text:
    AMERICAN B. D. COMPANY, A NEW JERSEY CORPORATION, PETITIONER-RESPONDENT, v. HOUSE OF SEAGRAMS, INC., t/a BROWNE-VINTNERS COMPANY, RESPONDENT-APPELLANT. NATIONAL WINE & LIQUOR CO., A NEW JERSEY CORPORATION, PETITIONER-RESPONDENT, v. HOUSE OF SEAGRAMS, INC., t/a BROWNE-VINTNERS COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 29, 1969
    Decided October 22, 1969.

      Before Judges Sullivan, Carton and Halpern'.

      Mr. Philip Lindeman, II, argued the cause for appellant (Mr. Stephen H. Both, on the brief; Messrs. Hellring, Lindeman & Landau, attorneys).

      Mr. Joseph M. Jacobs argued the cause for respondents (Messrs. Harrison & Jacobs, attorneys).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

House of Seagrams, Inc. (Seagrams) appeals from a decision of the Division of Alcoholic Beverage Control (Division) which in effect denied it the right to “go exclusive” in the distribution of its liquor products and ordered it to sell and continue to sell to respondents-wholesalers.

Prior to June 8, 3967 Seagrams had been utilizing the services of some 25 wholesalers in the distribution of its liquor products in the State of New Jersey. On that day respondents herein, American B. D. Company (American) and National Wine & Liquor Co. (National), were notified by Seagrams that their services as distributors were being discontinued effective immediately. (At the same time Seagrams decided to discontinue the service of 23 other wholesalers.) When American and National placed purchase orders with Seagrams they were not honored. American and National thereupon filed petitions with the Division charging that Seagrams, by terminating its business dealings with them, and by refusing to accept further orders from them, was discriminating against them, contrary to the provisions of the 1966 amendment of the Alcoholic Beverage Control Act (act). N. J. S. A. 33:1-93.6 et seq. Acting on the petitions and Seagrams’ answers, which averred that its going exclusive was a legitimate business decision, a formal hearing was held at which voluminous testimony and exhibits were received. The hearing examiner’s report found Seagrams’ actions to be discriminatory and in violation of the act. After exceptions and answer to exceptions were filed and considered, the Director entered his conclusions and order, concurring in the hearer’s findings and conclusions, and ordering Seagrams to sell and continue to sell its products (except Kayser and Brolio wines) to American and National.

The Director held that although the original statutory prohibition against discrimination in sales of nationally advertised brands of alcoholic beverages to wholesalers, N. J. S. A. 33 :1-93.1, applied to all wholesalers, the 1966 amendment to the statute restricted its applicability to wholesalers then or thereafter authorized by importers, distillers or rectifiers to handle their products. (All parties to the appeal agree that this interpretation is correct.) The Director also held that a proper application of the amendment prohibited the termination of business dealings in nationally advertised brands with any such wholesaler who had the ability to pay. (It was stipulated that American and National had the ability to pay.)

The Director recognized that an importer, distiller or rectifier would have the right to terminate a business relationship with a wholesaler who disparaged the product, showed unfair preferment in sales effort for those of a competitor, or engaged in improper or proscribed trade practices. However, no such contention was made in the present case. In the absence of any such contention, the Director held that it would be discrimination within the meaning of the amendment for Seagrams to eliminate American and National, even though the decision to do so was the result of a business judgment that the sale of Seagrams’ products would be stimulated by “going exclusive” in distributorship.

We agree with the Director’s interpretation of discrimination as used in the amendment. The original statutory provision relating to discrimination in sales of alcoholic liquors to wholesalers required the Commissioner (now Director) to determine whether a refusal to sell to a wholesaler was “arbitrary” or not. N. J. S. A. 33 :l-93.2. In Canada Dry Ginger Ale, Inc. v. F. & A. Distrib. Co., 28 N. J. 444 (1958), decided under the original statute, it was held that a distiller’s initial decision to reduce its number of wholesalers within the State did not of itself contravene the statute, and might not be arbitrary if the distiller showed that the selection of certain wholesalers to the exclusion of others was made on the basis of a standard reasonably related to the legitimate business goal sought to be achieved and not conducive to the evils which the act was designed to prevent. The standard, said the court, must be of such a tangible or objective nature as will enable the Director to determine from the proofs whether its application to the wholesalers in question is reasonable.

The 1966 amendment restricted the Director’s scope of inquiry to a determination of whether or not the refusal to sell was “discriminatory.” N. J. S. A. 33 :l-93.7. It seems clear that the Legislature, after limiting the class of wholesalers to whom the statute was applicable, extended the prohibition of the statute so as to bar any discrimination as to wholesalers in the protected class.

The Director’s interpretation gives a clear and workable formula for application and has the virtue of taking the Division of Alcoholic Beverage Control out of the difficult position of evaluating and determining what is or is not a legitimate business judgment based on tangible and objective standards with all of the problems that such a determination entails.

Even if it be held that discrimination has a meaning other than that given it by the Director, and that the holding in Canada Dry, 28 N. J., at 444, is applicable to the present statutory provision, our review of the record leads us to conclude that Seagrams has failed to demonstrate that its decision to eliminate American and National was made on the basis of tangible and objective standards reasonably related to legitimate business goals and not conducive to the evils which the act seeks to prevent.

In essence, all that was shown was a subjective decision to go exclusive in an effort to increase sales. Moreover, no consideration was given to the impact on the industry as a whole and the effect it would have on the wholesalers eliminated. The Director’s decision herein points out that the record “dramatically demonstrates” that the smaller wholesalers proposed to be eliminated would have their ability to survive critically impaired, and-might be compelled to resort to improper business practices.'

• The decision and order of the Director is in all respects affirmed.


source: Caselaw Access Project

author: Collester, J. A. D.

license: Public Domain

text:
    WINANS-CARTER CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. JAY & BENISCH, A NEW JERSEY PARTNERSHIP, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 24, 1969.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. Marvin A. Sachs argued the cause for appellant (Messrs. Feuerstein and Sachs, attorneys).

      Mr. Alan B. Chesler argued the cause for respondent (Messrs. Lowenstein> Sandler, Brochin & Kohl, -attorneys).
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant appeals from an order which granted summary judgment in favor of plaintiff in the amount of $15,000 and denied defendant’s motion for leave to file an amended answer asserting the defense of contributory negligence.

The facts are fully set forth in the opinion of the court reported in 103 N. J. Super. 389 (Law Div. 1968). In brief, they show that the contents of plaintiff’s warehouse at South Main Road in Vineland were insured for $100,000 by four fire insurance policies issued through the defendant, plaintiff’s insurance broker, who for seven years had handled the bulk of its insurance business. On March 14, 1967 plaintiff notified defendant it was moving to a new warehouse at- West Elmer Road and would require insurance coverage at both places while the transfer was béing made. Defendant sent plaintiff binders advising they were for insurance coverage during the transfer. On April 3, after the transfer was completed, plaintiff notified defendant to cancel the insurance covering its former premises and to “make certain that coverage is now on [the ] West Elmer address.” On April 18 defendant sent plaintiff a letter stating that it was “enclosing endorsements changing the contents’ coverage at Vineland from South Main Road to West Elmer Road.”

On September 3 the new premises were completely destroyed by fire. It was then discovered that defendant, through the negligence of one of its employees, had failed to issue a binder or to procure a change of place endorsement for one of the four fire insurance policies — a policy issued by Commerce and Industry Company for $15,000. Defendant attempted to induce the insurance company to assume liability for the fire loss despite lack of the endorsement but without success. The fire loss was fixed at $97,577.31 and the other three insurance companies paid $83,577.31.

Plaintiff brought suit against defendant to recover the $15,000 loss resulting from its failure to transfer the Commerce and Industry insurance coverage. Plaintiff’s complaint was in two counts charging (1) negligence and (3) breach of contract. Defendant’s answer did not assert the defense of contributory negligence.

Plaintiff moved for summary judgment and defendant’s opposing affidavit raised, fox the first time, the defense of contributory negligence, alleging that plaintiff should have discovered that the policy had not been transferred when it received the endorsements sent by defendant on April 18. Defendant filed a cross-motion for summary judgment and moved for leave to file an amended answer to include the defense of contributory negligence.

The trial court hold that defendant’s liability was established on the undisputed facts and therefore plaintiff was entitled to a summary judgment. It also denied defendant’s motion to amend its answer, holding that the proposed defense of contributory negligence was not a defense to plaintiff’s suit for breach of contract nor would it bar plaintiff’s suit based on negligence. This appeal followed. .

Defendant contends the court erred in denying its motion to file an amended answer raising the defense of contributory negligence because it was thereby precluded from raising a factual issue which would have required a plenary trial. We do not agree. It is undisputed that defendant failed to provide the insurance coverage it had undertaken to furnish, and further, it had not notified plaintiff of such failure. When an insurance broker, in accordance with instructions, undertakes to procure insurance coverage for his principal he impliedly undertakes to give notice to his principal in the event of his failure to procure such insurance. When he fails to procure the insurance coverage and to notify his principal thereof he is liable for any damage resulting therefrom. In such case the principal may sue either for breach of contract or in tort for breach of duty. Marano v. Sabbio, 26 N. J. Super. 201, 205 (App. Div. 1953); Rider v. Lynch, 42 N. J. 465, 477 (1964).

We agree with the conclusion of the trial court that plaintiff’s failure to check the insurance policy endorsements when received is not a defense to plaintiff’s action for breach of contract or negligence. Such omission did not contribute to defendant’s nonperformance. Plaintiff may not be charged with such fault or contributory negligence, absent a showing that it had, in fact, been advised that the requested endorsement had not been procured. See Harris v. A. P. Nichols Investment Co., 25 S. W. 2d 484 (Mo. Ct. App. 1930) ; Hampton Roads Carriers v. Boston Ins. Co., 150 F. Supp. 338, 343 (D. C. Md. 1957); White v. Calley, 67 N. M. 343, 355 P. 2d 280 (Sup. Ct. 1960).

Defendant also argues in its brief that plaintiff had the duty of avoiding the consequences resulting from the breach of contract, i. e., the duty to mitigate damages. The doctrine of avoidable consequences was not asserted as a defense in defendant’s answer' nor was application made to amend the answer to include it as an affirmative defense. Accordingly, it was waived. R. R. 4:12-8. Moreover, as indicated above, plaintiff had no opportunity to mitigate damages because it never knew of the breach of contract until after the loss occurred.

Einally, defendant claims the court erred in respect of damages in granting summary judgment for $15,000. It makes two contentions: (1) the fire damages were unliquidated and no competent or conclusive proof of the plaintiff’s loss attributable to lapse of the Commerce and Industry policy was adduced, having in mind that plaintiff received $72,577.31 from the other three companies; (2) in any event one of the other companies, Poyal, had issued coverage for $70,000 and plaintiff improperly accepted from it $67,577.31 on the mistaken assumption that the Commerce and Industry policy would be paid. Prom this defendant argues it should at least be excused from liability for the difference of $2,422.69. Neither argument has merit.

As to the first contention, the material issue here is plaintiff’s loss arising from defendant’s breach of contract or negligence, not necessarily what would have been recoverable in an action by plaintiff against any one or more of the insurance companies in actions on the policies.

The record establishes beyond any reasonable dispute the following. Defendant arranged for plaintiff to be represented by Sarasohn and Co. on the adjustment of its Josses, and defendant participated with the latter in plaintiff’s behalf in settling the amounts due on the four policies with General Adjustment Bureau, representative of all the carriers, and in preparing and submitting plaintiff’s proof of loss for the following amounts as settled with the Bureau:

Commercial Union $ 7,500.00
Provident Washington 7,500.00
American Reciprocal 15,000.00
(Commerce and Industry)
Royal Insurance 67,577.31
$97,577.31

On the basis of the arrangements thus effectuated by and with the active aid and participation of defendant, plaintiff accepted payment of the respective amounts indicated from each of the companies specified except Commerce and Industry, which denied coverage. It is clear beyond doubt that had the latter policy been in effect that companj1' would have paid the $15,000 due on its policy as agreed to by the Bureau as industry representative. Consequently $15,000 is plaintiff’s actual damage attributable to defendant’s default in extending the coverage of the Commerce and Industry policy, and the amount of plaintiff’s actual fire loss is immaterial.

The contention that defendant’s liability should be reduced by the supposed additional amount of $2,422.69 collectible from Royal is frivolous. Defendant arranged for and acquiesced in the procedure by which plaintiff’s claim against Royal was settled out at $67,577.31 and plaintiff relied on defendant in accepting that settlement. Royal can no longer be pursued by plaintiff (assuming further liability by it). Defendant is precluded from its present position on plain principles of estoppel.

Affirmed.


author: Pee Cueiam.

text:
    IN THE MATTER OF APPEAL BY THE TOWNSHIP OF MOORESTOWN IN THE COUNTY OF BURLINGTON, A MUNICIPAL CORPORATION OF NEW JERSEY, FROM FINAL DECISION OF THE DEPARTMENT OF CIVIL SERVICE.
    Superior Court of New Jersey Appellate Division
    Argued October 20, 1669
    Decided October 24, 1969.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. William M. Baumgartner, Jr. argued the cause for appellant township (Messrs. Bleakly, Stockwell, Zink & McQeary, attorneys).

      Mr. Philip 8. Garchman, Deputy Attorney General, argued the cause for respondent department (Mr. Arthur J. Sills, Attorney General, attorney).
   Pee Cueiam.

Moorestown Township appeals, pursuant to B. B. 4:88-8(a), now B. 2:2-3(a).(2), from a final determination of the N. J. Department of Civil Service that certain municipal positions are not within the unclassified category of the Civil Service and therefore are subject to the regular competitive examination procedures.

Effective January 1, 1967 Moorestown adopted the Council-Manager Plan E of the Eaulkner Act. N. J. S. A. 40:69A-1 et seq., 40 ¡69A-114.1 to 114.5. Concomitantly, the township adopted an administrative code, detailing the organizational structure of the new government. Among the positions to be filled were: (1) head of the Department of Administration; (2) Director of Police; (3) Director of the Department of Parks and Eecreation; (4) Director of the Department of Public Works, and (5) head of the Department of Einance. Pursuant to a formal inquiry bjr the township, the State Department of Civil Service by letter requested further information before classifying the positions as “classified” or “unclassified,” listing nine questions concerning the scope of authority and degree of functional independence of each of the prospective officials. These questions in part reflected factors listed in our opinion in Milton v. Department of Civil Service, 71 N. J. Super. 135, 140-141 (1961) — factors distilled from a review of prior decisions by New Jersey courts. We reemphasize what was said by this court in Follari v. State Department of Civil Service, 102 N. J. Super. 598 (1968), certif. den., 53 N. J. 80 (1968) :

* * * [I]n Milton we did not lay down a definitive test. We merely said that “A review of the decisions shows that the following factors have been considered as indicating whether or not a position is that of head of a department * * (71 N. J. Super., at p. 140). Bach case must still he considered upon its own facts and merely because those facts do or do not literally comport with the factors mentioned in Milton will not automatically answer the question whether a position is that of head of a department, [at 600-601]

In response to the Department’s letter, the township counsel wrote that it was not necessary under existing law to answer in the affirmative three of the listed questions, “as those questions are phrased by you.” He requested that there be scheduled at the Department’s earliest convenience an administrative hearing or such administrative proceedings as might be necessary for a final ruling. The Department did not schedule a hearing but ruled that inasmuch as the municipality “was unwilling to satisfy requirements as established in Milton v. Department of Civil Service relating to Unclassified Department Heads,” it had no choice but to hold the positions in question as in the classified service and subject to regular examination procedures.

We consider the questionnaire inquiry adopted by the Department to be a completely unsatisfactory method of determining whether the department heads in question should or should not be considered as in the classified rather than unclassified service. We therefore reverse and remand the matter to the Department for a plenary investigation and hearing with respect to each of the five positions involved.

In our view, the fact that the municipal manager is denoted as the chief administrative and executive township official does not foreclose the possibility of any one or more of the five indicated positions being considered as a department head and therefore in the unclassified service.

Reversed and remanded. We retain jurisdiction.


author: Kolovsict, J. A. D.

text:
    COLE NATIONAL CORPORATION, A CORPORATION OF THE STATE OF OHIO, PETITIONER, v. STATE BOARD OF EXAMINERS OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS, STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued September 8, 1969
    Decided October 28, 1969.

      Before Judges Coneobd, Collestbb and Kolovskv.

      Mr. Thomas J. Brady argued the cause for petitioner (Messrs. Milton, Keane & DeBona, attorneys).

      Miss Rachel Leff, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, attorney; Mr. Stephen L. Skillman, Deputy Attorney General, of counsel).

      Mr. Robert P. McDonough argued the cause for The Guild of Prescription Opticians of New Jersey, Inc. and The Society of Dispensing Opticians of New Jersey, Inc., Amici Curiae (Messrs. McDonough, Murray & Meeker, attorneys).
   The opinion of the court was delivered by

Kolovsict, J. A. D.

Eespondent Board was created and

established by L. 1952, c. 336 (now N. J. S. A. 52:17B—41.1 et seq.) :

An Act providing for the regulation of the practice of ophthalmic dispensing; authorizing the issuance of certificates to registered qualified ophthalmic dispensers and ophthalmic technicians; creating an examining board to determine their respective qualifications and conferring powers and duties thereupon; * * *.

Specifically exempted from the provisions of the act are physicians and optometrists duly licensed to practice medicine and optometry in this State.

In this proceeding under B. B. 4:88-10 petitioner contends that the Board’s Buie 28, originally adopted in 1955, is on its face invalid and inconsistent with the provisions of the governing statute. The challenged rule provides:

On and after February 16, 1955, no persons licensed to practice as an Ophthalmic Dispenser may practice as such other than under their own name. The use of trade names or corporate names by an Ophthalmic Dispenser is hereby specifically prohibited. This regulation will have no effect on those Ophthalmic Dispensers using a trade name or a corporate name prior to February 10, 1955.

The rule, if valid, is an insurmountable bar to petitioner’s proposal to “operate,” through employed licensed ophthalmic dispensers, “optical dispensing departments * * * [in several Sears Boebuck & Co. stores in this State] under the name ‘Sears Optical’ or the ‘Optical Department at Sears.’ ”

What petitioner refers to as “optical dispensing” is what the statute designates as “ophthalmic dispensing,” defined in N. J. S. A. 52:17B-41.5 :

A person practices ophthalmic dispensing within the meaning of the provisions of this act * * * who prepares and dispenses lenses, spectacles, eyeglasses or appurtenances thereto to the intended wearers thereof on written prescriptions from physicians or optometrists duly licensed to practice their profession and in accordance with such prescriptions, interprets, measures, adapts, fits and adjusts such lenses, spectacles, eyeglasses or appurtenances thereto to the human face for the aid or correction of visual or ocular anomalies of the human eyes.

At the outset it is to be noted that the only issue before us is whether the rule is invalid insofar as it applies to or affects the action which petitioner desires to take. Cf. State v. Wheeler Auto Driving School, Inc., 17 N. J. Super. 488 (App. Div. 1952). We are not concerned with the validity of the rule in its other aspects — for example, whether it may validly apply to a corporation formed by one or more licensed ophthalmic dispensers under the authority of the Professional Service Corporation Act, L. 1963, c. 333 (N. J. S. A. 14:19-1 et seq.)

Petitioner is a business corporation, not a professional service corporation. It concedes that as such it may not be licensed to practice ophthalmic dispensing. Further, it recognizes that the Board has, under N. J. S. A. 52:1?B-41. 13, power

* * * to promulgate such reasonable rules and regulations which shall be necessary to give full force and effect to the provisions of this act and to regulate the practice of ophthalmic dispensers and ophthalmic technicians in this State within the meaning hereof; provided, however, such rules and regulations are not inconsistent with the provisions of this act.

Petitioner contends that the rule is unreasonable and, further, that since there is no express provision in the statute prohibiting a corporation from employing licensed ophthalmic dispensers to practice their profession, a rule which would have that effect is inconsistent with the provisions of the act. We do not agree.

Petitioner offered no evidence to overcome the presumption of reasonableness which attaches to the rule. Consolidation Coal Co. v. Kandle, 105 N. J. Super. 104, 118-119 (App. Div. 1969), aff’d 54 N. J. 11 (1969). Moreover, a rule limiting the right to sell, dispense and supply ophthalmic appliances, eyeglasses and ophthalmic lenses to those whose conduct the Board can effectively control, its licensees, is on its face a reasonable and necessary implementation of the declared statutory policy:

* * * to protect the public health, welfare and safety by providing for the regulation of the sale, dispensing and supplying of all ophthalmic appliances, eyeglasses, or ophthalmic lenses to the ultimate wearer or consumer in this State. [N. J. S. A. 52:17B-^1.1]

In considering petitioner’s further argument that the rule is inconsistent with the act, we start with the settled principle that “an administrative rule is presumptively valid and will not be rejected as inconsistent with a statute unless the inconsistency is palpable.” Daughters of Miriam Home, etc. v. Legalized Games, etc., 42 N. J. Super. 405, 415 (App. Div. 1956); see also In re Weston, 36 N. J. 258, 263-264 (1961), cert. den 369 U. S. 864, 82 S. Ct. 1029, 8 L. Ed. 2d 84 (1962). Petitioner has not sustained that burden.

Petitioner’s reliance on Jaeckle v. L. Bamberger & Co., 119 N. J. Eq. 126 (Ch. 1935), aff’d o.b. 120 N. J. Eq. 201 (E. & A. 1936), as authority in support of its contention is misplaced. JaecMe held that a corporation department store owner employing a registered optometrist in its optical and optometrieal department was not practicing optometry within the meaning of the act regulating the practice of optometry. See also Weston v. New Jersey State Bd. of Optometrists, 32 N. J. Super. 502, 509-510 (App. Div. 1954). The court construed section 22 of the Optometry Act, which imposed a penalty on an individual or a company employing an unlicensed person to practice optometry, as embodying a legislative declaration that such employment of a licensed or registered optometrist is permitted, saying:

If the maxim be applied, whoever acts through an agent is considered as acting himself, it must be held that defendant is practicing optometry, but I think the maxim cannot be applied to the statute. The statutory scheme protects the public by requiring those who actually examine eyes to be properly qualified. It is immaterial whether they practice their profession on their own behalf or whether they are employed by other optometrists, or by persons not skilled in the art, or by corporations. Section 1 expressly includes in its scope a person who practices ‘either on his own behalf or as an employe’ of another, but not one who, through the agency of an employe, measures the powers of vision. Section 22 imposes a penalty on an individual or a company who employs to practice optometry a person not authorized under the statute. Clearly, a company which employs for this purpose a person who is authorized to practice optometry, is not subject to the penalty. It follows, in my opinion, that the legislature did not intend to prohibit a company from employing registered optometrists to practice their profession.
Defendant is not practicing optometry within the meaning of the statute, and so the bill will be dismissed. [119 N. J. Eq., at 127]

But there is no counterpart of section 33 of the Optometry Act in the act regulating ophthalmic dispensing and therefore no justification for applying the doctrine of Jaeclcle to the latter statute.

Petitioner further argues that legislative approval of its proposed form of operation is to be implied from the language used in N. J. S. A. 52:17B-41.9 describing the apprenticeship to be served by a candidate for examination and certification as an ophthalmic dispenser, an apprenticeship

* * *' of not less than four calendar years’ full-time employment under the supervision of an ophthalmic dispenser in an optical establishment, office, department store, shop or laboratory * !! * of which the last year in the State of New Jersey, at least, shall have been acquired within the five years last preceding the date of such ap plication.

We find no basis for the asserted implication in the language of the section, particularly since the apprenticeship need not be exclusively served with a licensed New Jersey ophthalmic dispenser; it may be served in other states or with an optometrist who is not subject to the provisions of the act.

The language of the act regulating ophthalmic dispensers and technicians, if read literally, would clearly bar petitioner’s proposed plan of operations. The act imposes a penalty on one who practices as an ophthalmic dispenser or technician without having been licensed, N. J. S. A. 52 :1?B~41.18, and as the court said in Jaeckcle, supra, at 127, “whoever acts through an agent is considered as acting himself. * * *”

The Board, upon its creation in 1952, would have been justified in prohibiting the employment of licensed ophthalmic dispensers and technicians by business corporations. To have done so, however, would have resulted in an anomalous situation since licensed optometrists, whose powers (see N. J. S. A. 45:12-1) include and exceed those of ophthalmic dispensers and technicians, could be so employed. Jaeckle and Weston v. New Jersey State Bd. of Optometrists, both supra. It was not unreasonable for the Board, in its administration of the act, to avoid that anomaly.

The reason for such avoidance disappeared when the Legislature amended the Optometry Act by enacting L. 1954, c. 227, to take effect on March 1, 1955. Section 6 of that act, now N. J. S. A. 45:12-19.1 provides:

It shall be unlawful for any person licensed to practice optometry under the laws of the State of New Jersey to advertise, practice or hold himself forth as being entitled to practice under a name other than his own, unless he be an associate of or an assistant to an optometrist licensed under the laws of the State of New Jersey, and it shall be unlawful for any unlicensed person, or any association or corporation directly or indirectly to engage or undertake to engage in the practice of optometry by utilizing the services, upon a salary, commission basis, or by any other means or method, of any person licensed to practice optometry in the State of New Jersey. It shall be unlawful for any optometrist to engage or undertake to engage in the practice of optometry in behalf of any unlicensed person, association or corporation, except that this shall not prohibit the employment by or the formation of partnerships between optometrists or physicians duly licensed in the State of New Jersey.

That the quoted amendment of the Optometry Act triggered the adoption of Buie 28 is evident from what appears in the minutes of the Board. At its meeting of February 16, 1955 the Deputy Attorney General assigned to the Board expressed his opinion that under the ophthalmic dispenser law “a licensee cannot operate under a trade style or corporate name unless he was using it before the law went into effect.” The hardship which would result to some opticians if the Attorney General’s opinion were applied retroactively was the subject of discussion at the Board’s meetings in March and April 1955. At its meeting of May 18, 1955 “the Board ruled that as the law * * * permits the licensing of individuals only, all licensees must practice under their own name on and after February 16, 1955, the date of the ruling by the Attorney General’s office, except those who were practicing: under a trade style or corporate name prior to February 16, 1955.”

That determination was embodied in Rule 28 which, as filed with the Secretary of State, was identical with the present rule (quoted above), except that it applied not only to ophthalmic dispensers but also to ophthalmic technicians.

In view of its prior administrative interpretation of the act and its reasons therefor, it was not improper or unreasonable for the Board to deal with the problem of prohibiting practice by its licensees in corporate names by adoption of a rule to that effect, nor was it unreasonable or discriminatory to conclude that fairness dictated that a grandfather clause be embodied therein. Cf. Independent Electricians, etc., Ass’n of New Jersey v. New Jersey Board of Examiners, etc., 54 N. J. 466, 477-478 (1969). We therefore find no merit in petitioner’s claim that the rule unlawfully discriminates in favor of those practicing ophthalmic dispensing in corporate names prior to February 16, 1955.

Nor do we find any valid basis for petitioner’s contention that the present rule cannot be enforced against ophthalmic dispensers because it does not also apply to ophthalmic technicians. An ophthalmic technician is “one having a knowledge of optics and skilled in the technique of producing and reproducing ophthalmic lenses and kindred products, and mounting same to supporting materials.” N. J. 8. A. 52: 17B-41.5. Ophthalmic technicians were eliminated from the coverage of the rule by an amendment adopted by the Board on October 2 and November 20, 1963.

The differences between the activities of dispensers and technicians are such that there appears nothing unreasonable in the Board’s determination that a differentiation should be made between ophthalmic dispensers, who deal with and should be required “to identify themeselves to the consuming public” (minutes of the Board’s meeting of October 2, 1963), and technicians who do not deal with the consuming public.

We conclude that Rule 28 is not invalid or illegal in its application to petitioner. Its petition is therefore dismissed.


author: Pee Ctteiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BRUNO JOSEPH SORIANO, DEFENDANT-APPELLANT.
    Superior Court of New Jez’sey Appellate Division
    Argued November 12, 1968
    Decided November 27, 1968.

      Before Judges Sullivah, Foley and Lewis.

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

      Mr. Bobert N. Golden, Assistant Prosecutor, argued the cause for respondent (Mr. Michael B. Imbriani, Somerset County Prosecutor, attorney).
   Pee Ctteiam.

After a jury trial defendant was found guilty of (1) assault upon a policeman who was in uniform and in the performance of: his duties, and (2) escape.

Defendant raises five grounds of appeal. Summarized, they are as follows: lie was denied a fair and impartial trial because the trial judge “through facial expression, interruption of defense counsel and examination of witnesses indicated his disbelief” of defendant’s testimony “and assumed the role of prosecutor”; he was improperly convicted of the crime of escape (N. J. S. A. 2A:8o-l) because that crime is embraced by N. J. S. A. 2AJ04-6, and the trial judge failed to instruct the jury that the use of force or fraud is a necessary element of the crime of escape; the sentence was excessive; he was subjected to double jeopardy by reason of his having been tried and convicted of- disorderly conduct in a Municipal Court; he was denied the right to the effective assistance of counsel.

The essential facts are outlined in defendant’s brief and the prosecutor states that they are adopted as set out. We reach the following conclusions:

The interrogation by the judge, despite its length and frenquency, was discretionary, see State v. Riley, 28 N. J. 188, 200 (1958), and was not of a quality which could fairly be said to have deprived defendant of an impartial trial. See State v. Homer, 86 N. J. Super. 351, 364 (App. Div. 1965). See also United States v. De Filio, 257 F. 2d 835, 839 (2d Cir. 1958), cert. denied 359 U. S. 915, 79 S. Ct. 591, 3 L. Ed. 2d 577 (1959). Cf. State v. Guido, 40 N. J. 191, 208 (1963). Furthermore, the court in its charge commented upon the fact that he had questioned certain witnesses and instructed the jury that such examination must not influence the jury in its deliberations.

As to the criticized “facial expression” of the judge, which, of course, we are unable to visualize from a reading of the dry record, we note that in his charge the judge expressly instructed the jury that defendant’s attorney indicated that during the testimony of one of defendant’s witnesses the judge may have smiled or indicated surprise; that he did not know whether or not this was the fact; but if it was found to be such, the jury was not to be influenced by it.

We are satisfied that the curative instructions, in reasonable probability, had the desired effect, when the totality of the evidence is considered.

We are also of the view that in the aggregate of the circumstances the elements of N. J. S. A. 2A:85-1, as it applies to escape, were sufficiently proved to support the conviction of that crime.

The sentences imposed were well within the maximum and will not be disturbed. Sentencing is a discretionary .function of the judge, limited by the mandates of the statute. All things considered, including defendant’s prior criminal record, the penalty imposed was not shown to be manifestly excessive.

The claim of double jeopardy is without merit. Such defense must be raised by motion prior to trial. B. B. 3:5-5 (b)(2). No such motion was made. Moreover, there is no allegation as to what act defendant was convicted of under the disorderly persons statute. If it be presumed that reference is made to his fighting in the street, that is an offense separate and apart from assault upon the police officer, and from escape.

We find that defendant’s final point (incompetency of counsel) to be so lacking in substance as to require no discussion.

Affirmed.


author: Misttz, J. S. C.

text:
    DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. HOWARD HALLBERG, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. ANN D. BARKER AND AUDREY HALLBERG, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. ANN D. BARKER, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. FELIX GAITA, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. DOROTHY CAMERON, DEFENDANT DONALD A. ROBINSON, TRUSTEE OF MONDRICH SECURITIES CORP., DEBTOR, PLAINTIFF, v. ALBERT C. BARKER, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MANUFACTURERS CREDIT CORP., DEBTOR, PLAINTIFF, v. REA M. SHAPIRO, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MANUFACTURERS CREDIT CORP., DEBTOR, PLAINTIFF, v. FRANK PIZZANI, DEFENDANT. DONALD A. ROBINSON, TRUSTEE OF MANUFACTURERS CREDIT CORP., DEBTOR, PLAINTIFF, v. JOSEPH GOLDBERG, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    October 21, 1969.

      Mr. Andrew B. Crummy and Mr. Frank J. Vecchione for plaintiff (Messrs. Crummy, Gihlons & O’Neill, attorneys).

      Mr. Joseph C. Dickson, Jr. for defendants Howard Hall-berg, Ann Barker and Audrey Hallberg, Felix Gaita, Dorothy Cameron and Albert C. Barker (Messrs. Dickson & Dunphy, attornej^s).

      Mr. Samuel J. Davidson for defendant Rea M. Shapiro (Messrs. Chazin & Chazin, attorneys).

      Mr. Charles A. Stanziale, Jr. for defendant Frank Pizzani.

      Mr. Joseph F. Walsh for defendant Joseph Goldberg (Messrs. Bracken & Walsh, attorneys).
   Misttz, J. S. C.

These two groups of consolidated cases were submitted to the court for determination upon a stipulation of facts and briefs.

Mondrich Securities Corp. and Manufacturers Credit Corp., related corporations, filed petitions on August 1, 1967 seeking an arrangement under chapter XI of the Bankruptcy Act. On July 25, 1968 the actions were transferred to proceedings for complete reorganization pursuant to chapter X of the .Bankruptcy Act, and plaintiff Donald A. Robinson was appointed trustee for, each of the corporations.

Each of the defendants had made loans to the respective debtor corporations. Defendants were complete strangers to these corporations except for their status as ordinary creditors. The loans were repaid in the ordinary course of business prior to August 1, 1967, and on or about the dates called for under the respective loan agreements. After each- repayment the debtor corporations continued their -businesses without interruption until the bankruptcy petitions -were 'filed on August 1, 1967.

The two corporations were insolvent at the time the respective loans were repaid, but none of the defendants had any knowledge of such insolvency nor any -reason- to suspect insolvency.

' Plaintiff contends that the payments of antecedent debts to each of the defendants are void preferences under N: J. 8. A.'14:14^2. -The basic issue is whether or not it is incumbent upon plaintiff, in order to void the repayments, to prove that defendants had knowledge of the insolvency of the corporations making the pajunents in the ordinary course of business.

N. J. S. A. 14:14-2 provides in part that:

When any corporation shall become insolvent or shall suspend its ordinary business for want of funds to carry on the same, neither the directors nor any officer or agent of the corporation shall sell, convey, assign or transfer any of its real or personal property, dioses in action, rights or credits, nor shall they or any of them make any such sale, conveyance, assignment or transfer in contemplation of insolvency.
Any such sale, conveyance, assignment or transfer shall be null and void as against creditors, except that a bona fide purchase for a •valuable consideration, before the corporation shall have actually suspended its ordinary business, by any person without notice of such insolvency or of the sale being made in contemplation of insolvency, shall not be invalidated or impeached. * * *”

This statutory provision was the former section 64 of the General Corporation Act. L. 1896, p. 298.

In the 1969 revision of the Corporation Act (Title 14A), N. J. S. A. 14:14-2 has been replaced by N. J. S. A. 14A :14-10 to 14A:14-14. Nevertheless, as to causes of action arising prior to January 1, 1969, N. J. S. A. 14:14-3 applies. See N. J. S. A. 14A :16-1 (3).

The decisional law is in conflict on the precise point in question. Plaintiff argues that the purport of N. J. S. A. 14:14—2 is to treat all creditors of an insolvent corporation as equally as possible. Wilkinson v. Bauerle, 41 N. J. Eq. 635, 640, 641 (E. & A. 1886); Central-Penn National Bank v. N. J. Fidelity, etc., Co., 119 N. J. Eq. 265, 271, 272 (Ch. 1935). Under this view a transfer by an insolvent corporation in payment of an antecedent debt is void regardless of whether or not the transferee had knowledge of said insolvency when receiving payment. The leading authority in support of this contention is Hoagland v. United States Trust Co., 110 N. J. Eq. 489 (Ch. 1932), aff'd o.b. 113 N. J. Eq. 30 (E. & A. 1933). The trial court noted that the sole issue before it was whether on the dates of the two contested payments the company was insolvent, but in the course of its opinion stated:

* * * There is no evidence whatever from which knowledge of the company’s alleged financial embarrassment might be imputed to the defendant trust company. The other defendant was fully aware of the financial condition of the IV. E\ MacBvoy Construction Company, but that knowledge, in my judgment, justified the belief that the debtor company was entirely solvent. But knowledge of insolvency, either by the officers of the debtor corporation itself or by the creditors who received the contested payment is, of course, immaterial. The fact of solvency or insolvency is controlling. * * * [at 492; emphasis added]

To the same effect, see Marini v. Palisade National Bank, 113 N.J.Eq. 495 (Ch. 1933) and 114 N.J.Eq. 76 (Ch. 1938); DeStefano v. American Chocolate Almond Co., 107 N.J.Eq. 156 (Ch. 1930); Regina Music Box Co. v. F. G. Otto & Sons, 65 N. J. Eq. 582 (Ch. 1903), aff’d o. b. 68 N.J.Eq. 801, 802 (E. & A. 1905). Subsequent to Hoagland, supra, this precise question was again considered in Long v. Republic Varnish Enamel, etc., Co., 115 N.J.Eq. 212 (E. & A. 1934). The court there held:

There is no proof that, at the time the payments were made, the corporation was insolvent in the legal sense, or had suspended its ordinary business for want of funds to carry on the same. * * * Moreover, payment to an ordinary creditor, without notice of insolvency, received while the company was carrying on its usual business, does not fall within the condemnation of section 64 of the General Corporation Act. If the rule were otherwise, a creditor could not safely accept payment of an ordinary debt, unless he had ascertained that the corporation was solvent. As was said * * * in Jessup, * * * supra: ‘Such a rule would interdict the transaction of business with a corporation, for a condition of insolvency might exist for months, or even years, while to all appearances so far as strangers to the corporation were concerned, it was solvent; and thus every payment to a creditor during the period of insolvency would have to be refunded when the insolvency was disclosed.’ ” [at 217, 218; emphasis added]

As noted in that opinion, this view is expressed in the earlier case of Jessup, Receiver, etc. v. Thomason, 68 N. J. Eq. 443 (Ch. 1904). Long v. Republic Varnish Enamel, etc., Co., supra, was followed in Solomon v. Amervoll Co. Inc., 13 N. J. Misc. 873 (Ch. 1935). As already noted, Hoagland and Long, supra, are in direct conflict on the precise issue as to whether or not payment by an insolvent corporation of an antecedent debt to an ordinary creditor without notice of insolvency and while the corporation is carrying on its usual business is within the condemnation of N. J. S. A. 14 :lA-2. However, Long, constitutes the latest pronouncement by our highest court on this subject, and this court is obliged to apply that ruling.

I conclude that the payments received by defendants from the respective debtor corporations, without any notice of their insolvency and while the respective corporations were carrying on their usual business, do not constitute preferential or void payments within the purview of N. J. S. A. 14:lA-2. If that statute were construed otherwise, unsuspecting creditors who in good faith received payments of their antecedent debts from an insolvent debtor in the ordinary course of business might, years later, be forced to return the moneys to the debtor’s trustee in bankruptcy or receiver for the benefit of creditors whose claims may have arisen after the dates of such payments.

In reaching this conclusion I am not unmindful of the comment by the Corporation Law Revision Commissioners following N. J. 8. A. 14A: 14-10:

In its consideration of the fraudulent transfer and preference provisions of Title 14, the Commission concluded to repeal section 14:14-2 and to substitute for it provisions similar to those contained in the Bankruptcy Act. The Commission felt that there was no logical reason for the enactment on the state level of a harsher rule in respect to fraudulent transfers than that in force on the federal level. By the enactment of the sections of this chapter dealing with fraudulent transfers and preferences, the Commission feels that sufficient safeguards are erected for all creditors while at the same time giving recognition to other creditors who in good faith and without intent to defraud or be preferred acquire preferred or secured positions.

The Commissioners, in making this comment, had reference to section 60 of the Bankruptcy Act (11 U. S. G. A. § 96), which makes a transfer of property of the debtor while insolvent to a creditor on account of an antecedent debt a voidable preference if made within four months before the filing of a petition in bankruptcy by or against the debtor, and provided the creditor receiving the payment had reasonable cause to believe that the debtor was insolvent. Suffice it to say that N. J. 8. A. 14A:1L-14 (1) (a) and (1) (c) incorporate these cited bankruptcy provisions. However, the Commissioners’ comment does not deal with the conflicting interpretations accorded N. J. 8. A. 14:14^2 in our decisional law.

In view of the foregoing determination, it is unnecessary to pass upon the additional defenses raised by defendant Shapiro.


author: Mountain, J. S. C.

text:
    LANCE INDUSTRIES, INC., PLAINTIFF, v. EASTERN SPECIALTIES COMPANY, INC., CYMCO, INC., RICHARD SCHOULTZ, RICHARD NIKERSON, AND DONALD AULD, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    October 23, 1969.

      Mr. Michael M. Rosenbaum appeared for plaintiff (Messrs. Budd, Lamer, Keni, Gross and Picillo, attorneys).

      Mr. John J. Sullivan attorney for defendants Eastern Specialties Co., Inc., Richard Schonltz, Richard Nickerson and Donald Auld. (Mr. John J. Jobes, of counsel).

      Mr. Gharles W. Symanshi appeared for defendant Cymeo, Inc. (Messrs. Symanshi & Panned, attorneys).
   Mountain, J. S. C.

Plaintiff is a Delaware corporation and defendant Eastern Specialties Company (Eastern) is a Massachusetts corporation. Neither has received a certificate of authority to transact business in this State pursuant to N. J. S. A. 14A:13-4. At the instance of plaintiff a writ of attachment issued directed to certain machinery of considerable value allegedly owned by Eastern, but held, within this State, in the possession of defendant Cymeo, Inc. Eastern now moves to vacate the writ.

It is well settled that the statute, N. J. S. A. 2A :26-l et seq., is the sole source of the remedy of attachment and that the procedure to be followed in pursuit of the remedy is set forth in B. 4:60. Tanner Associates, Inc. v. Ciraldo, 33 N. J. 51, 53 (1960).

N. J. S. A. 2A :26-2 enumerates the several occasions when a writ of attachment may issue. In this case no fraud is alleged and it is not denied that Eastern has an office in New Jersey where process by way of summons may be served. Plaintiff, in arguing that the issuance of the writ was proper, places sole reliance upon subparagraph (e) of the statute last cited which authorizes the issuance of a writ “[w]here the defendant is a corporation created by the laws of another state but authorized to do business in this state and such other state authorizes attachments against New Jersey corporations authorized to do business in that state.” It argues that the words, “authorized to do business in this state,” should be interpreted as referring not solely to those corporations that have complied with the requirements of N. J. S. A. 14A:13-4 but also to all other corporations actually doing business here, even though they have not secured certificates oí authority. If this broad interpretation is not adopted, the argument continues, the extraordinary remedy of attachment will be available against foreign corporations that have complied with our law but not against foreign corporations that have disregarded it. The Legislature could not, the argument concludes, have intended so anomalous and unjust a result.

The modern history of our legislation with respect to the remedy of attachment must be examined insofar as it concerns the availability of this remedy against foreign corporations. The Attachment Act of 1901 provided that “fajttachments may issue against * * * corporations not created or recognized as corporations of this state by the laws of this state. * * *” L. 1901, c. 74. “Eecognition” resulted only from the foreign corporation securing a certificate of authority to do business within New Jersey. Actually doing-business or maintaining an office in the absence of a certificate was not sufficient. The law was so understood at the time of this enactment. Goldmark v. Magnolia Metal Co., 65 N. J. L. 341, 346, 350 (Sup. Ct. 1900). During the following years our courts continued to hold that a foreign corporation was exempt from attachment only if it obtained a certificate of authority to do business within the state. The fact that it was actually doing business in New Jersey and that it was amenable to service of process within the State would not defeat the remedy of attachment where no certificate of authority had issued. Pan American, etc., Corp. v. Fried, etc., 16 N. J. Misc. 225, 229 (Cir. Ct. 1938). Mellor v. Hartford, Inc. 106 N. J. L. 574 (E. & A. 1929), suggesting a contrary doctrine, was apparently not thought to alter the rule. See Stocker v. Duro Co., 9 N. J. Misc. 439 (Sup. Ct. 1931).

In any event, the comprehensive revision of the Attachment Act embodied in L. 1939, c. 207 left the matter free from doubt. It provided, among other things, that “[a]n attachment may issue against * * * (b) Corporations not created by the laws of this State and not authorized to do business in this State.” This would seem to have been a codification of the law as it then stood'; the test of exemption from attachment with respect to a foreign corporation was to be determined by its having secured or not having secured a certificate of authority. Presence of the corporation in the State, of such a nature as, by the service of process, to create in personam jurisdiction within federal requirements of due process, was not to be the criterion.

The same act (L. 1939,- c. 207) introduced for the first time the legislative prototype of the statute we are here considering. A writ of attachment might issue against “[corporations not created by the laws of this State but authorized to do business in this State, unless in any case the laws of the State in which such a foreign corporation is created do not permit attachments against corporations created by the laws of this State when authorized to do business in such foreign State.”

So the law stood until the Legislature completely revised Title 2 by the enactment of Title 2A. L. 1951, c. 344. In this revision is to be found the Attachment Act as it now stands. N. J. S. A. 2A:26-1 et seq. The section of the act of 1939 first above quoted, permitting attachment against foreign corporations not authorized to do business in this State, was not re-enacted. On the other hand, the provision permitting attachment against foreign corporations authorized to do business in New Jersey provided a similar remedy was available against New Jersey corporations authorized to do business in the state of incorporation of the foreign corporation was retained but the language was recast. N. J. 8. A. 2A:26-2(e).

Thus it seems clear that in 1951 the Legislature intended to change' the law. Generally speaking, in the absence of fraud the remedy of attachment is reserved for those cases where a creditor may be able to reach his debtor’s property'located within the jurisdiction, although unable to effect personal service upon which a judgment in personam might be based. The earlier New Jersey rule, permitting attachment to issue against a foreign corporation which had no certificate of authority hut which could be personally served, was a departure from this traditional doctrine which the Legislature apparently decided to abandon. There seems, indeed, little reason to permit a creditor to attach goods of his debtor when he is able to pursue a more normal remedy by effecting personal service and proceeding, if his claim has merit, to a general judgment.

Accordingly, I believe the statute should be read to mean exactly what it says. N. J. S. A. 2A:26-2(e) is really retaliatory legislation and nothing more. The Legislature has apparently concluded that it is preferable to limit the remedy of attachment with respect to foreign corporations to instances where in personam jurisdiction is not attainable. If, however, other states permit attachment oE the goods of duly qualified New Jersey corporations, then Now Jersey, by way of retaliation, will deviate from its general rule to permit attachment with respect to foreign corporations duly authorized to do business in this state. Foreign corporations doing business in New Jersey without a certificate of authority will be governed by the usual rule.

It is further urged by the plaintiff that N. J. S. A. 14A:13--2(3) may be invoked to support the issuance of the writ. This statute states that “[a] foreign corporation which transacts business in this State without a certificate of authority under this act shall be subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a foreign corporation procuring such certificate o£ authority.” Eastern denies that it is doing business in New Jersey, although admitting it may be served here, and the conflicting allegations in the respective affidavits leave the matter in doubt. Furthermore, it is unlikely that Title 14 A was intended to enlarge the application of N. J. S. A. 3 A :26—2(e).

The writ of attachment will he vacated.

The argument of Eastern that the action should be dismissed on the ground of forum non conveniens is clearly without merit. The machinery in which the parties claim varying and conflicting interests is located here and has to a large extent been built and assembled here. Many of the witnesses live in New Jersey. It would, indeed, be quite difficult to try the case anywhere else. The facts which move a court to decline jurisdiction for this reason do not appear to be present. Gore v. United States Steel Corp., 15 N. J. 301 (1954), cert. den., 348 U. S. 861 75 S. Ct. 84, 99 L. Ed. 678 (1954); Starr v. Berry, 25 N. J. 573 (1958).

Plaintiff has additionally sought a temporary restraint with respect to defendants’ use of the machinery in question. Many of plaintiff’s contentions have been specifically denied under oath. It is not entitled to the restraint sought.


author: Fellek, J. S. C.

text:
    WILLIAM MANZO ET ALS., PLAINTIFFS, v. CITY OF PLAINFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    October 22, 1969.

      Mr. John D. Methfessel appeared for plaintiffs (Mr. 8. A. Gennet, attorney).

      Mr. Robert T. Hueston appeared for defendant. (Messrs. Hueston & Hueston, attorneys).
   Fellek, J. S. C.

This is a motion by defendant City of Plainfield in the consolidated cases to declare unconstitutional certain laws known as the riot statutes, for the reason that they violate the due process clause of the 14th Amendment of the United States Constitution. These statutes are N. J. 8. A. 2A:48-1 to 7, inclusive. Thus, the question here is the constitutional sufficiency of these statutes.

N. J. 8. A. 2A :48-l provides as follows: .

When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or injured for the damages sustained thereby, recoverable in an action by or in behalf of such person.

This provision imposes strict liability on the part of a municipality for property damage caused by a riot if the municipality has a paid police force.

At common law a municipality was not liable for damages resulting from mob violence or riots. However, the Legislature has the power to impose liability for riot damage upon municipalities, and such legislation has been held to be valid and constitutional. See Darlington v. Mayor, etc., of New York, 31 N. Y. 164 (Ct. App. 1865); City of Chicago v. Sturges, 222 U. S. 313, 32 S. Ct. 92, 56 L. Ed. 215 (1915) ; Clark Thread Co. v. Freeholders of Hudson County, 54 N. J. L. 265 (Sup. Ct. 1892). In A & B Auto Stores of Jones Street, Inc. v. Newark, 103 N. J. Super. 559 (Law Div. 1968), the court said:

The statute in question created a new cause of action imposing strict liability upon a municipality for property damage caused by riots. Such a cause of action required legislative pronouncement because it eliminated in the field of municipal riot damage liability in the negligence concept and the defense of governmental immunity. It represented a declaration of policy by the Legislature in this limited area in order to make the entire community responsible for the damage to innocent property owners resulting from a breakdown in law enforcement, [at 569]

And further:

Under the riot statute, however, the city in effect is a wrongdoer. The Legislature has designated it as such for failure to enforce the laws and control its inhabitants. Even though its wrongdoing is passive and the damage is directly caused by an active wrongdoer, nevertheless its liability is founded upon a legislative declaration motivated by the municipality’s failure to protect property in its confines [at 571]

The legislative policy in enacting these statutes has been clearly set out in the above opinion.

As was stated by Judge Lamer in A & B Auto Stores, at 519, the statutory liability of municipalities for riot damage had its genesis in England in 1285 when the Statutes of Winchester provided a remedy to the victim against one or more inhabitants of the “hundred,”' a division of a county in early England, for damage caused by robbery. Statute of Winchester, 13 Edw. I, Stat. 2, c. 2 (1285), reenacted by 28 Edw. III, c. 2 (1354). A subsequent statute provided for the assessment of damages against all the inhabitants of the hundred after a recovery against one or more. 27 Eliz., c. 13 (1585). In 1714 the Riot Act of George I provided that in the event of destruction of a church or dwelling house by an unlawful mob, the inhabitants of the hundred were liable for the value. 1 Geo. I, c. 5 (1714). Thereafter, all laws on the subject in England were embodied in the Riot Damages Act of 1886, 49 & 50 Viet., c. 38 (1886), section 2 of which imposes absolute liability upon English police districts where a house, shop or building has been stolen or destroyed or where property therein has been injured, stolen, or destroyed. See Johnson, “The Insurer and Civil Disorders,” 35 Insur. Counsel J. 417 (1968); Wells Fargo & Co. v. Mayor, etc., of Jersey City, 207 F. 871 (D. N. J. 1913), aff’d 219 F. 699, 700 (3 Cir. 1915), cert. den. 239 U. S. 650, 36 S. Ct. 284, 60 L. Ed. 485 (1916).

There are approximately 22 states, including New Jersey, which have legislation imposing liability upon municipalities for loss or damage to property caused by riots. New Jersey first enacted legislation, effective 1864, to compensate persons whose property was damaged or destroyed in consequence of mobs or riots. These statutes were incorporated in the Revised Statutes of 1877. Thereafter the substance of the act was incorporated in the New Jersey Revised Statutes in 1937. When the new Constitution went into effect on January 1, 1948, these statutes continued in effect by virtue of Art. XI, § 1, par. 3, which provides that all law, statutory or otherwise, in force at the time that Constitution or any Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by the State Constitution or otherwise.

These statutes did not expire, nor were they superseded, altered or repealed, and are in full force and effect and known as N. J. 8. A. 2A:48-1 to 7, inclusive.

Defendant contends, in effect, that these statutes violate the due process clause of the 14th Amendment of the Eederal Constitution which provides that no State shall deprive a person of life, liberty or property without due process of law. In support of this argument, defendant states that it was a physical impossibility for the members of the Plainfield Police Department to put down the action that was taking place, and for the Legislature to suggest that the city is a wrongdoer during a riot is a legislative fiat not sustainable in any court of law. Defendant cites the case of Reingold v. Harper, 6 N. J. 182 (1951), in which the court stated that considering the end in view, the statute (N. J. 8. A. 34:3A-1 el seq.) passes the bounds of reason and assumes the character of a merely arbitrary fiat. In effect, defendant contends that the statutes in question deny to it due process of law, since they impose liability irrespective of the power of the municipality to have prevented the riots.

It must be noted, however, that N. J. 8. A. 2A:48-1 to 7, inclusive, impose strict liability upon defendant. They do not impose absolute liability, that is, liability that is complete and unconditional. N. J. 8. A. 2A:48-3 provides for certain defenses that are available to the municipality in suits for damages due to riots. This statute, in effect, states that no recovery shall he had if it appears at the trial for damages that the damage or destruction of property was occasioned or in any manner aided, sanctioned or permitted by the negligence of the claimant. It also provides that there shall be no recovery unless the claimant used all reasonable diligence to prevent the destruction or damage, or upon being apprized of a threat to damage or destroy his property by a mob or riot, he notified the proper authorities of the threat.

Furthermore, N. J. 8. A. 2A:48-7 provides:

A municipality or comity, having paid damages for the destruction of or injury to property under this article, either upon a judgment therefor or as a settlement, may recover the full value of the property destroyed or injured by action against any or all persons engaged or in any manner participating in the mob or riot and the amount of judgment or settlement shall be prima facie evidence of the value of the property destroyed or injured.

The act 'also saves to the claimant his action against the rioters. N. J. S. A. 2A:48-5 states:

Nothing in this article shall be construed to prevent a person -whose property has been destroyed or injured by a mob or riot from maintaining an action against each and every person engaged or in any manner participating in the mob or riot.

A similar riot statute in Illinois has been upheld ' and declared constitutional. In Chicago v. Sturges, supra, the United States Supreme Court affirmed a judgment against the City of Chicago for damages caused by riots and upheld the constitutionality of an Illinois Riot Act entitled, “An Act to Indemnify the Owner of Property for Damages by Mobs and Riots.” In Sturges the court stated that it is a general principle of our law that there is no individual liability for an act which ordinary care and foresight could not guard against. It is also a general principle that a loss from any cause purely accidental must rest where it chances to fall. The court further stated that behind and above these general principles which the law recognizes as ordinarily prevailing, there lies the legislative power which, in the absence of organic restraint, may, for the general welfare of society, impose obligations and responsibilities otherwise nonexistent.

The court in Sturges went on to state that primarily governments exist for the maintenance of social order. Thus it is that the obligation of the government to protect life, liberty and property against the conduct of the indifferent, ihe careless and the evil-minded may be regarded as lying at the very foundation of the social compact. A recognition of this supreme obligation is found in those exertions of the legislative power which have as an end the preservation of ¡social order and the protection of the welfare of the public ■and of the individual. If such legislation be reasonably ¡adapted to the end in view and affords a hearing before judgment, and is not forbidden by some other affirmative provision of constitutional law, it is not to be regarded as denying due process of law under the provisions of the 14th Amendment.

The court then said:

The law in question is a valid exercise of the police power of the state of Illinois. It rests upon the duty of the state to protect its citizens in the enjoyment and possession of their acquisitions, and is but a recognition of the obligation of the state to preserve social order and the property of the citizen agaiusl the violence of a riot or a mob.

The State is the creator of subordinate municipal governments. It vests in them the police powers essential to the preservation of law and order. It imposes upon them the duty of protecting property situated within their limits from the violence of public breaches of the peace like mobs and riots. The duty and obligation thus entrusted to the political subdivision is by N. J. S. A. 2A:48-1 to 7, inclusive, emphasized and enforced, by imposing upon the local community, this liability for property losses resulting from tlie violence of such public tumults.

The imposition of strict liability upon the municipalities when property is destroyed through the violence of a riot is, therrefore, not. an unusual police regulation. Neither is it arbitrary as not resting upon reasonable grounds of policy. Such a regulation should have a tendency to deter the lawless. for the sufferers may be compensated by a tax burden which will fall upon all property, including that of the rioters, as members of the community. See Chicago v. Sturges, supra. In addition, the rioters may be subjected to the additional burden of reimbursing the municipality under N. J. S. A. 2A:48-7.

In Butte Miners’ Union v. Butte, 58 Mont. 391, 194 P. 149 (1920), the Montana Supreme Court expressed the purpose of such riot damage legislation stating:

Primarily, government exists for (lie maintenance of peace and social order. The purpose of our statute, and those of similar import, is to create municipal liability and tend to instill in the minds of every person liable to contribute to the public expense a will to discourage violence and to stimulate effort to preserve public safety.

Similarly, in Clark Thread Co., supra, the former New Jersejr Supreme Court upheld the validity of the statute (Rev. 1877) and held that since the object of the act was to prevent mobs and riots, it is fair to presume that its purpose would be promoted by making the political district within which the tumult occurred liable to pay damages done to private property.

The point has been raised that under N. J. Const. (1947) Art. IV, § VII, par. 11, the statutes under consideration should be liberally construed in favor of the municipal corporation. However, that provision is not applicable since the constitutional provision applies to the powers of municipalities. A municipality has only those powers which are granted to it by statute, although those powers, by virtue of the constitutional directive, are to be liberally construed. Magnolia Development Co. v. Coles, 10 N. J. 223 (1952); Fred v. Mayor, etc., of Old Tappan Borough, 10 N. J. 515 (1952).

Separate and apart from this argument, it should be noted that penal statutes shall be strictly construed, and remedial statutes liberally construed. However, this rule of construction is inapplicable in this case because the statute is both remedial and penal in nature; it seeks simultaneously to grant relief to the innocent member of society who sustains damage from a riot and to penalize the municipality for its failure to prevent destruction of property by riotous mobs. A & B Auto Sales, Inc., supra, at 580; County of Allegheny v. Gibson’s Son & Co., 90 Pa. 397, 412, 418 (Sup. Ct. 1897).

Every reasonable presumption is to be made in favor of the validity of the legislative act, and fairly debatable questions as to the need and the propriety of the means employed to meet the exigency are within the legislative province. Reingold v. Harper, 6 N. J. 182, 194 (1951).

Therefore, it is the opinion of this court that N. J. S. A. 2A:48-1 to 7, inclusive, do not violate any of the provisions of the Federal or State Constitutions, and the motion made in behalf of defendant to declare these statutes unconstitutional is hereby denied.


author: Seidmam, J. C. 0.

text:
    C. P. FLEMMING, PLAINTIFF, v. RONSON CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    October 28, 1969.

      Mr. Harry Heher, Jr., attorney for plaintiff.

      Mr. Lewis Bslinger, of the New York Bar, appeared for defendant (Messrs. Weinberg & Manof, attorneys).
   Seidmam, J. C. 0.

(temporarily assigned). Plaintiff, a retired dental technician, claiming that defendant Eonson Corporation wrongfully appropriated a new product idea for an artificial candle he had conceived and submitted, seeks damages for breach of an express or implied contract and by reason of the alleged resultant unjust enrichment of defendant. Since the trial, limited to the issue of liability, was without a jury, it is now necessary for the court to state its findings of facts and conclusions of law thereon. B. 1 :?-4.

The lawsuit is the outgrowth of an admitted exchange of correspondence between the parties beginning March 7, 1955, when plaintiff, who testified he had not seen the concept elsewhere, sent the following letter to defendant:

I am writing you in reference to an idea I have for a metal product.
As far as I am able to determine it lias never appeared on the market.
It is both useful and ornamental.
It is ail item which could be used in every household.
If you would like me to submit same to you, please advise.

Eeceipt of the letter was acknowledged by Eonson’s assistant to the president, who informed Flemming that it had been forwarded to the research and development department at their Stroudsburg, Pa., plant. Warren I. Nissen, a Eonson research and product engineer, replied on March 12, 1955:

Thank you for your letter of March 7, 1955. We are always pleased to receive suggestions and ideas for new products or improvements of our products.
If you care to forward drawings, descriptions and/or working models, we will be most glad to evaluate same and report to you regarding our further interest. Please be assured that all materials submitted will be carefully handled and returned to you if we should not accept your proposal.
If your proposal proves to be of further interest to us, we will contact you for the purpose of making such further arrangement as may be required.
Two days later plaintiff responded by furnishing these details of his idea:
It consists of a metal candle to be used with liquid or compressed gas fuel.
It could be made up in the following finishes. Chrome, polished brass, polished copper and embossed Sterling, with or without a matching holder. It could be made plain or a twisted design.
It should have a removable head which should be used to avoid evaporation of fuel or gas leakage when not in use.
The removable head should be made to slide over the top of candle when not in use.
It could be made in various lengths.

The letter included sketches depicting three narrow, flat-topped cylinders, each with a protruding wick, in plain, twisted and embossed designs; and a conical, removable head topped by a dummy wick. It was indicated that the candle would contain liquid fuel into which a glass wool wick would be inserted. One sketch showed the removable head affixed to the top of the candle; another, a screw opening at the bottom for filling the candle with fuel.

On March 15, 1955 Nissen wrote advising that “We have received your submission and find that we are not interested in it at the present time.” Concededly, the letter containing the drawings was not returned to Flemming, and there was no further correspondence between the parties until early in 1963 when Flemming, who had seen an advertisement of a Ronson Varaflame gas candle in a New York newspaper on November 4, 1962, instructed his attorney to press a claim for the alleged appropriation of his idea. The claim was rejected; and in March 1968, after engaging other counsel, Flemming filed his complaint.

Flemming contends that the Ronson Varaflame gas candle, which defendant admits it placed on the market in 1962, embodies the salient features of his new product idea; and he charges that Eonson appropriated to its own use the idea which had been disclosed to it in confidence, in violation of a contract both express and implied. Eonson denies the existence of a contract and asserts that its Varaflame gas candle was independently developed without resort to plaintiff’s submission.

It is clear at the outset that even if it should be found that Eonson accepted and used Flemming’s concept, no express contract arose. Eonson did not promise to pay for the mere submission of an idea. All that can be derived from the correspondence is an invitation to Flemming to submit details for evaluation, coupled with an undertaking to contact him for further arrangements should the proposal be of interest, as well as an assurance that all materials submitted would be returned if the submission was not accepted. The March 15 letter from Eonson stated its lack of interest at the time. The minds of the parties never met on a proposed sale or purchase of plaintiff’s idea. Van Name v. Federal Deposit Ins. Corp., 130 N. J. Eq. 433 (Ch. 1941), affirmed 132 N. J. Eq. 302 (E.& A. 1942); Leitner v. Braen, 51 N. J. Super. 31 (App. Div. 1958). The law will not imply a promise on the part of a person against his own express declaration. Lueddeke v. Chevrolet Motor Co., 70 F.2d 345 (8 Cir. 1934).

Where there has been an unsolicited submission of an idea, as here, the question which arises is whether, on the facts presented, the recipient is liable, if at all, by reason of a g«im-contractual obligation based on the doctrine of unjust enrichment. An idea, as distinguished from the copyrighted contents of a book or a patented device or process, is accorded no protection in the law unless it is acquired and used in such circumstances that the law will imply a contractual or fiduciary relationship between the parties. J. Irizarry y Puente v. Pres. & F. of Harv. Col., 248 F. 2d 799 (1 Cir. 1957), cert. den. 356 U. S. 947, 78 S. Ct. 785, 2 L. ed. 2d 822 (1958), reh. den. 356 U. S. 969, 78 S. Ct. 1009, 2 L. ed. 2d 1076 (1958). Generally, one who receives a benefit which it is unjust for him to retain ought to make restitution or pay the .value of the benefit to the party entitled thereto. William A. Meier Glass Co. v. Anchor Hocking Glass Corp., 95 F. Supp. 264 (D. C. Pa. 1951); Jennings v. McCall Corporation, 224 F. Supp. 919 (D. C. Mo. 1963); 1 Williston, Contracts (rev. ed. 1938), § 3, p. 9, See also, Binder Realty Corp. v. City of Newark, 19 N. J. Misc. 624, 22 A. 2d 359 (Sup. Ct. 1941); Houghland v. Houghland, 19 N. J. Misc. 474, 21 A. 2d 215 (Ch. 1941).

The parties have staked out their respective positions on this issue. Plaintiff argues that submission of a new product idea in writing and in confidence to a manufacturing corporation by an. outsider, not necessarily involving any element of novelty or invention, creates, when accepted, a binding quasi-e.ontract to' pay reasonable compensation for the submission'and a right to relief for unjust'enrichment. On the other hand, defendant- asserts that before there can be recovery for the misappropriation of a confidential disclosure it must- appear that the idea submitted had novelty, that it' was concrete and usable rather than abstract or vague, -and that the idea was used by the recipient.

Defendant contends plaintiff’s idea lacks concreteness. Several cases are- cited in support of the proposition that a mere abstract idea, incapable of material embodiment, cannot be the subject of a claim for conversion and misappropriation; one- of which, Haskins v. Ryan, 71 N. J. Eq. 575 (Ch. 1906), involved the alleged-utilization of the claimant’s plan for combining a number of white 'lead industries into one company. Another deals with án idea for a motion picture, O’Brien v. R K O Radio Pictures, Inc., 68 F. Supp. 13 (D. C. N. Y. 1946). These cases, however, are inapposite. It is'unnecessary-to-'consider whether .an'abstract idea can be the-basis of'a contract. Haskins v. Ryan, supra., but cf. Liggett & Myers Tobacco Co. v. Meyer, 101 Ind. App. 420, 194 N. E. 206 (App. Ct. 1935). The' concept submitted by Elemmirig is' not :an abstract' one in the sense that it is incapable oí physical iorm. Rudimentary as it is, the idea can be transformed into a product. It is, to that extent, concrete and usable. For cases involving ideas held not to be concrete, see Thomas v. R. J. Reynolds Tobacco Co., 350 Pa. 262, 38 A. 2d 61, 157 A. L. R. 1432 (Sup. Ct. 1944), (idea for cigarette advertising); Williamson v. New York Central R. Co., 258 App. Div. 226, 16 N. Y. S. 2d 217 (App. Div. 1939) (plan for miniature railroad): Alberts v. Remington Rand, Inc., 175 Misc. 486, 23 N. Y. S. 2d 892 (Sup. Ct. 1940), (suggested use of charts or graphs); Plus Promotions v. R. C. A. Mfg. Co., 49 F. Supp. 116 (D. C. N. Y. 1943), (plan for making recordings)

Ronson urges that Flemming’s submission lacked novelty and was incomplete in form and detail; consequently, he had nothing to offer. It has been held that where a person communicates a novel idea to another with the intention that the latter may use the idea and compensate him for such use, the other party is liable for such use and must pay compensation if he actually appropriates tire idea and employs it in connection with his own activities. Trenton Industries v. A. E. Peterson Mfg. Co., 165 F. Supp. 523 (D. C. Cal. 1958) ; see also, Matarese v. Moore-McCormack Lines, Inc., 158 F. 2d 631, 170 A. L. R. 440 (2 Cir. 1946). A plaintiff is required to establish as a prerequisite to relief that (1) the idea was novel: (2) it was made in confidence, and (3) it was adopted and made use of. Mitchell Novelty Co. v. United Mfg. Co., 199 F. 2d 462 (7 Cir. 1952); De Filippis v. Chrysler Corp., 53 F. Supp. 977 (D. C. N. Y. 1944); Official Airline Sched. Inform. Serv., Inc. v. Eastern Airlines, 333 F. 2d 672 (5 Cir. 1964). Although novelty has been considered significant in these and other cases, e.g., Stevens v. Continental Can Co., 308 F. 2d 100 (6 Cir. 1962); Smoley v. New Jersey Zinc Co., 24 F. Supp. 294 (D. C. N. J. 1938); Lueddecke v. Chevrolet Motor Co., supra, this element is more important for its evidentiary value than for substantive quality. See Havighurst, “The Right to Compensation for an Idea,” 49 N. W. U. L. Rev. 295 (1954). In other words, where the issue is whether one’s idea has in fact been used by another, similarities between the submission and the ultimate product may justify the factual inference that one was copied from the other. International Industries, Inc. v. Warren Petroleum Corp., 99 F. Supp. 907 (D. C. Del. 1951). If the concept submitted is unique, or if there are many points of likeness, the inference is strengthened. On the other hand, a lack of novelty or the existence of many dissimilar features will support a denial that the idea was used by the recipient.

The issue in the present case is thus narrowed to a determination of whether Ronson actually copied or used Flemming’s idea, or was aided by it in developing its own product. Plaintiff maintains that because the Ronson Yaraflame candle embodies the salient features of his concept, it follows that Ronson utilized his idea and is now estopped to assert a contrary position. Defendant denies those assertions.

The court finds from the evidence that, despite a superficial resemblance between Flemming’s sketches and the Yaraflame candle, the similarity is mainly with respect to shape. Not surprisingly, each looks like a long, tapered candle of the kind used for table decoration. The Flemming candle operates on the basic principle of a wick inserted into liquid fuel, no different from an ordinary cigarette lighter. Although there is a suggestion that compressed gas can also be used, no explanatory details are furnished. The Ronson product, designed to operate on butane gas, is not a simple device; it consists of manj' component parts, including an outer shell or sleeve, an inner shell, a tipped nozzle and liner, a base plug, cams, springs, seals and washers, and, particularly, an inlet valve assembly and a burner valve assembly, each of which is a small but complex unit.

The court finds further that even though Flemming’s concept may have been new to him, it was not a- novel one. At best, what Flemming had in mind was a different application of a long-established principle. As far back as 1871 a patent was issued for a cylindrical, “hydrocarbon candle” consisting of a filling of sponge, cotton or other material adapted to absorbing liquid hydrocarbon, and a wick projecting from an opening at the top. The record reveals a number of later patents, each primarily based on the principle of a shell or casing fluid, and a wick. One of these, patented in 1939 by one Howard and strikingly similar in shape and concept to Flemming’s idea, has a tapered shell containing a nonfibrous material for the absorption of such fluids as hydrocarbon oils, as well as a protruding wick. It is also noted that a competitive product similar to Ronson’s was on the market in 1961.

It is evident that the features of Flemming’s artificial candle which may also be found in the Ronson product are not so novel as to create the inference that defendant utilized or copied plaintiff’s idea.

In the case of Boop v. Ford Motor Company, 177 F. Supp. 522 (D. C. Ind. 1959), aff’d 278 F. 2d 197 (7 Cir. 1960), plaintiff alleged that he had developed certain new ideas for mounting a corn picker on a tractor; that these were revealed to a representative of defendant, and that thereafter Ford came out with a mounted picker which incorporated his ideas. The court rejected the claim, noting that although plaintiff’s idea was admittedly similar in some respects to the Ford picker, this was insufficient, since all mounted pickers of necessity had to be alike in many respects. For plaintiff to prevail, it was held, it must appear that the idea utilized by Ford came from him. A mere showing of similarity did not fulfill this requirement, particularly when such similarities as existed were found in patented picker designs in existence prior to plaintiff’s and thus were matters in the domain of public knowledge. See also Gilbert v. General Motors Corporation, 41 F. Supp. 525 (D. C. N. Y. 1941).

From the evidence adduced at the time of trial, the court finds the following additional facts: Although Ronson’s research and development personnel had discussed gas-fueled artificial candles over the years, the lack of dependable filler and burner valves precluded further planning. Liquid-fueled candles were not deemed feasible by reason of the limited amount of fuel that could be stored. Á gas lighter developed in 1948 or 1949, using throwaway cartridges, was discontinued shortly thereafter because of the failure of ■ the burner valve. In 1956, as the result of the efforts of a Swiss inventor named Zellweager, with whom an Englishman, Goddard, an employee of Ronson’s British branch, worked closely, suitable inlet and burner valves were perfected which enabled Ronson to develop, at first, a Varafiame lighter and then other products, including the gas candle in question. The Elemming letter, which had been filed away, played no .part in the development of the candle and, in fact, was not seen again until after the institution of suit. When production of the gas candle was planned in 1958, Ronson’s staff designer was directed to design it. His studies of the shapes and configurations of was candles led to the Ronson Varafiame candle ultimately marketed.

The court concludes that Ronson neither appropriated the idea submitted by plaintiff nor utilized his concept in the development of its Varafiame candle.

Eor the reasons set forth herein, a judgment dismissing the complaint should be entered in favor of the defendant.