author: Stamler, Joseph H., J. S. C.

text:
    STATE BOARD OF EDUCATION, COMMISSIONER OF EDUCATION, AND ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFFS, v. BOARD OF EDUCATION OF NETCONG, NEW JERSEY; PALMERINO STRACCO, PRESIDENT, MICHAEL J. ROMANO, VICE PRESIDENT, SAMUEL H. MORGAN, JR., ROBERT McKELVIE, ANTHONY ARBOLINO, DONALD G. CIVITELLA, ALFRED J. TOGNO, LAWRENCE J. FASCHAN, FRANK V. DELLOSSO, INDIVIDUALLY, AND AS MEMBERS OF THE NETCONG BOARD OF EDUCATION; AND JOSEPH M. STRACCO, SUPERINTENDENT OF SCHOOLS OF NETCONG; AND VINCENT M. TOGNO, PRINCIPAL, NETCONG HIGH SCHOOL, DEFENDANTS.
    Superior Court of New Jersey Clianeery Division
    Decided February 9, 1970

      Mrs. Virginia Long Annich, Deputy Attorney General, for plaintiffs {Mr. Arthur J. Sills. Attorney General of New Jersey, attorney).

      Mr. George Benson for defendants {Messrs. Oscar Meyer-son, Michael G. Willner and George Benson on the brief).
   Stamler, Joseph H., J. S. C.

Plaintiffs are the State Board of Education (hereinafter “state board”), the Commissioner of Education and the Attorney General of New Jersey. Defendants are the Netcong Board of Education (hereinafter “Netcong board”), the superintendent of schools of Netcong and the principal of the Netcong High School. Plaintiffs seek a declaratory judgment that a certain resolution and the implementation thereof are in violation of the United States Constitution and the Constitution of the State of New Jersey. A permanent injunction is demanded. Defendants assert that plaintiffs have no standing to seek relief and that what they have done is not proscribed by law.

The parties have stipulated that the State Board of Education bears the responsibility for the general supervision and control of public education in this State. In furtherance of this responsibility, the state board has the power to make and enforce rules implementing and carrying out the school laws of this State and has all other powers, in addition to those specifically provided by law, requisite to the performance of its duties. The Commissioner of Education has supervisory power over all schools of this State receiving support or aid from state appropriations and is responsible for the enforcement of all rules prescribed by the state board. The Attorney General is responsible for the enforcement of the provisions of the Constitution and all other laws of this State, and of the Constitution of the United States as interpreted by the courts.

On September 2, 1969 the Netcong board enacted the following resolution:

That the Superintendent be instructed by the Board of Education to institute prayers in the Netcong Schools, forcing no student to pray if unwilling but denying no student the right to pray, details to be worked out by the Board of Education.

It was further resolved that

Members of the clergy from the communities of Netcong and Stan-hope be invited to meet with representatives of the Board of Education and compose a suitable prayer for the Board’s consideration. In the interim, the Superintendent is instructed to institute SO seconds of silent meditation until the Board takes further action. [Emphasis supplied!

On September 10, 1969 the Netcong board rescinded its resolution of September 2 and enacted the following:

On each school day before class instruction begins, a period of not more than five minutes shall be available to those teachers and students who may wish to participate voluntarily in the free exercise of religion as guaranteed by the United States Constitution. This freedom of religion shall not be expressed in any way which will interfere with another’s rights. Participation may be total or partial, regular or occasional, or not at all. Non-participation shall not be considered evidence of non-religion, nor shall participation be considered evidence of or recognizing an establishment of religion. The purpose of this motion is not to favor one religion over another nor to favor religion over non-religion but rather to promote love of neighbor, brotherhood, respect for the dignity of the individual, moral consciousness and civic responsibility, to contribute to the general welfare of the community and to preserve the values that constitute our American heritage. [Emphasis supplied]

On September 16, 1969 the Netcong board adopted the following supplementary resolution:

BE IT RESOLVED that the Superintendent of Schools be authorized, empowered and directed to implement the resolution creating a period for the free exercise of religion in whatever manner, in the exercise of his discretion, he considers best under the circumstances. [Emphasis supplied]

The implementation of the resolution has occurred in the following way: At 7:55 a.m. in the Netcong High School gymnasium, immediately prior to the formal opening of school, students who wish to join in the exercise either sit or stand in the bleachers. A student volunteer reader, assigned by the principal on a first come, first serve basis, then comes forward and reads the “remarks” (so described by defendants) of the chaplain from the Congressional Record, giving the date, volume, number and body whose proceedings are being read. The selection of material to be read is made by the volunteer reader, with the approval of the high school principal in a purely ministerial manner to insure that the material used complies with the evinced purposes of the board’s resolution. The volunteer reader is free to add remarks concerning such subjects as love of neighbor, brotherhood and civic responsibility. At the conclusion of the reading the students are asked to meditate for a short period of time either on the material that has been read or upon anything else they desire.

In October 1969 the Commissioner of Education requested an opinion of the Attorney General as to whether the resolution of the Netcong board and the implementation thereof conformed with the provisions of the First Amendment to the United States Constitution. On November 24, 1969 the Attorney General rendered to the Commissioner a formal opinion which concluded that the resolution of the Netcong board and the implementation thereof violate the First Amendment to the Constitution of the United States. On November 26, 1969 a copy of the Attorney General’s opinion was mailed to the attorney for the Netcong board at the attorney’s request.

On December 1, 1969 the Commissioner sent a telegram to the Netcong board calling upon it to rescind the resolution and to cease and desist from all practices pursuant thereto.

On December 2, 1969 the Netcong board met in regular session and resolved to maintain both the resolution and the implementation thereof in the Netcong schools, notwithstanding the opinion of the Attorney General and the directive of the Commissioner of Education.

On December 3, 1969 the state board unanimously authorized and called upon the Attorney General to take legal action.

On December 4, 1969 the Commissioner received a letter from the secretary to the Neteong board reiterating the position which the Neteong Board took on December 2, 1969 and stating, in part, that

* * * until such time as the constitutionality of our program has been judicially determined, we cannot consider our program to be in violation of the law of the land, notwithstanding our respect for the Attorney General and his office.

On December 5, 1969 the state board sent a telegram advising the Neteong board of its December 3, 1969 decision to start suit.

On December 9, 1969 a verified complaint was filed and an order to show cause issued. The court’s suggestion that the matter be considered on the return day as cross-motions for summary judgment on stipulated facts was accepted by all counsel.

Without objections from either side the court received the amicus brief of the In God We Trust Committee, the Tenth District (Morris County) of V.P.W. (Veterans of Poreign Wars), the Morris County Conservative Club, Morris County American Legion, West Morris “T.R.A.I.N.” (Time to Restore American Independence) Committee and the Essex County Conservative Club.

At the outset defendants argue that the state board, the Commissioner and the Attorney General have no standing to bring this action. The lack of standing, it is urged, arises from expressions in Everson v. Board of Education, 330 U. S. 1, 18, 67 S. Ct. 504, 91 L. Ed. 711 (1946), and in Sherbert v. Verner, 374 U. S. 398, 88 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), in which the states are admonished to take a neutral position in their relations with groups of believers and nonbelievers in matters of religion.

Defendants assert that taxpayers of Neteong or parents of a child attending Neteong High School are the only proper parties plaintiff. This -would require one segment of the small community to engage in heated controversy with another segment and be forthwith labelled, not as litigants, but as “Anti-God,” “Anti-Christ” or “Communists.” Telegrams and letters were sent to the court during the pendency of this litigation which clearly and depressingly set forth the temper of the community and the eagerness of certain “citizens” to create division, diversion and prejudice.

However, this court, in determining the status of plaintiffs in the instant action, cannot and will not be influenced in any way by the telegrams, letters or labels. The law, and not the public clamour or fear thereof, is the polestar.

Where standing is placed in issue, the question is whether the person whose standing is challenged is a proper party to such an adjudication of a particular issue and not whether the issue itself is justiciable. Flast v. Cohen, 392 U. S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).

The state board has supervision and control of public education (N. J. S. A. 18A:4—10) and is obliged to make and enforce regulations for implementing and carrying out the school law of, this State. N. J. S. 18A:4-15. The Commissioner is constrained to enforce all rules prescribed by the state board. N. J. S. 18A:¿U23. The Attorney General must enforce the provisions of the United States Constitution, the New Jersey Constitution and all other laws of the State. N. J. S. 52:17A-4.

The United States Constitution, Art. VI, cl. 3, states in pertinent part: “* * * all executive and judicial officers both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; * *

The members of the state board, the Commissioner and the Attorney General have taken the required oath. N. J. S. A. 41 :l-2.

In Sills v. Hawthorne Board of Education, 84 N. J. Super. 63 (Ch. Div. 1963), aff’d. 42 N. J. 351 (1964), the Attorney General and the State Board of Education sought and were granted injunctive relief against a local board in a case involving compulsory prayer in school. This court is advised that the standing of plaintiff to sue was fully briefed. However, neither the trial court nor the Supreme Court saw fit to comment. It must be assumed that no affirmance would have been forthcoming had our Supreme Court not recognized the Attorney General and the State Board as proper parties plaintiff.

In the performance of the duties imposed upon him the Attorney General has been described as the “defender of the public interest.” Public Service Co-ordinated Transport v. State, 5 N. J. 196, 208 (1950). See also Alexander v. New Jersey Power & Light Co., 21 N. J. 373 (1956).

In Wilentz v. Hendrickson, 133 N. J. Eq. 447, 455 (Ch. 1943), aff’d. 135 N. J. Eq. 244 (E. & A. 1944), the court noted:

In Attorney-General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. 631, Dixson, J., remarked: “In equity as in the law court, the Attorney-General has the right, in cases where the property of the sovereign or the interests of the public are directly concerned, to institute suit, by what may be called civil information, for their protection. The state is not left without redress in its oion courts becaxise no private citizen chooses to encounter the difficulty of defending it, but has appointed this high public officer on whom it has cast the responsibility and to whom, therefore, it has given the right of appearing in its behalf and invoking the judgment of the courts on such questions of public moment. [Emphasis supplied]

It cannot be doubted that this case is one of “public moment.” Although not named parties to this action, the children of the State who attend public schools are the ones most affected by whatever the determination of this court may be. Traditionally, the State has a legitimate interest in protecting the welfare of its children. In Prince v. Massachusetts, 321 U. S. 158, 168, 64 S. Ct. 438, 88 L. Ed. 645 (1943), the Supreme Court said:

The state’s authority oyer children’s activities is broader than over like actions of adults. * « * What may be wholly permissible for adults therefore may not be so for children, * * *.

Our Legislature has declared by statute what the courts for many years have held: Children are the wards of the State. In N. J. S. A. 2A:4-2 the following appears:

It is hereby declared to be a principle governing the law of this state that children under the jurisdiction of said court are wards of the state, subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them.

To urge, as defendants do, that the State is precluded from access to the courts in seeking a judicial determination in matters involving “religion” or “nonreligion” would place the issue in the streets, and this nation would then become a government of men and not of law. It is concluded that plaintiffs have standing.

In issue is the application of the First Amendment to the United States Constitution to the program undertaken by defendants. In relevant part the First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *.

It is well settled that the First Amendment is applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

Plaintiffs argue that applicable decisions of the United States Supreme Court lead ineluctably to the conclusion that the resolution of the Netcong board and the subsequent implementation thereof are unconstitutional because such action is the “establishment of religion” as defined by that court. Defendants’ position is that the program is either “free exercise” of religion or not a religious exercise at all. In one part of their brief defendants say:

Although plaintiffs’ statement of facts demonstrates its knowledge that the free exercise of religion program at Netcong High School is comprised of a period of silence, or meditation, its brief fails to separate these two aspects in its legal arguments. Without in any manner conceding the validity of the State’s contentions that reading from the Congressional Record may be an unconstitutional infringement upon the First Amendment, defendant [sic] acknowledges that the issue might at least be open to reasonable argument. However, the same cannot be said for an attack upon the meditation aspect of the program.

With regard to meditation in schools without more, Professor Paul A. Ereund, a noted commentator on religion and the law, has said:

Nor does any decision, in my judgment, prevent a public school class from engaging in a moment of silent meditation or reverence, as the teachings of the individual spirit or inheritance may prompt. [Freund, Religion and the Public Schools, The Legal Issue. (1965)].

Mr. Justice Brennan in School District of Abington Tp. v. Schempp, 374 U. S. 203, 83 S. Ct. 1560, 10 L. Bd. 2d 844 (1963), by way of dictum said:

It has not been shown that * * * the observance of a moment of reverent silence at the opening of class, may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government, [at 281, 88 S. Ct. at 1602]

Such a program of silent meditation by itself may give the child the opportunity to reflect on the morning or breakfast prayer in which he and his father participated at home before school, or to contemplate the sermon in the house of worship which he and his family attended the preceding Saturday, Sunday or evening. The Netcong board, by directing the wedding of meditation and a religious reading, must believe that the parents of its students or their respective spiritual advisers are incapable of providing their children with something sufficiently worthwhile upon which to meditate.

Eor the purpose of a determination of the issues before this court, the program of the Netcong board cannot be considered in separate and divisible parts. Although the children are asked to meditate either upon the “remarks” read from the Congressional Record or upon anything else they desire for a short period of time, such reading is an integral part of the entire program and no child is invited solely for the meditation period. To be in attendance for only the meditation, a child must walk in at the beginning of or during or immediately at the conclusion of the reading, forthwith identifying his late arrival as unwilling to listen to the reading. He might just as well have meditated on the school steps or absented himself entirely until regular classes were ready to begin.

It is plaintiffs’ position that the program violates the Establishment Clause. Defendants state that it is permissible either as a religious activity within the Free Exercise Clause, or alternatively should be considered as a secular educational program “to promote love of neighbor, brotherhood, respect for the dignity of the individual, moral consciousness and civic responsbility to contribute to the general welfare of the community and to preserve the values that constitute our American heritage.” (Netcong board resolution, September 10, 1969). This latter position suggests a laudable and purely secular purpose.

There is an absolute duty of public schools to teach to our youth honesty, cooperativeness and truthfulness and to impart sound moral consciousness and other virtues. If this is the prime purpose of the Netcong board and the Netcong program is in no way a religious exercise, why then should any student be permitted to absent himself from so important a part of the educational process —something that should be common and compulsory for all children in the public schools ? Permissive nonattendance in a vital school program is not consistent with secularitv.

The earnestness of this position is questioned when defendants on argument described the rescission on September 10 of the nondenominational prayer resolution of September 2 as resulting from a realization by the Netcong board of the “error of their ways.” This was followed at the same meeting by passage of the resolution here under consideration. The flaw in the nonreligious argument becomes more apparent when the introductory language of the resolution is considered:

On each school day before class instruction begins, a period of not more than five minutes shall be available for those teachers and students who may wish to participate voluntarily in the free exercise of religion as guaranteed hy the United States Constitution. [Resolution, September 10, 1969; emphasis supplied]

If the Netcong program is truly a secular activity, there is no Establishment infringement. If it is in fact a religious exercise, then the paradox which troubled Mr. Justice Brennan in Abingion, supra, comes into play. He said:

[A]n increasingly troublesome First Amendment paradox: [is] that the logical interrelationship between the Establishment and Free Exercise Clauses may produce situations where an injunction against an apparent establishment must be withheld in order to avoid infringement of rights of free exercise. [374 U. S., at 247, 83 S. Ct., at 1585]

Professor Alan Schwarz concludes in a recent Yale Law Journal article that Mr. Justice Brennan, in the same opinion, endorses this guideline:

* * * the standard would permit the prima facie evidence of a violation represented by any assistance to religion to be overcome by proof that the purpose of the aid was to protect free exercise, whether or not such protection is constitutionally required. [Schwarz, “No Imposition of Religion: The Establishment Clause Value,” 77 Yale L. J. 692, 707 (1968)1.

Eor the most part the parties rely on precisely the same United States Supreme Court decisions, but their respective interpretations differ. Equating its own interpretations of the United States Constitution with the document itself, and requiring a reading of the document itself as if it contained a physically inierlineated printed translation taken from its opinions, the United States Supreme Court said in Cooper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958) :

Every state legislator and executive and judicial officer is solemnly committed by oath, taken pursuant to Article VI, If 3, to “support this Constitution.” [Emphasis supplied]

In the United States Supreme Court the doctrine of stare decisis has never enjoyed high potency, historically or theoretically, in cases of constitutional interpretation. Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408, 52 S. Ct. 443, 76 L. Ed. 815 (1932). (Brandéis, J., dissenting). Within our judicial system, however, there is an absolute duty, an obligation of obedience, imposed on trial courts to apply the law as last pronounced by superior judicial authority. A trial court cannot claim the right to an independent interpretation of the United States Constitution, and a constitutional challenge is said to be “insubstantial” when the same question has previously been adjudicated by the Supreme Court. California Water Service Co. v. City of Redding, 304 U. S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1958); Ex parte Poresky, 290 U. S. 30, 54 S. Ct. 3, 78 L. Ed. 2d 152 (1933).

The obligation to follow judicial precedent is present only when the rule of decision is clear. Plaintiffs and defendants both argue that it is well settled in favor of their respective adversary positions.

The amicus brief of the In God We Trust Committee urges this court to “overrule” the Supreme Court because it failed to properly consider the genesis of the First Amendment and becanse there exists an “overwhelming public sentiment” nationally in favor of prayer in school. In support of these positions attention is directed by amicus to the dissenting opinions of the Justices of the United States Supreme Court in various Establishment and Free Exercise cases, and to public opinion polls, such as the Gallup, Harris and Good Housekeeping polls, one of which purports to show that 82% of the public favors prayer in public schools. The validity of such “overwhelming” sentiment is questionable. For example, the General Assembly of the United Presbyterian Church (judicially noted to represent a large number of Americans) takes a position directly contrary to the In God We Trust Committee. In 1963 the General Assembly of the United Presbyterian Church passed the following resolution:

The 175th General Assembly Gives thanks to God for the civil procedure termed “due process of law”, which provides for orderly resolution of social conflict. We affirm the indispensable role of the Supreme Court of the United States in this process. While responsible criticism of the Court’s opinion is within the tradition of our nation, we are out of sympathy with the kind of criticism which impugns the integrity of the highest court of the land.
Records its endorsement of the principle laid down by the Supreme Court in the Regent’s prayer case (Engel verses Yitalc, June 25, 1962) that “in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government” * * *
Reminds the church that the development and practice of Christian worship is the inescapable obligation of the congregation and the family, and not of the public schools.
Warns the church of an all-too-human tendency to look to the state and its agencies for support in fulfilling the church’s mission. Such a tendency on the American scene endangers true religion as well as civil liberties. Consequently, this General Assembly calls the church to renewed worship, study, work, and sacrifice to fulfill its mission as God’s people in the world. [Presbyterian Life, vol. 22, No. 22, p. 14 (November 15, 1969)].

Assuming arguendo that there is such “overwhelming sentiment,” it is certain that the Netcong High School history or civics text books would tell our friends of court (amicus) that the available procedure for constitutional amendment is through the Legislative and not the Judicial Branches of government. Surely, good citizens who believe that it is “Time To Bestore American Independence” have learned why the Bounding Bathers made it more difficult to amend the Constitution than by the simple majority requisite for everyday legislation. This was to protect the minority; were it otherwise, the Bill of Eights, which includes the Eirst Amendment, would have become subject to repeal by a simple majority.

In urging that “the avowed disruptive purpose of a minority voice be not allowed to further injure the moral foundation of our country and society,” the amicus brief cites and quotes only the minority voices of the Supreme Court.

True concern for the moral well-being of our youth is expressed by both amicus and defendants. At the same time, by adoption of the September 10 resolution as the substitute for a uondenominational prayer resolution of September 2, defendants do not encourage in the youth of Netcong correction by proper legal procedures of an alleged wrong, but rather by scheme and subterfuge foster an avoidance of “moral consciousness and civic responsibility” and an evasion and erosion of “the values that constitute our American heritage.” (The last two quoted phrases are taken from the September 10 resolution.)

Defendants say that “prayers” are not being read to the students; they say that the readings from the Congressional Record are simply “remarks” and not a “religious exercise” or “prayer,” notwithstanding that words read are the words of the chaplain or visiting clergyman.

It is true, as plaintiffs assert, that the United States Supreme Court has time and again stated that any act of an agency of government at any level which has the effect of establishing or imposing religion is forbidden. It is also true, as defendants posit, that our highest court has time and again held that no agency of government may interfere with the free exercise of religion. But the guidelines are not so distinct that a given set of distinguishable facts can be deemed to foreclose a trial court determination.

This court must first determine whether there is a violation of the Establishment Clause, and if there is no violation, then there is no ease for plaintiffs. If there is an establishment, next to be considered is whether there is an interference with free exercise of religion. If there is both establishment and interference, which of them must be subordinated in the head-on confrontation? This adjudicatory process is consistent with the balancing approach suggested by Mr. Justice Brennan, who in Abington, supra, indicated that prima facie evidence of aid in establishment might be overcome by proof that the purpose of the aid was to protect free exercise.

The Netcong program is not saved from the establishment bar by the permissive attendance feature.

Defendants, using intemperate and unwarranted adjectives to describe the Justices who comprised the majority of the Supreme Court in recent First Amendment “religion” cases, characterize court views as based upon a recently concocted, ultra-liberal construction of our Federal Constitution. Eighty years ago the Wisconsin Supreme Court considered objections from a group of Catholic parents to the reading from the King James Bible in public schools. There, as in the case at bar, attendance of the children was not compulsory. The entire court agreed that the practice violated the Constitution. State ex rel. Weiss v. District Board of School District No. 8 of Edgerton, 76 Wis. 177, 199, 44 N. W. 967, 975 (1890). Although unanimous in its judgment, three separate concurring opinions were filed. In writing for the court Justice Lyons said:

The answer of the respondent states that the relators’ children are not compelled to remain in the school-room while the Bible is being read, but are at liberty to withdraw therefrom during the reading of the same. For this reason it is claimed that the relators have no good cause for complaint, even though such reading be sectarian instruction. We cannot give our sanction to this position. When, as in this case, a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, particularly when such cause is apparent hostility to the Bible, which a majority of the pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy the equality of the pupils which the constitution seeks to establish and protect, and puts a portion of them to serious disadvantage in many ways with respect to the others. [44 N. W., at 975]

This view was restated with approval in the United States Supreme Court 22 years ago in the “released time” case, McCollum v. Board of Education, 333 U. S. 203, 227, 68 S. Ct. 461, 92 L. Ed. 649 (1948).

In Engel v. Vitale, 18 Misc. 2d 659, 191 N. Y. S. 2d 453 (Sup. Ct. 1959), the trial court upheld the New York Regents' non-denominational prayer,” but to do so it required school authorities to promulgate regulations to assure that participation would be entirely voluntary and that non-participation would not be penalized, suggesting, for example, a regulation which would permit non-participating pupils to arrive after the exercises. This 22-word prayer, requiring less than ten seconds of reading time, is an innocuous, nonsectarian and universal as could possibly be formulated. One commentator has described the prayer as a “to-wbom-itmay-eoncern” prayer. Affirmed in the New York Court of Appeals by a 4-3 vote, the case was appealed to the United States Supreme Court. In a 6-1 decision (two Justices not participating) the Supreme Court reversed. Engel v. Vitale, 370 U. S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962) :

There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “non-denominational” and the fact that the program, as modified and approved by the state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. Neither the fact that the prayer may he denomination-ally neutral nor file fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it miglit from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment, [at 431, 82 S. Ct., at 1266-1267.]

The school board, the principal and a teacher required by law to be in attendance all approve of the Neteong program, either tacitly or explicitly; their recommendation of the program clearly influences attendance. Here there is ever-present peer pressure and certainly an aura of board, superintendent, principal and teacher acceptance. Public schools, unlike the halls of Congress, present a special case. This audience is without the maturity to express independence and is, indeed, captive when pupils are obliged to identify themselves by allegiance or withdrawal from the “program.” See Abington, supra, opinion by Justice Brennan, 374 U. S., at 299-300, 82 S. Ct. 1261. Certainly voluntary participation does not support defendants’ position.

Is it a religious exercise to read the “remarks” of the chaplain ? Are they truly and simply secular remarks ? Received as an exhibit at the hearing were copies of the Congressional Record from October 1, through December 9, 1969. The Congressional Record generally begins: “The Chaplain, the Reverend--, offered the following prayer" (emphasis supplied). From October 1 through December 9, 1969 the text of the Congressional Record includes quotations by the various chaplains from Romans, Deuteronomy, Ephesians, Isaiah, Samuel, Lamentations, Corinthians, Proverbs, Thessalonians, John, Matthew, Chronicles, Peter and, on 16 separate occasions, from Psalms. With respect to reading from the Bible, the trial court found in Abington that the reading of Bible verses, even without comment, constitutes a religious exercise. In the Congressional Record, where biblical quotations are used they are followed as well by the prayers of the individual clergyman. Further, when the Bible is not quoted by a chaplain the “remarks” set forth in the Congressional Record consist exclusively of a prayer. Each chaplain commenced his invocation with the words “0 God,” “Eternal God,” “Eternal Father,” or the like, and ended with the word “Amen.” In each instance it clearly appears that there has been a “solemn avowal of divine faith and supplication for the blessings of the Almighty.” (Quotation from Engel, supra, at 426, 82 S. Ct., at 1264.

If the Eegents’ Prayer may not be read in the public schools, it must follow that the readings of “remarks” from the Old Testament and the New Testament must be an imposition or establishment violation, for the necessary consequence of Engel is that any devotional reading is unconstitutional.

To call some of the beautiful prayers in the Congressional Record “remarks” for a deceptive purpose is to peddle religion in a very cheap manner under an assumed name. This type of subterfuge is degrading to all religions.

This does not mean that the Bible may not be read or studied as a work of literature, even though a reading or study may cause some to accept or reject it from a religious standpoint. The study of the Bible in a literature course, the study of the Congressional Record in a civics or government course, or of Washington’s Farewell Address or the Northwest Ordinance in a history class, is not proscribed to public school students, even if a by-product of this secular activity is harmful or beneficial to a particular religion. And, of course, there is no restraint upon parents or guardians who inculcate a specific religion in youth in the proper place and at the proper time. To hold otherwise would undermine the family’s right to determine the religions or nonreJigious beliefs of its members, especially its children. Our American heritage, which defendants seek to preserve, has embodied the legitimate interest in implementing and encouraging the exercise of that private choice to the extent of making religion or nonreligion a private affair. Privacy and complete freedom of choice is the core establishment value.

Direct imposition of religion by governmental action is per se unconstitutional. Indirect establishment can be condoned where it is the only means of obtaining an absolutely compelling and otherwise unobtainable secular goal. In considering the paradox expressed by Mr. Justice Brennan in Abington, supra, the principle of free exercise will be held superior where the imposition or establishment danger is indirect and insubstantial. This is the basis for defendant’s Eree Exercise argument.

In Abinglon, it was said:

Its [the Free Exercise Clause] purpose is to secure religious liberty-in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. [374 U. S., at 223, 83 S. Ct., at 1572]

Defendants have not shown that the order to cease and desist issued by the state board has the coercive effect of preventing any or all pupils from following the requirements of their respective religious doctrines.

While I do not question the judgment of experienced educators that the challenged practices may well achieve valuable secular ends, it seems to me that the State acts unconstitutionally if it cither sets about to attain even indirectly religious ends by religious means, or if it uses religious moans to serve secular ends where secular means would suffice. [Brennan, J. in Abington, supra, at 281, 83 S. Ct. at 1603],

In other words, to succeed in showing that Eree Exercise rights compellingly outweigh Establishment dangers, it must be clearly shown that the conscience of the one who asserts the right demands of him, as an inexcusable religious duty, the performance of a positive act which can only do harm to him if not done and will not infringe upon the security or freedom of others. See Clark, “Guidelines for the Eree Exercise Clause”, 83 Harv. L. Rev. 327, 363 (1969), wherein all the important Eree Exercise cases are considered.

Is the Netcong program vital and essential to the success of its intended secular goals ? Would a discontinuance of the program result in the inculcation of irreligión through the public school system? Would its discontinuance produce a dilution of the religious beliefs of those who attend the Netcong schools? Is the Netcong program the only available method of conveying to our youth a sound moral conscience and of teaching truthfulness and other laudable virtues ? Do the local board, the superintendent and the principal of Netcong High School truly believe that they and their teachers are completely unqualified and ill-equipped to teach their students to think about right and wrong without pinning the school curriculum closely to one or another reading from the Bible or other expression of ordained truth? The answer to each of the foregoing questions is in the negative. There is not an iota of proof before this court to support even a partial affirmative answer to any of the foregoing questions. If the Netcong program is related to goals such as morality, truth, honesty and kindness, which goals should be impressed firmly in all, then such ideals should be achieved by all — theists and nontheists, children and parents, pupils and educators, teachers, principals and school board members alike.

It is concluded that the Netcong program and the implementation thereof violates the First Amendment, and that the defense of Free Exercise as set forth in the case at bar is untenable.

An injunction will issue forthwith, enjoining and restraining defendants from a continuation of the program and any implementation thereof. Order to be submitted. No costs.


source: Caselaw Access Project

author: Handler, J. S. C.

license: Public Domain

text:
    REDA M. MUIR AND FORD MOTOR CREDIT CORPORATION, A DELAWARE CORPORATION, PLAINTIFFS, v. JEFFERSON CREDIT CORPORATION, A NEW YORK CORPORATION, DEFENDANT.
    Superior Court oí New Jersey Law Division
    Decided January 21, 1970.

      Mr. William T. Suiphin, appeared for plaintiffs (Messrs. Stryker, Tams & Dill, attorneys).

      Mr. Milton Kramer appeared for defendant (Messrs. Krarmr & Kramer, attorneys).
   Handler, J. S. C.

The action herein is for the wrongful conversion of an automobile. It is before the court on cross-motions for summary judgment confined to the issue of liability.

The essential facts are not in dispute. On April 30, 1965 West Side Auto Sales, a used car dealer in New York, sold to one Jessie Cordova a 1963 Oldsmobile which was in turn assigned under a security agreement to defendant Jefferson Credit Corporation (hereinafter Jefferson), a finance company doing business in New York. Cordova, being a New Jersey resident, made application to the New Jersey Division of Motor Vehicles for the certificate of ownership. On May 28, 1965 the Division issued Cordova the original certificate of ownership indicating that the motor vehicle was subject to a lien in favor of Jefferson.

Cordova paid Jefferson the first seven monthly installments under the security agreement. He failed to pay the installment due in December 1965. Long prior to this default, and without the knowledge of Jefferson, Cordova forged a satisfaction of Jefferson's lien on the original certificate of ownership by affixing thereto a stamp “Paid,” “Jefferson Credit Corp.” with an illegible signature. On the strength of this forged satisfaction, Cordova obtained a loan from the Jersey Loan Company using the car as collateral. A new certificate of ownership dated July 9, 1965 was issued to Cordova subject to a security interest in favor of the Jersey Loan Company. Thereafter, Cordova in a trade-in transaction sold the vehicle to Key Eord, Inc., an automobile dealer. As part of this transaction the lien in favor of Jersey Loan Company was satisfied and the certificate of ownership was marked “Paid” on September 17, 1965. On September 23, 1965 there was an assignment in favor of Key Eord, Inc. and a new certificate of ownership was issued by the Division of Motor Vehicles in the name of Key Eord, Inc. on that date. On December 18, 1965 Key Eord, Inc. sold the automobile to plaintiff Reda M. Muir. The sale was financed by the Eord Motor Credit Corporation (hereinafter Eord), a plaintiff herein. On December 23, 1965 a new certificate of ownership was issued showing Muir to be the owner subject to the security interest of Eord.

As a result of independent investigations made after Cordova defaulted in December, Jefferson found that plaintiff Muir had possession of the automobile. During the night of February 8, 1966 defendant's agents seized the automobile without Muir’s or Ford’s knowledge and thereafter sold it to a Hew York dealer.

Plaintiffs contend generally that Jefferson's seizure of the car was inconsistent with their respective ownership rights and security interest in the car and constituted a tortious conversion. Firstly', it is advanced that apart from the question of who has a superior right to the automobile, defendant’s seizure and disposal of the automobile did not comply with the procedures called for under New Jersey law. Secondly, it is asserted that the ownership rights and security interest of the respective plaintiffs are superior to defendant’s security interest. Lastly, plaintiffs contend that defendant is estopped from asserting a superior right in the automobile because its conduct made it possible for Cordova to commit the fraud.

The last two issues will be approached first. The perfection of a security interest in an automobile is governed by Title 39 of the New Jersey Revised Statutes. In re Ferro Contracting Co., 380 F. 2d 116 (3 Cir. 1967), cert. den. Barbato v. Livingston Nat. Bank, 389 U. S. 974, 88 S. Ct. 475, 19 L. Ed 2d 466 (1967). This result is dictated directly by the terms of the Uniform Commercial Code, viz:

The filing provisions of this Chapter do not apply to a security interest in property subject to a statute * * of this state * * * which requires indication on a certificate of title of such security interests in such property. [AT. J. S. J. 12A:9-302 (3) ]

Further:

A security interest in property covered by a statute described in subsection (3) can be perfected only * * * by indication of the security interest on a certificate of title or a duplicate thereof by a public official. [N. J. S. A. 12A:9-302 (4) ; emphasis added]

The requirements for perfection of a security interest in an automobile sold in New Jersey are spelled out in N. J. S. A. 39:10-11(J) :

The notation of the name and business or residence address of a secured party or his assignee * * * on the certificate of ownership, as provided in sections 39:10-8 and 39:10-9 of this Title [sections dealing with new and used cars respectively], and the presentation to the director in accordance with section 39:10-11 of this Title, of tire * * * certificate of ownership so noted, and the compliance with the requirements of subsections C and D of section 39 :10-11 of this Title, shall be in lieu of all filing requirements imposed by chapter 9 of Title 12A of the New Jersey Statutes and shall constitute the perfection of a security interest in the motor vehicle * * *.

Under this statute and in the context of this litigation, perfection consists of (1) the notation of the secured party on the certificate of ownership in accordance with N. J. S. A. 39:10-9; and (2) the presentation to the director of the certificate so noted “in accordance with section 39 :10-11.”

N. J. 8. A. 39:10-9 requires that if a security interest is taken by a person who “gives value to enable the purchaser to acquire rights in the motor vehicle,” his name and address “shall be noted on the certificate of ownership.” There is no question that the certificate of ownership was duly noted with the name and address of Jefferson as the secured party under N. J. S. A. 39:10-9.

The certificate, so noted, was also presented to the Director of the Motor Vehicle Division. Some question may exist, however, as to whether the presentation by Cordova, the purchaser, and the delivery of the original certificate to him instead of Jefferson, the secured party, was at variance with the “presentation” requirements of N. J. S. A. 39:10-11. This statutory section provides that in case of an absolute sale, that is, one “not subject to a security interest,” it is the purchaser who shall “submit to the director evidence of the purchase” and the certificate of ownership shall be “issued by the director and delivered to the buyer.” N. J. S. A. 39:10-11 (A). But in the case of a sale which is “subject to a security interest,” it provides only that the encumbered certificate of ownership “shall be delivered to the holder of the encumbrance or secured party.” N. J. S. A. 39 :10-11(B). There is no explicit requirement that the “presentation” or evidence of encumbrance be submitted by the secured party.

It may be that the failure of a secured party to present evidence of the encumbrance and to obtain delivery of the original certificate detracts from the enforceability of its security interest against certain classes of persons. (See discussion concerning estoppel, infra). But it would not appear that this failure, per se, would result in an nnperfected interest where evidence of the lien of the secured party has been duly presented to the Director, recorded and filed by the Director, and a new certificate issued by the Director with the lien noted thereon. This conclusion is reinforced by the Uniform Commercial Code which provides that a security interest in property such as an automobile “can he perfected only * * * by indication of the security interest on a certificate of title * * * by a public official.”"N. J. S. A. 13A:9-302(4).

Aside from the initial position of Jefferson as the holder of a perfected interest, plaintiffs sharply dispute Jefferson’s continued status in this capacity. They assert that when they acquired their respective interests in the automobile, the official record of the title indicated that there was no outstanding security interest; they were entitled to rely upon such record, and under Title 39 their title based on this is paramount to any other liens or interests in the vehicle. Jefferson argues, contrariwise, that its security interest was perfected and that under Title 39 and the Uniform Commercial Code its security interest did not become unperfected notwithstanding the subsequent issuance of a “clear” certificate of ownership to other parties by the Division of Motor Vehicles.

Title 39, as already noted, determines exclusively the mechanics for the perfection of a security interest in an automobile. N. J. S. A. 39:10-11(J). It further provides:

* * * the rights and remedies of the debtors and the secured parties in respect to such securiiy interest shall, except as otherwise expressly provided in this chapter, be subject to and governed by chapter 9 of Title 12A of the New Jersey Statutes. Id.

The Motor Vehicle Act does not expressly provide for a determination of rights as between the holder of a perfected security interest who has not authorized a satisfaction of his lieu on the original certificate of ownership, and a subsequent purchaser and lien holder for value who have acquired and perfected their respective interests without knowledge of the prior lien. In the absence of such express provision, recourse must be to the Uniform Commercial Code.

The Uniform Commercial Code generally contemplates the continuous perfection of a security interest where there has been no intermediate or intervening period when it was unperfected. Cf. N. J. S. A. 12A:9-303. The perfection of a security interest in collateral is not discontinued or interrupted by a sale, exchange or other disposition by the debtor, if unauthorized by the creditor, viz:

Except where this Chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, * * *. [N. J. S. A. 12A:9-306 (2)].

It is not disputed that Cordova’s subsequent forged satisfaction of Jefferson’s lien on the original certificate of ownership, the encumbraneing of the vehicle with Jersey Loan Company and the sale to Key Ford Inc., were without the authority of Jefferson. These acts on the part of Cordova therefore did not serve to discontinue or unperfect Jefferson’s security interest under the Code.

The Code does extend to certain persons rights superior to those of a party whose prior security interest has a perfected status. It provides:

(1) A buyer in ordinary course of business (subsection (9) of 12A:1-201) * * * takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.
(2) In the case of consumer goods * * * a buyer takes free of a security interest even though perfected if he buys without knowledge of the security interest, for value and for Ms own personal, family or household purposes * * * unless prior to the purchase the secured party has filed a financing statement covering such goods. [N. J. S. A. 12 A: 9-307].

Section 9-307 (1) is for the exclusive protection of those who hny from merchants in the ordinary course of business and out of inventory. Nevertheless, 9-307 (1) limits its protection of such buyers against only a security interest which was “created by [the buyer’s] seller.” The sale to Muir was from Key Ford, not from Jefferson. Muir, although a buyer in the ordinary course, is not protected by section 9-307 (1) since the security interest of Jefferson was one created by a party other than her own immediate seller. Cf. National Shawmut Bank v. Jones, 108 N. H. 386, 236 A. 2d 484 (Sup. Ct. 1967).

With respect to subsection 2 of 9-307, this has been construed as embracing transactions between consumers. Tbo curtailment of 9-307 (2) to the consumer-from-consumer transaction may be discerned after close scrutiny of the language. As was stated in New England, Merch. Nat. Bank v. Auto Own. Fin. Co., 245 N. E. 2d 437 (Mass. Sup. Jud. Ct. 1969) :

Careful reading of the entire subsection leads to the conclusion that the opening phrase, ‘In the case of consumer goods,’ must require that the seller as well as the buyer be a consumer. If the buyer alone has to be a consumer, the opening phrase would be surplusage because of the subsequent provision that the buyer purchase 'for his own personal, family or household purposes,’ which is nothing more than a repetition of the definition of consumer goods in § 9^-109 (1).
We hold that under- § 9-307 (2) both the buyer and seller must be consumers, [at 438; See also Everett Nat’l Bank v. Deschuiteneer, 109 N. H. 112, 244 A. 2d 196 (1968).]

In sum, neither the Motor Vehicle Act nor the Uniform Commercial Code dislodges or subordinates the prior perfected security interest of Jefferson vis-a-vis plaintiffs’ subsequent interests.

Plaintiffs argue that Jefferson should be estopped from asserting its prior interest in the automobile because its course of action made possible the occurrence of the loss. Such an argument is not based on any specific statutory provision but instead proceeds from general common law and equitable principles. The Uniform Commercial Code explictly provides in N. J. S. A. 12A:1-103 that previously recognized principles of law and equity should supplement the statute in those areas where the Code is silent.

Plaintiffs’ position is based on the ancient equitable maxim that “where one of two innocent persons must suffer by the wrongdoing of a third, he who arms the wrongdoer with the power to commit the wrong must suffer its effects.” Cf. Arsen v. Director, Div. of Motor Vehicles, 61 N. J. Super. 131, 136 (Law Div. 1960). Plaintiffs cite three recent eases from other jurisdictions in support of the contention that the secured party ought not to prevail over a bona fide purchaser or lien holder of an automobile when the secured party permitted the vehicle to come into the possession of a person with apparent authority to sell it free and clear of any security interest: Commercial Credit Corp. v. Associates Discount Corp., 246 Ark. 118, 436 S. W. 2d 809 (Sup. Ct. 1969) ; Franklin Investment Co., v. Homburg, 252 A. 2d 95 (D. C. Ct. App. April 3, 1969), (not yet officially reported) ; Medico Leasing Co. v. Smith, 457 P. 2d 548 (Okl. Sup. Ct. 1969). These cases, however, all involve factual situations in which the secured party placed the automobile in the possession of a dealer who might reasonably be expected to sell to the general public. This is distinguishable from the present situation wherein the automobile was disposed of by a consumer (Cordova) not in the business of selling automobiles. Examination of the reasoning behind the cited cases reveals that Franklin Investment, was based on a construction of the “buyer in ordinary course” provision of the Uniform Commercial Code, N. J. S. A. 12A:9-307 (1). The other two cases rested primarily on the “entrusting of goods to a merchant” provision of the Code, N. J. S. A. 12A:2-403, similarly inapplicable.

Jefferson refers to an Indiana case, Central Finance Co. of Peru v. Garber, 121 Ind. App. 27, 97 N. E. 2d 503 (App. Ct. 1951). In that case an automobile dealer gave the certificate of title, with the finance company’s lien noted thereon, to the conditional sale purchaser of an automobile. Before presenting the title papers to the Bureau of Motor Vehicles for transfer, the notation of the security interest was erased from the document. The purchaser was then able to pass off the automobile to an innocent party who had no knowledge of the lien and relied on the certificate of title showing no encumbrance. The Indiana court held that the secured party was not estopped from asserting its lien since it had complied with all the applicable statutory requirements. The court emphasized that Indiana law required only that the lien be inscribed upon the certificate of title but made no further requirement that the secured party retain possession of the certificate. Since the secured party had done everything it w'as required to do by statute and could not be expected to anticipate that his debtor would commit a forgery, the court declined to find an act or omission on which to posit an estoppel.

In General Motors Acceptance Corp. v. Hill, 95 Ariz. 347, 390 P. 2d 843, 844 (1964), the Arizona Supreme Court applied Pennsylvania law which provided that the certificate be delivered to the secured party and “be retained by such person until the entire amount of such lien or encumbrance is fully paid by the owner of said motor vehicle * * * ” The secured party gave the certificate of ownership to the purchaser, thereby enabling him to forge a satisfaction of the lien, obtain a new unencumbered certificate of title and then sell the automobile to an unsuspecting third party. The court held that the secured party was estopped from claiming any interest in an automobile as a result of its relinquishing possession of the certificate to a purchaser contrary to the statutory admonition. In characterizing the conduct of the secured party the court stated, “By releasing the certificate of title to [the debtor], appellant clothed him with sufficient indicia of ownership to permit the subsequent fraud.” 390 P. 2d, at 845.

The New Jersey Motor Vehicle Act is closely analogous to that of Pennsylvania as quoted in the Hill case. N. J. S. A. 39:10-11, subd. B states in mandatory language that in the case of a sale subject to a lien, the certificate of ownership so noted shall be delivered to the holder of the encumbrance and a copy to the purchaser. N. J. S. A. 39:10-10 further provides in the case of a conditional sale contract that where the lien has been paid “the seller or secured party shall deliver to the buyer the certificate of ownership thereto, executed as provided in this chapter, with proper evidence of satisfaction of the contract or termination of the security interest.” These provisions are similar to that of the Pennsylvania statute which provided that the certificate be retained by the secured party until payment of the amount of the lien. It does no injustice to common sense or the statutory language to conclude that since the New Jersey law provides for the certificate of ownership to be delivered to the secured party at the time of the sale and relinquished by it to the buyer at the time the full purchase price for the automobile is paid, the intention of the statutory scheme is that during the interim period, while the lien is still unsatisfied, the certificate of ownership should be retained by the secured party.

Jefferson vigorously denies that it is responsible for Cordova’s obtaining possession of the original certificate of ownership. According to defendant, an error was committed by the New Jersey Division of Motor Vehicles when it delivered the certificate to the debtor rather than to the secured party.

Assuming arguendo that the Division of Motor Vehicles improperly gave the certificate to Cordova, it is apparent that Jefferson as the secured party did not act reasonably to protect its security interest. The sale of the car from West Side Auto Sales, Inc. to Cordova, financed by Jefferson, took place on April 30, 1965. No explanation was offered by Jefferson as to why, as the secured party, it did not make the application directly for the original certificate of ownership rather than permit the purchaser Cordova, a stranger, to make the application and obtain the original certificate. Moreover, according to its affidavit, Jefferson was almost immediately aware that it had not come into possession of the certificate. Yet Jefferson’s efforts to obtain the certificate were informal and sporadic. It took no definitive action to recover the automobile until Cordova defaulted in its payments in December 1965, long after the fraud had been committed. Yo attempt was made by Jefferson until that time to recover the car or to have a duplicate certificate of title issued pursuant to N. J. 8. A. 39 :10-12, or to have the Motor Vehicle Director recover the original certificate on proper application. Cf. N. J. S. A. 39 :10-16 and 22.

What was said by the court in National City Bank of New York v. Del Sordo, 16 N. J. 530, 543 (1954), in a somewhat variant context, is apposite here: * * [A] lender who loans money upon the security of a motor vehicle without demanding and obtaining the certificate of ownership therefor is careless with his own right and funds.”

In conclusion, Jefferson was under a duty to act reasonably to protect its security interest in the automobile; this included a duty to have made the initial application to obtain the original certificate and to take steps available to it to secure its possession. The failure to discharge this duty created a risk that the original certificate in the hands of a purchaser might be fraudulently negotiated and that innocent third persons might rely thereon to their detriment. In this case such reliance did occur on the part of plaintiffs, who suffered as a result thereof. They are therefore entitled to claim the benefit of an estoppel against defendant.

In view of the foregoing, the remaining issues need not be addressed. In accordance with this opinion, summary judgment in favor of plaintiffs and against defendant on the issue of liability will be granted.


author: Camarata, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. EDWARD BOZEYOWSKI, DEFENDANT.
    Essex County Court Law Division—Criminal
    Decided February 6, 1970

      Mr. Raymond R. Connell, Assistant Prosecutor, appeared for plaintiff (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).

      Mr. Robert T. Winter, Assistant Deputy Public Defender, appeared for defendant (Mr. Stanley C. Van Ness, State Public Defender, attorney).
   Camarata, J. S. C.

Defendant was tried and convicted by a jury on October 29, 1969 on an indictment charging him with possession of one deck of heroin. On November 26, 1969 defendant was sentenced to New Jersey State Prison for not more than seven and not less than five years and also fined $25.

On February 11, 1965 and on October 1, 1967 defendant had been found guilty of possession of narcotics.

In connection with the third conviction on October 29, 1969, no accusation was presented charging him as an habitual offender, as a second or third offender under N. J. S. 2A:85-13. See also State v. Taylor, 72 N. J. Super. 388 (Cty. Ct. 1962); State v. Tyler, 88 N. J. Super. 396 (App. Div. 1965), cert. den. 384 U. S. 992, 86 S. Ct. 1898, 16 L. Ed. 2d 1008 (1966); State v. Washington, 47 N. J. 244 (1966).

When defendant was sentenced on November 26, 1969 he admitted the two previous convictions and acknowledged that the offense for which he was about to be sentenced was his third offense under N. J. S. A. 24:18-47.

The trial judge said he would not consider defendant a third offender because no accusation had been presented. State v. Taylor, supra.

Defendant now moves for a reduction or suspension of the sentence imposed on November 26, 1969 and requests that he be placed on probation, relying on N. J. S. A. 2A:168-1, which, in pertinent part, provides:

The provisions of this section shall not permit the suspension of the imposition or execution of any sentence and the placing of the defendant on probation after conviction or after a plea of guilty or non vult for violation of any provision of chapter eighteen of Title of the Revised Statutes except in the case of a first offender, [emphasis added]

Does N. J. S. 2A:168-1 bar the applicability of the provisions of the Habitual Offender’s Act, N. J. S. A. 2A :85-13, and the fundamental common law principle that in penal proceedings a defendant must be clearly informed of any fact which may enhance or increase the punishment. The court has not been referred to a New Jersey case exactly in point.

In State v. Laird, 25 N. J. 298 (1957), the court stated:

The basic rule is that where the repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense unless the earlier crimes are included in the specification of the offense laid and proved on the trial. * * * The procedure is rooted in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge he is called upon to meet; and this of necessity involves the elements of aggravation which under the statute enlarged the grade of the crime by enhancing the punishment. [Emphasis added]

Note the words, “different and greater punishment * * * and enhancing the punishment.”

A substantial right of the defendant is involved here, namely, whether defendant is to receive a suspended sentence, placed on probation or receive a custodial sentence. A custodial sentence is a greater punishment than a suspended sentence or a term of probation.

To adopt the view that N. J. S. A. 2A:168-1, prohibits the imposition of a suspended sentence where a defendant, as here, is a third offender, means that defendant would be

deprived of Ms liberty and sentenced to jail. In State v. Tyler, supra, the court stated:

As basic fairness requires that a multiple narcotics offender be afforded the same protection on sentencing as any other multiple offender convicted of a misdemeanor, it would follow logically that the accusation procedure outlined in A. J. S. 2A :85-13 should apply ordinarily, in the course of administering justice, to the sentencing of a second or third offender under the Narcotics Drug Act, A. J. S. A. 24:18-47 [at 402 ; emphasis added]

The failure to give defendant notice and an opportunity to be heard as to whether he is a second or third offender violates the due process of law. That opportunity should be afforded him.

Penal laws are to be strictly construed against the State. The law favors the liberty of individuals. State v. Moretti, 50 N. J. Super. 223 (App. Div. 1958).

The court concludes that basic fairness dictates that the provisions of the Habitual Offender’s Act, N. J. S. A. 2A:85-13, and the common law principle and the rationale of the cases cited supra, apply to N. J. S. A. 2A:168-1.

Absent an accusation against the defendant supplied to him prior to his sentence on November 26, 1969 —■ that the offense of which he was found guilty on October 29, 1969 was a third one — the conviction on October 29, 1969 must be treated as a first offense and the court may exercise its discretion and may impose a prison term and suspend the sentence, or impose a term of probation.

The presentence investigation will be continued. Counsel will be further advised of what reduction or modification, if any, will be made in the sentence.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RONALD M. PANDOLI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 2, 1970
    Decided February 13, 1970.

      Before Judges Costfoed, Collesteb and Kolovsky.

      Mr. John W. O’Mara argued the cause for appellant (Messrs. Selling, Boglioli é Moore, attorneys)

      Mr. Thaddeus 0. Baczhowsld, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, attorney).
   Per Curiam.

Defendant was subjected to a six-month revocation of his driver’s license by the Director of the Division of Motor Vehicles after she concurred in a report by a hearing officer that defendant had refused to take an alcohol breath (drunkometor) test after arrest by a police officer upon reasonable grounds to believe defendant had been operating a motor vehicle while under the influence of intoxicating liquors. N. J. S. A. 39:4-50.4

Defendant first contends the proofs before the hearing officer did not justify the conclusion that he had refused to take the drunkometer test. We disagree. The defendant flatly refused the request by the arresting officer that he take the test. This was after the officer read him the standard form which advises the motorist of the consequences of a refusal (possible six-month revocation). When brought before the officer in charge of administration of the test, who urged him to take it, defendant, to quote his own testimony: “* * * told him if I had to take it, I would, but first I’d like to call an attorney.” The upshot was that he did not take the test.

Defendant contends the foregoing facts did not constitute a “fiat refusal” to take the tost, and that only a refusal of that description can incept a valid revocation under the statute. Defendant cites Sidler v. Strelecki, 98 N. J. Super. 530 (App. Div. 1968), but the ease does not so hold. The refusal there was in fact a “flat” one, and the court had no occasion to consider a qualified agreement, which is the case here.

In our view, the Director was justified in finding defendant had refused to take the test. She obviously felt defendant was not merely, as he argues, expressing a preference for, but rather an insistence upon, seeing an attorney before taking the test. We think the reasonable implication of his statement was that if so advised by an attorney he might not take the test. As a matter of law, defendant had no right to have the advice of an attorney before determining whether he would accede to the test, insofar as the sanction of revocation for refusal is concerned. See State v. Kenderski, 99 N. J. Super. 224, 229-230 (App. Div. 1968); Ent v. State, Department of Motor Vehicles, 71 Cal. Rptr. 726 (Ct. App. 1968).

In any event, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and the physiological processes tend to eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test constitutes a refusal to do so. See Ent v. State, Department of Motor Vehicles, supra. The occasion is not one for debate, maneuver or negotiation, but rather for a simple “yes” or “no” to the officer’s request.

Defendant’s further contention that in the purely administrative proceeding below it was required that he be found guilty of a refusal beyond a reasonable doubt is without merit. The rule is preponderance of the evidence. Atkinson v. Parsekian, 37 N. J. 143 (1962). This was not a penal proceeding for drunken driving, where the reasonable doubt rule obtains.

Affirmed.


author: Leonard, J. A. D.

text:
    GERALDINE COMPTON, PLAINTIFF-RESPONDENT, v. CHARLES COMPTON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1970
    Decided January 22, 1970.

      Before Judges Kilkenny, Labeecque and Leonard.

      Mr. Gordon C. Strauss argued the cause for appellant (Messrs. McCarthy, Bacsilc, Hides & Dix, attorneys).

      Mr. William V. Kolshorn, Jr. argued the cause for respondent.
   The opinion of the court was delivered by

Leonard, J. A. D.

Defendant husband appeals from a judgment entered in the Juvenile and Domestic Relations Court which mandated him to pay weekly support and maintenance to plaintiff, his wife.

[Review of the facts omitted for purposes of publication.]

On March 25, 1969 she filed her complaint in the Juvenile and Domestic Relations Court seeking support and maintenance pursuant to N. J. S. A. 2A:4-18(f). Following a hearing the court entered an order dated April 25, 1969 directing defendant to pay the sum of $20 per week for the support and maintenance of his wife and additionally to pay “extraordinary medical and dental expenses.” Originally, defendant appealed from the whole of that judgment. However, at oral argument, counsel for both parties agreed that plaintiffs child has been born and the original order has been modified by an order dated October 31, 1969. The latter requires defendant to pay $15 per week for the support and maintenance of his wife, $10 per week for the child and “extraordinary medical and dental expenses.” We were advised by defendant that he has abandoned his appeal from the order of April 25, 1969, and is presently appealing only from that portion of the October 31, 1969 order which provides for support payments to his wife. Plaintiff consents to this change.

Defendant contends that the trial court erred in ordering support payments to the wife because she did not prove that she left the marital premises because of defendant’s “cruel and inhuman conduct.” He argues that the words “cruel and inhuman conduct,” as used in N. J. S. A. 2A:4-18(f), are to be construed to be synonymous with the extreme cruelty necessary to ho established as a ground for divorce (N. J. S. A. 2A:34-2 (c)) or for a judgment of separate maintenance based upon a husband’s constructive abandonment (N. J. S. A. 2A:34-24).

N. J. S. A. 2A:4-18, in its pertinent parts, provides as follows:

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints:
e. Involving the domestic relation, where a husband or father deserts bis wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family.
Í. Involving the domestic relation, where a husband or father forces his wife or child to leave the home because of his cruel and inhuman conduct, in which case the court may provide by appropriate order for their support and maintenance.

The Juvenile and Domestic Relations Court is a statutory court whose jurisdiction is strictly limited to the subject matter set forth in the statute. Amadeo v. Amadeo, 64 N. J. 417, 422 (App. Div. 1960). The court

is designed, in the interest of public policy, to provide a tribunal able expeditiously to assure adequate support for a wife and child to avert the need for their public maintenance. It deals with the financial aspects of the matrimonial relationship where the husband is the deserter. For the litigation of grievances beyond non-support by a deserting husband, the parties must resort or be relegated to other courts of competent jurisdiction. [Tracey v. Tracey, 69 N. J. Super. 382, 388 (App. Div. 1961)]

In Tracey the court stated:

The interpretation given the word “deserts” when applied to a husband under N. J. S. A. 2.A:4-18(e), differs from the meaning of the same word when applied to a husband or wife in the divorce law. N. J. S. A. 2A:34-2. * * •* A finding of desertion against the husband in a nonsupport proceeding is not determinative of the matter of desertion in a subsequent divorce action, [at 388-389]

By a similar analysis we conclude that the interpretation to be given the words “cruel and inhuman” when applied to a husband under N. J. S. A. 2A:4-18(f) is different from the meaning given to the words “extreme cruelty” when applied to a husband under divorce law (N. J. S. A. 2A:34-2(c)), or in an action for separate maintenance based upon a constructive abandonment (N. J. S. A. 2A:34—24). In the summary proceeding under the support statute, the wife need not establish the cruel and inhuman conduct of the husband to such a degree and with such specificity as is required in the aforementioned actions for divorce or separate maintenance. In the summary proceeding she need only show that she left her husband for a justifiable cause, and therefore his failure to support her would be considered a desertion on his part. Amadeo v. Amadeo, supra, at 422.

Here, the wife testified that at a time when she was pregnant defendant, among other things, hit her and put pillows over her head. We find that the totality of defendant’s conduct amounted to “cruel and inhuman” treatment which justified the wife leaving the marital abode. Thus, we conclude that plaintiff was obligated to continue to support his wife and the support order now under attack was properly entered.

Judgment affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL SMITH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1970
    Decided February 18, 1970.

      Before Judges Kilkenny, Labbecque and Leonaed.

      Mr. Edward Eannigan, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. Bruce Ira Goldstein, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. David S. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

On May 19, 1966 defendant, with the assistance of assigned counsel, pleaded guilty to an accusation which charged defendant with assault with intent to rob. On June 16, 1966, counsel being present, he was sentenced to a seven to nine-year term in State Prison. Immediately, upon the imposition of sentence, defendant challenged the maximum sentence of nine years, stating that he “understood from the Probation Department, the charge only calls for 5-7.” Upon interrogation by the court defendant conceded that this information was given to him after he entered his plea. The sentencing judge declined to reduce the sentence and also denied defendant’s application to withdraw his plea of guilty.

Defendant argues that before his guilty plea was entered he should have been informed of the maximum sentence that could lawfully have been imposed upon him. Since it was not, he contends that he should have been permitted to withdraw his plea. This point lacks merit.

R. R. 3:5-2(a), in effect at the time defendant pleaded and was sentenced, mandated that a guilty plea shall not be accepted unless the court first determines that the plea is made “voluntarily with understanding of the nature of the charge.” (Emphasis added). R. 3:9-2, effective September 8, 1969, requires that the court first determine that the plea is made “voluntarily with understanding of the nature of the charge and the consequences of the plea * * *.” (Emphasis added). Both rules also require that a defendant must complete and sign Criminal Procedure Form 13A before the acceptance of a guilty plea. That form contains, among others, the following question, “Do you understand that the trial judge may impose such sentence as in his discretion he considers appropriate subject to the limits prescribed by law?” The addition contained in R. 3:9-2 was inserted to make explicit that which was implicit before, i. e., that the defendant knew that upon the entry of his plea, the trial judge may impose such sentence as he considers appropriate “subject to the limits prescribed by law.” See State v. Deutsch, 34 N. J. 190, 201 (1961); 1969 Revision of Rules Gann Law Book ed., Tentative Draft Comment to R. 3:9-3, at 272.

R. R. 3:5-2 (a) did not make it mandatory that the sentencing court, before accepting defendant’s guilty plea, inform him of the specific limits of the maximum sentence prescribed by the law for the offense to which he pleaded. It only required that he be told that the judge may impose an appropriate sentence “subject to the limits prescribed by law.” While we do not find it necessary to determine whether R. 3:9-3 mandates that a defendant be so informed, we suggest that he will be even more fully advised of the “consequences of his plea” if the prescribed maximum sentence is disclosed by the judge accepting the plea.

Here, defendant’s lawyer was present with him at both the plea and the sentence. The trial judge, before accepting defendant’s guilty plea and again before imposing sentence, fully interrogated defendant and his counsel to make certain that defendant knowingly executed form 13A and fully understood the nature of the charge and his offer to plead guilty thereto. The judge advised defendant on both occasions that upon acceptance of the offered plea the judge might impose “such sentence as in his discretion he considers appropriate, subject to limits prescribed by law.” Defendant made no inquiry as to the maximum term. Since the alleged misinformation as to that term was not received by him until after he had pleaded guilty, he did not rely upon it in entering his plea. Under all the circumstances, we conclude that defendant’s guilty plea was voluntarily and knowingly entered and the trial court correctly denied his application to withdraw the same. See State v. Herman, 47 N. J. 73, 78-79 (1966). Thus, a remand to the trial court is unnecessary.

Defendant’s contention that he was denied due process of law since he was not represented by counsel at his arraignment at which he entered a plea of not guilty, is patently frivolous. State v. Vogel, 45 N. J. 400, 404-405 (1965).

Judgment affirmed.


author: Per Curiam. Kolovsky, J. A. D.

text:
    ELIZABETH VAN SICKELL AND JAMES VAN SICKELL, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. ABE MARGOLIS, ALICE HOLMES, INDIVIDUALLY AND ALICE HOLMES, t/a COLONIAL LAUN-DRY CENTER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided October 9, 1969.

      Before Judges Coneord, Coulester and Kolovsky.

      Mr. Adolph Romei argued the cause for appellants (Messrs. Romei & Bernstein, attorneys).

      Mr. Raymond C. Connell argued the cause for respondent Abe Margolis (Messrs. Connell & Andresahes, attorneys).
   Per Curiam.

Plaintiffs appeal from a judgment entered on a jury verdict of no cause for action in favor of the defendant Abe Margolis.

On February 7, 1965, at about 6 p.m:., plaintiff Elizabeth Yan Sickell was injured when she fell on the sidewalk of a shopping center after leaving a laundromat to walk to her ear which was parked in an off-street parking area in front of the store. It was raining and there was an accumulation of ice and snow in the area. The laundromat was operated by Alice Holmes who leased the premises from Abe Margolis, the owner of the shopping center.

Plaintiffs brought suit against both Margolis and Holmes charging, in separate counts, negligence by each of them in the maintenance of the sidewalk. Holmes could not be served with process and the action proceeded only against Margolis. In the pretrial order plaintiffs contended that Elizabeth Yan Sickell “stepped into a hole or break in the sidewalk which was covered with ice and snow and was caused to fall and slip and suffer the injuries complained of.” At the trial Mrs. Yan Sickell testified “the snow gave way under my feet” at a crack at the edge of the sidewalk. Margolis said he had never undertaken to remove the snow from the walk, that this was the obligation of the tenant, and that the “crack” in the walk was an expansion joint and the walk needed no repairs. Plaintiffs’ sole ground of appeal is that remarks made by defendant’s counsel in summation, over their objection, were so prejudicial as to call for a reversal.

The record indicates that during summation defendant’s counsel argued that the owner of the shopping center owed no duty to the plaintiff and the maintenance of the sidewalk was the obligation of the tenant. Thereafter the record reads as follows:

MR. CONNELL [defendant’s attorney] : So, I say to you, ladies and gentlemen, first of all, we had no responsibility to do anything with regard to this property. The responsibility rested solely with tliis tenant; and in furtherance of that, in the very Complaint which she filed, she charged, —
MR. ROMEI [plaintiffs’ attorney] : If your Honor please, I am going to object. I think it is improper. There is a Pre-Trial Order defining the issues. The Complaint is not in evidence of anything.
MR. CONNELL: I submit, your Honor please, the pleadings are part of the case.
THE COURT: I will permit Mr. Connell to refer to the Complaint, and bear in mind ladies and gentlemen, that in a Complaint, a lot of allegations are made in drawing the Complaint, that doesn’t necessarily mean that every allegation made has to be proven by the plaintiff.
I will take care of that in my charge so that there will be no confusion about it, and justice will be done to everybody.
At the beginning of the Complaint she charges the present defendant with a breach of duty. The parts that Mr. Connell is going to read to you, she charges the tenant, the lady who ran the Laundromat, with a breach of duty.
So, it will be for you to determine not from what is in the terms, but from the facts in this case ioho hreaehed what duty owed to the plaintiff. (Emphasis added.)

Defendant’s attorney then proceeded to review the allegations in plaintiffs’ complaint charging the tenant Holmes with negligence in the maintenance of the premises and said:

Now, the purpose for these ladies and gentlemen, is merely this. She must prove all of these allegations. So in this complaint she calls for it, that she is in a position to prove these things. Yes, as his Honor told you, she makes the same charges again. The landlord, the owner of the property.
So, she makes charges against anybody and everybody in the hope that some of the charges might stick (Emphasis added.)

In his summation plaintiffs’ attorney sought to overcome defendant’s remarks by explaining that the complaint is drawn by plaintiffs’ lawyer and that the issues of a case are framed at the pretrial conference. In the court’s charge that followed the jury was instructed that the defendant owner of the shopping center was under a duty to exercise reasonable care to maintain his property in a reasonably safe condition and that as part of this obligation was under a duty to keep it free from snow and ice. However, the court made no reference whatsoever to the plaintiffs’ alternative allegations in the complaint concerning the alleged liability of the tenant and to the immateriality thereof, although it had previously stated that the matter would be clarified in the charge. When the plaintiffs’ attorney called this to the court’s attention at the completion of the charge the court said merely, “All the objections of counsel are noted.”

It is well settled that a plaintiff may join all persons as party defendants in an action where a claim is asserted against them jointly, separately or in the alternative when the cause of action arises out of the same occurrence (R. R. 4:32-4) and that a party may set forth alternative or inconsistent claims in the pleadings. (R. R. 4:8-5 (b)).

Factual admissions made by the pleader in one count are not admissible against him in an issue raised in an alternative, inconsistent count. See 29 Am. Jur. 2d, § 692, p. 747; McCormick v. Kopmann, 23 Ill. App. 2d 189, 161 N. E. 2d 720, 729 (Ct. App. 1959). Moreover, the pleader’s conclusions of law are not admissions of facts.

In the instant case defendant’s counsel was permitted to substantially state to the jury plaintiffs’ legal conclusions contained in the alternative counts of the complaint which charged the tenant with negligence. Holmes was not a party in the action. The conclusionary allegations against Holmes in the complaint were not admissible against the plaintiffs. The issue in this case was the alleged negligence of Margolis only, as framed in the pretrial order. Defendant’s counsel’s comments were manifestly improper and obviously made to divert the jury’s consideration from that issue.

We are satisfied that defendant’s counsel’s improper remarks, in the light of those of the trial court in overruling plaintiffs’ objection, had a clear capacity to produce an unjust result in this case and constituted prejudicial error. The implication was that plaintiff Elizabeth Yan Siekellwas a suitor indiscriminately suing everyone conceivable and without justification. The trial court’s remarks in overruling the objection implied that the jury was to determine whether the claim properly lay only against the tenant rather than the landlord. This was misleading as well as incorrect. The tenant’s liability was no longer an issue in the case. This fact was not clarified by the court in its charge to the jury, notwithstanding a request therefor by plaintiffs.

We cannot find that the court’s charge to the jury eliminated the prejudicial potentiality of counsel’s comment, absent a clear admonition to the jury by the court that it should completely disregard the original count against the tenant and consider only the liability of the landlord.

The judgment is reversed and the case remanded for a new trial.

Kolovsky, J. A. D.

(dissenting) : I agree with the majority that it was improper for defendant’s attorney to have referred in his summation to the alternative counts of the complaint directed to the tenant, defendant Holmes.

I find it unnecessary to decide whether that error would be of such significance as to warrant reversal, cf. Biruk et al. v. Wilson et al., 50 N. J. 253, 262 (1967), if corrective action had not been taken. As I read the record, any prejudice that may have resulted from those remarks were effectively eliminated by the court’s charge. There is, therefore, no reason to reverse the judgment and order a new trial.

The remarks were made in support of defense counsel’s argument that the landlord, defendant Margolis, had no duty to remove the snow and that the responsibility therefor was on the tenant. The paragraph of the summation which immediately precedes the portion quoted in the majority opinion is illuminating:

“Now, I submit to you ladies and gentlemen, that Mr. Margolis as' the owner of the property, first of all was under no obligation as I am sure his Honor will charge you, to remove the snow. Even if he had the duty to do it, and he testified under the terms of his lease, the tenant had the obligation and the duty and the responsibility to remove that snow and ice. He was not in control of those premises. He was not in possession. The tenant was, and the tenant was the one who had the responsibility to her customer, the plaintiff, to keep that area free, not the owner of the property.
So, I say to you, ladies and gentlemen, first of all, we had no responsibility to do anything with regard to this property. The responsibility rested solelj' with this tenant; and in furtherance of that, in the very Complaint which she filed, she charged, •—•
MR. ROMEI: If your Honor please, I am going to object. I think it is improper. There is a Pre-Trial Order defining the issues. The Complaint is not evidence of anything.”

The trial court in its charge told the jury not only that: “You must determine the facts only from the evidence received in Court. You must not consider as evidence any statement of counsel made during the trial,” but also, and contrary to what defendant’s attorney had said, that defendant Margolis did owe a duty to plaintiff, that:

“A lessor, a landlord, an owner of property who leases or rents property for the purpose involving the admission of the public, is under a duty to see that the rented premises are safe for the use so intended, and that their condition will not expose anyone to unreasonable risk or harm, any of the public, who may enter therein. The performance of that duty, the owner is required to exorcise reasonable care to inspect the premises; and should the owner violate his duty as thus defined, and should an invitee of the tenant or owner suffer injury as a proximate result of such violation, the owner is liable for that injury unless the injured person is guilty of contributory negligence.
In this ease we are concerned with the duty of the owner of a shopping center to an invitee. The defendant, Abe Margolis, owed to the plaintiff, Elizabeth Yan Sickell, a business invitee, the duty of exercising reasonable care to maintain his property in a reasonably safe condition. As part of this obligation, the defendant was under a duty to exercise reasonable care in the maintenance of the property and to keep it free of snow and ice.”

Further in. the course of its charge, in opening its discussion of the pleaded defense of contributory negligence, the court said:

“The plaintiff, Elizabeth Van Sickell, came to the premises as a business invitee and was using the sidewalk in the parking center area, in the manner in which it was intended to be used. Defendant was required to exercise ordinary care to render the premises reasonably safe. She had the right to assume that he had performed his duty.”

The charge effectively conveyed to the jury that in dealing with the issue of negligence, they were to be concerned only with whether defendant Margolis had negligently breached the duty which the court said he owed plaintiffs. In my opinion, there is no warrant for concluding that the effect of the remarks made by defendant’s attorney in summation survived the court’s definitive charge.

I would affirm.