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

text:
    TOWNSHIP OF DEPTFORD, PLAINTIFF-APPELLANT, v. WOODBURY TERRACE SEWERAGE CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1968 —
    Decided June 21, 1968.
    Before Judges Gaulkin, Lewis and Kolovsky.

      Mr. Alfred T. Sanderson argued the cause for appellant.

      Mr. Sidney M. Schreiber argued the cause for respondent (Messrs. Schreiber & Lancaster, attorneys).

      The Board of Public Utility Commissioners filed a brief amicus curiae (Mr. William Gural, Deputy Attorney General, on the brief; Mr. Arthur J. Sills, Attorney General, attorney).
   The opinion of the court was delivered by

Gaulkin, S. J. A. D.

The township sued for specific performance of defendant’s agreement to sell to the township certain of its property, its sewerage system “and all rights, privileges and franchises in and pertaining to the tract.” The Chancery Division held that the contract was invalid because it had not been approved by the Public Utility Commission (hereafter P. U. C.) and dismissed the complaint. The township appeals. At our request, the P.U.C. filed a brief amicus curiae.

The agreement was stated as a condition upon which the township, on August 8, 1955, granted to defendant (pursuant to R. S. 48:13-3, since repealed) the township’s consent that defendant corporation he organized and that it “construct and operate a sewage disposal plant and system” in an area of the township known as "Woodbury Terrace which was being developed by the organizers of defendant corporation.

R. S. 48 :13-6 (repealed L. 1962, c. 198) provided that:

“The corporate authorities of the municipality may, by ordinance, provide that such consent shall be conditioned upon the payment to tile municipality of a specified sum of money, or upon quarterly, semiannual or annual payment to the municipality of specified sums of money or a specified percentage of the gross receipts of the company. The corporate authorities shall annex to this consent any other terms and conditions upon which such consent is granted.” (emphasis added)

R. S. 48 :13-4 provided (until it was repealed by L. 1967, c. 156) that “The filing of the certificate of incorporation together with the consent of the municipality and the terms and conditions upon which the consent is granted, shall be conclusive evidence that the company has assented to siich terms and conditions, and the same shall be binding upon;the company, its snccesors and assigns.”

The ordinance (which reenacted an earlier ordinance- containing the same conditions for reasons stated infra) recited that the consent was “expressly conditioned upon the following”: .

*• í{« ¡¡s $ # :Js 9)i
b. That the Woodbury Terrace Sewerage Corp. by acceptance of this consent makes an irrevocable continuing and unlimited offer to the Township of Deptford to sell, bargain, transfer and assign to the Township of Deptford, or its successors, all mains, meters, plants and pumping station and all and any other physical equipment of its sewerage system and all rights, privileges and franchises in and pertaining to the tract, for which consent is now given, for the sum of EIGHTY THOUSAND DOLLARS ($80,000.00) or a sum equal to the cost of the sewerage plant excluding the cost of mains, whichever sum is less; deducting nevertheless a sum equal to one-sixteenth (1/16) of the purchase' price, as above provided, for each complete year of operation following the date when the said corporation commences operation of any part of the system, and for the sum of ONE DOLLAR ($1.00) at any time after the expiration of sixteen years from the date when the corporation commences operation of any part of the system. It is mutually agreed that upon the adoption by the Township of Deptford of an ordinance accepting the above offer, the Woodbury Terrace Sewerage Corp., shall forthwith without fraud or delay, sell bargain, transfer and assign the said facilities to the Township of Deptford for the agreed price as herein provided.
The title to be sold to the Township of Deptford for the price as above shall be free and clear of all charges, debts, liens, mortgages, bonds or other encumbrances or obligations whatsoever of the Woodbury Terrace Sewerage Corp. and the said .utility company shall not in any way encumber or allow to be encumbered any of the facilities of the company upon which the Township may exercise its option, provided however, that the Woodbury Terrace Sewerage Corp. may encumber the plant and system in an amount not exceeding at any time that sum for which the Township may purchase the facilities as provided heretofore.
c. That the installation and construction of all mains, meters, plants and pumping stations and all and any other physical equipment and any additions, extensions or replacements thereof shall be installed under the direction and supervision of the township engineer.” - >

Defendant admits that it sought this consent and agreed to its terms. The record of the hearings before the P.U.C. on April 35, 1955 and December 17, 1957 shows that the organizers of defendant corporation (hereafter “developers”) wore developing a large tract of vacant land in Deptford, bordering on the Borough of Westville, for the construction of about 350 one-family homes. The developers had expected to get water and sewerage from Westville but, as Kapnek, one of the developers, testified:

“n * sc aj. .Qle yme fhat we were ready to start to book into their sewerage system they decided that they were not going to honor that contract and they wouldn’t supply us with sewerage, so it was a matter of going to Court and trying to enforce the contract [with Westville! or building our own sewerage utility, and at that time, as I say, we had built several sample houses and certain sales had been made based upon the fact that we had a sewerage contract with the Borough of Westville, so we had no choice but to go ahead and try to establish a sewerage utility of our own, and that led into our negotiations with the Township of Deptford and the final granting o£ this consent, and as I say, as far as we were concerned, we felt that we were forced to accept the conditions that they laid down * *

Deptford apparently had no sewerage facilities at that time, other than individual septic tanks. Since, as Kapnek said, the developers had sold and were selling lots on the representation that sewerage disposal would be provided for by means other than individual septic tanks, the developers were compelled to build their own sewer plant to service the development. Defendant was created to service only the area being developed by the developers. Mr. Kapnek testified:

“Q. What interest has the Whitney Home Builders — you designate yourself as Secretary-Treasurer of that company — what interest do they have in this particular transaction, if any?
A. Well, they have the interest that they are building the homes to be served by this sewerage plant.
Q. Well, the Westville Dardens Corporation is designated in this agreement for the sale of the land. Are they the owners of this tract?
A. They are the owners of part of the ground. A good bit of the ground has been conveyed to the Whitney Home Builders.
Q. Is any part of the ground that is being used for this sewerage system owned by the Whitney Home Builders?
A. Well, let me understand more clearly just what you are referring to. The system, as I understand it, designates the piping and mains; the plant designates the plant itself. Now, the ground that the plant is on is owned by the Westville Cardens Corporation. The system., the mains, that ground is in the bed of the streets and is, of course, dedicated to the Township.
Q. Then what interest does the Whitney Home Builders have in any part of this sewerage system, other than the fact that they built the houses that are going to be served by the plant?
A. Well, the Whitney Home Builders, together with the Westville Gardens Corporation, financed the building of the system and will sell the system to the Woodbury Terrace Sewerage Corp., with the Board’s approval.
Q. Other than Lots Nos. 1, 2 and 3 in Bloch 57, Section 1, and Lots Nos. 29, 30, 31 and 32 in Bloch 1¡5, Section 2, on the Woodbury Terrace map, there is no part of this se-wer system on any other part of that map, is there, other than in the bed of the streets?
A. No sir.” (Emphasis added)

On June 14, 1955 the P.U.C. hearing examiner reported his tentative approval of the franchise (with its conditions), subject to the correction of two technical defects in the original Deptford ordinance which had granted it. On August 8, 1955 Deptford passed another ordinance which repeated the conditions but corrected those defects. On October 13, 1955, the P.U.C. adopted the examiner’s report and approved the franchise as granted by the township.

Defendant thereupon took title to the sewerage plant and facilities at a book value (arrived at by the accountant who served defendant as well as developers’ “allied companies”) of $91,374. The basis of that cost, the accountant said, was “the actual land cost, based upon a per footage basis, and * * * the cost of constructed plant and system.”

The developers went ahead with the construction of houses and appeared quite content with their bargain until 1957, when the P.U.C. wrote defendant as follows:

“Tour 1955 Animal report to the Board discloses that in accruing the annual depreciation charge to operations a rate of 6 2/3% equivalent to a fifteen year life expectancy for depreciable property was used. Studies by the Board have indicated that a life expectancy of between forty and fifty years for the type of plant and equipment used by you is normal. The board, therefore, questions the propriety of an annual charge for depreciation of 6 2/3%. The Board’s staff suggests that the annual charge be corrected to reflect only the depreciation applicable to normal life expectancy of depreciable property, in conformity with the practice usually approved by the Board.
If it is your desire to amortize by charges to the Surplus Account, the investment in plant not recovered by normal depreciation over the period covered by the mandatory offer for sale included in the franchise or municipal consent, there appears to be no objection to such procedure.” (Emphasis added)

By this time oyer 100 houses had been built and were being sewered by defendant. Defendant argued to the P.TJ.C. that it should be permitted to charge the users a rate which reflected 6~2/3% annual depreciation. When the P.TJ.C. refused to allow this, defendant filed a petition with the P.TJ.C. in September 1967, saying in part that:

“The right of the Township of Deptford to acquire such property is merely optional and if not exercised, after sixteen years, petitioner would have written off its property and he obliged t.0 continue to render service to its customers at cost and without any return.
Petitioner commenced operations of its sewerage system in the year 3955 and in its accounting procedure began to accrue annual depreciation on the basis of one-sixteenth of the cost of depreciable property in order to be consistent with the provisions of the Ordinance of the Township of Deptford as aforesaid. Said annual rate of depreciation. if not applied to petitioner’s operations and recovered from customer rates, would be contrary to the interests of its investors who are holders of the capital stock of your petitioner which was duly authorized to be issued by this Board * * *.
By letter of this Board addressed to your petitioner dated March 25, 1957 * * * [it] is * * * indicated * * * that the annual charge be corrected to reflect, only the depreciation applicable to the normal life expectancy of depreciable property and that the difference in such amount and the amount required by the Ordinance of the Township of Deptford be charged to the Surplus Account. As above stated, such an accounting procedure would be contrary to the interests of stockholders and would impair the common stock of your petitioner in the hands of the holders thereof.” (Emphasis added)

Defendant complained in its petition that in later cases before the P.U.C., the P.TJ.C. “expressly refrained from passing” on option provisions such as the one here involved. The petition concluded by asking that the P.TJ.C. fix the rate of depreciation and that it amend its “Certificate * * * approving the Ordinance of the Township of Deptford by revoking the approval” of the option.

The township was given notice of the petition but did not appear before the P.U.C. Poliowing a hearing before an examiner, the P.U.C. on March 26, 1958 ordered:

“1. That our Decision dated October 13, 1955 in Docket No. 8313, ‘Approval of Franchise’ is hereby amended so as to include the statement:
‘This Certificate is not to be construed, under any circumstances, as a ruling upon Paragraph 2-b of the Ordinance with respect to the acquisition of the utility properties by the Township of Dept-ford.’
2. The Company shall use the rate of 2%% per year and a life of 40 years with regard to the depreciation factors related to its accounting for depreciation.”

The township took the position, upon its complaint for specific performance, that the P.TJ.C. had not, by the amendment, declared the option condition void, but merely had said it neither approved or disapproved it. This, says the township, was a proper position for the P.TJ.C. to take because the P.TJ.C. has no jurisdiction to approve or disapprove a sale by a utility to a municipality, N. J. S. A. 48 :3-7, and therefore it had no jurisdiction to approve the option originally or to disapprove it thereafter. Hence, says the township, the Chancery Division should have dealt with the option as a contract beyond the jurisdiction of the P.H.C. and enforced it. But the trial judge disagreed. He held that “without Board approval, the ordinance is- ineffective.. Likewise when the Board refuses to. approve a section of the ordinance, that section is ineffective.” He concluded that the March 26, 1958 order had effectively withdrawn the original approval and therefore the option was unenforceable.

Since R. S. 48:13 has been repealed, it would serve no useful purpose to investigate its meaning beyond what is essential for the decision of the case at bar, especially since unnecessary speculation by us might affect other corporations organized thereunder. Therefore, we deem it sufficient to say that the P.11.0, of course had the right to disapprove in toto a sewerage franchise granted under R. S. 48 :13 if it found that a purchase clause therein made doubtful the corporation’s ability to serve the claimed public need, but we doubt (but do not decide) whether, in face of N. J. S. A. 48 :3-7, the P.TJ.C. had the right to exscind a purchase clause from a consent and yet approve the franchise, especially without giving the municipality the opportunity to withdraw its consent or to make another agreement. And, if it had that right, we question whether the P.U.O., upon the facts before it in April 1955 when the approval of the original conditional consent was granted, would have been legally justified in ex-scinding the option instead of requiring defendant corporation to provide adequate financing. After all, defendant was a mere agency of the developers to enable them to sell lots and build one-family houses. Had the developers been compelled to install 250 septic tanks, it probably would have cost them almost as much as the plant which they built, and they doubtless sold their houses for more because of the sewage disposal system. The record does not reveal the negotiations with the township, or why the township asked for the option, but doubtless it was exacted by Deptford from defendant for the protection of the community against possible problems. The township probably did not wish to undertake to provide sewerage for the development under construction, and yet it wanted to protect itself against all future contingencies for the benefit of the public, including the purchasers from the developers, and to prepare for the time when the township might decide to provide for a municipally operated sewerage system. The developers got what they bargained for.

We limit our holding to the following: we hold that the order of March 26, 1958 amending the franchise was not a disapproval of the option but a statement that the P.U.C. neither approved nor disapproved it. Further, assuming the P.U.C. had the power to approve or disapprove the option when it approved the franchise initially, and the right thereafter to amend its approval of the franchise in other respects, we hold that in face of N. J. S. A. 48 :3-7 the P.U.C. had no authority to void the option after it had approved it, especially after more than two years had elapsed and over 100 houses had been connected to the system.

Defendant argues that the township is barred from now claiming the option because it took no appeal from the P.U.C.’s amendment of the approval. But that would be true only if the amendment voided the option, which we hold it did not.

For the foregoing reasons, the judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion. However, we do not mean to pass upon defendant’s other defenses, or to indicate that, if plaintiff prevails, it is necessarily entitled to the remedy of specific performance. The right to prevail, the remedy and all other incidental questions we leave to the trial court.

We do not retain jurisdiction. No costs.


source: Caselaw Access Project

author: Rimm, J. G. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. LOUIS JOSEPH LIPPOLIS, DEFENDANT.
    Superior Court of New Jersey Law Division — Criminal
    Decided June 17, 1968.

      Mr. William G. Lastiman for defendant (Lashman & Kupperman, attorneys).

      Mr. Solomon Form,an, Assistant County Prosecutor for plaintiff (Mr. Robert N. McAUister, County Prosecutor of Atlantic County, attorney; Mr. Ernest M. Curtis, of counsel and on the brief).
   Rimm, J. G. C.

(temporarily assigned). This matter is before the court on motion for dismissal of indictment No. 63-63-S on behalf of defendant Louis Joseph Lippolis. The State has made cross-motion for an extension of the time to permit it to proceed against defendant.

The parties are in accord as to the facts. On November 12, 1963 defendant was indicted for murder by the Atlantic County grand jury. Thereafter, defendant became a fugitive from justice and later was located as an inmate of the Pennsylvania State Correctional Institution of Huntingdon, Pennsylvania. On May 5, 1967 the Atlantic County Prosecutor received from the superintendent of this institution a letter and forms approved by the Council of State Governments under the Interstate Agreement on Detainers Act, N. J. S. 2A :159A-1 et seq. This letter notified the prosecutor that defendant requested disposition of the pending indictment. The following forms were enclosed: Form No. 2, “Inmate’s Notice of Place Imprisonment”; form No. 3, “Certificate of Inmate Status,” and form No. 4, “Offer to Deliver Temporary Custody.”

On June 2, 1967 the Atlantic County Prosecutor forwarded to the superintendent of the Pennsylvania State Correctional Institution Form No. 7, “Prosecutor’s Acceptance of Temporary Custody,” offered in connection with a “Prisoner’s Bequest for Disposition of a Detainer,” in which he advised the superintendent that he accepted temporary custody of the prisoner and that he proposed to bring defendant to trial within the time specified by the Interstate Agreement on Detainers.

Dorothy E. White, principal clerk-stenographer to the prosecutor, prepared form No. 6, “Agreement on Detainers, Evidence of Agents’ Authority to Act for Eeeeiving State,” and also prepared a transmittal letter to he forwarded at the proper time with Form No. 6 to the Commissioner, Department of Institutions and Agencies. The date and approximate hour of return of defendant to New Jersey was left blank on form No. 6 because the necessary and requested information was not sent to the prosecutor. Therefore, before the date of trial could be inserted, the Atlantic County Prosecutor’s office -would have to ascertain if the prisoner was still an inmate of said institution and still available for trial. Accordingly, on September 8, 1967 Miss White had a telephone conversation with Curtis C. Carson, records officer of the Pennsylvania State Correctional Institution, and stated that she wanted to know if defendant was still available for trial so that she could complete form No. 6 by inserting the date and approximate hour of trial. This form was to be forwarded to New Jersey’s administrator, Lloyd W. Mc-Corkle, Commissioner of Department of Institutions and Agencies, (under the Interstate Agreement on Detainers Act) for his approval and designation to the warden of said institution of the two agents who were to return the accused to this State for trial. This certification by the New Jersey administrator is found at the bottom of form No. 6.

Carson informed Miss White that the accused was scheduled for a hearing in Philadelphia on September 11, 1967 and thereafter would be returned to the institution. Carson stated that he could not determine the length of time that defendant would remain in Philadelphia, nor when he could be available to be returned to New Jersey for trial. Miss White stated that Carson promised to write a letter to her informing her when the accused would be available for trial. Carson said he does not recall promising that he would further advise Miss White when defendant would be available for trial, and also said that it is possible that he did so advise her.

Never having received notification as to defendant’s availability, Miss White telephoned Carson on November 14, 1967 to ascertain if defendant was available. She was advised that the accused had been returned from Philadelphia to the institution and was available, but he offered no explanation for his failure to notify her as he had promised. The prosecutor took no further action until he was served December 12, 1967 by defendant with a notice of motion for an order dismissing the indictment. The next day the prosecutor filed a notice of cross-motion for a continuance of trial date. On December 22, 1967 the court ordered a continuance until briefs were received and the matter determined.

Defendant contends that the State failed to comply with N. J. S. 2A :159A-3 (a) which requires that defendant “be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * * It is urged that noncompliance with this statute violates defendant’s right to a speedy trial, guaranteed by N. J. Const., Art. I, par. 10. Defendant claims detriment resulting from the detainer being placed against him, not being able to work except under maximum security, and not being able to earn proper credit for time served due to remaining under maximum security, thereby losing credit or time off from his eventual date of discharge from the Philadelphia prison system.

The State contends that (1) the 180-day period prescribed by N. J. S. 2A :159A-3(a) was tolled because defendant was unable to stand trial as provided by N. J. S. 2A :159A-6(a); (2) defendant is estopped from claiming benefit under the provision for running of the time period in N. J. S. 2A :159A-3(a), and (3) a strict interpretation of the limitation of the 180-day time period would be contrary to the public policy of New Jersey since there is no statute of limitations in this State for murder.

The issue, generally, is whether the 180-day period was tolled because defendant was “unable to stand trial, as determined by the court having jurisdiction of the matter,” as provided in N. J. S. 2A :159A-6(a). The court is, therefor, required here to decide whether defendant was “unable to stand trial.”

Before considering the merits, the context of the Interstate Agreement on Detainers should be outlined to facilitate a better understanding of those sections of the act averted to heretofore. New Jersey became a party to the Agreement on April 18, 1958 by an act of the Legislature. L. 1958, c 12 (.N. J. S. 2A :159A-1 et seq).

Article I of the Interstate Agreement (N. J. S. 2A :159A-1) states its purpose and object as follows:

“The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”

The act contemplates that its machinery is invoeable either by the prisoner, under Article III (N. J. S. 2A :159A-3), or by the prosecutor of a receiving State, under Article IV (N. J. S. 2A :159A-4). Time periods for culmination of these procedures by trial of the pending charges are stated in the respective articles, and sanctions regarding a default claimed by defendant can be found in Article V (N. J. S. 2A :159A-5). Where the act is invoked by a prisoner, Article III (a) (N. J. S. 2A :159A-3(a)) provides that

“* * * he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information on complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

Sanctions are provided in Article V (c) (N. J. S. 2A :159A-5 (c)) :

“If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”

The only express provision for tolling the time periods specified in Articles III and IV is that stated in Article VI (N. J. S. 2A :159A-6, supra).

This legislation has been discussed in previous opinions in New Jersey, but none is determinative of the question before this court. See State v. Masselli, 43 N. J. 1 (1964); State v. Mason, 90 N. J. Super. 464 (App. Div. 1966); Carrion v. Pinto, 79 N. J. Super. 13 (App. Div. 1963); State v. Chirra, 79 N. J. Super. 270 (Law Div. 1963); State v. West, 79 N. J. Super. 379 (App Div. 1963); see also, People v. Esposito, 201 N. Y. S. 2d 83 (Cty. Ct. 1960). It is settled law, however, that the purpose of this statute is remedial and it should be accorded liberal construction in favor of prisoners within its purview. State v. Mason, supra, at p. 470; State v. Chirra, supra, at 277; State v. West, supra, at p. 384; People v. Esposito, supra, 201 N. Y. S. 2d, at pp. 88-89.

In State v. Masselli, supra, at p. 12, the Supreme Court reserved the question of whether the pendency of defendant’s motion to dismiss operated to toll the running of the time period under the provision of N. J. S. 2A :159A-6 (a) that there shall be tolling “whenever and for as long as the prisoner is unable to stand trial.”

In State v. Mason, 90 N. J. Super. 464-473 (App. Div. 1966), the court held that defendant’s withdrawal of consent to extradition could not toll the running of the 180-day statutory period. In that case the prosecutor wrote to the warden on May 13, 1959 that he would accept temporary custody of the prisoner. He later inquired as to the exact day the prisoner would be available and was advised that said prisoner could be picked up any week day. The prosecutor then informed the warden that he could not accommodate defendant before the September session of court because of the crowded condition of the court calendar. Having originally requested disposition of his case on January 22, 1959, defendant wrote the prosecutor that he no longer consented to extradition because of the lapse of 180 days. Judge Conford held that where the 180-day period, within which, generally, prosecution should be commenced, had expired without commencement of trial and no continuance had been sought or granted, the indictment was subject to dismissal on prisoner’s motion. The case differs factually from the case at bar in that the Atlantic County Prosecutor took no affirmative action between September 8, 1967 and November 14, 1967. The 180-day period from May 5, 1967 had expired on November 1, 1967, and no continuance! was sought by the prosecutor until December 13 1967. N. J. S. 2A :159A-3 (a).

In State v. Chirra, 79 N. J. Super. 270 (Law Div. 1963), the prosecutor first made a demand on the State of New York for custody of the prisoner in April 1960 but then announced that he did not intend to take custody until September 1960. No further action was taken until renewed demand was made in December 1963. Defendant in that case had been available to the State of Yew Jersey for all but seven months of the intervening period. The indictment was dismissed with the caveat that “[rjespeet for the purpose of the statute requires that the adverse consequences of any failure or refusal so to act be visited upon the prosecution and not the prisoner” (at p. 378).

A New York court dismissed an indictment where the prisoner serving sentence in a New Jersey prison noticed the Queens District Attorney to bring him to trial, but the District Attorney took no action for more than 180 days after service. This was held even though the New Jersey prison keeper failed to accompany defendant’s notice with a certificate as to details of defendant’s commitment and an offer to deliver temporary custody to the District Attorney. People v. Esposito, 201 N. Y. S. 2d 83 (Cty. Ct. 1960).

As was stated in Mason, supra, at p. 473, “Once the 180-day period has expired without trial of the indictment (or previous grant of continuance thereof for good cause) the Act in mandatory language dictates its dismissal ‘with prejudice’. N. J. S. 2A :159A-5(c).” In the instant case the 180-day period commencing May 5, 1967 expired November 3, 1967. The 67-day period between September 8, 1967 and November 3.4, 1967 during which the prosecutor asserts absence of knowledge as to the availability of defendant possibly may have warranted a discretionary continuance of trial beyond the 180 days if applied for before the expiration thereof, but this, per se, does not toll the running of the 180-day period. Moreover, the prosecutor did not proceed against defendant in any manner for the period from November 14, 1967 to December 13, 1967, when he finally sought a continuance after the defendant moved to dismiss the indictment.

“To hold that the prosecutor may permit the 180-day period to expire, and then at any time thereafter when the prisoner moves to invoke the sanction of dismissal, resist that application by a request for extension nunc pro tunc of the period, would be to eviscerate a vital element of the statutory scheme designed to effectuate its salutary policy. Cf. State v. Chirra; People v. Esposito, both supra, (sic). Strict enforcement of the literal terms of the statute in this regard visits no hardship on prosecutors, since they may make timely requests for necessary continuances, and at the same time it stimulates prompt and expeditions disposition of the class of indictments within the legislative concern.” State v. Mason, supra, at p. 474.

As previously noted, nothing can toll the running of the 180-day period except inability of the prisoner to stand trial if so determined by the court, N. J. S. 2A :159A-6 (a), or any necessary or reasonable continuance pursuant to N. J. S. 2A :159A-3 (a).

In Mason, supra fn. 2, p. 473, the court indicated that were it material, they would hold that the warden’s delay in forwarding tender of the prisoner’s original request did not stop the running of the 180-day period. In the case at bar the 67 days between September 8, 1967 and November 14, 1967 and the explanation by the State that this delay resulted from the absence of notice from the Philadelphia officials is unreasonable and does not satisfy this court that "the prisoner is unable to stand trial as determined by the court having jurisdiction of the matter,” N. J. S. 2A :159A-6 (a). The burden of compliance with the requirements of the Agreement is placed entirely upon the law enforcement officials involved. The inmate-prisoner has no power of supervision or control over their performance; neither, for that manner, has the prosecutor, but he is better able to establish liaison with the prison officials for the purpose of seeing that what should he done is done, in accordance with the requirements of the law. Respect for the purpose of the Agreement requires that the adverse consequences of oversights by law enforcement officials, as here, be visited upon the prosecution and not upon the prisoner. In that way the aim of the Agreement is implemented by inspiring the law enforcement officials to perform their duties diligently and effectively. “They are not likely to be so inspired if the prisoner is made the victim of their contributory inaction.” People v. Esposito, 201 N. Y. S. 2d 83, 90 (Cty. Ct. 1960).

In regard to the State’s contention that the indictment-should not be dismissed because there is no statute of limitations on murder in New Jersey, no mandatory or persuasive authority can be found. However, it has been held that an indictment for murder may be dismissed for the prosecutor’s failure to aiford defendant a speedy trial at least six months following the return of the indictment, in accordance with R. R. 3:11-3. State v. Coolack, 43 N. J. 14, 16 (1964); State v. Brockington, 89 N. J. Super. 423, 430-431 (App. Div. 1965); State v. Von Atzinger, 81 N. J. Super. 509, 513 (App. Div. 1963).

Concerning the State’s contention that the prisoner is estopped to claim benefits of the Interstate Agreement because the superintendent of the Philadelphia prison was deemed to be his agent, research has not disclosed any authority in law to substantiate such an argument and it would be unreasonable that defendant suffer the consequences of dilatory action by law enforcement officials. As was pointed out in People v. Esposito, 201 N. Y. S. 2d 83, 90 (Cty. Ct. 1960), the prisoner has no control over these officials and should not be penalized for their actions or absence thereof. In People v. Masselli, 17 App. Div. 2d 367, 234 N. Y. S. 2d 929, 933 (App. Div. 1962), the chief clerk of Clinton Prison, where defendant was an inmate, failed to forward the prisoner’s notice and request for disposition of indictment to the Bronx District Attorney, and as a result defendant was not brought to trial within the 180 days required by New York statute, O. O. P. § 669-a. The court stated the issue in that case is whether * * * “the consequences of such omission [should] be visited upon the defendants so as to deprive them of the valuable rights sought * * *. We think not.” The opinion continues.

“The obvious purpose of the section was to give prisoners the option of requiring that pending untried indictments be disposed of expeditiously. Such right was denied these defendants. The failure of the district attorney to be apprised of the notice and request is of no consequence where it was due to the failure of the correction authorities to perform a duty enjoined upon them, by laie. The Correction Department officials — as well as the district attorney— are agents and representatives of the People of the State of New Xork. .4s between the defendants and the sovereign, the burden of such omission should fall on the latter. To hold otherwise could well render the statute ineffectual and defeat the salutary purpose the legislature sought to effect (See People v. Esposito, Co. Ct., 201 N. Y. S. 2d 83, 88 [sic].” (234 N. Y. S. 2d, at p. 933, emphasis added).

The New York Appellate Division held that since the district attorney knew of the whereabouts of the prisoner, he could, if he wished, use such knowledge to make inquiry at the correctional institution to determine whether the inmate served or offered to serve a notice and request for disposition of his indictment pursuant to statute, and although the statute imposed no obligation on the district attorney to make such inquiry, his failure to do so could, by mere passage of time, result in a dismissal of the indictment under G. G. P. § 668..

The right to a speedy trial as guaranteed by N. J. Const., Art. I, pax. 10, is the right to move for such a trial and to have the indictment dismissed after the State fails to proceed at a time for trial fixed by the court. State v. Coolack, supra, at p. 16; State v. Smith, 10 N. J. 84, 93 (1952). In the ease at bar no time was fixed for trial and defendant was not brought to trial within the 180 days required by N. J. S. 2A:159A-3(a). This court will not accept the contention that the 180-day period was tolled for the period between September 8, 198? and November 14, 196? on the theory that defendant was unavailable for trial. The court finds that he was available for trial except for a very short period for his appearance in court in Philadelphia, and the time period was not tolled pursuant to N. J. S. 2A:159A-6(a). Under N. J. S. 2A:1594-3(a) the prosecutor could have moved for a continuance before November 1, 196?, the last of the 180 days, but he did not. Defendant will not be made to bear the adverse consequences in contravention of the remedial policy of N. J. S. 24 :159A-1 et seq. While it might be said that criminals should not go free merely because of the blunder of prison authorities, the language of the United States Supreme Court in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), appears to furnish the answer:

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own law, or worse, its disregard of the charter of its own existence.” (at p. 659, 81 S. Ct. at p. 1694)

Accordingly, defendant’s motion for dismissal of indictment No. 63-63-S is granted and the State’s cross-motion denied.


author: Yancey, J. C. C.

text:
    LOUIS WEINBERG, SYLVIA WEINBERG, AND BARBARA A. WEINBERG, PLAINTIFFS, v. THOMAS J. UNDERWOOD AND KENNETH T. UNDERWOOD, AN INFANT BY HIS GUARDIAN AD LITEM, DEFENDANTS.
    Essex County Court Law Division
    Decided June 17, 1968.

      Mr. Alan Kraut for the plaintiffs. •

      Mr., Arnold G. Bhurhin for the defendants.

      . The directive reads:
      “The Supreme Court is of the view, because of the conflict of interest inherent in the situation, that an attorney should not represent both the driver of a car and his passenger in an action against the driver of another car, unless there is a legal bar to the passenger suing his own drive]1, as, for example, where they are husband and wife, • unemancipated child and parent, or employees of the same employer and the accident- occurred in the' course of their employment. Where an attorney does represent both a driver and his passenger and no such legal bar exists, if a cross-claim or counterclaim is made by the other driver, a conflict of interest arises and .the. Supreme Court has advised the Assignment Judges that the attorney should not be permitted to, continue to represent either the driver or-his passenger.” 91 N. ./. L. J. 68 (JTeb. 1, 1968).

   Yancey, J. C. C.

On May-13, 1967 a car was allegedly at a standstill- behind a double-parked car on Chancellor Avenue, Irvington, when it was struck from behind by a second car. Louis and Sylvia Weinberg, passengers in the first ear, and their daughter Barbara Weinberg, driver and owner of the first ear, instituted suit to recover damages from defendant brothers, one of whom drove the second car and the Other' of whom owned it. Defendants in their answer denied liability, claimed contributory negligence by plaintiffs and counterclaimed against plaintiff Barbara Weinberg for contribution for a pro rata share of any judgment recovered by her parents, Louis and Sylvia Weinberg. Plaintiffs bring this motion to strike the counterclaim for contribution.

I

Plaintiffs point out in their brief that “even though the plaintiff owner-and operator is over 21 years of age and self-supporting, she is still a member of the same household with her parents and is subject to some extent to discipline of her parents and is living in harmony with them.” Thus they contend that the ease law which bars tort actions between unemancipated children and their parents should apply to the counterclaim. Hastings v. Hastings, 33 N. J. 247 (1960) ; Franco v. Davis, 51 N. J. 237 (1968).

However, the fundamental rationale underpinning those decisions was the promotion of family unity. New Jersey, like the rest of our nation, fosters the raising of its young in family units. Thus a bar to tort actions between unemancipated children and their parents is in direct support of this public policy because it protects the respect and discipline, and thus the harmony, of the family until the child is legally capable of, or is in fact, fending for itself.

However, once the child is legally emancipated the State has no strong interest in maintaining the harmony of the family unit. It is commendable that plaintiffs are still a close-knit family, but it is not necessary for the public welfare. This is especially so where, as here, the child is 30 years old.

As did Judge Pindar in Bush v. Bush, 95 N. J. Super. 368, 375 (Law Div. 1967), this Court recognizes the common-law right of an injured party, where such injury is compensable, to maintain an action to recover damages. Immunity from suit is in derogation of this common-law principle and must therefore be strictly construed. In addition, as Justice Jacobs noted in his dissent in the 4-3 decision of Franco v. Davis, supra, at p. 243, “even in states where the immunity is purportedly still in force, the courts have, as Prosser puts it, 'whittled it down’ so as to restrict the hardships which inevitably accompany it. See Prosser, Torts, §116, at p. 887 (3d ed. 1964).”

In view of such circumstances, and in the absence of any compelling reason from the facts of this case, this Court declines to extend immunity from tort liability to actions between parents and emancipated children.

II

Plaintiffs do indicate in their brief why, besides protection of the family unit, they ask this Court to take such action. They state:

“This Motion to strike the Counterclaim for Contribution is made necessary by reason of the recent directive of the Supreme Court .forbidding an attorney to represent the owner and operator of a vehicle and the passengers therein where a Counterclaim for Contribution has been filed by the defendant against the owner and operator. .A hardship will result to the plaintiffs and to their attorney in the event this directive is obeyed as it necessitates the engagement of two other attorneys, one to represent the plaintiff owner and operator, and the other to represent her parent passengers. The work of the attorney and the expense of investigation, discovery and institution of suit would all be lost upon compliance with this unnecessary directive.”

Eirst of all, it should be pointed out that hardships also will result to plaintiffs and their attorney in the event this directive is not obeyed.

Secondly, it is this Court’s opinion — although admittedly not relevant to the promulgation of the directive — that the directive is both necessary and fair. It merely recognizes the old • adage that one man cannot serve two masters at the same time, especially when they are moving in opposite directions.' However, if he did serve both before they began seeking polarized objectives, he cannot go with one if he has-knowledge gained through his position as agent to the other that may be detrimental to the other.

As the Supreme Court noted in In re Braun, 49 N. J. 16, 18 (1967), the intent of Canons 6 and 37 of the American Bar Association Canons of Professional Ethics is, violated when ever the conduct of an attorney raises the possibility that he has or may use the confidences of one client for the benefit of another. In In re Blatt, 42 N. J. 522 (1964), the court stated:

“It is self-evident that where a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or arising out of the same cause. There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. Such conduct is plainly and patently unethical * * (at p. 524)

In the case at bar, even though Barbara Weinberg and her parents both share the same primary goal of recovering from defendants, the counterclaim for contribution also creates adverse interests between them. The parents may benefit if liability is found against their daughter. Thus separate attorneys are necessary to represent each opposing interest, and the plaintiffs’ present attorney, having represented the Weinberg family before the fission of their interests occurred and having knowledge of all their positions, cannot fairly represent either interest.

In the long run, the Supreme Court directive will ensure undivided representation and create more work for attorneys. In addition, it will minimize any possibility of collusion between a driver and his passengers to defraud the driver’s insurance company.

However, this court is certain that it is the short-run effects of the directive that are of paramount concern to plaintiffs and their attorney. Since it appears that plaintiffs engaged their present attorney on a contingent fee basis, their only burden will be to find new counsel. As far as plaintiffs’ present attorney is concerned, however, he has indicated to this court that he considers the divestiture of this case from him something akin to emptying his pocket at gunpoint. While there is no doubt that he is losing a chance to earn a contingent fee, it should be pointed out that the fee was not a certainty. .Although plaintiffs’ attorney may think their claim is’ a strong one legally, he knows he cannot count on a recovery until the jury returns. Thus, while he is being deprived of the'chance, of.winning the case, he also is spared the risk of losing. At the same time, though, this court realizes that since lawyers are generally, or at least theoretically, considered fungible, the loss of an opportunity to handle a ease is a real one, although not easily valued in dollars. The only consolation this court can offer plaintiffs’ attorney is that his loss is the profession’s gain.

However, his efforts at investigation and discovery need not go for naught. If he furnishes one of his successor attorneys with his work product, he can be compensated by that attorney within the limits of Canon 34. It is this court’s opinion that any such compensation should be on a time basis and plaintiffs’ attorney should retain no interest in the outcome of this case.

III

In their brief plaintiffs make this statement: “It is inconceivable that the defendant in this instance would recover a favorable decision on his Counterclaim for Contribution and Summary Judgment should be entered against him in the dismissal of the counterclaim.” Even from the facts available (no ■ affidavits were submitted), this court cannot agree. It is possible, for a start, that the car operated by Barbara Weinberg was blocking the road, or that the rear lights were defective ■ (the incident occurred at 9:30 p.m.), or that it was illegally double parked. Thus, this court cannot find that there is no genuine issue as to any material fact related to the counterclaim for contribution. R. R. 4:58-3.

Accordingly, plaintiffs’ motion to strike the counterclaim for contribution is denied.


author: Salvatoke, J. C. C.

text:
    MARGARET SILAGY, PETITIONER-APPELLANT, v. STATE OF NEW JERSEY AND COUNTY OF MERCER, RESPONDENTS-RESPONDENTS.
    Mercer County Court — Law Division
    Decided May 15, 1968.

      Mr. Charles J. Casale, Jr. for petitioner-appellant (Messrs. Pellettieri and Babstein, attorneys).

      Mr. Charles I. Levine, Deputy Attorney General, for respondent State of New Jersey {Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).

      Mr. Philip A. Levy, for respondent County of Mercer (Messrs. Levy, Levy, Albert and Marcus, attorneys).
   Salvatoke, J. C. C.

This action arises out of an appeal from a judgment in the Division of Workmen’s Compensation denying petitioner’s claim for relief. The essential facts which form the basis of petitioner’s claim for relief are not in dispute since all the parties to this action entered into a stipulation at a hearing before Judge of Compensation Skeffington and that stipulation is adopted for the purposes of this appeal. The stipulation is as follows:

“It can be stipulated that on June 2!), 1966, Margaret Silagy was and had been in the employ of the State of New Jersey earning a weekly wage of $64.27; that on that day she was engaged in jury service for the County of Mercer at the Mercer County Court House and she sustained injuries by reason of an accident arising out of and during the course of her jury service; she received for her service the regular and statutory jury fee; that everybody has disclaimed liability in the case; and that there are presently due the following bills which have not been paid; The Trenton Orthopedic Group, $80; St. Francis Hospital for X-rays, $84.65; and the petitioner is entitled to reimbursement in the amount of $3.75 for an elastic stocking prescribed by Dr. Thurm, the treating physician. She was also out of work for a period of four weeks during which she was paid her full wages by the State of New Jersey. I think it can also be stipulated that during jury service the State of New Jersey paid her her full wages.”

In an order dated November 20, 1967 the petition against the State of New Jersey was dismissed, Judge Skeffington ruling that the injury suffered by petitioner did not result from an accident arising out of and in the course of her employment with the State of New Jersey. The petition against the County of Mercer was similarly dismissed in an order dated November 28, 1967, upon Judge Skeffington’s determination that “petitioner while serving on jury duty was not an employee of the County of Mercer”, as required by the Workmen’s Compensation Act. This appeal follows the entry of the above orders.

•Petitioner’s normal or usual employment by the State of New Jersey was as a clerk in .the Department of Labor and Industry. Upon receiving notice to appear for jury duty on June 20, 1966 at the Mercer County Court House in Trenton, she was permitted to attend to this duty at the expense of the State. It was understood that when petitioner was not needed for jury duty she would appear for her usual employment. On June 29, 1966, she served jury duty and, upon leaving the Mercer County Court House that day, tripped over a rubber mat, resulting in serious injuries to her right foot and ankle.

There is no factual dispute between the parties, hence the issues presented for consideration by this court are as follows:

1. Whether an employee of the State of New Jersey, who is maintained on full salary but serves as a juror for a stipulated period of time, remains an employee of the State during the course of that jury duty and is entitled to receive workmen’s compensation benefits from the State for injuries suffered while on said jury duty; and
2. Whether the petitioner was an employee of the County of Mercer because she was summoned for jury duty and performed a particular function for the county; was paid by the county for said jury services; and was at all times subject to the control and direction of the county during the course of her jury duty.

The legal questions raised by this appeal are novel to the.State of New Jersey. Neither the court nor counsel for the respective parties were able to find reported decisions of this State discussing the issue of whether,. for purposes of workmen’s- compensation, a juror is • an “employee” of the county which summons him for jury duty. There are reported decisions. from other states which indicate two views and which will be discussed at length later in this opinion.

. The court will first consider the question of whether the petitioner was an employee of the State of New Jersey while serving as a juror.

I

It is the position of respondent State of New Jersey that for a state employee to receive workmen’s compensation benefits, she must come within the scope of N. J. S. A. 34:15-43 relating to “public employee [s] within workmen’s compensation law * * It is further contended that in order to do this, petitioner must have been an employee of the State of New Jersey at the time of her accident and the injury must be work-related; it must have arisen out of and in the course of her employment R. S. 34:15-7.

Petitioner contends that while she was engaged as a member of the jury panel at the Mercer County Court House, the State of New Jersey paid her full salary in conformity with its employment policy. It is alleged these payments clearly arose from the employer-employee relationship; therefore the sole issue as to this portion of the appeal is whether the petitioner was injured in an accident arising out of and in the course of her employment with the State.

Payment of wages may be one of the elements of proof in determining whether the relationship of employer-employee exists at a particular moment, but it is not a controlling factor. The court will also consider the factors of hiring, control and power of dismissal, with control being the single most important factor. Runk v. Rickenbacher Transportation Co., 31 N. J. Super. 350, 354 (App. Div. 1954). Control is defined as supervisory power not only over what shall be done — the desired end result, but also over how it shall be done — the means of accomplishing that end result. Marcus v. Eastern Agricultural Ass’n. Inc., 58 N. J. Super. 584, 596 (App. Div. 1959), reversed 32 N. J. 460 (1960). See, e.g., Wilson v. Kelleher Motor Freight Lines, Inc., 12 N. J. 261, 264 (1953); DeMonaco v. Renton, 18 N. J. 352, 355 (1955) ; Cappadonna v. Passaic Motors, Inc. 136 N. J. L. 299, 300 (Sup. Ct. 1947), affirmed per curiam 137 N. J. L. 661 ( E. & A. 1948). However, there are various situations in which the control test is not the dispositive factor in establishing an employer-employee relationship. They necessarily require a consideration of the circumstances surrounding the particular facts of each case. E. g., DeMonaco v. Renton, supra, 18 N. J., at p. 357.

In the present case, the State neither controls what shall be done while petitioner is on jury duty nor how her duties are to be performed. As the usual employer, the State cannot and does not control the hiring of the juror, the discharge of the juror, the final vote of the juror, the place where she is to vote, the hours she is to serve, nor the compensation to be paid for her service. In short, the State does not exercise, to any significant degree, such control over petitioner while she is serving as a juror as would determine the existence of an employer-employee relationship.

Petitioner contends that an employment relationship -may be concluded from the State of New Jersey’s practice of continuing payment of normal wages during the period of jury duty: from- the fact that she was conferring a benefit to her employer, the State; and moreover says it is not necessary that the employee’s injuries be incurred while in the course of her usual employment.

In support of this position petitioner relies upon the case of Healy v. Pennsylvania R. Co., 184 F. 2d 209 (3 Cir. 1950). In that case a railroad employee was killed while crossing tracks to attend a rally to find out why he had not received a war bond for which he had subscribed. The court found that defendant, the decedent’s employer, had induced its employees to attend a bond rally by paying them a regular salary during their attendance. The question arose on appeal whether decedent was engaged in interstate employment when killed, so as to permit recovery under the Federal Employer’s Liability Act, 45 U. S. C. A., § 51. The court pointed out the employer had by various acts widened the scope of decedent’s employment to include the purchase of bonds at a rally, including the payment of normal salary during his attendance. The court said, that “defendant itself had enlarged the ambit of the employment by its patriotic efforts to assist the United States to sell bonds to its employees.” (at p. 212)

Petitioner contends Healy is analogous to the instant case in that the State of New Jersey was seeking to aid its judicial department to obtain the attendance of qualified jurors who might otherwise seek to be excused because of financial hardship. This court does not agree with petitioner’s conclusions. In Healy the foreman was acting under the direction of one of the company’s supervisors as to the time and place of the war bond rally to be conducted by the supervisor, in addition to other factors. In the instant case, petitioner was performing a civic duty which each individual owes his community. The Queen v. Lui Self, 8 Haw. 434 (1892) ; Jochen v. County of Saginaw, 363 Mich. 648, 110 N. W. 2d 780 (Sup. Ct. 1961). While petitioner was serving as a juror there was no control being exercised over her by the State, and continued payment of wages was a matter of policy with her usual employer. Indeed, there is no statutory requirement that an employer must continue to pay a juror her normal wages while serving jury duty. It is entirely discretionary with the usual employer. Fortunately, many employers throughout the State realize the important civic duty being rendered the community and in their wisdom choose to compensate employees selected for jury duty, to help alleviate what would otherwise be a tremendous financial hardship to many jurors.

Respondent State of New Jersey contends, as hereinbefore mentioned, that the petitioner must come within the scope of N. J. S. A. 34:15-43 in order for it to be held responsible in workmen’s compensation, and further, that the injury must be work-related and have arisen out of and in the course of her employment with the State. A reading of N. J. S. A. 34:15-43 reveals that the Legislature remained silent with respect to the question of whether a juror is a “public employee,” so as to create an employer-employee relationship and thus afford workmen’s compensation coverage. The Legislature extended the benefits of the Workmen’s Compensation Act to include “volunteer firemen” and “rescue squad workers” injured in the “line of duty.” In the absence of an express legislative intent to include among those ■entitled to workmen’s compensation jurors who may be injured while serving — and nothing has been produced to indicate that such coverage was intended — this court must ■sustain the argument that no employer-employee relationship existed between the State of New Jersey and petitioner while she was serving on jury duty. In addition, if it be assumed arguendo that there existed an employer-employee relationship, notwithstanding the fact petitioner was injured while on jury duty, there must be a showing that the injury sus.tained was work-related in order to comply with the second ’requirement of N. J. S. A. 34:15-43. This court cannot agree that petitioner has satisfied this requirement. See Gargano v. Essex County News Co., 129 N. J. L. 369 (1943), affirmed 130 N. J. L. 559 (E. & A. 1943); Crotty v. Driver Karris Co., 49 N. J. Super. 60 (App. Div. 1958); Cierpial v. Ford Motor Co., 16 N. J. 561 (1954), reversing 31 N. J. Super. 489 (App. Div. 1954).

It is well settled that a petitioner need not actually be engaged in her employment at the time of her injury to be compensated. See, e. g., Piazza v. Prince’s Farm, 86 N. J. Super. 100 (App. Div. 1965); Cavalcante v. Lockheed Electronics Co., 85 N. J. Super. 320 (Cty. Ct. 1964), affirmed 90 N. J. Super. 243 (App. Div. 1966). It is equally well settled •that the accident arises out of the employment if it is result of a risk reasonably incidental to the employment. McKenzie v. Brixite Mfg. Co., 34 N. J. 1 (1961); Rice v. Pharmaceuticals, Inc., 65 N. J. Super. 579 (App. Div. 1961). Within the framework of these basic principles of law it would 'seem clear that the risk of falling while walking from jury duty', assertedly to resume her usual clerical duties, was not a ■risk reasonably incidental to her employment with the State. The State should not be held responsible for injuries sustained while' petitioner was performing a public duty for the good of the community at large. Certainly, it can be' said her employer received an incidental benefit, but so also was it a salutary gain for the judicial system of the State and for the county and community, and even for every citizen of this State. Any incidental benefit that may have been received was not such as to be limited to the State of New Jersey alone as her usual employer.

It is the opinion of this court that the petitioner did not suffer an accident and injuries which arose out of and in the course of her employment with the State of New Jersey, within the provisions of N. J. S. A. 34:15-43, and therefore the petition is hereby dismissed as to the State.

II

The second question raised by this appeal and trial de novo is whether, for the purposes of workmen’s compensation, petitioner was an employee of the county which summoned her for jury duty. As hereinbefore mentioned, the question of whether a juror is an employee is a novel one in the State of New Jersey. This same question has been dealt with in a few sister states on a rather limited basis. With the exception of Industrial Commission of Ohio v. Rogers, 122 Ohio 134, 171 N. E. 35, 70 A. L. R. 1244 (Sup. Ct. 1930), which holds that a juror injured by falling while in the course of performing the duties of a juror is in the service of the county under an appointment of hire, and is entitled to be compensated under the state workmen’s compensation statute, it has been held uniformly that a juror is not an employee of the county which summons him for duty. See Board of Com'rs of Eagle County v. Evans, 99 Colo. 83, 60 P. 2d 225 (Sup. Ct. 1936); Seward v. County of Bernalillo, 61 N. M. 52, 294 P. 2d 625 (Sup. Ct. 1956); Jochen v. County of Saginaw, 363 Mich. 648, 110 N. W. 2d 780 (Sup. Ct. 1961), and Hicks v. Guilford County, 267 N. C. 364, 148 S. E. 2d 240 (Sup. Ct. 1966).

In Board of Com’rs of Eagle County v. Evans, supra, the court held that no contract of employment arose from the status of juror aud stated the basis for the decision as follows:

“Jurors are selected, summoned, and serve pursuant to statute. * * * Their compensation is fixed by like authority (citations omitted.). * * * The county does not negotiate with a citizen for his services as a juror, nor does the citizen apply to the county for such preferment. When a citizen is summoned to jury service he responds to process running in the name of the people, which imports such dignity that it commands respect, and is of such force that none disobeys. By the majesty of the law therefore, not by contract, he becomes a juror. Neither he nor the county is consulted as to whether, or when, he shall serve, or as to duration of his service or the compensation therefor. A juror, it seems proper to say, has to do with the gravest affairs of men, and what he determines as to matters submitted to him is not subject to control whatsoever. The legislative branch of the government lias not said that a juror is an employee of the county, and it does not lie with the judicial branch to belittle the functions of his great office by so declaring. Indeed we are not at liberty to extend the statutory provisions. Colorado F. & I. Co. v. Industrial Commission, 88 Colo. 573, 298 P. 955. Jury Service, as has been said, ‘is a temporary employment from which the person is relieved as soon as the duty is performed. The duty to serve as a juryman is an obligation to the community in which he resides, and his consent to serve is not essential. His position as a juryman is not the result of contract.’ The Queen v. Lui Self, 8 Hawaii 434. * * * We have given great attention to Industrial Commission of Ohio v. Rogers, 122 Ohio St. 134, 171 N. E. 35, 70 A. L. R. 1244, 1248, cited by counsel for defendant in error. That is the only case in which we are advised where a juror has sought an award of compensation benefits, and there the juror prevailed. The learned court of that pronouncement is to be greatly respected, but we are not persuaded to its view of the office of a juror, or as to the genesis of his selection. In no conceivable sense, we think, is a juror engaged by or for the county by appointment, or contract of hire, or at all. He functions as part of the judicial machinery, and is as indispensable to its ongoing as is the judge of the court where he serves.” (60 P. 2d, at pp. 226, 227)

The court in Seward v. County of Bernalillo, supra, gave even less consideration to the question of compensating a juror. In an 11-line opinion the court denied compensation on the basis of the Eagle decision without discussing the arguments presented by counsel.

In Hicks v. Guilford County, supra, the North Carolina court adopted the Eagle rationale and held against compensating a juror. The court stressed that the juror may not be directed as to how he is to conduct his duties. In its opinion the court said:

l'A juror is not appointed l>y the county commissioners or by any county official. His name is drawn from tlie box without regard to relative qualifications of those whoso names are rightly in Ule box (citation omitted). He is then subject to peremptory challenge, as well as to challenge for cause by either party to litigation. His services, if he is accepted and empaneled to try the issues in an action are not obtained or defined by contract of hire between him and the county. There are no negotiations between him and the county, express or implied, for those services. He is not a public officer, an independent contractor or an employee. He is a juror. ‘He is neither appointed nor elected to his position of duty.’ Territory v. Hopt, 3 Utah 396, 4 P. 250.” (148 S. E. 2d, at p. 244)

In Jochen v. County of Saginaw, supra, the Michigan Supreme Court, in a split decision, held that the petitioner was barred from recovery under the state workmen’s compensation statute because the injury occurred before she was accepted as qualified for service as a petit juror. The majority of the court refused to decide the broader question involved in Rogers and Evans within the facts of this case. In a separate opinion Justice Carr, Justices Dithmers and Kelly concurring, was of the opinion that the ordinary incidents pertaining to an employer-employee relationship were not present in this case. Michigan has a workmen’s compensation statute similar to N. J. S. A. 34:15-43 wherein it classifies and specifically enumerates the persons covered by workmen’s compensation. Justice Carr held that if the legislature intended that coverage be afforded jurors injured in the performance of their duties it would have included them in the statute.

The method and manner of selecting jurors has been set forth by the Legislature of the State of New Jersey. Jurors are told when and where to appear for duty (N. J. S. 2A. :72-5), and while they are told they are expected to serve for a stated period, usually two weeks in duration, they may be ordered to appear for a longer period (N. J. S. 2A: 74-11). Jurors are compensated at a stated rate which may be reduced by the county freeholders (N. J. S. 2A :1-1) and, in addition to a per diem rate, the jurors are compensated for travel (N. J. S. 2A:1-2, 3). Furthermore, courts may prolong jury duty, or terminate it at any time in the proper exercise of judicial discretion. The hours of service are also set and controlled by the courts, and a county judge, although he is paid by the county, certainly cannot be considered an employee of that county.

Petitioner contends the “control test” is the determining factor to be considered and that an application of this test leads to the conclusion that a juror is an “employee” of the county within the meaning of the Workmen’s Compensation Act. Among the factors considered important are the power of the employer to specify the manner of doing the job, the power to terminate the employment, and the payment of an emolument in the nature of wages.

This court does not agree with petitioner’s contention that the “control test” is the determining factor to be considered within the facts of this case. The services of a juror are not the result of contractual negotiations, either express or implied, between the individual juror and the county which summons her to duty. He functions as part of our judicial system and plays an indispensable part in its overall administration of justice. In the absence of any contractual relationship, undue emphasis should not be placed upon the “control test” of which petitioner speaks. Even it if be conceded that the county exercises some degree of control over the services of a juror, this court is not persuaded that such control is restricted to the county alone. A juror is subject to the control of this court in its proper exercise of judicial discretion. With all due respect to the learned opinion of the court in the Rogers case, supra, this court adopts the rationale of the Evans case, supra, and its progeny, ever mindful of the underlying policies which play an important role in the construction of our State Workmen’s Compensation Act.

For the reasons hereinabove stated, it is the judgment of this court that the petitioner was not an employee of the County of Mercer and therefore did not sustain an injury which arose out of and during the course of her employment as required by law.

Counsel will submit an order in conformity with this opinion.


author: Per Curiam.

text:
    LOUIS GROSS, 2ND AND PHYLLIS GROSS, PLAINTIFFS-RESPONDENTS, v. BURTON PESKIN AS EXECUTOR OF THE ESTATE OF CELIA PESKIN, DECEASED, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 3, 1968 —
    Decided June 14, 1968.

      Before Judges Gaulkik, Lewis and Kolovsky.

      Mr. Burton PesTcin argued the cause for appellant (Messrs. PesTcin and O’Connell, attorneys).

      Mr. Joel 8. Ziegler argued the cause for respondents (Mr. 8ollie Wolf man, attorney).
   Per Curiam.

Defendant-executor appeals from a judgment for rent due for the last five months of a one-year lease of an apartment executed by decedent as lessee which by its express terms was ££binding on the heirs, executors, administrators and assigns of both parties.”

Defendant concedes that as a general rule, in the absence of a covenant otherwise providing, a lease is not terminated by the death of the lessee and the latter’s personal representative is obligated to pay not only the rent accrued at the time of decedent’s death but also the rents subsequently accruing under the lease. See Baum v. Tazwell, 26 N. J. Misc. 292, 61 A. 2d 12, 13 (Cir. Ct. 1948); 32 Am. Jur., Landlord and Tenant, §§ 65, 431.

Appellant contends however that in this case, as in Dorfman v. Barnett, 24 N. J. Misc. 212, 48 A. 2d 217 (Cir. Ct. 1946), the general rule is inapplicable. We disagree. We are satisfied from our examination of the lease and the stipulated facts that they furnish no support for appellant’s claim that the contract of lease here involved was entirely personal to the decedent so as to give rise to an implied covenant that it would terminate on her death. Cf. Brigham v. Kidder, 99 N. J. L. 79, 80 (E. & A. 1923); C. J. S. Landlord and Tenant, § 92, p. 660.

The judgment is affirmed.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ELIJAH COX, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 20, 1968 —
    Decided June 24, 1968.

      Before Judges Coneord, Collester and Labrecque.

      Miss Cynthia M. Jacob, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Peter Murray, Public Defender, attorney).

      Mr. John Harrison, Assistant Prosecutor, argued the cause for respondent (Mr. Martin J. Queenan, Burlington County Prosecutor, attorney; Mr. Myron H. Gottlieb, on the brief).
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendant Elijah Cox, Jr. appeals from his conviction under indictments for conspiracy to commit robbery, N. J. S. 2A :98-l; armed robbery, N. J. S. 2A: 141-1 and 151-5; kidnapping, N. J. S. 2A:118-1; assault and battery upon a police officer, N. J. S. 2A :90-4, and larceny of an automobile, N. J. S. 2A :119-2. James Hickman and Alfred Cooper were jointly indicted with him but separately tried.

On the armed robbery indictment defendant was sentenced to a term of from 16 to 25 years in State Prison. He was sentenced to concurrent terms of from one to three years for conspiracy, five to seven years for assault and battery upon a police officer and five to seven years for larceny, and to a term of from 30 to 40 years for kidnapping, to run consecutively with the prior sentences.

The indictments arose out of a train of events which began with the holdup of a service station in Cinnaminson Township on September 28, 1966. On the evening of that day, as the service station attendant was preparing to close for the night, he was held up at gunpoint by two men who relieved him of $5 and forced him to open the cash register from which they abstracted $100. Their movements aroused the suspicions of Sergeant William Peters of the Cinnaminson police who was passing by, and he drove in and stopped by the gas pumps. The holdup men, not realizing that it was a police officer, at first told the attendant to go out and wait on the customer. With this he ran out, shouting, and ducked behind a car, whereupon the two holdup men ran out towards the rear of the building. As Peters followed, the two men were joined by another as they made for a 1961 Ford (later identified as belonging to Cox) which was parked there. There was an exchange of gunfire, Peters’ first shot hitting and dropping one of the men as he stood by the front door of the Ford preparatory to getting into the front seat. His second shot broke a rear window and his third shot struck one of the men who was in the rear. As Peters came close, the wounded man on the ground passed something to the wounded man in the rear seat, who thereupon opened fire shattering Peters’ right arm. Peters returned the fire but was in turn shot in the neck, shoulder and head and finally collapsed. As a result, he lost the sight of his left eye, had only partial use of his right arm and faced the prospect (a 90% chance) that he would have to undergo another operation on his arm.

In the meantime, a Mrs. Evelyn Paulson, driving by in her 1964 Chevrolet, had observed the wounded officer and, thinking it was an accident, stopped. With this the three men came over to her car and one of them, upon being refused entrance, broke a window vent with a metal object and opened the door. One of them then pushed her to the side and got behind the wheel while the other two got into the rear. They drove the ear to Camden where it was abandoned after they had relieved her of $8, tied her hands with a plastic rain hat, gagged her with a handkerchief and told her to lie down in the back seat on pain of death. She later freed herself and told her story to the police.

The fact that the car abandoned at the service station was registered and licensed in the name of Cox led to a search of his apartment. The search yielded a coat and undergarments which contained what appeared, and were later testified, to be blood stains and bullet holes. Glass found in a pocket of defendant’s sport coat was matched to that in the window of Cox’s car, and a spent bullet found in another pocket of the same coat bore indications that it had been discharged from Peters’ service revolver.

Subsequent to the holdup Cox borrowed a friend’s car, presumably to move some boxes. It was not returned and was subsequently found, abandoned, in Washington, D. C. Cox was not located until nine months later, when he was picked up in Detroit under an alias. At that time he bore scars from bullet wounds on his neck, stomach and hip. In a statement given there he denied that he had actually participated in the attempted holdup but stated that he had waited in the car while Hickman and Cooper got out, presumably to get whisky. In the statement he denied possessing a gun and asserted that it was Hickman and Cooper who had stopped Mrs. Paulson. At the trial Peters identified Cox as one of the men he had seen enter the gas station on the night of the holdup and as the one who had first fired at him from the rear of the car.

Defendant did not take the stand. His wife testified, over objection, that Hickman had told her that he (Hickman) had shot Peters and Cox “didn’t know nothing what was going on.”

By his first point defendant challenges the sentences as manifestly excessive. In substance, he argues that the indictments against him involved but one episode, the robbery, and that the sentences imposed by virtue thereof should have been made concurrent rather than consecutive. More specifically, he contends that since the kidnapping was merely part of the “getaway” following the robbery, the imposition of consecutive sentences was a clear abuse of discretion.

The rule is well settled that the quantum of the sentence imposed, if within the limits fixed by law, is a matter within the discretion of the sentencing judge. While such exercise of discretion on the part of the trial judge is reviewable on appeal, and, if found to be a mistaken exercise thereof, may be corrected (by way of revision or remand for resentencing), State v. Johnson, 67 N. J. Super. 414, 432, 170 A. 2d 830 (App. Div. 1961), the power of the court to do so should be exercised with extreme care and only in cases where the sentence is clearly found to be unduly punitive. State v. Gibbs, 79 N. J. Super. 315, 325, 191 A. 2d 495 (App. Div. 1963). In determining whether the sentences violated that standard we must consider them in the light of the total circumstances. The burden of establishing that they were excessive rests on the defendant and requires a showing that there was an abuse of the judge’s judicial prerogative. Ibid.

Here we are unable to agree with defendant’s contention that the five offenses of which he was found guilty comprised a single continuous transaction. On the contrary, they involved (1) the planning and perpetration of the robbery, (2) the wanton maiming of the officer in order to prevent pursuit and apprehension, and (3) the larceny of her car and kidnapping of Mrs. Paulson in order to facilitate their flight (after Cox’s car apparently failed to start). These represent a sequence of separate events, deliberately undertaken in succession, rather than a single episode. It can hardly be contended that when the robbery was planned it was anticipated that Officer Peters would intervene and conduct such a vigorous pursuit that it would be necessary to shoot him. Likewise, as to the breakdown of Cox’s car and the consequent necessity for another means of escape.

While the punishments imposed were severe, we cannot say that they were the result of a mistaken exercise of discretion on the part of the sentencing judge. The sentences for conspiracy, for armed robbery, for assault and battery upon a police officer and for larceny, were well within the maximum limits fixed by law and were made concurrent with one another. That for kidnapping carried with it a mandatory sentence of at least 30 years. Out of an abundance of caution we requested and have been provided with the presentence report which was before the court at the time of defendant’s sentencing. We find nothing therein which supports defendant’s present contention and much which supports the sentences imposed. Cox, who was 32 years of age at the time of his sentencing, had been in difficulty with the law since he was 11 years of age. He served sentences in the State Home for Boys at Jamesburg in 1948 and 1950; in the Federal Reformatory at Chillicothe, Ohio, in 1952 and in Bordentown Reformatory in 1958 and 1961. Prior to his return to this State from Detroit, he had pleaded guilty there to breaking and entering.

Defendant next urges that the failure, upon motion, to provide him with a transcript of the separate trial of Hickman, his eodefendant, amounted to a denial of due process and equal protection of the law. Hickman had been tried in January 1967, two months before defendant was apprehended and brought back to this State. Two months thereafter his counsel-moved that defendant be furnished, as an indigent, with a copy of the stenographic record of Hickman’s trial. At that time no transcript had been made up and defendant’s counsel was unable to state, in response to the court’s request, just how the transcript would aid him in preparing for trial. The motion was denied but the court stated:

“[I]f you could satisfy me by any tangible evidence that the transcript is necessary, if you could point to something which would indicate to me that it will be helpful to him, then I am inclined to agree with you that being a poor man, not being able to afford it, he ought to have it; but to merely say, ‘maybe if I see it it will help me prepare my case; maybe, if there is something in this that I can find that it will help my case,’ it is all based upon hope, expectation.
I think in an application of this type you must convince the Court that you are driving at something which appears thereon which will materially aid your client, and your client is an indigent and unable to pay for it. But, just to say that you hope, you think, you believe that maybe it might give you something, I don’t think that this is a good basis for a transcript. You see?”

The court suggested that counsel go over the stenographic notes of the trial with the reporter and:

“If you were to present to this Court some facts, that you have talked with the Court Stenographer, you have had him read over to you certain portions of that stenographic transcript which was untyped, of course, from his notes, and you have noticed therein a discrepancy between what your investigation has shown of other facts in the ease and that transcript, then you would be giving me something which would indicate that I ought to oblige, I ought to cooperate, I ought to give this man that transcript because he is indigent.”

And further:

“[I]f you were to find some discrepancy some where along the line which you could present to me today which would indicate that a transcript might be helpful to this defendant, believe me, I would not hesitate a minute to let him have it. But I don’t think on mere speculation I can do that, Mr. Brown. 1 don’t think I should do it.”

The motion was renewed at trial on the same grounds and with the same result.

In essence, the issue presented is whether, in the absence of a showing of specific need for the transcript of Hickman’s trial, the court’s denial thereof deprived defendant of his aforementioned constitutional rights.

In Griffin v. State of Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) it was held that the refusal of a free transcript of his trial to an indigent defendant for use on his appeal was a denial of equal protection. It was conceded that such a transcript was a prerequisite to adequate appellate review and the court reasoned: “Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” (351 U. S., at p. 19, 76 S. Ct., at p. 591). In Draper v. Washington, 372 U. S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963), also involving an application for a transcript to be used on an appeal from a criminal conviction, it was held that an indigent defendant might not be denied a free transcript upon a finding by the trial judge that his appeal was frivolous and his guilt established by overwhelming evidence. The same rule was applied to appellate review of certain additional proceedings in Lane v. Brown, 372 U. 8. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963) (appeal from denial of coram nobis relief); Long v. District Court of Iowa, 385 U. S. 192, 87 S. Ct. 362, 17 L. Ed. 2d 290 (1966) (appeal from denial of relief on habeas corpus).

In Roberts v. LaVallee, 389 U. S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967), on the basis of a New York statute requiring payment of certain fees for a transcript of the testimony of a prisoner’s preliminary hearing, it was held, following Griffin and Draper, that refusal of a free transcript of such hearing to an indigent prisoner amounted to denial of equal protection. The transcript in question contained the testimony of the major state witnesses against defendant and was presumably required for the purpose of preparing his defense. To the same effect are People v. Montgomery, 18 N. Y. 2d 993, 278 N. Y. S. 2d 226, 224 N. E. 2d 730 (Ct. App. 1966) and State ex rel. Marshall v. Eighth Judicial District Court, 80 Nev. 478, 396 P. 2d 680 (Sup. Ct. 1964) (where new counsel on defendant’s second trial was held entitled to a transcript of his first trial (which ended in a disagreement) for use “for information, preparation, and for possible impeachment” at the retrial). Accord, Peterson v. United States, 351 F. 2d 606 (9 Cir. 1965); but compare Williams v. United States, 358 F. 2d 325 (9 Cir. 1966).

Our attention has not been called to any case in which the doctrine of Griffin has been extended, without a showing of need, to a transcript of the separate trial of an indigent defendant’s codefendant. While such appears to have been the ruling in Beasley v. State, 81 Nev. 431, 404 P. 2d 911 (Sup. Ct. 1965), a reading of the opinion would seem to indicate that the real issue there was whether it was error to compel defendant to go to trial in advance of receipt of a free transcript of the separate trial of his codei'endants which another judge had ordered to be furnished to him.

In the context of the undisputed facts before us, we hold that denial of defendant’s motion for a transcript was not violative of his constitutional rights to due process or equal protection.

In Griffin v. Illinois the court noted that Illinois was not required to purchase a stenographic transcript in every ease where a defendant could not buy it. 351 U. S., at p. 20, 76 S. Ct. 585, 100 L. Ed. 891. And in Draper v. Washington it was pointed out that alternative methods could be utilized for the purpose of adequately placing before the appellate court an equivalent report of the events upon which appellant’s contentions on appeal were based. 372 U. S., at p. 495, 83 S. Ct. 774. In the event that such alternate methods were not available or were inadequate, only such portion of the transcript as was germane to consideration of defendant’s appeal was required to be furnished gratis, the court commenting that “the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review.” Ibid., at p. 496, 83 S. Ct., at p. 496. The cited rationale would seem to be no less applicable to the facts before us. At the most, defendant was constitutionally entitled only to such portions of the transcript as he had need for.

Here the application was for a record which had not yet been transcribed. The issue was what portions thereof, if any, should be transcribed and furnished to defendant at the taxpayers’ expense. The inference from his response to an inquiry by the court was that defendant’s counsel had already had access to statements of the State’s witnesses. He had been allowed the expense of a private investigator and the prosecution had been specifically directed to cooperate with him in the matter of preparing for trial. In substance, the purpose of the request for the transcript, so far as was revealed to the court, was to uncover such discrepancies in the testimony of the State’s witnesses as might be found to be present. Defendant knew of no such discrepancies and gave no reason for any reasonable belief that they existed. He was therefore afforded the opportunity of going over with the court reporter the latter’s notes of the trial with the view to determining what portions thereof might demonstrate some need for parts of the transcript. Although counsel indicated at the time that he would follow the court’s suggestion, the record does not disclose whether he did so. The absence of any reference to it when the motion was renewed at trial convinces us that he did not, or that if he did, his quest was unsuccessful.

We are satisfied that the rulings of the trial judge afforded defendant an adequate alternative to the use of the trial transcript for the purpose expressed by his counsel and that, in any event, they did not entail any deprivation of defendant’s rights under the Fifth or Fourteenth Amendments.

We have reviewed the remaining points raised and find them to be without merit. Specifically, we are satisfied that the denial of defendant’s motion for a change of venue did not amount to a mistaken exercise of the judge’s discretion. State v. Ravenell, 43 N. J. 171, 203 A. 2d 13 (1964), certiorari denied Ravenell v. New Jersey, 379 U. S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 573 (1965). He was in a better position than we to judge whether an impartial jury could be secured from among the citizens of the county. See Irwin v. Dowd, 366 U. S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). Uor was it an abuse of the court’s discretion to fail to have reread to the jury all of Officer Peters’ testimony in response to the jury’s request, -when the jury thereafter indicated that it had heard enough. Cf. State v. Wolf, 44 N. J. 176, 185, 207 A. 2d 670 (1965). Wholly aside, we fail to perceive how defendant could have been prejudiced by the omission to read the entire testimony.

Defendant’s motions for judgments of acquittal were properly denied. His indictments for both conspiracy to commit robbery and for the subsequent robbery did not constitute double jeopardy. Pinkerton v. United States, 328 U. S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).

Affirmed.


text:
    PHILLIP B. ROBINSON, PLAINTIFF-APPELLANT, v. RODNEY KREISCHER, RAYMOND STARK AND THE CITY OF VENTNOR CITY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued June 10, 1968 —
    Decided June 24, 1968.

      Mr. Alexander K. Blatt argued the cause for plaintiff-appellant, Phillip Robinson (Messrs. Blatt, Blatt & Consalvo, attorneys).

      Mr. Frank J. Ferry argued the cause for defendants-respondents, Rodney Kreischer and the City of Yentnor City.

      Mr. Chaim II. Sandler argued the cause for defendant-respondent, Raymond Stark.
    Before Judges Coneoed, Labeecque and Fulop.
   Per Curiam.

Plaintiff appeals from a judgment of the Chancery Division entered upon the opinion of Judge Horn reported at 97 N. J. Super. 104 (Ch. Div 1967). We have carefully reviewed the record and the briefs and the arguments presented and are in accord with the determination made in the Chancery Division. We therefore affirm substantially on the opinion below.