duration of any temporary disability. In addition, steps Allstate would have likely taken in the defense of the Law Division action may no longer be available to it — for example, an investigation among Grillon’s co-workers and supervisors, whether they he Army or civilian, as to his activities following his discharge from the hospital. It also may be impossible at this late date to investigate adequately the claim of loss of income which is set forth in the complaint in the Law Division. There is no way in which Allstate can be restored to the position it would have been in had Bradley complied with Condition Uo. 2 of. the policy.

The policy expressly provides that:

“No action shall lie against Allstate until after full compliance with all the terms of this policy * *

Therefore, Toub v. Home Indemnity Co., N. Y., 116 N. J. L. 287 (Sup. Ct. 1936), which required the showing of actual prejudice where there had been a breach of condition to forward suit papers is not applicable. The Court finds that the failure of Bradley to forward the summons and complaint immediately to Allstate resulted in “a likelihood of appreciable prejudice” in preventing Allstate from obtaining a physical examination of Grillon for a period of approximately one year, seven months and four days. Cf., Velkers v. Glens Falls Ins. Co., 93 N. J. Super. 501, 513, (Ch. Div. 1967), affirmed o. b. 98 N. J. Super. 166 (App. Div. 1967). In addition, such failure also resulted in “a likelihood of appreciable prejudice” by depriving Allstate of its opportunity in the Law Division action to take the deposition of the plaintiff early in the case and to fully investigate among his co-workers and supervisors claims that he may have of inability to fulfill his normal function resulting from the accident. As noted above, at the time of the accident Grillon was a member of the Armed Forces. Those men with whom he was associated and under whom he served may very well be completely unavailable at this time.

The defendant Grillon contends that the plaintiff has failed to join an indispensable party, the Unsatisfied Claim and Judgment Fund. However, the decision here will not affect the Fund’s rights nor any ultimate financial responsibility to which it may be exposed. Before the Fund can be held responsible, there must first be a judgment in favor of Grillon. Even then, the Fund has its protection under N. J. S. 39 :6-70. The Fund might well have been joined but it is not an indispensable party. Cf., McGainey v. Cable, 65 N. J. Super. 202 (App. Div. 1961). The statute creating the Fund contains no provision authorizing it to intervene in an action to determine whether there is coverage under an automobile liability insurance policy. In any event, the interest of the Fund, if any, was adequately protected by the attorneys for Grillon who have contested the claim of Allstate tenaciously and with extreme capability. Grillon’s interest was obvious. His attorneys felt that a recovery in the Law Division action would exceed the limitations of the Fund’s liability. An example of their industry is that they produced Bradley whom Allstate had been unable to find although it had engaged three independent agencies to locate him.

There will be a judgment declaring that the plaintiff is under no obligation to defend Bradley or to pay any judgment that may be rendered against him in the action brought by Grillon in the Law Division.


text:
    NORMAN SCHANTZ AND SANDRA SCHANTZ, PLAINTIFFS, JOHN T. BROCKWELL AND ABBIE BROCKWELL, PLAINTIFFS-INTERVENORS, v. EDGAR L. RACHLIN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Argued May 3, 1968 —
    Submitted May 16, 1968 —
    Decided June 5, 1968.

      Mr. Philip J. Blanda, Jr. for plaintiffs {Messrs. Blanda & Blanda, attorneys.)

      Mr. Albert G. Besser for defendant {Messrs. Hannoch, Weisman, Stern & Besser, attorneys.)
   Lane, J. S. C.

This action is before the court on a motion by the defendant for summary judgment against the plaintiff's and the plaintiffs-intervenors.

The plaintiffs, Norman and Sandra Schantz, seek to restrain the defendant from constructing and using a landing strip on his lands and to compel him to demolish the landing strip. It alleges that commencing in the fall of 1967, the defendant constructed a landing strip on his land; that the use of the landing strip is in violation of the zoning ordinance of the Township of Holmdel; that the plaintiffs’ child attends a school which is directly in the landing and take-off pattern of airplanes using the landing strip; and that the use of the landing strip will do “irreparable harm and damage to the plaintiffs and to their infant son * * * and further will greatly decrease and diminish in value ■plaintiffs’ property.” Paragraph 8 of the complaint states:

“As a result of the use and intended use to which the defendant has put his land, namely the construction of the air strip and the intention as announced of landing and taking off airplanes and using the premises as an airport, the life, limb, and safety of Jeffry Schantz, the infant child of the plaintiffs, has been unnecessarily placed in jeopardy and in danger by virture of there now being created unlawful and unnecessary air traffic at low altitudes over the school attended by the plaintiffs’ infant child as aforesaid. As a further result unnecessary and unlawful air traffic will be created over the general vicinity of the lands and premises owned by the plaintiffs which are also in the general area and vicinity of the lands and premises of the defendant, being approximately one mile from the defendant’s air strip and airport. The unlawful use by the defendant as aforesaid creates a hazard and nuisance in and about the general land area of the aforesaid two elementary schools of the Township of Holmdel and of the entire residential zone in which the aforesaid air strip and airport of the defendant is located. The acts of the defendant constitute an unlawful invasion of the property rights of the plaintiffs.”

The plaintiffs-iutervenors, John and Abbie Rroekwell, allege that the rear of their property abuts the defendant’s property, being approximately 700 feet from the airstrip. They adopt the allegations of the complaint and seek the same relief. Heretofore, the Court has denied two applications for preliminary injunctions. There are numerous affidavits before the Court as well as the depositions of the plaintiffs and the defendant.

The defendant is the owner of premises known as Hop Brook Farm on Holmdel Road in the R-40A zone of the Township of Holmdel. The property is a farm consisting of approximately 135 acres of which 100 acres are cultivated with crops. The remaining 35 acres are used for livestock, a house and outbuildings and the turf landing strip that is the subject matter of this suit. The strip was installed by cultivation and seeding in June 1967. It is a little more than 2,200 feet long with varying widths of between 150 feet and 400 feet. It runs roughly in an east-west direction bisecting the property and is between 700 and 750 feet from the north and from the south property lines. The landing strip is not lighted and is intended solely for daytime use pursuant to visual flight rules. Photographs before the Court show that the construction of the strip has not changed the appearance of the defendant’s property as a farm. Ho buildings have been constructed in connection with the strip, and there is no evidence of any intention on the part of the defendant to do more than land and take olf from his property. If the plane is stored overnight, it will just be tied down. The photographs show that there are no habitations immediately east or west of the landing strip.

The landing strip has been licensed by the Division of Aeronautics, Department of Transportation, State of New Jersey. The license is limited as follows:

“This is for personal use with the following- Aircraft only: Beechcraft C-33A N-5649S”

In an affidavit filed in this matter Francis R. Gerard, Director, Division of Aeronautics, states:

“In addition, T recently made my own inspection of the landing strip in question on Hop Brook Farm pursuant to the request of officials of Holmdel Township. Neither I nor my inspectors found any reason for concern nor any hazard or unsafe conditions as to people and property in the vicinity of the landing strip. I feel that the landing strip should not cause any annoyance to anyone, and of the 80 such private landing strips in this state, it is one of the safest of them.”

Mr. Rachlin was licensed as a private pilot by the Federal Aviation Agency about three years ago. He has more than 650 hours of private flying experience. It is his stated intention to use the landing strip solely for his personal use and pleasure. In connection with the issuance of the license by the Division of Aeronautics, the defendant was required to demonstrate his flying proficiency and the capabilities of the aircraft to a State Inspector.

The Beechcraft referred to in the license is a propeller-driven single engine, single-wing aircraft. According to the manufacturer’s specifications, when the aircraft is fully loaded the take-off ground run is 880 feet, with a required total take-off run of 1,225 feet in order to clear a 50-foot obstacle. The landing ground run is 625 feet with a required total landing ground run of 1,150 feet needed to land over a 50-foot obstacle.

The main thrust of the plaintiffs and plaintiffs-intervenors is that the installation and maintenance of the landing strip violates the zoning ordinance of Holmdel Township.

Plaintiffs and plaintiffs-intervenors have moved to file an amended complaint adding a third count alleging that the use of the landing strip is a violation of the zoning ordinance and that they, under the provisions of the zoning ordinance, are entitled to bring this action to enjoin such violation. The Court is advised that the defendant will consent to the filing of such amended complaint. In view of the disposition to be made upon this motion, it is unnecessary to decide whether in fact the plaintiffs or plaintiffs-intervenors have standing to seek enforcement of the zoning ordinance. See Cahill v. Heckel, 87 N. J. Super. 201, 204-205 (Ch. Div. 1965).

Article III of the zoning ordinance provides in part as follows:

“3.1 Except as hereinafter provided:
3.1.1 No land shall hereafter be used or occupied and no building or part thereof shall hereafter be used, occupied, erected, moved or altered unless in conformity with the regulations hereinafter specified for the district in which it is located.”

The zoning ordinance provides for the following uses by right in the R-40A zone:

“Following are the uses allowed * * * for residence districts.

4.1 Residence R — 40A (1600), Residence and Agricultural District
4.1.1 Uses allowed by right
a. One-family detached private dwelling with accessory buildings.
b. A one-family detached private dwelling containing the professional office of its resident owner or lessee with accessory buildings.
c. Churches, public and private schools, libraries, nursing homes, hospitals and accessory buildings, firehouses, historical museums and private golf courses. No private golf course shall be permitted unless the property constituting said course shall consist of at least 150 acres of land.
d. Farms in general, including truck farms, dairies, nurseries and fruit farms. Accessory buildings: incident to farms, such as tenant houses, greenhouses, buildings for housing seasonal workers for the farmer’s own use, barns, packing, grading and storage buildings and buildings for the keeping of poultry and livestock, garage, or garages for the keeping of equipment and trucks used in farm operations. This section shall be construed to include the business of selling farm equipment, farm implements, farm machinery, fertilizers, and seeds of all kinds, at wholesale or retail, or both but only when said business is conducted by the owner or owners of the farm.
e. Buildings, structures and premises for use and occxipaney by the Township for any municipal purpose.”

In Article IX “accessory” is defined as follows:

“The term applied to a building or use which is clearly incidental or subordinate to the principal building or use and located on the same lot with such principal building or use. Any accessory building attached to a principal building is deemed to be a part of such principal building in applying the Bulk Regulations to such accessory building.”

Section 4.1.1 sets forth a number of uses allowed by right in the R-40A district. It is apparent that the governing body did not intend to limit the district strictly to residential uses. Eor example, a property owner is permitted to carry on certain businesses in this zone. Section 4.1.Id authorizes the sale of farm equipment, farm implements, farm machinery, fertilizers and seed where the business is conducted by the owner of a farm. Although the ordinance in Section 4 refers only to accessory buildings, it must be implied that accessory uses are permitted. Borough of Northvale v. Blundo, 85 N. J. Super. 56, 59 (App. Div. 1964).

Is the maintenance of the landing strip on the defendant’s property for his personal use accessory to its use as a residence and farm and therefore not prohibited under the Holmdel ordinance P

In Zahn v. Newark Board of Adjustment, 45 N. J. Super. 516 (App. Div. 1957), the Court in holding that the maintenance of a garment cleaning pick-up depot in the basement, of a multiple dwelling was not an accessory use stated as to what an accessory use was (pp. 521-522) :

“The allowance of a primary use generally authorizes all uses normally accessory, auxiliary or incidental thereto, 8 McQuillin, Municipal Corporations (3d ed. 1950), see. 25.125, p. 206. and ‘accessory use,’ in turn, is defined as a use ‘customarily incidental to the principal use of a building,’ State v. Mair, 39 N. J. Super. 18, 23 (App. Div. 1956); cf. Wright v. Vogt, 7 N. J. 1 (1951) ; ‘one customarily incident,’ Dolan v. DeCapua, 16 N. J. 599, 605 (1954) ; ‘customarily incidental to the operation,’ Food Corporation v. Zoning Board of Adjustment, 384 Pa. 288, 121 A. 2d 94, 96 (Sup. Ct. 1956) ; ‘ “customary with and incidental to” the permitted use,’ Application of. Emmett S. Hickman Co., 10 Terry 13, 49 Del. 13, 108 A. 2d 667, 671 (Sup. Ct. 1954) ; ‘a use which is dependent on or pertains to the principal or main use,’ Town of Needham v. Winslow Nurseries, 330 Mass. 95, 111 N. E. 2d 453, 457, 40 A. L. R. 2d 1450 (Sup. Jud. Ct. 1953), ‘so necessary * * * or so commonly to be expected * * * that it cannot be supposed the ordinance was intended to prevent it.’ Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 133 N. E. 2d 816, 817 (Sup. Jud. Ct. 1953).”

It was held iu City of Newark v. Daly, 85 N. J. Super. 555 (App. Div. 1964), affirmed 46 N. J. 48 (1965), that the ■operation of a single coin-operated milk vending machine in the basement of a high-rise apartment house did not violate a zoning ordinance which limited the use of the property in the district to multiple dwellings and hotels. In discussing accessory use, the Appellate Division stated at pp. 560-561:

“The use of the word ‘customarily,’ when applied to ‘incidental,’ -may be helpful to establish affirmatively the existence of a use as ‘accessory.’ But the fact that a use is not ‘customarily’ indulged in is not conclusive. Thus, private garages are customarily used in connection with residences and are deemed to ho an accessory use in a residential zone. But, private swimming pools also are an accessory use in a residential zone, even though very lew residents in many residential areas customarily have them. In the instant case there was evidence that less than 5% of the apartment houses in the general area of Newark have milk vending machines. The small percentage may be due to various factors — doubt as to the legality of the use, the newness of the idea, or the lack of economic feasibility except in large multiple dwellings. Proof of a greater percentage would have tended to establish affirmatively that these machines were customarily incidental to apartment house operation. But the fact of a relatively small percentage of milk vending machine use in apartment houses does not per se preclude a holding that, at least in those multiple dwellings where they are in actual use, such machines are reasonably accessory, incidental and subordinate to the principal use of the residents in such dwelling's.”

The installation of a landing strip on the defendant’s property is no less accessory to its primary use than the installation of a 60-foot tower support for a radio antenna that was held to he an accessory use in Wright v. Vogt, 7 N. J. 1 (1951).

It was made clear by the Appellate Division in Borough of Chatham v. Donaldson, 69 N. J. Super. 277 (App. Div. 1961), that a residential use includes the use of property for more than sleeping and eating. The Court stated at p. 282:

“Use by a family of a home under our customs includes more than simple use of a house and grounds for food and shelter. It also includes its use for private religious, educational, cultural and recreational advantages of the family. 1 Rathkopf, The Law of Zoning and Planning (3d ed. 1980), c. 23. pp. 56 and 57. Pursuit of a hobby is clearly customarily a part of recreational activities. As long as the pursuit thereof is not of such a nature, or to such an extent, as to impair the residential character of the neighborhood, it cannot be supposed a zoning ordinance was intended to prevent it. Two- and three-car families are commonplace today. The ordinance herein contemplates three ear families; it provides for private garages in residential districts large enough to accommodate three automobiles. Sec. 207(1). The parking of one or two extra automobiles cannot be construed as an extension of this bobby or habit to such a degree as to impair the residential character of the district in which appellant resided.”

See also Skinner v. Zoning Bd. of Adjust. of Tp. of Cherry Hill Tp., 80 N. J. Super. 380 (App. Div. 1963).

There is no reference in the zoning ordinance to landing strips. It may very well be that the municipality could have adopted regulations concerning the use of landing strips, but in fact it has not done so. This Court cannot legislate and supply what is not in the ordinance. Cf., Jantausch v. Borough of Verona, 41 N. J. Super. 89, 103-104 (Law Div. 1956), affirmed 24 N. J. 326 (1957).

The proofs before the Court show that there are at least 80 landing strips presently licensed in New Jersey. The use of privately piloted aircraft for recreation and transportation is steadily expanding. It is perhaps true that more use is made of private aircraft as a customary and accepted means of private transportation in the southern and western parts of the country, but there is a sufficient use of such aircraft in our area so that it can be said that the installation of a landing strip for personal use is accessory to the use of property as a residence. It does not change the primary use of the premises from residential.

The plaintiffs argue that because the defendant carries on a portion of his real estate and investment business from his residence and because the aircraft will be partially used for transportation in connection with such business, the primary use of the property will be converted to a business use. Such contention is totally unrealistic. The same could be said for the average lawyer’s, or for that matter the average professional man’s, residence.

The Court, therefore, holds that the installation of the landing strip on the defendant’s property is not a violation of the zoning ordinance of the Township of Holmdel. Summary judgment will be granted for the defendant insofar as the complaints charge a violation of the zoning ordinance.

The plaintiffs and plaintiffs-intervenors argue that the license was improvidently granted by the Division of Aeronautics. It is alleged that the defendant did not comply with Regulation 6 :1-44A, VI General, B.2 of the Division because there was not submitted a certificate from the appropriate municipal or county authority that the landing strip was a conforming use, or if not conforming, that a variance had been granted. The plaintiffs and plaintiffs-intervenors have failed to allege any facts in their complaints to support such attack. Additionally, the agency granting the license would be an indispensable party but has not been joined as a defendant.

Paragraph 8 of the complaint alleges that the use of the landing strip (1) will be dangerous to the public health and safety; (2) will create a hazard and nuisance “in and about the general land area of the aforesaid two elementary schools of the Township of Holmdel and of the entire residential zone in which the aforesaid airstrip and airport of the defendant is located;” and (3) will constitute an unlawful invasion of the plaintiffs’ property rights resulting in a decrease in the value of their property.

The Legislature has provided that questions related to public health and safety in connection with the use of landing strips are to be determined by the Division of Aeronautics.

N. J. S. 6:1 — 44 provides in part as follows:

“The commission shall provide for the licensing of airports, airport managements, landing fields, landing strips, fixed base operators or other aviation facilities by rules, regulations and orders adequate to protect the public health and safety and the safety of those participating in aeronautical activities; * * ”

The Division of Aeronautics has been granted by the Legislature power to suspend or revoke any license issued when the public health or safety requires such action. N. J. 8. 6 :l-45 provides in part:

“Any license issued pursuant to the provisions of this chapter may be modified, suspended or revoked when in the interest of public safety or (lie safety of those participating in aeronautical activities, the commission shall deem such action advisable, after violation of any provision of this chapter or any rule, regulation or order promulgated thereunder. * * *”

A complaint similar to the one in this, action was considered in Oechsle v. Ruhl, 140 N. J. Eq. 355 (Ch. 1947). Plaintiffs in that case sought to enjoin the continued construction of a proposed airfield and the use of the airfield. The Court drew a distinction between the allegation in the complaint that the operation of the airfield would interfere with the ordinary comfort of the plaintiffs’ existence and would be an invasion of their property rights on the one hand, and the allegation that their safety was endangered and there would be a diminution of the value of their property on the other hand. At the conclusion of his opinion, Vice Chancellor (now Justice) Haneman stated (140 N. J. Eq. 366):

“For the foregoing reasons, the motion to strike the bill of complaint, insofar as it prays for an injunction against the continuance of construction or reconstruction of the airfield, will be granted, and the motion to strike the bill of complaint, in so far as the complaint predicates its prayer for the intercession of the Court of Chancery upon the safety of the individual complainants and upon a diminution of their property value, will likewise be granted. The motion to strike the' bill of complaint, insofar as said complaint contests the future operation of the airfield or airport, will be denied. Any other motions not dealt with in this opinion are denied.”

The matter that remained was whether in operation the airfield would be a private nuisance. The Court stated at 140 N. J. Eq. 359:

“The inquiry in such cases is whether the conduct of defendant in the operation of his business is such as would materially interfere with the ordinary comfort, physically, of human existence and whether it is an invasion of their property rights.”

Here the complaint and the intervenors’ complaint fail to make the necessary factual allegations to sustain a judgment enjoining the use of the landing strip as a private nuisance. A complaint must do more than just give notice of a claim. It must state the essentials of a cause of action. Grobart v. Society for Establishing Useful Mfrs., 2 N. J. 136, 150-152 (1949). The plaintiffs and the plaintiffs-intervenors may apply by motion within 10 days for leave to file amended pleadings properly setting up a cause of action based upon private nuisance in the operation of the landing strip if such factual allegations can be made. The landing strip is not a nuisance per se. Hyde v. Somerset Air Service, 1 N. J. Super. 346, 351 (Ch. Div. 1948); Oechsle v. Ruhl, 140 N. J. Eq. 355, 364 (Ch. 1947). See Sans v. Ramsey Golf & Country Club, Inc., 29 N. J. 438, 448-449 (1959) as to the essence of a private nuisance.

It has been held that the use of the landing strip does not violate the zoning ordinance. As to all other grounds for relief alleged in the complaints (including the third count of the amended complaint), they fail to set forth a cause of action upon which relief can be granted, and as to them the complaints will be dismissed.

Judgment consented to as to form will be presented within 10 days in accordance with R. R. 4:55-1 embodying the views set forth herein.


author: Wood, Wm. Fillmore, J. C. C.

text:
    ROBERT S. KREMER, LENORE E. KREMER AND CENTRAL GULF SERVICE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. CITY OF PLAINFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE BOARD OF ADJUSTMENT OF THE CITY OF PLAINFIELD, ALFRED SCHMIDT, BUILDING INSPECTOR OF THE CITY OF PLAINFIELD AND H. M. L. CORP., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued March 11, 1968 —
    Decided May 29, 1968.

      Mr. James D. Coffee, for the Plaintiffs (Messrs. Lindabury, McCormick & Estabrook, Attorneys).

      Mr. Edward Sachar, for Defendants City of Plainfield and Alfred Schmidt, Building Inspector (Messrs. Sachar, Sachar & Bernstein, Attorneys).

      Mr. Edward W. Beglin, Jr., for Defendant Board of Adjustment (3/fissrs. Crane and Beglin, Attorneys).

      Mr. Martin E. Keslenbaum,, for Defendant H. II. L. Corp. (Messrs. Abrams, Kestenbaum, Hendricks £ Beina, Attorneys) .
   Wood, Wm. Fillmore, J. C. C.

(temporarily assigned).

This action is brought by the plaintiffs in lieu of prerogative writ to set aside the grant of a variance by the Common Council of the City of Plainfield (hereinafter called the Council) to the defendant II. M. L, Corp. (hereinafter called the applicant). The variance was recommended by the Board of Adjustment (hereinafter called the Board).

Plaintiffs contend (1) that the action of the Council was arbitrary, unreasonable and capricious and (2) that a member of the Board, Hyman Abrams, had a conflict of interest arising from the fact that Ms nephew, Norman Abrams, was a partner in the law firm of Abrams, Kestenbaum, Hendricks & Reina, which represented the applicant before the Board.

The first contention presents no difficulty. The actions of the Board and the Council- were clearly justified by the circumstances; The Board found that the proposed use of applicant’s property was in beeping with the present character of the neighborhood. This finding is well supported by the facts.

At the request and in-the presence of all counsel I viewed the area.

I turn now to a statement of the essential facts. Applicant’s property is a vacant lot known as 813-823 West Front Street and is located in “C” Residence Zone. Use of property in that zone for commercial purposes is hot permitted by the Zoning Ordinance. Applicant sought and obtained a variance for the purpose of constructing a one-story commercial building to be used for retail sale of motor vehicle tires, tubes and “allied service products,” the quoted term being defined as products and services pertaining to the wheels, such as “front-end alignment, brakes, shocks and things of that nature.” The motor vehicles to be serviced are to consist of passenger cars and small trucks, with cars accounting for the major portion of the business.

Applicant’s lot is located on the southerly side of West Front Street approximately 161 feet west of its intersection with Grant Avenue. On that side of West Front Street there are business establishments extending from the lot several hundred feet in each direction. In the easterly direction there is a continuous line of such establishments for a distance greater than a normal city block. The area between applicant’s property and Grant Avenue {%. e., on the southwesterly corner of West Front Street and Grant Avenue) is used for a Gulf service station operated by Plaintiff Central Gulf, Inc. Directly across Grant Avenue (i. e., on the southeasterly corner) is a Sunoco service station. Next come a furniture warehouse outlet, a Midas Muffler shop, eight other business enterprises and one vacant store. On Grant Avenue adjacent to the rear of the Sunoco station and extending a considerable distance in an easterly direction along the rear of the other establishments mentioned is a fuel oil and coal business. Although there is a dwelling house (owned by Plaintiffs Kremer) adjacent to applicant’s property on the westerly side, this house is of older vintage and presumably it has been there for a considerable period of time. It is out of character with the surroundings. Adjacent to the house is another vacant lot and adjacent to that lot is another fuel oil and coal business. West of that business area are two buildings that are used respectively for a research plant and a small factory devoted to assembling and packaging novelty items.

The rear of applicant’s premises is adjacent to the mainline of the Central Railroad of New Jersey. On the other side of the railroad is a large factory building.

Under the foregoing circumstances the reasonableness of the Council’s action cannot be seriously questioned.

Plaintiffs’ contention with respect to the conflict of interest of Board Member Hyman Abrams is a much more troublesome one. The precise question here involved, namely, whether a member of a gwasi-judicial body may properly participate in a case in which a relative is appearing as attorney or is a member of the Arm so appearing, has not previously been decided in this State. Neither is there a statute or rule dealing directly with this question.

I greatly dislike the idea of setting aside proper actions of the Board and Council merely because of some procedural error or impropriety. Consequently I tried my best to find a way to sustain their actions. I had no success. I must reverse.

The attorneys for the defendants argued vigorously that the relationship between Hyman Abrams and Norman Abrams is too remote to give the former a disqualifying interest, or to create a likelihood of such an interest, in the outcome of the ease. They cited the cases of Van Itallie v. Borough of Franklin Lakes, 28 N. J. 258 (1958); Calloway v. Borough of Wildwood Crest, 70 N. J. Super. 601 (Law Div. 1961) ; and Bracey v. City of Long Branch, 73 N. J. Super. 91 (Law Div. 1962) to support their argument.

In Van Itallie a taxpayer challenged the validity of borough zoning ordinances on the ground, among others, that the brother of a councilman who voted for the ordinances was employed as an accountant-bookkeeper for a corporation that was interested in the adoption thereof. The court held that this circumstance is “too remote to be considered as tending improperly to influence the councilman’s official judgment.”

In Calloway plaintiff sought to have the sale of certain borough land declared illegal and void because, among other things, the broker who represented the highest and successful bidder at the sale was the brother-in-law of the mayor, who joined with the borough commissioners in voting to confirm the sale. The sale was public. The broker received the usual commission paid by the borough for sale of its lands. The court held that the “mayor’s interest was so remote and contingent as not to warrant disqualification.”

In Bracey plaintiff attacked a zoning ordinance which was adopted pursuant to a “Cooperation Agreement” between the city and the local housing authority and which put into effect the authority’s zoning recommendations. Previously the planning board, after extensive public hearings, had determined that the area covered by the ordinance was blighted. Plaintiffs contended, among other things, that the mayor, who was an ex officio member of the planning board and who, as a member of the board of commissioners, voted fox the adoption of the ordinance, had a disqualifying interest because his son was a civil service employee of the housing authority. The court held that the mayor’s interest was “too remote to require invalidating the ordinance.”

On the surface these cases may seem to support the thesis of defendants’ attorneys. But a mere surface view of the cases is misleading. If the cases could properly be interpreted as holding that the relationship of brother, brother-in-law or son is too remote to give rise to a conflict of interest, then certainly the relationship of nephew, which is more remote, would not establish such a conflict. However, the cases cannot correctly be so interpreted. Compare Rankin v. Board of Education of Egg Harbor, 135 N. J. L. 299 (E. & A. 1947) ; and Township Committee of Freehold Tp. v. Gelber, 26 N. J. Super. 388 (App. Div. 1953). On the contrary, in each of the cases cited by counsel the court recognized, at least by implication, that under different circumstances the relationship in question would disqualify the official. In Van Itallie the court did so expressly.

“We recognize that certain circumstances, such as the existence of a substantial association, financial or otherwise, of an official’s relative with an interested organization might constitute grounds for disqualification.” (at p. 269)

In the cases cited by counsel the pivotal circumstances were not the degree of relationship to the official. Van Itallie and Bracey turned on the type of association the relative had with the interested organization and the amount of interest the relative had in the official’s actions. In Van Itallie the court found no disqualification because the official’s brother held only a “lower echelon” position in a large corporation that would benefit from the zoning change and there was no evidence that the brother’s employment status would be enhanced by the change. In Bracey the action of the official was upheld because the official’s son was only a civil service employee of the housing authority and there was no proof that he could possibly benefit from the enactment of the ordinance. Calloway rested upon the court’s finding that the official exercised no control over the bidding at the public sale and that therefore he had no opportunity for influencing the sale to his brother-in-law’s client.

The distinction between the cited cases and the one at bar is obvious. Norman Abrams is not a subordinate employee of the law firm that represented the applicant before the Board. He is the senior partner. Of course, Hyman Abrams did not lack opportunity to influence the Board’s decision.

Although (as above indicated) there is no case, statute or rule precisely in point, this court is not without authoritative guidance. Sufficient direction is furnished by State v. Deutsch, 34 N. J. 190 (1961); N. J. S. 2A:15-4-9 (a); Rule 1:25B (a) (1); and Canon 13 of the Canons of Judicial Ethics.

In State v. Deutsch our Supreme Court held that the judge in- a .criminal case should have disqualified himself because he was a brother of the prosecutor.

N. J. S. 2A:15-49 (a) provides:

“No judge of any court shall sit on the trial of or argument of any matter in controversy in a cause pending in his court, when he: Is related in the third degree to any of the parties to the action, which degree shall be computed as at common law.”

■ Rule 1:25B (a) (1) is even broader. It provides:

“A judge of any court shall disqualify himself on his own motion and shall not sit in any matter, when he is related by blood or marriage' in the third degree, which degree shall be computed as at common- law, to any party to or attorney in the action, or to any attorney or law clerk who is a partner, employer, employee, or office associate-of any attorney in the action.”

'Canon 13 reads:

“A judge should not act in a controversy where a near relative is a party; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person.”

Rule 1:25 makes the Canons of Judicial Ethics applicable to judges of this State.

While the authorities I have cited apply specifically only to judges, there is no sound reason why a lesser standard should govern the conduct of those acting in a quasi-judicial capacity. The need for unquestionable integrity, objectivity and impartiality is just as great for gmsi-judicial personnel as for judges.

The relationship between Hyman and Norman Abrams falls within the prohibited degree. See Wilson v. Greenacres Country Club, 41 N. J. Super. 530, 534 (App. Div. 1956). Hence the former was disqualified from participating in the proceedings before the Board. This disqualification makes the Board’s action invalid.

I do not question the integrity or the motives of Hyman Abrams. I understand that he had previously been advised by the Board’s attorney that he was not disqualified by reason of the uncle-nephew relationship. I have already found the action of the Board was reasonable. There is no evidence of corruption. However, honest motives are not sufficient. The public is entitled to have its representatives perform their duties free from any interest, personal or pecuniary, which has the capacity of affecting their judgment. See Van Itallie v. Borough of Franklin Lakes, supra, 28 N. J., at page 268; Griggs v. Princeton Borough, 33 N. J. 207, 219 (1960); McNamara v. Saddle River Borough, 64 N. J. Super. 426, 429 (App. Div. 1960).

The variance is set aside. This ruling is, of course, without prejudice to applicant’s right to reapply before a properly constituted Board.


author: SCHNEIDEKMAN, J. C. C.

text:
    EDWARD FABER, PLAINTIFF, v. THE EDGEWATER NATIONAL BANK OF EDGEWATER, N. J., A NATIONAL BANKING ASSOCIATION, DEFENDANT.
    Superior Court of New Jersey Law División
    Argued May 16, 1968 —
    Decided May 28, 1968.

      Mr. Maurice G. Brigadier for Plaintiff.

      Mr. Milton T. Lasher for the Defendant.
   SCHNEIDEKMAN, J. C. C.

Plaintiff, Edward Eaber, has moved for Summary Judgment against the defendant, The Edgewater National Bank of Edgewater, N. J., a national banking association, on the Eirst Count of the Amended Complaint. In this Count recovery is sought for items improperly charged against the plaintiff’s “Berkeley Arms” checking account with the defendant. The pertinent facts at issue have been stipulated by both sides.

On March 8, 1963 plaintiff, Edward Eaber, became the owner of a Leasehold of an apartment house designated as “The Berkeley Arms” and located at 208 Anderson Street, in the City of .Hackensack, County of Bergen, State of New J ersey.

On January 15, 1964, the plaintiff entered into a management agreement with one Martin Goldstein under which the plaintiff employed the said Martin Goldstein as his agent to lease, operate and manage the aforesaid property. By said agreement the plaintiff agreed with Martin Goldstein that the monies collected by him as agent from the rentals paid by the tenants in said premises should be deposited in a bank account in the Edgewater National Bank, the defendant herein. Said account was to be opened by the plaintiff and all withdrawals therefrom were to be by check containing two signatures, the signature of Sylvia Eaber, the wife of the plaintiff, and the signature of either Martin Goldstein or his employee, Frederick Miller.

Thereupon, on February 3, 1964, the plaintiff did open an account in the Edgewater National Bank in the name of “Berkeley Arms Apartments”. On the signature card it was set forth that in the payment of funds or the transaction of any other business on the said account the signatures required on all checks or other instruments to be charged against said account should be that of Sylvia Faber, the wife of the plaintiff, and the signature of Martin Goldstein or his employee, Frederick Miller. The contract of banking between the plaintiff, as depositor, and the defendant, as the bank repository, provided that the defendant could charge against the aforesaid account of the plaintiff only such items as were drawn against the account of the plaintiff in the name of “Berkeley Arms Apartments” and which bore the aforementioned signatures.

Thereafter, commencing with February 3, 1964 and continuing through October 30, 1964, Martin Goldstein collected from the tenants of the plaintiff substantial sums of money and said funds were deposited by Martin Goldstein in the Berkeley Arms account. Total collections amounted to $179,-909.16 for that period. However, the total deposits to the Berkeley Arms checking account made by Martin Goldstein during the same period amounted to $236,915.36. Throughout this period, February 3, 1964 through October 30, 1964, the monthly bank statements were delivered by the defendant herein to Martin Goldstein pursuant to plaintiff's instructions to the bank. Plaintiff never examined the statements over this nine month period.

Some time after November 1964, the plaintiff obtained possession of the bank statements and the items charged against the Berkeley Arms account which had been returned with said statements. Thereupon the plaintiff learned that the defendant, in breach of its banking contract with the plaintiff, had charged against the aforesaid account of the plaintiff between February 3, 1964 and October 30, 1964, items totaling $56,098.97. These items were not drawn upon the Berkeley Arms account but were, in point of fact, drawn upon other accounts belonging to Martin Goldstein, individually, or other organizations owned, managed, or controlled by the said Martin Goldstein, with which the plaintiff had no connection whatsoever and for the,payment of which no authorization had ever been given by the plaintiff to the defendant, (emphasis mine) Included among these items was a Promissory Note which was in no way chargeable against the account of the plaintiff.

On December 15, 1964, and on several occasions thereafter, plaintiff furnished the defendant with a list of items which had been wrongfully charged by the defendant against the aforesaid account of the plaintiff. The items so improperly charged, 102 in all, against the account of the plaintiff amounted to $56,098.97, none of which purports to have been drawn against plaintiff’s account. The defendant has failed and refused to pay the same. They were all drawn against other accounts of Goldstein and charged to the plaintiff.

On November 12, 1965 the present suit was commenced against the defendant, The EdgeWater National Bank of Edgewater, N. J., a national banking association. The whereabouts of Martin Goldstein are unknown. On the basis of the foregoing facts the plaintiff contends he is entitled to Judgment as a matter of law.

Eor the purposes of this motion it should be noted that the movant has the burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact. B. B. 4:58-3. All inferences of doubt are drawn against the movant in favor of the opponent and the papers supporting the motion are closely scrutinized and opposing papers indulgently treated. Such relief is to be granted with much caution. Judson v. Peoples Bank & Trust Co., of Westfield 17 N. J. 67 (1954); United Stations of N. J. et al., v. Wm. Kingsley et al., 99 N. J. Super. 574, 581 (Ch. Div. 1968).

At the outset it should be noted that I am of the opinion that this is a case of novel impression not only in this State, but throughout the entire country. The Court in its research has been unable to find any case law where a bank acted in the manner in which the facts present themselves at bar.

The main issue for consideration is whether the plaintiff is relieved from exercising due diligence in examining the bank statements and cancelled checks for the period from February 3, 1964 to October 30, 1964 based on the facts in this case.

The defendant in his Brief raises two points, (1) the plaintiff suffered no loss and therefore has no claim to relief; (2) the plaintiff owed a duty to the defendant to examine his account with reasonable dispatch and that he failed to discharge this duty. I will consider the second point first.

It should be noted at the outset that the provisions of the Uniform Commercial Code contained in N. J.,8. 12A :4-406 have no application to the instant case. This section deals exclusively with the subject of the forgery or unauthorized signature of the drawer or endorser upon checks and other instruments chargeable to the account of a depositor as well as the alteration of such instrument, (emphasis mine). As previously stated, the duties imposed by the Uniform Commercial Code as to the bank and its customer, and the time limitation with respect to suit, apply only to forgery, unauthorized signature or alteration. There is no provision in the Code dealing with the duty of the customer or the bank with respect to items charged against the customer’s account that do not purport to be drawn against said account.

Furthermore, sub-section 4-406(3) makes the rules regarding due diligence inoperative if the bank, itself; has been negligent. In other words, a negligent bank cannot put the loss resulting from a forgery or the like onto the customer on the ground that the customer also has been negligent. N. J. S. 12A :4-406 N. J. Study Comment (3).

However, provision is made in,the Banking Act of 1948 as amended by the Laws of 1951, Chapter 166, namely, N. J. S. 17:9A-229.5. This Statute requires 'that:

Nothing in this act shall relieve a depositor from the: duty of exercising due diligence in the examination of an accounting, and.the vouc,hr ers, if any, accompanying it, or from the duty of diligence' of notify1 ing the banking institution of any error or irregularity therein, or from the legal consequences of any neglect of any such duty.j nor shall anything in this act modify or affect the provisions of sections 226 and 227 of the act to which this act is a supplement, or revive or renew any cause of action or .right or claim otherwise barred by law.

The defendant cites several New Jersey cases in his brief for the proposition that due diligence is a question dependent upon the facts in each case. Housing Authority of Union City v. Commonwealth Trust Co., 25 N. J. 330 (1957); Rainbow Inn, Inc. v. Clayton National Bank, 86 N. J. Super 13 (App. Div. 1964). It is defendant’s contention that a depositor cannot ignore the discrepancies in his account as long as he ultimately discovers them within the statutory deadline as prescribed in the Banking Act. See N. J. S. 17 :9A-229.1 to 4.

While it is true that both of the aforementioned eases deal with forgeries rather than cheeks drawn on another’s account this factual difference does not alter or detract from the basic legal principles expressed in Pannonia B & L Asso. v. West Side Trust Company, 93 N. J. L. 377.

“A bank depositor, on receiving from .the bank a statement of his account, owes to the bank a duty to examine the account with reasonable dispatch and with reasonable care, and to inform the bank of any errors discovered therein.” Forbes v. First Camden Nat. Bank and Trust Co., 25 N. J. Super. 17, 23 (App. Div. 1953).

The depositor is not excused from the discharge of that duty by entrusting its performance to an incompetent or dishonest agent, in the absence of at least reasonable diligence in supervising the conduct of the authorized agent. In accord with the rule in Pannonia, see Clarke v. Camden Trust Co., 84 N. J. Super 304, 311-312 (Law Div. 1964).

The rule in Pannonia has been followed in numerous jurisdictions. See Rainbow Inn, Inc., 86 N. J. Super., supra, at p. 26. The rule is well summed up in Screenland Magazine v. National City Bank, 181 Misc. 454, 42 N. Y. S. 2d 286, 289 (Sup. Ct. 1943), wherein the Court said:

“A depositor cannot be charged with the knowledge which the dishonest employee has gained while he was stealing from him * * * but a depositor must be held chargeable with knowledge of all the facts that .a reasonable and prudent examination of the returned bank statements, vouchers and certificates would have disclosed had it been made by a person on the depositor's behalf who had not participated in the forgeries.”

Therefore it is my opinion that Goldstein may be considered the agent of the plaintiff in fulfilling the plaintiff’s duty to examine the returned bank statements and cancelled checks to discover any irregularities therein. However, a resolution of this question is properly one to be submitted to a Jury.

In Duralite Co., Inc. v. New Jersey Bank and Trust Company, 97 N. J. Super 48 (App. Div. 1967), the depositor sued the bank for monies charged against the plaintiff’s account upon forged checks purported to have been drawn against the plaintiffs account. The Appellate Division in the opinion of Judge Gaulkin held, notwithstanding the provisions of the Uniform Commercial Code contained in N. J. S. 12A :4-406 with respect to the time periods for suing the bank on such items, that the provisions of N. J. S. 17 :9A-229.1 to 229.4 were still effective, had not been repealed and still applied. The effect of the aforementioned sections upon the contract of banking between the plaintiff depositor and the defendant bank is to render the accounting by the bank conclusive against the depositor unless, (1) the depositor notifies the bank within six years that it questions the correctness of the accounting, and (2) institutes his action to challenge the correctness of the accounting within one year after written notice has been served by’ the bank.

The facts in Duralite, amounted to a- depositor giving timely notice to the bank within the purview of N. J. S. 12 A: 4-406. However, in that ease the notice given to the bank did not result- in the commencement of suit for more than a year. The Court stated “It may be incongruous that a depositor who gives early notice in writing may be barred by 229.3 long before the depositor who delays giving written notice, but. the remedy for this incongruity and for the trap mentioned above-must-be provided by the Legislature.” Consequently, the decision of the Court amounted to an: enforcement of the provisions of the Banking Act as-well as the requirements contained in the ITúiform- Commercial Code. The Court felt that the Banking Act may thus be a trap for the unwary who may rely only on the Code, but the Court refused to overturn the clear legislative pronouncement on the matter. Cf. Housing Authority of Union City v. Commonwealth Trust Co., 25 N. J. 330 (1957).

, In the instant case the plaintiff contends that the defendant bank was not merely negligent, but was guilty of an active wrongdoing by. -way of breach of contract, since it -knowingly charged the account of- the plaintiff with items on a number of occasions which did not even purport to be drawn upon the plaintiff’s account. The plaintiff urges that-a construction of the Banking Act, N. J. S. 17 :9A-229.5, which would require notification to-a knowing wrong-doer that he is committing a .deliberate, intentional breach of contract would produce a reductio absurdum. With this the Court cannot agree, the,Court being of the opinion that the matter of exercising due diligence is-a -factual question which must be submitted to a'Jury.

: - In regards to the first defense that the plaintiff has suffered -no loss,-this Court-is of the opinion that the plaintiff would ptobably be entitled to nominal damages at the very least and, therefore,' this defense would not be available to the bánlc. Furthermore, the bant deprived the plaintiff of the opportunity to prove any actual damages when they made payment on the chocks in issue and did not file an inter-pleader. However, a full determination of this issue is not required for the adjudication of plaintiff's Motion.

Accordingly, Summary Judgment in this matter is denied.