author: Simmill, J. S. C.

text:
    KIRSCH HOLDING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE BOROUGH OF MANASQUAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 23, 1970.

      Mr. Theodore D. Parsons, Jr. for plaintiff (Messrs. Parsons, Canzona, Blair & Warren, attorneys).

      Mr. John D. Wooley for defendant.
   Simmill, J. S. C.

The problem of dealing with group rentals for the summer season is one which has beset most, if not all, of the municipalities bordering on and adjacent to the seashore. As these resort municipalities grew, housing units useable only for summer occupancy were erected and rented by their owners to persons desirous of enjoying the many advantages of New Jersey’s famed beaches. The owners of these units soon found that it was more lucrative to rent to groups of persons rather than to families, since the rents realized could be greater due to spreading the amount to be received among several persons. The end result, while financially beneficial to the landowners, adversely affected the great majority of the populace. Noise, obscene and profane language, wild parties, immorality, lewd conduct, drunkenness, parking and traffic congestion, all contributed to the destruction of the peace and quiet which was the objective of most of the residents. Family vacationists, with children, were exposed to the problems aforementioned, which originated in great part from the housing units that had been rented to groups.

In an attempt to curb these undesirable conditions the various municipalities adopted ordinances having to do with disorderly conduct, etc., under the police powers, but the implementation thereof proved to be difficult due primarily to lack of enforcement. The next step to combat the evil was the adoption of ordinances under the police powers which banned group rentals and which restricted to families the summer rental of these household units. These ordinances were declared to be invalid in Larson v. Mayor, etc., Spring Lake Heights, 99 N. J. Super. 365 (Law Div. 1968), because of the definition of “family,” as set forth in the ordinance, and because they went beyond the public need to be served as unnecessarily regulating and prohibiting otherwise lawful conduct. The renting to groups, in and of itself, was not invalid, and this court held that the end did not justify the means.

The municipalities then sought another approach. They amended their zoning ordinances to prohibit what this court declared was excessive of their police powers. The Borough of Manasquan adopted such an amendment, and this litigation is directed to the validity thereof. The amendment was adopted March 9, 1970, and provides, among other things:

Sec. 20. A “family” as used in this ordinance shall be deemed to mean one or more persons related by blood or marriage living together as a single housekeeping unit, or a collective number of persons living together in one house, whose relationship is of a permanent and distinct domestic character, and cooking as a single housekeeping unit. This definition shall be deemed to include maids, servants or other employees of one or more members of the family. This definition shall not include any society, club, fraternity, sorority, association, lodge, combine, federation, group or organization, nor include a group of individuals whose association is temporary and resort-seasonal in character or nature.
********
See. 62A. No house, dwelling, building, structure or enclosure, or any part of a house, dwelling, building, structure, or enclosure within the Borough of Manasquan shall be used or be permitted to be used or be rented to for use or be rented by for use, as living quarters or sleeping quarters, or for living purposes or sleeping purposes, by or to any society, club, fraternity, sorority, association, lodge, combine, federation, group, or organization or to any person or member on behalf of the same or to any group or collection of persons who are unmarried or who do not qualify as a family as defined in ARTICLE III, Sec. 20 of the Zoning Ordinance as herein amended.
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3. The Zoning Map which is part of the Zoning Ordinance of the Borough of Manasquan referred to in the title hereof is hereby amended so that Lots, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and the most southwesterly 100 feet of Lot 1 in Block 93, as shown on the current Tax Map of the Borough of Manasquan, shall be included in the R-2 residential zone.

Plaintiff owns real estate in Manasquan. Eox several years prior to the adoption of the aforesaid amendment it has rented housing units to persons and groups of persons not within the definition of “family” as set forth in the amendment. It also alleges that prior to the adoption of the amendment it has rented for the 1970 summer season properties to persons not within the definition of “family.” It has been notified that Manasquan plans to prosecute violations of the amendment, notwithstanding prior leases and notwithstanding alleged nonconforming uses. It contends it will be subject to irreparable harm if the amendment is enforced because it will be unable to re-rent the units heretofore leased and will be unable to procure more rental income which would be realized by renting to groups rather than to families. It also charges that the amendment arbitrarily prohibits rental to a class of persons who do not fall within the definition of “family,” exceeds the zoning power of a municipality, is not reasonably related to zoning, the definition of “family” is vague, and the amendment violates plaintiff’s constitutional rights. It seeks an injunction against the enforcement of the ordinance and an adjudication that the ordinance be declared invalid.

As a basic proposiition of law, municipalities have no inherent authority to enact zoning ordinances except as derived from the State by statute. This power has been conferred by the legislature by virtue of N. J. S. A. 40:55-30. For such an ordinance to be valid it must bear a reasonable relation to the powers conferred by that act, and must tend in some degree to promote the public good. It must bear a substantial relation to the public health, morals, safety or welfare in its proper sense, and such an ordinance is presumed to be reasonable — the one attacking its validity has the burden of establishing the contrary. Lionshead Lake v. Wayne Tp., 13 N. J. Super. 490 (Law Div. 1951). Zoning is based on an enabling act which sets forth specific purposes and classifies homogeneous and compatible uses into separate districts under a comprehensive plan so as to enable a community to exclude specific uses which could not be so excluded under the municipality’s police powers. And-over Tp. v. Lake, 89 N. J. Super. 313 (App. Div. 1965). The power to zone against a particular use is clear. Roman Catholic Diocese v. Ho-Ho-Kus, 47 N. J. 211 (1966) (schools in residential districts); Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959) (trailer homes); Pierro v. Baxendale, 20 N. J. 17 (1955) (hotels and motels).

It is obvious that the purpose of the amendment in question is to regulate objects specifically enumerated as proper zoning objectives. The general welfare concept with regard to zoning has received a broad definition by our courts. Pierro v. Baxendale, supra. The general provision relating to health, morals and general welfare should be examined in the light of existing circumstances in a community, and in determining the question of reasonableness cognizance must be taken of the problem to be solved by the municipality — for example, the requirement necessary to minimize the offensive character of the conduct to he regulated. State v. Mundet Cork Corp., 8 N. J. 359 (1952). At oral argument it was stipulated that the facts as found by the court in Larson, supra, would apply to this case. There is no doubt in the court’s mind that such conduct is offensive and in derogation of the public morals, health and general welfare.

The exclusion of fraternities and sororities has been held a valid exercise of the zoning power, and it has also been held that a fraternity or sorority is not a family as used in ordinances establishing residential zones. Long Beach v. California Lambda Chapter of Sigma Alpha Epsilon, 255 Cal. App. 2d 789, 63 Cal. Rptr. 419 (D. Ct. App. 1967). The groups here prohibited are analogous to fraternities or sororities, except that they do not have Greek letters, organization, supervision, leadership or discipline. Based on the foregoing there is no question in the court’s mind that the amendment is a proper and valid exercise of the zoning power.

Plaintiff’s contention that larger rents may be obtained from groups as opposed to families has no meritorious base. A zoning ordinance does not contravene constitutional limitations because the restricted use may not be the most profitable use to which the property can be devoted. Rexon v. Bd. of Adjustment, Haddonfield, 10 N. J. 1 (1952).

PTor is the amendment invalid because it also applies to business as well as residental zones. There is no prohibition against zoning against a particular use, whether it be in a business ^.or in a residential zone. As long as it serves to further the purposes of zoning as set forth in N. J. S. A. 40:55-32, it is valid. Here there is no question that the municipality sought to lessen congestion in the streets, prevent overcrowding, avoid undue concentration of population and promote health, morals and the general welfare. All these purposes are the essence of - zoning. The mere fact that a particular business use is prohibited in a business zone does not render void the prohibition. If that particular business is in furtherance of the purposes of zoning, its prohibition is licit. There is nothing unreasonable about the ordinance, and while reasonable persons may differ as to the wisdom of the enactment, it is not for the court to substitute its judgment (even if the court were so inclined, which it is not), for that of the duly elected legislative body. The functions of the legislative bodies and the judicial forums are distinct, as pointed out in Kozesnik v. Montgomery Tp., 24 N. J. 154 (1959).

The zoning- statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge’s private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable, [at 167]

See also Silco Automatic Vending Co. v. Puma, 105 N. J. Super. 72 (Law Div. 1969).

Insofar as the attacks on the reasonableness or arbitariness of the ordinance are concerned, therefore, the court rejects them and holds that the ordinance is valid on these grounds.

The next problem is as to the definition of “family.” Plaintiff contends that the definition is vague. There are many words which are difficult of definition, but which are well understood by everyone. “Family” is one of these. In “Words and Phrases” (perm. Ed., 1959), there are some 60 pages of definitions of “family” employed by courts and legislatures. Webster's New International Dictionary lists 11 definitions of the word. This court cannot understand how plaintiff could in any way be misled by the language in the ordinance, and the court cannot think of any better definition. Inarticulate expression is not uncommon in legislation. Amodio v. Bd. of Commissioners, West New York, 133 N. J. L. 220 (Sup. Ct. 1945). This court is of the opinion that there is no misunderstanding as to the meaning of the word “family.” “The test, therefore, of whether any house is being used as a single-family dwelling house is whether it is being occupied by a one-family unit.” Neptune Park Ass’n v. Steinberg, 138 Conn. 357, 84 A. 2d 687 (Sup. Ct. Err. 1951). Accordingly, the court finds the definition does not invalidate the ordinance.

The only question remaining is that of nonconforming uses. Plaintiff alleges that it has leased housing units to groups for many years and that prior to the adoption of the ordinance it had leased for the 1970 summer season some of the units owned by it. It seeks an injunction against the enforcement of the ordinance as to these units.

Nonconforming uses are sanctioned by the Legislature in N. J. S. A. 40:55-48:

Any non-conforming use or structure existing at the time of the passage of an ordinance may he continued on the lot or in the building so occupied, and any such structure may be restored or repaired in the event of the partial destruction thereof.

8 McQuillin Municipal Corporations (3d ed 1965) ¶25, 185, at 21, states:

The term “non-conforming use” is employed in the law of zoning, for the most part, to refer to a use which not only does not conform to the general regulation or restriction governing a zoned area but which lawfully existed at the time that the regulation or restriction went into effect, and has continued to exist without legal abandonment since that time.

The philosophy of the Legislature is to restrict nonconforming uses with an aim toward zoning conformity as soon as possible, yet justice, fundamental property rights and constitutional requirements of due process must not be overridden.

The uses protected by the nonconforming use provisions of the zoning statute are the uses in fact existing on land at the time of adoption of a new zoning ordinance (as opposed to an intention to use land), Ardolino v. Florham Park, 24 N. J. 94, 104 (1957), and if a use was in fact existing at such time, it may continue, insofar as the zoning act is concerned, as long as it continues without substantial change or enlargement. Scavone v. Totowa, 49 N. J. Super. 423 (App. Div. 1958), and cases therein cited.

The right of an owner to continue a nonconforming use is a property right, a part of the land title, that can only be extinguished by acts or omissions indicating an intention to abandon it. Scavone v. Totowa, supra. And nonconforming uses may be continued as of right. Grundlehner v. Dangler, 29 N. J. 256, 263 (1959).

Plaintiff herein owns many housing units in Manasquan. Which ones are protected as nonconforming uses depends on each specific housing unit. This court, at this juncture and on the proofs before it, cannot make an adjudication as to which units are nonconforming and which are not. That determination will have to be made on an individual basis. If plaintiff has a valid nonconforming use which has not been abandoned, it may raise the question as a defense to any prosecution for violation of the ordinance.

The order to show cause, therefore, is discharged with prejudice as to the question of the validity of the ordinance, and discharged without prejudice as to the nonconforming use problem.


source: Caselaw Access Project

author: Kapp, J. S. C.

license: Public Domain

text:
    BOBBY C. GILLIAM, AS GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROBERT JOHN GILLIAM, DECEASED; KENNETH GILLIAM, AN INFANT, BY HIS GUARDIAN AD LITEM, BOBBY GILLIAM, AND BOBBY GILLIAM INDIVIDUALLY; JOHN V. VILLACARI, AS GENERAL ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF RUTH VILLACARI, DECEASED, PLAINTIFFS, v. ADMIRAL CORPORATION, A FOREIGN CORPORATION, PRINCE RANGE CO., NEOFITOS CHIROMERAS, HELAINE CHIROMERAS, JOSEPH CATALFAMO AND ROSEMARIE CATALFAMO, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 29, 1970.

      Mr. James N. Marinello, argued the cause for defendants, Joseph Catalfamo and Rosemarie Catalfamo (Marinello, Henkel, Soriano & Klein, attorneys).

      Mr. Ralph N. Capone, argued the cause for plaintiffs (Giannone & Capone, attorneys).

      Mr. James B. Moran, argued the cause for defendant, Admiral Corporation (Hughes, McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Rocco L. D'Ambrosio, appeared for defendant, Prince Range Co. (Gaffey, Webb & McDermott, attorneys).

      Mr. Charles K. Kurebanas, argued the cause for defendants, Neofitos Chiromeras and Helaine Chiromeras.
   Kapp, J. S. C.

(temporarily assigned). This is a motion for summary judgment by the defendants, Joseph Catalfamo and Eosemarie Catalfamo. The plaintiffs, as administrators ad prosequendum, instituted the within action for damages on September 26, 1969 for personal injuries suffered by the decedents, and for the pecuniary loss sustained by their next of kin as the result of their death by fire that occurred on October 31, 1968 at premises 395 So. 21st Street, in the Town of Irvington, Essex County, New Jersey, that were formerly owned by the defendants. Specifically, it is charged in the 29th and 33rd counts of the complaint, that the defendants “created, constructed and maintained the premises more particularly the second floor and fire escape thereto, in such a careless, reckless and negligent manner * * *” that the plaintiffs’ decedents were severely injured, which injuries culminated in their death on October 31, 1968.

The uncontroverted proof is to the effect that these defendants were the owners and in possession of the subject premises from April 30, 1957 to March 26, 1962; that during the month of July or August 1957 the defendant, Joseph Catalfamo installed a steel ladder at the rear of the said building extending from the ground to the top of the second floor; that there were no other changes to the second floor structurally or otherwise while the defendants were in possession either as owners or tenants of the said premises; that the defendants conveyed the said lands to Neófitos and Helaine Chiromeras on or about March 26, 1962 and then vacated the premises as tenants on April 25, 1962.

The general principle is clear that one who erects a structure or construction which thereby creates a nuisance and then conveys to another his title and the lands and premises on which the structure or construction exists and is maintained, with a covenant in the deed of conveyance for quiet enjoyment and the right to maintain such structure or construction, is therefore liable for the continuance of the nuisance upon the ground that he affirms it, and must be regarded in law as continuing it. He is the author of the original wrong, and by thus transferring the premises with the original wrong still existing, he is treated in legal effect as affirming its continuance. East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 (E. & A. 1897); Stevenson, "Law of Negligence in The Atlantic States” (1954) p. 447.

Under the common law no time was fixed for the bringing of an action. Limitations, as such, are the creatures of statutes and derive their sole authority from these statutes. They are vital to the welfare of society and are consequently favored in the law, and are to be found and approved in all systems of enlightened jurisprudence. They promote repose by giving the necessary security and stability to human affairs. An important public policy lies at their foundation. They stimulate activity, and punish indolence and negligence. The death or removal of witnesses, factual obscurity from lapse of time, and loss of vital records are the common handicaps to be encountered absent a reasonable limitation. Leake v. Bullock, 104 N. J. Super. 309 (App. Div. 1969). Angell, “Limitations of Actions’’ [4th ed.] See. 22 states: "Without destroying, therefore, and simply prescribing a period in which a right may be enforced; and withholding merely the remedy, after the lapse of an appointed time, for reasons of private justice and public policy, a statute of limitations, it has been uniformly considered, is no violation of the sacredness of private rights.” Hence our legislature adopted N. J. S. 2A:14-1.1, N. J. S. A. on May 18, 1967 which was designed to bar an action for damage arising out of a defective and unsafe condition of an improvement to realty more than ten years after its construction. The statute reads:

“No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at. the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.”

It is apparent however, that the legislature intended by this limitation to preserve the common law principle of liability in the case of any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

The defendants contend that on the basis of the undisputed facts and the provisions of N. J. S. 2A:14-1.1, N. J. S. A. the plaintiffs are barred from maintaining the action against them. In resisting the motion it is asserted that since the cause of action accrued on October 31, 1968 and that the suit was entered on September 26, 1969 it comports with N. J. S. 2A:14-1, N. J. S. A. Moreover, it is suggested that since there are two components in this type of action: the creation of the defect and the injury which results therefrom, a statute enacted in 1967 to “create a veil of protection for defects caused more than ten years earlier” would, in effect, make one of the component parts retroactive. This contention is without merit. The tort of negligence is not committed unless and until some damage is done. Muller Fuel Oil Co. v. Insurance Co. of North America, 95 N. J. Super. 564, 579 (App. Div. 1967); Stevenson, “Negligence Law in New Jersey" (1954) p. 23. Our courts have identified the accrual of the cause of action as the date on which "the right to institute and maintain a suit” first arose. Fredericks v. Town of Dover, 125 N. J. L. 288, 291 (E. & A. 1940). When dealing with a cause of action grounded on negligent injury or damage to person or property they have held that the cause of action accrued not when the negligence itself took place but when the consequential injury or damage occurred. Rosenau v. City of New Brunswick &c., 51 N. J. 130, 137 (1968). The injury in the case sub judice occurred on October 31, 1968.

Statutory language is to be construed within the context of the whole statute, its purposes, and the circumstances under which the words were employed, and to be given the generally accepted meaning, unless the contrary intent is clear, and in reaching the meaning of amendatory language, the court must look to the prior laws, the matters deemed to require correction thereunder and the remedy enacted. Grogan v. De Sapio, 11 N. J. 308 (1953).

Here the alleged improvement (fire escape or ladder) was constructed in July or August of 1957. The injury occurred more than ten years later on October 31, 1968. The defendants had divested themselves, as the owners of the real property and vacated the premises on April 25, 1962.

The statute clearly provides that "no action * * * shall be brought * * * more than 10 years after the furnishing of such * * * construction,” Cf. Casey v. Alba Company, 75 Ill. App. 2d 343, 220 N. E. 2d 883 (1966).

Inasmuch as the pleadings and the affidavit show palpably that there is no genuine issue as to any material fact challenged, the motion by the defendants, Joseph Catalfamo and Rosemarie Catalfamo, for a summary judgment must be granted.


author: Rimm, J. C. C.

text:
    PLEASANTVILLE TAXPAYERS, THOMAS WILSON, ROY E. DEGAN, THOMAS BURKE, JOHN D. YOUNG, AND ALL OTHERS SIMILARLY SITUATED AS A CLASS, PLAINTIFFS, v. CITY OF PLEASANTVILLE, ACKLEY ELMER, TAX ASSESSOR, AND RAYMOND BECKMAN, JR., TAX COLLECTOR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 27, 1970.

      Mr. Morton Feldman for plaintiffs.

      Mr. Sheppard A. Guryan for defendants (Messrs. Lasser, Lasser, Sarokin, and Hochman, attorneys).
   Rimm, J. C. C.

(temporarily assigned). This matter came before the court on plaintiffs’ application for an order to proceed with litigation in the form of a class action, R. 4:32-1 et seq., and for an order permitting them to file one appeal to the Atlantic County Board of Taxation as representative of all of the class of taxpayers in the affected area. Defendants thereupon moved for summary judgment pursuant to R. 4:46-1 et seq., alleging that this court was without jurisdiction to grant the relief sought by plaintiffs and that plaintiffs had failed to exhaust all of their administrative remedies as provided by N. J. S. A. 54:3-21 et seq.

In October 1969 the tax assessor of the City of Pleasant-ville reassessed all of the real property of Pleasantville. Plaintiffs allege that within the area of Pleasantville bounded by Clematis Avenue, Ridgewood Avenue, Main Street and Ryon Avenue, in which all of them own property, the assessments of each property were approximately doubled.

Plaintiffs have brought this action seeking, by way of the ad damnum clause, the following relief: (1) a writ in the nature of mandamus, ordering defendant tax assessor to reassess all properties in Pleasantville; (2) a writ in the nature of quo~ warranto and prohibition restraining him from collecting taxes from plaintiffs in any amount greater than the taxes due upon last year’s assessments, until the city demonstrates that it had the lawful authority to increase assessments in the manner in which they were increased; (3) damages for each plaintiff in the amount of the 1970 taxes due on that portion of.the alleged discriminatory increase; (4) damages in a similar amount for 1971; (5) damages in a similar amount for 1972 and for each successive year until a reassessment is made of each property in the city; (6) an equitable order setting aside the alleged discriminatory tax assessment; (7) an equitable order directing the city to maintain an account record of the taxes paid hy each plaintiff, indicating therein the alleged unlawful portion, and (8) an equitable order permitting the. named plaintiffs and all other members of the class similarly situated to pursue their administrative remedy under N. J. S. A. 54:3-21 et seq. by filing only one. tax appeal for the class on the issues common to the class, with the additional provision that the statutory fee be paid only on the single application rather than on each individual application, and with the further provision that any taxpayer wishing to file an appeal on issues other than those common to the class would be permitted to do so and would be considered both as a member of a class and as an individual pursuing individual arguments.

The prayers, therefore, fall into three categories: (1) those seeking relief in lieu of prerogative writs; (2) those seeking damages, and (3) those seeking equitable relief from this court acting as a court of equity. This court has the jurisdiction to grant the relief sought in all of the prayers as incidental to its powers as a court of law, if the court has jurisdiction over the action in the first instance. Cf. R. 4:69—1 et seq.; Ajamian v. Schlanger, 14 N. J. 483 (1954); Falcone v. Middlesex County Medical Society, 82 N. J. Super. 133 (Law Div. 1964).

N. J. S. A. 54:3—21 provides that

A taxpayer feeling aggrieved by the assessed valuation of Ms property, or feeling that he is discriminated against by the assessed valuation of other property in the county, or a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may on or before August fifteenth appeal to the county board of taxation by filing with it a petition of appeal. A copy thereof shall also be filed with the assessor, clerk or attorney of the taxing district, setting forth the cause of complaint, the nature and location of the assessed property and the relief sought. The petition shall be signed and sworn to by the petitioner or Ms agent, and shall be in such form and contain such further information as may be from time to time prescribed by rule of the board, for the better understanding and determination of the appeal.

An administrative remedy and procedure is thereby provided whereby plaintiffs and any others similarly situated may challenge the assessment as applied to their particular piece of property. A fee is required by N. J. S. A. 54:3—21.3, the exact amount depending upon the valuation of the property. There is no procedure within the applicable statutes authorizing the combining of appeals or the waiver of fees where more than one property is involved and the properties have separate owners.

In J. E. Becker, Inc. v. Marlboro Tp., 82 N. J. Super. 519 (App. Div. 1964), plaintiffs were dissatisfied with the assessments levied on tjieir property and sought new assessments by a proceeding in lieu of a prerogative writ. The Appellate Division determined that such proceedings were not maintainable holding that

the Law Division is dot required to entertain this type of action when the gravamen of the complaint is that the assessor is taxing some properties more than they are worth, or properties less than they are worth, or applying a certain per acre value to some lands as contrasted with a different per acre value to other lands. Mere difference of opinion as to whether the assessed values of the respective townships do or not represent 100% of true value does not justify judicial intervention when the Legislature has provided an aggrieved taxpayer with an adequate administrative review.
R. R. 4:88-14 [now R. 4:69-5] provides that proceedings in lieu of prerogative writs under R. R. 4:S8 shall not be maintainable,' except where it is manifest that the interests of justice require otherwise, so long as there is available administrative review to an administrative agency which has not been exhausted.

Here the facts fall squarely within the bounds of nonintervention suggested by the Appellate Division in J. H. Becker, Inc. Plaintiffs have not exhausted their administrative remedies under the statute. Should they be unsuccessful before the county board of taxation, they may pursue their remedy to the Division of Tax Appeals in the Department of the Treasury. N. J. S. A. 54:2-39. If they remain unsuccessful, the remedy thereafter lies in an appeal to the Appellate Division. R. 4:69.

This position is supported by East Orange v. Livingston Tp., 102 N. J. Super. 512 (Law Div. 1968), cited by both sides herein, where the Court said that

there can he. no question that the determinations of the assessors of these taxing districts are appealable to the county board of taxation * * * Under [the rule] the court would ordinarily not be entitled to preempt the county board of taxation in exercising jurisdiction over this controversy in the absence of countervailing circumstances demonstrating forcibly that the “interests of justice” require that administrative remedies be by-passed. [At 519].

Plaintiffs have failed to exhaust all of their administrative remedies prior to coming to this Court. B. 4:69-5. There has been created by the Legislature a special agency to hear appeals from the actions of tax assessors which, regardless of the manner in which the complaint is phrased, is exactly what the plaintiffs complain of in this case. This agency has the special competence to determine matters of this kind, squarely within its jurisdiction. See East Orange v. Livingston Tp.

Plaintiffs contend that Baldwin Construction Co. v. Essex County Board of Taxation, 16 N. J. 329 (1957), relieves them from the requirement of having to exhaust their administrative remedies. There the county board of taxation bad ordered the East Orange tax assessor to make specific changes in the valuations of real property which had been made by him. In hearing the normal statutory appeal the board of taxation would have been required to review its own actions in ordering the tax assessor to correct the valuations. Therefore, the Supreme Court found that the administrative process was not a prerequisite to a judicial remedy where the hoard of taxation would he reviewing its own orders. This is certainly not the present case where the Atlantic County Board of Taxation would be reviewing the actions and determinations of the tax assessor of Pleasantville.

Where the failure to exhaust administrative remedies exists, as here, the court is without jurisdiction to entertain the suit and grant the relief sought therein. Therefore, the question, of whether a class action is properly maintainable in such a suit is npt ripe for decision and should not be reached under the circumstances present here.

However, plaintiffs have also sought an order from this court allowing them to file one tax appeal in order to determine the proper valuation of all of the approximately 161 properties located in the area of disputed valuations. In view of the determination of the other questions, it is necessary to review this request.

Plaintiffs have been unable to present to this court any authority, decisional or statutory, in or out of New Jersey, to justify such relief. Nor has any authority been independently discovered by this court to justify it. As previously indicated, N. J. S. A. 54:3-21 at seq. establishes the procedure for such tax appeals. This court has not found any authority to permit it to waive compliance with the provisions of these statutes. The court rules relating to class actions, R. 4:32-1 et seq., clearly pertain only to actions in the courts and not to actions in administrative agencies. The widening of the scope of this rule in the 1969 revision did not give it the breadth ascribed to it by the plaintiffs. This is especially true in this case where the circumstances surrounding the valuation of each property may be different and may raise different issues of fact for determination by the county board. For example, the plaintiffs allege that the tax assessor did not visit each property before making his assessment. This may be true as to some properties and may not be true as to others. Each taxpayer must present to the board of taxation the facts as they apply to his property, in order to obtain an individual determination.

Additionally, this court is without the power to waive the statutory fee required for each appeal to the county board. Each appellant must, therefore, pay the required fee for his property.

This fi-nding is without prejudice to a determination by the Atlantic County Board of Taxation to consolidate any of the individual appeals brought pursuant to the statute, under the power oí N. J. S. A. 54:3-21 to require such information as is necessary for its determination.

Plaintiffs’ applications are denied and defendants’ cross-motion for summary judgment is granted.


author: Bottter, J. S. C.

text:
    GINDY MANUFACTURING CORPORATION, PLAINTIFF, v. CARDINALE TRUCKING CORP., DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 27, 1970.

      Messrs. Zucker, Lowenstein, Gurny & Zucker for plaintiff (Mr. Milton Gurny on the Brief).

      Mr. Elvin R. Giordano for defendant.
   Bottter, J. S. C.

This is an action by the seller (Gindy) of twenty-live 1967 semi-trailers for a deficiency of $13,052.37 after repossession and resale following defendant’s default in payment under a conditional sales contract. The defense and counterclaim are based on the assertion that the trailers were delivered with faulty radius rods which caused premature tire wear and consequent monetary loss.

The matter is before the court on plaintiff’s motion for summary judgment. Plaintiff contends that the installment sales contract expressly excluded all warranties. Accordingly, plaintiff seeks a judgment for the amount of the deficiency, with interest and costs, and a dismissal of the counterclaim.

On or about June 1, 1967, the parties entered into a written installment sales contract in the total sum of $141,756, inclusive of finance charges. The contract, provided by plaintiff, was a one-page form contract with considerable close print. The only additions were by typewriter to show the name and address of the buyer, the various charges and installment payments involved, and the due date of the first installment. Also, in prominent position, a description of the trailers was typed in under various headings in the printed form as shown below, with the typewritten portions indicated by my use of italics:

ManufacNew Or Make or turer’s Used Year Trade Name Description Model Serial No. New 1907 Gindy semi-trailer C240AV9 38480 thru 38504

The printed form also contained the following paragraph:

H. WARRANTIES. Buyer is buying the vehicle “as is” and no representations or statements have been made by Seller except as herein stated, so that ño warranty, express or implied, arises apart from this writing. Buyer warrants that any property which is offered in trade for the vehicle is free from any lien, claim, encumbrance or security interest.

Plaintiff contends that the above clause, particularly the provision that the vehicles are sold “as is,” excludes all warranties. Plaintiff further contends that the recital in the contract that the “writing contains the full, final and exclusive statement of the agreement of the parties” precludes any modification by oral agreement or otherwise of the specific provision excluding warranties. There was also a separately signed provision that: “No modification of this contract may be made except in writing signed by Seller.” Since defendant failed to meet installment payments due for May, June, July and August of 1968, defendant was in default under the agreement, and plaintiff had the right to repossess and resell the trailers and sue for the deficiency. The only question, therefore, is whether defendant can assert as an offset or by way of counterclaim damages caused by the alleged defects in the vehicles furnished.

Defendant asserts that it has been doing business with Gindy for 20 years and had purchased hundreds of trailers, none of which were purchased “as is.”' Defendant asserts that in past dealings with Gindy and in accordance with the custom of the trade all defects in the manufacture of the trailers were the responsibility of Gindy. Defendant further asserts that in the past Gindy did correct at its own cost manufacturing defects whenever they appeared; that in the present transaction, when the defect caused by faulty radius rods appeared, Gindy agreed to replace them and ordered defendant to take the trailers to the Husky Trailer Company with whom Gindy contracted to have the repairs made at Gindy’s expense; that Gindy sent new parts to be installed in the trailers in question in replacement of the defective parts; that every trailer which defendant purchased from Gindy was purchased brand new; that Gindy knew defendant’s operation and, in fact, when Gindy started in business the founders of defendant corporation helped Gindy in designing the trailers; that defendant was not aware of the existence of the “as is” provision in the contract; that on June 12,1967 another installment sales contract in an amount in excess of $200,000 entered into with Gindy by a corporation related to defendant did not have an “as is” clause; that the inclusion of the “as is” clause is contrary to the custom in the trade which provides implied warranties that all new equipment will perform as represented and will do the job for which it was purchased; that used equipment may be purchased “as is,” and the absence of warranties in such case is reflected in the price of the equipment; and that at no time in the dealings between the parties during the period when defects arose on the trailers did Gindy ever take the position that the equipment had been purchased “as is.” These assertions in the affidavit of defendant’s president are uncontroverted in the record before me.

N. J. S. A. 12A:2-314(1) provides that an implied warranty of merchantability accompanies a sale of goods by a merchant of goods of that kind unless such warranty is excluded or modified pursuant to N. J. S. A. 12A:2-316. N. J. S. A. 12A:314(2) (c) provides that merchantable goods must be “fit for the ordinary purposes for which such goods are used.”

For contract purposes an issue may be raised as to whether the defects in question were minor, unremarkable defects which require adjustment and correction without constituting a breach of an implied warranty of merchantability. Compare Adams v. Peter Tramontin Motor Sales, Inc., 42 N. J. Super. 313, 325 (App. Div. 1956), where it was held that defects in motor tuning, door locks, dome light and the like did not make a new car unmerchantable, with Zabriskie Chevrolet, Inc. v. Smith, 99 N. J. Super. 441, 457 (Law Div. 1968), where a faulty transmission, making an auto inoperable, justified the buyer’s rejection. See also Henningson v. Bloomfield Motors Inc., 32 N. J. 358, 410 (1960), where the allegedly defective steering mechanism created a jury question as to the breach of warranty of merchantability.

The Code itself attempts to adjust the buyer’s need for exact performance — failure to conform “in any respect” (N. J. S. A. 12A:2-601) — with the seller’s needs, by allowing a seller to cure defects within the time for performance or when the seller had “reasonable grounds to believe” the buyer would accept “with or without money allowance.” N. J. S. A. 12A:2-508. To revoke acceptance the non-conformity must substantially impair the value of the goods to the buyer. N. J. S. A. 12A:2-608; Zabrislcie Chevrolet, Inc. v. Smith, supra. Often, as in the case at hand, adjustment of the competing interests of the seller' and buyer is accorded by custom of the trade or dealings between the parties. See Code Comments to section 2-508, and Code Comment 2, N. J. S. A. 12A:2-106(2) (defining “conforming” goods), which is as follows:

It is in general intended to continue the policy of requiring exact performance by the seller of his obligations as a condition to his right to require acceptance. However, the seller is in part safeguarded against surprise as a result of sudden technicality on the buyer’s part by the provisions of section 2-508 on seller’s cure of improper tender or delivery. Moreover usage of trade frequently permits commercial leeways in performance and the language of the agreement itself must be read in the light of such custom or usage and also, prior course of dealing, and in a long term contract, the course of performance.

N. J. S. A. 12A:2-314(3) provides:

Unless excluded or modified (12A:2-316) other implied warranties may arise from course of dealing or usage of trade.

Defendant asserts without contradition that it has always been the custom in the trade and in defendant’s relationship with Gindy that all manufacturing defects were the responsibility of Gindy and that, when such defects appeared, Gindy in the past did make the necessary corrections or repairs at its own expense. In this transaction, too, Gindy undertook to correct the defects in the trailers. The express terms of an agreement should be construed where reasonable as consistent with the custom of the trade or a course of dealing evidenced by previous conduct of the parties. N. J. S. A. 12A:1-205. Moreover, a course of performance is relevant to the interpretation of an agreement. N. J. S. A. 12A:2-208. The express terms of an agreement and a course of performance, course of dealing and usage of trade "shall be construed whenever reasonable as consistent with each other * * N. J. S. A. 12A:2-208(2).

Defendant asserts that the trailers were delivered with faulty radius rods. In the answer and counterclaim defendant asserts that the defects caused premature tire wear and loss of use of the equipment, presumably while repairs were being made. From the facts at hand it is not clear whether the defects were so serious as to make the vehicles unmerchantable within the principles of Adams v. Peter Tramontin Motor Sales, Inc., supra. (It is noted that in the Adams case the dealer did repair the minor defects in the auto). Repairs undertaken by plaintiff, the usage of trade and prior dealings of the parties offer strong evidence of plaintiff’s obligation to make such repairs, whether in satisfaction of an implied warranty of merchantability or in satisfaction of a stricter implied warranty claimed by defendant under N. J. S. A. 12A:2-314(3), quoted above, namely, an implied warranty to repair all defects in manufacture regardless of their seriousness. Code Comment 12 has been interpreted to indicate that “other implied warranties” arising under section 2-314(3) by course of dealing or usage of trade are not limited to “what might ordinarily be regarded as warranties but also include collateral obligations related to a seller’s performance.” 1 Anderson Uniform Commercial Code, § 2-314:10, p. 209 (1961). Accordingly, unless properly disclaimed pursuant to section 2-316, there arose in this transaction an implied warranty on the part of Gindy to accept responsibility for defects in manufacture, at least to the extent of repair or replacement.

Plaintiff contends that an appropriate disclaimer of all warranties was expressly provided by Paragraph H of the agreement quoted above. Plaintiff also relies upon the separately signed agreement that a modification of the contract cannot be made except in writing. N. J. S. A. 12A:2-209(2).

N. J. S. A. 12A:2-316 provides:

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Chapter on parol or extrinsic evidence (12A:2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Chapter on liquidation or limitation of damages and on contractual modification of remedy (12A:2-718 and 2-719).

To disclaim an implied warranty of merchantability, section 2-316(2) of the Code requires the use of the word “merchantability,” and requires, in a written contract, that such exclusion must he in “conspicuous” language. “Conspicuous” is defined by N. J. S. A. 12A:1-201(10) to include such writing “that a reasonable person against whom it is to operate ought to have noticed it.” The definition provides that “a printed heading in capitals * * * is conspicuous,” and that “conspicuous” writing includes larger print or other contrasting type or color. This section also provides that conspicuousness is to be determined by the court.

The definition also provides that “in a telegram any stated term is conspicuous.” The definition of “conspicuous” is not exhaustive nor does it mean that in all circumstances ordinary print cannot be conspicuous. See Code Comment 10, § 1-201 which says that “the test is whether attention can reasonably be expected to be called to it.”

In the case at hand an implied warranty of merchantability has not been excluded in a manner that conforms to N. J. S. A. 12A:2—316(2). The word “merchantability” is not used and the exclusion is not conspicuous. Paragraph IT does not contain larger or different type in the exclusionary provision; the only large type is the printed heading which reads, “WARRANTIES.” The use of that heading did not make the exclusion conspicuous; if anything, it would suggest to a buyer who does not read the fine print that warranties are' included, not excluded. In fact, there is an express warranty in the clause, but not by the seller. It is a warranty by the buyer as to clear title of a vehicle given in trade.

Plaintiff contends, however, that the “as is” provision is sufficient to disclaim all implied warranties. On the other hand, defendant contends that the “as is” clause is inoperative because it is not appropriate to the transaction, involving the sale of new vehicles, and because the clause is not in conspicuous language.

Subsection (3) does not use the term “conspicuous.” Subsection (2), which requires the use of conspicuous language in written agreements to exclude or modify implied warranties of merchantabilty or fitness, is expressly made subject to subsection (3). The introductory language of subsection (3) also suggests the supremacy of its provisions over subsection (2). Thus, reading the two subsections literally would eliminate the requirement of “conspicuous” language as a condition for the exclusion of all implied warranties where expressions like “as is” are used. On the other hand, the intent may have been simply to provide in subsection (3) a qualification of subsection (2) so as to permit the use of commonly understood terms in substitution for the term “merchantability” or terms respecting fitness, without eliminating the requirement of conspicuous language where the agreement is in writing. Prof. William D. Hawkland, the first Research Director of the New Jersey Uniform Commercial Code Study Commission, finds the need for conspicuousness in subsection 3(a). In 1 Hawkland, A Transitional Guide to the Uniform Commercial Code, 76-78 (A. L. I. 1964), Prof. Hawkland says with respect to subsection 2-316(3)(a):

While the subsection does not explicitly so provide, it would seem that these phrases and expressions would have to be stated conspicuously to become effective disclaimers. Such a requirement is consistent with the general rule that the disclaimer must “call” the risk to “the buyer’s attention” and “make * * * plain (to him) that there is no implied warranty.”

Prof. Hawkland’s interpretation harmonizes with the basic purpose of the Code to protect the buyer from surprise. Code Comment 1, § 2-316. See also Code Comment 11, § 2-314, which says in part:

The warranty of merchantability, whereever it is normal, is so commonly taken for granted that its exclusion from the contract is a matter threatening surprise and therefore requiring special precaution.

The original draft of section 2-316 contained a single paragraph (2) which provided for the exclusion of warranties with three exceptions comparable to sub-paragraphs (a), (b) and (c) now contained in subsection (3). U. C. C. Supp. No. 1 (1952), § 2-316. The amendment of section 2-316 to its present form broke subsection (2) into two parts. One part remained section (2) and the exceptions became section (3). To section (2) was added the requirement of conspicuous language where a disclaimer is in writing. In addition, section (2) was amended to require that a disclaimer of an implied warranty of fitness must always be in writing, and the requirement of specific language to avoid a warranty of fitness was changed.

The drafters of the Code made the following comment upon the redrafting of subsection (2):

Reason-. Former subsection (2) was rewritten and divided into subsection (2) and (3) in Supp. No. 1 to relieve the seller from the requirement of disclaiming the warranty of fitness in specific language and yet afford the buyer an adequate warning of such disclaimer. Subsequently, subsection (1) was rewritten and subsections (3) (a) and (3) (b) changed for clarification and to meet criticism by the New York Commission. U. C. C., 1956 Recommendations, at 40.

Wo comment was made regarding the applicability of the conspicuous language requirement to subsection (3), and no- case has been found in Wew Jersey or elsewhere which deals with the problem. Wor is it dealt with in the Code Comments or in the Wew Jersey Study Comment. In his comments to forms 1, 2 and 3 applicable to section 2-316 (27 N. J. Practice (Abrams, Uniform Commercial Code Forms), 200-202 (1967)), Arthur L. Abrams, Chairman of the Uniform Commercial Code Study Commission of Wew Jersey, emphasizes the requirement of conspicuous language where implied warranties are to be excluded or modified in writing. However, Mr. Abrams does not expressly deal with the possible interpretation that an expression like “as is” need not be conspicuous.

Mr. Abrams notes that language excluding a warranty of merchantability must mention “merchantability” and if in writing must be conspicuous. He then goes on to say: “notwithstanding the foregoing, however, all implied warranties (including the warranty of merchantability) are excluded by expressions such as ‘with all faults’, ‘as is’, or other language which makes it plain that there are no implied warranties, and may also be excluded or modified by course of dealing, course of performance or usage of trade.” By contrast, Mr. Abrams points out that a limitation of remedies for breach of warranty need not be conspicuous, citing section 2-316(4). Mr. Abrams does not clearly say that conspicuous language need not be used when an “as is” clause appears. His choice of words, “notwithstanding the foregoing, however, all implied warranties * * * are excluded by expressions as * * * ‘as is’ * * *” may be taken to suggest this result.

The metamorphosis of section 2-316 and the reason given in the legislative history mentioned above suggest that the use of expressions like “as is” was intended merely to give effect to common terms in addition to those specified in subsection (2) as a means for disclaiming certain warranties. There is no evidence of a legislative purpose to require conspicuous language in one case and not when expressions like “as is” are used.

It appears desirable to read into section 2 — 316(3) the requirement of conspicuousness when the attempted disclaimer is in writing. This would avoid surprise to a buyer and fulfill a fundamental purpose of the Code. However, one of the difficulties is that subsection (2) deals expressly with disclaiming the implied warranties of merchantability and fitness. It does not deal with disclaimer of other implied warranties arising from a course of dealing or usage of trade under N. J. S. A. 12A:2-314(3). While subsection (2) deals with two types of implied warranties and expressly imposes the requirement of conspicuous language in writings as to them, subsection (3) (a) specifically refers to “all implied warranties” and does not contain the requirement of conspicuous language. Recognizing this, Prof. ITawldand notes that such a requirement would be “consistent” with other terms in subsection 3(a). Saying this, however, does not solve the problem. The phrase relied upon by Prof. Hawkland, “other language which in common understanding calls the buyer’s attention to the exclusion of warranties and malees plain that there is no implied warranty” simply describes the class which includes expressions like “as is” and “with all faults.” If the requirement of “conspicuous” language had been intended, being a term defined by the Code itself in section 1-201(10), the draftsmen should have expressly included that term in subsection (31. Perhaps it is a matter of poor draftsmanship or oversight. But it always presents a problem for the court when the omission of a provision that could so easily have been included seems to conflict with an undertying purpose of the legislation. See State v. Patfol, Inc., 76 N. J. Super. 287 (App. Div. 1962), reargument denied, 76 N. J. Super. 572 (App. Div. 1962), certif. granted, 39 N. J. 89 (1963), order for certif. vacated as moot, 40 N. J. 332 (1963).

It does not make sense to require conspicuous language when a warranty is disclaimed by use of the words “merchantability” or “fitness” and not when a term like “as is” is used to accomplish the same result. It serves no intelligible design to protect buyers by conspicuous language when the term “merchantability” is used, but to allow an effective disclaimer when the term “as is” is buried in fine print. Hor does it make sense to require conspicuous language to disclaim the implied warranties of merchantability and fitness and not impose a similar requirement to disclaim other implied warranties that arise by course of dealing or usage of trade. The expectations of the buyer need as much protection in one ease as in another. My preference, therefore, is to find that there is a requirement of conspieuousness when terms like “as is” are used to exclude an implied warranty of merchantability or fitness. It seems reasonable to say that to avoid these implied warranties the requirements of subsection (2) must be met, except that expressions like “as is” will be given effect in addition to the expressions specified in subsection (2). This interpretation, nevertheless, would still leave intact the exclusion of implied warranties arising from a course of dealing or usage of trade by expressions like “as is,” whether conspicuous or not. It would appear desirable, to eliminate all doubt in this area, for the legislature to amend N. J. S. A. 12A:2-316 so as to include an express requirement of conspicuous language when a writing is used to exclude or modify any and all implied warranties. In any case, an interpretation requiring conspicuousness to avoid the warranties of merchantability and fitness still leaves open the effect of the disclaimer clause here on the implied warranties arising under section 2-314 (3). My holding below on this issue is dispositive of this motion.

The agreement in question is at least ambiguous as to the applicability of the “as is” clause in this transaction. Subsection (3) (a) of section 2-316 gives force to an “as is” clause “unless the circumstances indicate otherwise.” Moreover, by the terms of that section the “as is” clause must call the buyer’s attention to the exclusion of all warranties and make that result “plain.” Ambiguity arises by virtue of the fact that at the beginning of the contract, before the description of the vehicles sold, there is a clause providing, “Buyer accepts delivery in good condition.” (Defendant claims that this provision provides an express warranty of quality.) Moreover, the form contract provided by the seller by its terms was applicable to the sale of either a new vehicle or a used vehicle. Defendant’s uncontradicted affidavit recites that an “as is” clause by custom of the trade may be expected in the sale of used vehicles but not in the sale of new vehicles. Accordingly, whether or not the provision for “delivery in good condition” was intended to create an express warranty of quality, that clause, together with the inappropriateness of the “as is” clause in the sale of new trailers, would not “make it plain” to a buyer that the “as is” clause was intended to disclaim all implied warranties in this transaction. A buyer could reasonably expect that the clause in question was to apply only when the form contract was employed in the sale of used vehicles. This interpretation would make the provisions of the contract consistent with prevailing usage of trade and the previous course of dealing between the parties. Also, Gindy’s undertaking to supply replacement parts and to have the vehicles repaired at its own cost, without disclaiming responsibility, without reliance on the “as is” clause, shows an interpretation by Gindy of this contract consistent with defendant’s position.

The “as is” clause employed in the contract, even augmented by language stating “that no warranty express or implied arises apart from this writing,” appears inappropriate to this transaction, given the usage of the trade and the dealings of the parties. All of that language was not sufficient to call attention and make plain to defendant that there was no implied warranty intended by the seller with respect to the sale of new vehicles as distinguished from used vehicles. Significantly, almost without exception, “as is” and similar expressions construed by the courts are found in cases dealing with the sale of used vehicles, articles or equipment. See R. E. Brooks Co. v. Storr, 111 N. J. L. 316 (E. & A. 1933); St. George v. Grisafe, 38 N. J. Super. 297 (App. Div. 1955); Crown Cork & Seal Co., Inc. v. Hires Bottling Co. of Chicago, 254 F. Supp. 424 (N. D. Ill. 1966); First National Bank of Elgin v. Husted, 57 Ill. App. 2d 227, 205 N. E. 2d 680 (App. Ct. 1965); and numerous cases cited in Annotation, “Construction and effect of affirmative provision in contract of sale by which purchaser agrees to take article cas is,’ in the condition in which it is, or equivalent term,” 24 A. L. R. 3d 465 (1969). But see: Byrd v. Harry Sommers, Inc., 87 Ga. App. 663, 75 S. E. 2d 287 (Ct. App. 1953) and Varkell v. United States, 167 Ct. Cl. 522, 334 F. 2d 653 (1964). Code Comment 3, § 2-314 recognizes that a distinction must be drawn when the sale involves used goods, saying: “A. contract for the sale of second-hand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.”

The effectiveness of an “as is” clause as a disclaimer is conditioned by the preamble of Section 2-316(3), namely, “unless the circumstances indicate otherwise.” In the case at hand the circumstances do indicate otherwise. One buying a new vehicle under a contract requiring acceptance of delivery “'in good condition” could readily say that in these circumstances “as is” means new and in good mechanical condition. This is exactly the interpretation which the parties gave to this instrument.

Accordingly, the “as is” clause in this contract is not effective to disclaim an implied warranty of merchantability, nor an implied warranty arising by usage of trade or course of dealing. This holding is a corollary to Code Comment 2, § 2-508. By that Comment a buyer is precluded from relying on a “no replacement” clause in a “form” contract to prevent a seller from curing defects in performance, where that clause is “out of line with trade usage or the prior course of dealing and was not called to the seller’s attention.” The Comment indicates that these circumstances are sufficient to show that the seller had reasonable grounds to believe the tender would be acceptable within the meaning of section 2-508 (2). Just as the seller should be allowed to perform reasonably and not be precluded by an unexpected term in a form contract, so, too, the buyer should be assured of reasonable performance and not be deprived thereof by unexpected terms in a form contract.

Bor the foregoing reasons plaintiff’s motion for summary judgment is denied. An appropriate order shall be submitted.

      Some defects do not justify rejection by the buyer but can be cured by replacement or repair. N. J. S. A. 12A:2-508. See also N. J. S. A. 12A:2-719, providing for a limitation on the buyer’s remedy to the repair or replacement of non-eonfonning goods or parts, and Code Comment 4 to section 2-508 to the effect that trade usage permitting variations without rejection but with price allowance may enter into an agreement as a contractual limitation of remedy.

       The Henningson case was a personal injury case which gave rise to the principles -of strict liability in tort in New Jersey. Santor v. A & M Karagheusian, Inc. 44 N. J. 52 (1965); Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965); Cintrone v. Hertz Truck Leasing, 45 N. J. 434 (1965); Newmark v. Gimbel’s Incorporated, 54 N. J. 585 (1969). For strict liability in tort a defect sufficiently dangerous to cause physical harm is actionable. Newmark v. Gimble’s Incorporated, supra, at 595. See also 2 Restatement, Torts 2d, § 402A (1965), where the test is a “defective condition unreasonably dangerous to the user or consumer or to his property.” The Uniform Commercial Code also provides the right to sue for injury to person or property resulting from any breach of warranty. N. J. S. A. 12A:2-715(2) (b). This right extends to the buyer and members of his family and household (N. J. S. A. 12A:2-318) and may be extended to others by case law. Code Comment 3 to section 2-318. See also, Seely v. White Motor Company, 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P. 2d 145 (Sup. Ct. 1965) which distinguishes between the law of warranty as a regulation of economic relationships between suppliers and consumers and strict liability in tort as a regulation of responsibility for physical injuries.

      Defendant also claims an implied warranty of “fitness” for defendant’s jrarposes. It is doubtful that the defects here constitute a breach of an implied warranty of fitness for a particular purpose. See Adams v. Peter Tramontin Motor Sales, Inc., supra, 42 N. J. Super. at 324. In any case my views concerning disclaimer of an implied warranty of merchantability in this transaction would also apply to the disclaimer of an implied warranty of fitness, which must be in writing and conspicuous under N. J. S. A. 12A:2-316 (2)


author: Yancey, J. C. C.

text:
    PHILIP CAMARCO, JR., A CITIZEN AND RESIDENT OF NEW JERSEY, AND RUTH SEGLIN, A CITIZEN AND RESIDENT OF THE CITY OF ORANGE, PLAINTIFFS, v. CITY OF ORANGE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, GENNARO D’ANGELIS, IN HIS CAPACITY AS DIRECTOR OF THE POLICE DEPARTMENT OF THE CITY OF ORANGE, JOSEPH MAGRINO, IN HIS CAPACITY AS CORPORATION COUNSEL OF THE CITY OF ORANGE, AND THOMAS J. FREDA, IN HIS CAPACITY AS CLERK OF THE MUNICIPAL COURT OF THE CITY OF ORANGE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 10, 1970.

      Mr. Mitchell Melnikoff attorney for plaintiffs.

      Mr. Jeffrey R. Lowe attorney for defendants.
   Yancey, J. C. C.

(temporarily assigned). On July 9, 1969 Philip Camarco was arrested by members of the Orange Police Department for “loitering” in a local parking lot in violation of an ordinance of the City of Orange which provided:

No person or persons shall loiter or assemble in or about any street or public place or at the corner of any streets, or in or about the front of any building; or shall loiter in or upon any street or public place in any parked automobile or other vehicle; or utter any loud, indecent, abusive or offensive language, or address or make any offensive remarks or comments to or upon any person or persons in any street or public place, or obstruct or interfere with any person or persons lawfully being in or upon any street, public place or building under a penalty of not more than Fifty Dollars or ten days in jail for the first offense, and not more than Two Hundred Dollars or ninety days in jail for each and every subsequent offense.

On motion of Camarco’s counsel, prior to a municipal court hearing of this complaint, an order was entered in the Superior Court declaring that the loitering section of the ordinance was invalid and ineffective because it failed to set forth norms and standards. The complaint against the plaintiff Camarco was thereby dismissed.

Thereafter, plaintiffs filed a complaint for a declaratory judgment which sought to have the entire ordinance declared unconstitutional. While that action was pending, Orange amended its loitering statute. Plaintiffs subsequently amended their complaint for declaratory judgment, alleging that the new ordinance is unconstitutional. The ease is before this court on a motion for summary judgment made by plaintiffs. Defendant city has entered a cross-claim for summary judgment, alleging that plaintiffs have no standing to claim relief under the Declaratory Judgment Law and, in the alternative, that the new ordinance is constitutional.

Defendant argues that since there are no charges pending against plaintiffs, either under the old or new ordinance, he lacks standing to attack its constitutionality. Since the issue of standing could be dispositive of the entire case, the court will deal with it first. It is essential for relief under the Declaratory Judgment Law that there be a finding .of both justiciability and standing. N. J. Builders Ass’n. v. Division on Civil Rights, 81 N. J. Super. 243 (Ch. Div. 1963); N. J. S. A. 2A:16-50, 51, 53.

Our courts have held that in declaratory judgment actions no wrong need bo proved, but the mere existence of a claim, or threat of a possible claim, disturbing the peace of plaintiff’s freedom by casting doubt or uncertainty upon his rights or status, establishes the requisite condition or justiciability for a declaratory judgment action. N. J. Home Builders Ass’n v. Division on Civil Rights, supra; Trustees of Rutgers College v. Richman, 41 N. J. Super. 259 (Ch. Div. 1956). Plaintiff Camarco was arrested under the predecessor of the present amended ordinance. He asserts that he does not know why his actions of peacefully assembling in a parking lot caused him to be arrested. As noted, his arrest was later declared invalid because the loitering ordinance was held to be invalid and ineffective. Camarco now stands in a precarious position because he does not know if these same actions are lawful or whether they will subject him to arrest under the amended ordinance. “A plaintiff is entitled to relief from the uncertainty and insecurity as to the legal limitations and obligations which confront him each day on the streets of the City.” Weinstein v. City of Newark, 100 N. J. Super. 199, 206 (Law Div. 1968).

Plaintiff clearly has standing to attack the constitutionality of the ordinance. He is more qualified to question the ordinance than most other citizens of Orange in that he was arrested under the former ordinance which dealt with the same action of loitering. Refusal to grant plaintiff standing might in effect deny his constitutional rights of expression and assembly, because he would be unwilling to gather with his friends in conversation for fear of criminal prosecution by the Orange police. “The threat of sanctions may deter * * * almost as potently as the actual applications of sanctions.” NAACP v. Button, 371 U. S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405 (1963).

Defendants argue that there are no criminal charges pending against Oamarco by the City of Orange, and therefore he lacks standing to question the ordinance. If this argument were accepted, it would mean that a person in plaintiff’s position would have to wait until he was arrested before he could question the legality of a statute. The Supreme Court of the United States, in dealing with the federal Declaratory Judgment Act, which is very similar to the one in New Jersey, stated, “Because of the sensitive nature of constitutionality protected expression we have not required that all of those subject to overbroad regulations risk prosecution to test their rights.” Dombrowski v. Pfister, 380 U. S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965). Our own Supreme Court has held that a person wishing to test the constitutionality of a statute should bring a proceeding under the Uniform Declaratory Judgment Act rather than have himself arrested in order to bring a test case. State v. Baird, 50 N. J. 376 (1967). The criteria of standing and justiciability for relief under the Uniform Declaratory Judgment Act are clearly present here, and therefore this action is properly before this court.

The court will now turn to the main issue in this case: the constitutionality of the Orange loitering ordinance. Al.though it has been said that loitering statutes or ordinances are necessary for the protection of society and the preservation of the public peace, an increasing number of courts have in recent years struck down legislation directed merely at loitering, especially where the term was not defined or the circumstances under which the statute would apply were not sufficiently set out. Shuttlesworth v. Birmingham,, 382 U. S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965). The “Achilles heel” of those loitering statutes which have been declared void for being unconstitutionally vague and arbitrary have been that they failed to prescribe any standard capable of intelligent human evaluation so as to enable one chargeable with their violation to discover those conditions which convert conduct which is prima facie lawful into that which is criminal. Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 2d 666 (Sup. Jud. Ct. 1950). A review of some of the leading decisions from other jurisdictions which have dealt with the constitutionalitj'' of loitering ordinances highlights this fact.

An example is People v. Diaz, 4 N. Y. 2d 469, 176 N. Y. S. 2d 313, 151 N. E. 2d 871 (Ct. App. 1958), in which the ordinance in question stated only that no person shall lounge or loiter about any street or street corner in the City of Dunkirk. The ordinance was declared invalid because it was vague and indefinite in that it failed to provide any standards or criteria by which the prohibited conduct might be tested. In the United States District Court in Kentucky, a Louisville ordinance which punished a person who loiters in a public place and is unable to give a satisfactory account of himself was held to be overbroad, vague, and hence unconstitutional. Baker v. Bindner, 274 F. Supp. 658 (D. C. Ky. 1967). Numerous other loitering statutes have been held -to be invalid due to their lack ox clear and precise standards. Seattle v. Drew, 70 Wash. 2d 405, 423 P. 2d 522 (Sup. Ct. 1967); Soles v. Vidalia, 92 Ga. App. 839, 90 S. E. 2d 249 (App. Ct. 1955); Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 2d 666 (Sup. Jud. Ct. 1950); Territory of Hawaii v. Anduha, 48 F. 2d 171 (9 Cir. 1931).

On the other hand, where loitering statutes have provided standards they have generally been upheld by the courts. The United States Supreme Court in Shuttlesworth v. City of Birmingham, supra, held that a municipal ordinance which penalized persons who stand on a sidewalk so as to obstruct free passage and refuse to obey a request by a police officer to move was not unconstitutional on its face. Note that only a certain type of loitering was prohibited •— that of obstructing free passage on a sidewalk — and that the ordinance took effect only if a police officer first requested the persons to move and they refused to do so. In another case, involving a disorderly conduct ordinance of Atlanta, Georgia, that subsection was declared valid which denominated as disorderly conduct acts performed in a violent or tumultuous manner which places another person in fear of safety of his life, limb or health, because it clearly and precisely delineated its reach in words of common understanding. Hunter v. Allen, 286 F. Supp. 830 (D. C. Ga. 1968). However, other subsections of the same ordinance, which described jostling or roughly crowding any person in a public place, were held to be invalid for failure to prescribe conduct within sufficiently narrowly drawn limits which evinced an objective determination of prohibited conduct.

The leading case in New Jersey, State v. Caez, 81 N. J. Super. 315 (App. Div. 1963), stated that an ordinance may not unreasonably or unnecessarily interfere with a person’s freedom, whether it be to move about or stand still. The Appellate Division went on to say (at 319) that an ordinance which proposes to restrict that freedom must contain standards which make it reasonable and prevent arbitrary enforcement.

The Orange ordinance is a revised form of the earlier loitering ordinance that was declared invalid for lack of standards by which to judge the unlawful conduct. Orange then set out to formulate a loitering ordinance which would not unreasonably or arbitrarily interfere with a person’s constitutional freedoms.

Adhering closely to the guidelines set up by the American Law Institute in its Model Penal Code, Proposed Official Draft, § 250.6 on loitering, Orange composed and adopted the following new loitering ordinance. The relevant sections of that ordinance provide:

SECTION 1. Definitions. As used in this Section.
(a) “Loitering” shall mean remaining idle in essentially one location and shall include the concepts of spending time idly, loafing or walking about aimlessly, and shall also include the coloquial [sic] expression “hanging around.”
SECTION 2. Certain types of Loitering Prohibited. No person shall loiter in a public place in such manner as to:
(a) Create or cause to be created a danger of a breach of the peace.
(b) Create or cause to be created any disturbance or annoyance to the comfort and repose of any person.
(e) Obstruct the free passage of pedestrians or vehicles.
(d) Obstruct, molest, or interfere with any person lawfully in any public place as defined in Section 1 (b). This paragraph shall include the making of unsolicited remarks of an offensive, disgusting or insulting nature or which are calculated to annoy or disturb the person to, or in whose hearing, they are made.
SECTION 3. Discretion of Police Oificer.
Whenever any police officer shall, in the exercise of reasonable judgment, decide that the presence of any person in any public place is causing or is likely to cause any of the conditions enumerated in Section 2. he may, if he deems it necessary for the preservation of the public peace and safety, order that person to leave that place any person who shall refuse to leave after being ordered to do so by a police officer shall be guilty of a violation of this Section.

Unlike its predecessor, the amended Orange ordinance does not prohibit all acts of loitering. Quite to the contrary, it goes into careful detail in defining which acts of loitering are unlawful. Eor instance, section 2(c) states that no person shall loiter in a public place in such manner as to obstruct the free passage of pedestrians or vehicles. This section thereby sets up a criterion by which one can judge whether the loitering involved is unlawful. Furthermore, the ordinance takes effect only after a person has refused to move upon the request of a police officer. The ordinance is very specific in requiring the police officer to first ask the individual or individuals to move on before he can make an arrest under the statute. This is the very same requirement which caused the United States Supreme Court to uphold the constitutionality of the Birmingham loitering ordinance in Shuttlesworth v. Birmingham, supra.

This court, after carefully examining this ordinance, is of the opinion that it is constitutional on its face.

Plaintiffs complain that the ordinance delegates to the police an excessive amount of power and discretion. They cite Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965), as standing for the proposition that an ordinance is nneonstitntional if the legality of a person’s actions depends upon the opinion of a policeman, thereby permitting him to make a crime out of what is protected activity. This court has no argument with plaintiffs’ interpretation of the Cox case. The ruling there does not apply in the present case because there are clear and definite criteria set forth in the Orange ordinance by which to judge the prohibited actions; it is not let solely to the police officer’s discretion. Furthermore, the court in Oox went on to state:

If is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination * * * and with a systematic, consistent and just order of treatment, with- reference to the convenience of public use of the highways.” [379 U. S. at 558; 85 S. Ct. at 466.]

Therefore, in view of the standards set forth in the ordinance, an excessive amount of discretion is not placed in the police officer’s hands.

In view of the foregoing, I hereby find that the ordinance entitled, ‘'An Ordinance to Prevent Loitering Within the City of Orange” is constitutional. It does not suffer from overbreadth or vagueness, and is therefore not violative of a person’s Eirst Amendment rights or due process of law. Defendant’s cross-motion for summary judgment is hereby granted and plaintiffs’ motion for summary judgment is hereby denied.


author: Toscano, J. C. C.

text:
    BOULEVARD APARTMENTS, INC. AND SKYLINE APARTMENTS, INC., BOTH CORPORATIONS OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. BOROUGH OF HASBROUCK HEIGHTS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 29, 1970.

      Mr. Benedict Krieger, Attorney for Plaintiffs.

      Messrs. Chandless, Weller & Kramer, Attorneys for Defendant.
   Toscano, J. C. C.

On March 13, 1969, the Hasbrouck Heights Borough Council adopted Ordinance No. 962 which purports to regulate and license, among others, multiple family dwellings, including garden apartments, in the community. Plaintiffs in this action are each the owners of such apartments in the borough and, obviously, are directly affected by the ordinance.

Plaintiffs and defendant borough have been repeated adversaries in litigation over excessive property assessments, Borough of Hasbrouck Heights v. Div. of Tax Appeals, 41 N. J. 492 (1964), and a previous ordinance which also unsuccessfully attempted to regulate and license apartment houses. Boulevard Apartments, Inc. v. Hasbrouck Heights, 86 N. J. Super. 189 (Law. Div. 1965), affirmed 90 N. J. Super. 242 (App. Div. 1966). The latter decision held that a $50. license fee, fixed under N. J. S. A. 40:48-2, for apartment complexes was excessive, not being limited to the actual cost of regulation.

The birth of the present ordinance was induced by N. J. S. A. 40:52-1, amended in 1968, which gave a municipality the power, by ordinance, to license and regulate “motels, furnished and unfurnished rented housing or living units * * * and the occupancy thereof.” It is admitted and appears beyond doubt that the plaintiffs’ apartment houses come within the purview of this amendment.

Plaintiffs made a two-pronged attack on this ordinance claiming that the State has pre-empted the field of multiple dwelling licensing and regulation by virtue of N. J. S. A. 55:13A-1 et seq., the Hotel & Multiple Dwelling Health & Safety Law of 1967, and, alternatively, that the $10 annual fee imposed upon each dwelling unit by the ordinance is excessive. I will dispose of these contentions in reverse order.

I

Section 7 of the ordinance roads:

There shall be charged and collected for the granting of the license * * *, which license fee is imposed for, and shall be a part of, the general revenues of the Borough, a license fee per annum as follows :
$ sfs >:■ * *
Dwelling units $10.00 per unit for each unit, more than two, in any licensed premises * * *

There is a presumption of the reasonableness of a license fee imposed by an ordinance and the burden of proving otherwise rests upon the attacker. Garden State Racing Assn. v. Cherry Hill Tp., 42 N. J. 454 (1964); Monmouth Jct. Mob. Home Pk. v. So. Bruns. Tp., 107 N. J. Super. 18 (App. Div. 1969), cert. den. 55 N. J. 30 (1969). The amount of such fee rests in the sound discretion of the governing body and a court will not interfere unless the fee is prohibitory and unreasonable. Monmouth Jct. Mob. Home Pk. v. So. Bruns. Tp., supra. A license fee imposed by ordinance adopted pursuant to N. J. S. A. 40:52-1 may be geared not only to the cost of regulation of the ordinance, but also as incidental to this regulatory cost, to the raising of revenue. The revenue, however, collected by the fees must not unreasonably exceed the cost of regulation. Garden State Racing Ass’n v. Cherry Hill Tp., supra; Belleville Ch. of Commerce v. Belleville, 93 N. J. Super. 392 (App. Div. 1967), affirmed 51 N. J. 153 (1968). In Bellington v. East Windsor Tp., 17 N. J. 558, 566 (1955), the court stated:

A tax, complementing the license fee proper, is legally sufficient if it be reasonably relaled to the value of the public services and facilities afforded the users of the regulated areas and the benefits of the regulations themselves and the consequent government supervision and control, and thus a correlated exercise of both the police and the taxing powers conformably to the statutory grant.

And in Monmouth Jct. Mob. Home Pk., supra, the Appellate Division, in affirming a trial court determination that revenue realized from license fees imposed on mobile home parks was reasonably related to municipal expense associated with the parks and thus not confiscatory, stated at p. 27 of 107 N. J. Super. “The inquiry is whether the exaction of the license fee bears a reasonable relation to the value of the privilege conferred.”

The municipality in Garden State Racing Ass’n, supra, licensed by ordinance all local parking lots. Plaintiff there operated a mammoth lot, adjacent to its racetrack capable of accommodating over 400,000 cars during the course of the season. The license fees from plaintiff’s lot alone amounted to about $20,000 annually. Our Supreme Court held that in addition to recovering the cost of regulation the municipality could also, through the license fees, obtain money to help defray the cost of services which the municipality was bound to supply anyway. Such as road maintenance, repair and traffic control.

Although the present ordinance provides that the fees are imposed for revenue, that in itself will not render the fees excessive as solely revenue raising. Weiner v. Borough of Stratford, 15 N. J. (1954); Bellington v. East Windsor Tp., supra. The ordinance also provides for periodic inspection of licensed premises by municipal agencies to determine whether violations of any borough ordinance exist on the premises. The cost of such inspections may properly be included in the license fee imposed by the licensing ordinance. Belleville Ch. of Commerce v. Belleville, supra. Plaintiffs also point out that no new men have been hired to enforce the ordinance, thus diminishing if not negating any administrative costs. This, however, is not the determining factor. Belleville Ch. of Commerce, supra. Testimony reveals that after the ordinance was passed, no fees were collected, no inspections were made and no actual additional costs accrued to the borough whatsoever, but this was because no effort had been made to enforce the ordinance in view of this suit.

If the ordinance were declared valid and the municipality subsequently acted under it, the cost of issuing the licenses, other miscellaneous expenses in administrating and enforcing the ordinance and the costs of inspections would probably bear a reasonable relation to the license fees imposed. Any excess over the costs of regulation and enforcement would have to be reasonably related to the value of various public services and facilities afforded plaintiffs.

Plaintiffs’ position is supported by little more than blanket statements that no new personnel have been hired as a result of the ordinance and that there has been no change in customary municipal services since its adoption. They introduced no evidence of the actual cost of administering the ordinance or to prove the unreasonableness of the fees as compared with the cost of the regulatory aspect. Under the circumstances, any determination of unreasonableness of the fees would be premature. See Weiner v. Borough of Stratford, supra.

II

Plaintiffs’ second argument, however, has substantial merit. As stated above, the ordinance in question was adopted pursuant to N. J. S. A. 40:52-1(d). The statute also states * * * “Nothing in this chapter contained shall be construed to authorize or empower the governing body of any municipality to license or regulate any person holding a license or certificate issued by * * the State * *

Clearly the purpose of this provision was to prevent double licensing and to acknowledge the state’s right of pre-emption in certain fields. Plaintiffs assert that the State has pre-empted local regulation and control of multiple dwellings by the enactment of N. J. S. A. 55:13A-1 et seq., The Hotel & Multiple Dwelling Health & Safety Law.

Local ordinances ancillary to state enactments benefiting the public health, safety and security, “without the pale encompassed by state control,” are deemed to be a reasonable exercise of local police power for the protection of local inhabitants or to meet peculiar local police health and safety situations, State v. Stockl, 85 N. J. Super. 591, 597 (Cty. Ct. 1964), where the court held at p. 599:

■; * * where the Legislature has, by appropriate legislation, assumed control of a state-wide occasion, industry or profession and all its functions under the police power in the public interest for the safety, security and protection of its customers, patrons or clients, and delegated authority to a state board or agency to control, regulate and license the persons so engaged by such pre-emption, a municipality is precluded from exercise of local, regulation or licensing, except control, regulation or licensing, except to the extent reserved by the Legislature to the municipality in the act or by statutory enactments in pari materia.

In Mogolefsky v. Schoem, 50 N. J. 588 (1967), the complainants, state licensed real estate brokers, were convicted of violating the local ordinance prohibiting door-to-door soliciting without a permit. Modifying au Appellate Division decision reversing a lower court’s dismissal of the complaint, our Supreme Court stated:

While a municipality may not require a person to obtain, a local license to carry on a business or profession when he has already been licensed under state law * * ®, it may exercise appropriate police power over amenable aspects of the conduct of that business for the protection of purely local interests by general or specific legislation * * * This is permissible where the local regulation relates to an aspect not already subject to a state statute or regulation or is not in conflict therewith or where the state has not acted pursuant to powers granted it.
In this connection the Appellate Division said: “* * * the issue in this particular case is whether the local ordinance diminishes or takes away the privileges granted to the licensee by the State.” [50 N. J. at 598] Midland Carpet Corp. v. Franklin Associated Properties, 90 N. J. Super. 42 (App. Div. 1966).

Of course, where the purpose and effect of the State and local licensing requirements are dissimilar, there is no parallel licensing within the ambit of N. J. S. A. 40:52-1. Chaiet v. East Orange, 136 N. J. L. 375 (Sup. Ct. 1947).

An examination of the State law and the exhaustive rules promulgated pursuant thereto leads this court to the conclusion that at least for the purpose as set forth in N. J. S. A. 55:13A-2 of providing decent, standard and safe apartment housing necessary for the protection of the health and welfare of the state’s citizenry, the State has pre-empted the field of regulation of multiple dwellings with one exception. That exception is found in N. J. S. A. 55:13A-25(b) and provides:

This act is not intended, and nothing in this act shall be construed, to preclude the right of any municipality to adopt and enforce ordinances or regulations more restrictive that this act or any rules or regulations promulgated thereunder.

The purpose of the ordinance as therein set forth is identical to the purpose of the State enactment as set forth in N. J. S. A. 55:13A-2, that is to protect the health, safety, welfare and morals of the borough’s residents by providing minimum housing standards to prevent congestion, overcrowding and slum areas. These minimum housing standards set down in the ordinance, e. g., minimum floor requirements, custodial services, lighting of the premises, bathroom ventilation, heating requirements and prohibition of certain gas appliances, are more comprehensively treated in the State regulations, entitled “Kegulations for the Construction and Maintenance of Hotels & Multiple Dwellings”. In fact, with the exception of the ordinance provision requiring natural ventilation in bathrooms, the State regulations appear more restrictive than their local counterparts. Thus, the bulk of the borough’s regulations as to housing standards must be stricken as less restrictive and therefore, conflicting with the State regulations. The court is then left with the provision dealing with bathroom ventilation and the remaining general provisions as to licensing and enforcement of the ordinance and the severability clause. In Gross v. Allan, 37 N. J. Super. 262, 269 (App. Div. 1961) the court stated “The question of severability of the invalid provision is one both of legislative intent, * * * and of whether the remaining provisions are functionally self-sufficient as containing the essentials of a complete enactment * * * The two criteria must coexist.” If all the sections of an ordinance are intimately related and form an integrated whole, those provisions that are declared invalid in turn invalidate the entire ordinance. Tagmire v. Atlantic City, 35 N. J. Super. 11, 23 (App. Div. 1955).

As stated above the purpose of the ordinance is to provide safe and docent housing and to prevent slum areas and overcrowding. The purpose is not effectuated merely by providing for natural ventilation in apartment bathrooms. The ordinance does not make sense and does not contain the essentials of a complete enactment without the provisions which have been stricken as invalid. Moreover without these provisions, there would be no standards by which a license could be granted or denied. Therefore, the ordinance must fail.

In conclusion, this court holds that although N. J. S. A. 40:52-l permits a municipality to license and regulate apartment buildings, when the purpose of the local regulation is the same as the purpose of the State regulation pursuant to N. J. S. A. 55.13A-1 et seq., the municipality is precluded from regulation except to the extent reserved in N. J. S. A. 55:13A-25(b). When the municipality has not, by ordinance, met the conditions imposed by the latter statute concerning permissible regulation, the ordinance must fail.

It is the judgment of this court that Ordinance 962 is invalid and an order to that effect will be entered.