text:
    FRANK DIBIANO, PLAINTIFF-APPELLANT, v. LINDA M. DIBIANO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 24, 1969
    Decided May 5, 1969.

      Before Judges Goldmann, Kolovsky and Caeton.

      Mr. Monroe Aclcerman argued the cause for appellant {Mr. Alan C. Sugarman, attorney; Messrs. Rudd, Ackerman <& Breitkopf, of counsel; Mr. Edward 8. Snyder, on the brief).

      Mr. John F. Connolly, Jr. argued the cause for respondent {Messrs. Pearce and Pearce, attorneys).
   Pee Cueiam.

Plaintiff appeals from a Chancery Division judgment awarding custody of his then six-year-old son Pasquale (Pat) to defendant, the child’s mother and plaintiff’s former wife. The judgment was stayed pending appeal to this court.

The parties were married on October 18, 1959 and had two children, Frank Jr., born the next year, and Pat, born in January 1962. The family lived in Asbury Park, F. J. until December 1, 1962 when defendant took the two children to Miami, Fla. Plaintiff followed them in an unsuccessful attempt to persuade defendant to return to this State with the children. However, he was able to bring Pat with him.

Upon his return here plaintiff filed a complaint January 30, 1963 on which an order was issued directing defendant to show cause why the court should not make an appropriate order concerning Frank Jr.’s custody and his return to this State. Defendant did not respond or appear, with the result that an order was entered May 9, 1963 awarding custody of both children to plaintiff and directing defendant to return Prank Jr. to New Jersey. She ignored the order.

In January 1965 plaintiff filed a complaint seeking divorce on the ground of desertion. Defendant answered and counterclaimed, seeking custody and support for both children. On March 3, 1967 the Chancery Division judge — not the one who entered the judgment here under appeal ■—• entered judgment nisi granting plaintiff a divorce and ordering, among other things, that plaintiff continue to have custody of Pat and defendant custody of Prank Jr., pending final disposition of custody by the court pursuant to B. B. 4:98-8.

Following entry of the final decree defendant married one Perrier in Florida on June 30, 1967. Plaintiff married his present wife, the former Lucia Kowland, on November 5, 1967, and continued to live in New Jersey. Prank Jr., who had remained in defendant’s custody, died February 14, 1968 following a heart operation. Defendant had arranged for that operation without obtaining plaintiff’s consent and had refused to tell him the name of the attending surgeon. Plaintiff learned of the death when defendant spoke to his parents at 4:30 on the afternoon the boy died, advising that funeral services would be held the next day at 9 A. m.

Two months later defendant filed a petition for determination of final custody. Since the judge who had entered the judgment nisi was no longer sitting in the Matrimonial Division, the matter was brought on before another Chancery Division judge who, after a full hearing, rendered an oral opinion in which he concluded that defendant should have custody of Pat, with certain visitation rights in plaintiff. The judgment under appeal followed. We reverse.

After reviewing the pertinent proofs adduced at the custody hearing, the trial judge found plaintiff to be a suitable person to have custody of Pat, referring to the “impressive testimony” that had been given as to the relationship between the child and his father. There could be no doubt, he said, that there is a “warm and loving relationship” between plaintiff’s present wife and the boy, and this was corroborated by defendant’s father who had visited them. The paternal grandparents had exhibited “great love and feeling” for Pat, as had the parents of plaintiff’s present wife. The trial judge concluded that if custody were awarded to plaintiff, the boy would be well taken care of and well brought up.

Although the judge also found defendant to be a suitable person to have custody, he went to some length in his oral opinion to outline certain factors that appeared to militate against an award of custody to her, including her departure from New Jersey with the two children, her disregard of the May 9, 1963 order directing her to return Prank Jr. to this State, the circumstances surrounding his operation, death and funeral, the fact that defendant would not let plaintiff or the paternal grandparents talk to or see Frank Jr. when he was in her custodjr, and the further fact that Pat had been with plaintiff since he was about one year old. In concluding that defendant should have custody of Pat, the trial judge said:

“Now I have no hesitancy in saying- that if I had an unbridled discretion I would decide differently. I am, however, bound to follow the decisions of our appellate courts.”

We know of no decision which would justify the custody granted in this case. Our cases are legion that the happiness and welfare of the child are paramount in determining custody. In the exercise of their parens patriae jurisdiction our courts look always to the protection of the child’s best interests. N. J. S. A. 9 :2-4. The rights of both parents are to be held equal, absent misconduct on the part of either, N. J. S. A. 9 :2-4, and we recognize that custody of a child of tender years ordinarily is awarded to a |nother who has been found a suitable person, but these considerations must always be considered subordinate to what is truly in the child’s best interests.

Each case must, of course, be decided on its own particular facts, but as any number of cases have held, the court, in determining which parent shall have custody, must consider the personal safety, morals, health and happiness of the child. Our reading of the record convinces us that it was clearly erroneous to order a change of custody in the circumstances of this case. Pat’s best interests compel the conclusion that his custody remain where it has been since his first birthday — with his father in New Jersey — and this without even considering the provisions of N. J. S. A. 9:2-2, evincing a statutory policy in favor of leaving the child in this State, where it was born and raised. See Fantony v. Fantony, 36 N. J. Super. 375, 379 (Ch. Div. 1955), modified on other grounds, 21 N. J. 525 (1956); Casteel v. Casteel, 45 N. J. Super. 338, 353 (App. Div. 1957). The fact that Pat was only six years old at the time of the judgment under review was no justification for ripping him out of his present setting where he is happy and well adjusted. It is obvious from the record that his roots, established over some five years in a good and loving home, run deep and strong.

The judgment is reversed. Defendant’s application for counsel fees and costs is denied, particularly in view of the fact that she has sufficient income of her own to bear the expense of this appeal.


source: Caselaw Access Project

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

license: Public Domain

text:
    RITA G. COURSEN, PLAINTIFF-RESPONDENT, v. ERIC B. COURSEN, DEFENDANT, EMERSON L. DARNELL, EXECUTOR OF THE ESTATE OF ALFRED E. DARNELL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 17, 1969
    Decided May 5, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Joseph Polino argued the cause for appellant (Mr. Emerson L. Darnell, attorney, pro se).

      Mr. Henry J. Daaleman argued the cause for respondent.
   The opinion of the court was delivered by

Coneord, S. J. A. D.

The surety on the ne exeat bond raises two principal issues on appeal. Eirst, it was error for the trial court to refuse to discharge the bond and to order its forfeiture. Second, the court erred in ordering the penal sum to be paid to plaintiff wife in the matrimonial proceeding for application against arrearages of alimony due from defendant husband.

Since at the time of the determinations by the trial court now under appeal the husband was an absconding absentee from the jurisdiction, it was clearly proper for the court to refuse to discharge the bond. Insofar as the surety relies on the fact that on two earlier occasions, in 1964 and 1965, the husband was in court, and amenable to its jurisdiction, and argues that the court should then, on pending applications toward that end, have discharged him from the bond obligation, there are two answers. Most important, no appeal was taken from the refusals of discharge on the earlier occasions, and this court will not now undertake a belated review of those decisions. It would be inappropriate now to discharge the bond, the condition thereof being in a present state of default. See Schreiber v. Schreiber, 86 N. J. Eq. 437, 438 (E. & A. 1916). Second, the matter of discharge of the surety on a ne exeat bond rests in the sound discretion of the court. Ksiazek v. Ksiazek, 89 N. J. Eq. 139 (Ch. 1918). Were we now to review the prior refusals to discharge, we cannot say on what is now before us that those determinations necessarily constituted a mistaken exercise of discretion.

The surety also contends he was denied due process when, in the earlier phases of the' litigation, he was not notified of pending contempt proceedings against the husband. The argument is not supported by Foote v. Foote, 102 N. J. Eq. 291 (E. & A. 1928), on which surety relies, and we regard it as without merit. Again, this complaint should have been raised by timely appeal.

The surety’s main ground of appeal is that the court had no authority to apply the bond proceeds to the relief of plaintiff in respect of alimony arrearages. He contends plaintiff should at most be awarded such damages as she can establish to have proximately resulted from the husband’s present nonamenability to court process. This, he contends, would be nil because the husband is a proven ne’er-do-well, from whom no money could be extracted even were he before the court. No New Jersey decision has ever supported such a rule in a ne exeat case. It is well established that on default the entire penal sum can be ordered paid into court. See Schreiber v. Schreiber, supra. Further, the propriety of awarding the plaintiff relief on arrearages out of the defaulted bond proceeds has been squarely adjudicated by the Court of Errors and Appeals (without any mention of the need to show special damage in any other sense) in Connolly v. Guardian Casualty Ins. Comp., 115 N. J. Eq. 74 (1934), affirming, per curiam, the Chancery decision in Connolly v. Connolly, 112 N. J. Eq. 434 (1933). The same view was previously intimated in Vahjen v. Vahjen, 105 N. J. Eq. 271, 274 (Ch. 1929), affirmed, per curiam, 107 N. J. Eq. 186 (E. & A. 1930). See also Elliott v. Elliott, 36 A. 951, 953 (Ch. 1897).

We find no merit in the remaining contentions of the appellant.

Judgment affirmed.


author: Labbecque, J. A. D.

text:
    ESSENTIAL SAVINGS AND LOAN ASSOCIATION, CALDWELL-VERONA SAVINGS AND LOAN ASSOCIATION, AND WEST ORANGE SAVINGS AND LOAN ASSOCIATION, SAVINGS AND LOAN CORPORATIONS DULY ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, APPELLANTS, v. CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, POLICE SAVINGS AND LOAN ASSOCIATION, A SAVINGS AND LOAN CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND BERKELEY SAVINGS AND LOAN ASSOCIATION, A SAVINGS AND LOAN CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 25, 1968
    Decided May 1, 1969.

      Before Judges Gatjlkin, Collester and Labrecqtje.

      Mr. Fred O. Stickel, III argued the cause for appellants Essential Savings and Loan Association, Caldwell-Verona Savings and Loan Association and West Orange Savings and Loan Association {Messrs. Stickel, Kain & Stickel; Messrs. Yieser, Hoey & San Filippo and Messrs. Slavitt, Slavilt & Fish, attorneys, respectively).

      Mr. E. Robert Levy, Deputy Attorney General, argued the cause for respondent, Charles E. Howell, Commissioner of Banking and Insurance {Mr. Arthur J. Sills, Attorney-General of New Jersey, attorney).

      Mr. Martin S. Fox argued the cause for respondent Berkeley Savings and Loan Association {Messrs. Fox, Yanoff & Fox, attorneys; Mr. Fox and Mr. Nathan L. Jacobson, on the brief).

      Mr. Edward F. Beers argued the cause for respondent Police Savings and Loan Association.
   The opinion of the court was delivered by

Labbecque, J. A. D.

In this consolidated appeal the objectors challenge the determination and judgment of the Commissioner of Banking and Insurance permitting the establishment of a branch office by the Berkeley Savings and Loan Association at 611 Bloomfield Avenue, Verona, in connection with its purchase of the assets of the Police Savings and Loan Association.

Police Savings and Loan Association (Police) was a state-chartered association with assets of approximately $376,000 which was operated on a part-time basis from an office located on the second floor of Newark Police Headquarters, 22 Prank]in Street, Newark. It had about 48 mortgage-borrowing members and 193 savings members.

Berkeley Savings and Loan Association (Berkeley), also state-chartered, had its main office at 88 Lyons Avenue and a branch office at 401 Chancellor Avenue, both in Newark. It had assets of approximately $85,000,000 and had approximately 26,000 savings and 6,500 mortgage-borrowing members.

All three appellants are also state-chartered savings and loan associations having offices which serve the area proposed to be served by Berkeley’s new branch. Essential, with headquarters at 304 Bloomfield Avenue, Verona, 0.6 miles from the proposed branch, had assets (estimated savings capital) of approximately $2,500,000; Cal dwell-Verona, located at 266 Bloomfield Avenue, was 1.5 miles from the proposed site and had assets of approximately $7,000,000, and West Orange, located at 459 Pleasant Valley Way, West Orange, was 1.7 miles from the proposed branch and had assets of over $4,000,000.

On July 18, 1967 Police made an application to move its office from 22 Pranklin Street, Newark, to 611 Bloomfield Avenue, Verona, a distance of 12 miles. On August 24, 1967 Berkeley purchased the property where it was proposed to establish the new branch and on August 31, 1967 Police disclosed to the Commissioner that its ultimate purpose was not merely to move its office but to effect a merger with Berkeley. Following objections from other associations in the area, Police withdrew its application on September 19, 1967.

On October 25, 1967 formal agreement was reached between Berkeley and Police for the bulk sale of the assets of Police to Berkeley and the removal of its office to Verona. It would appear that the agreement of sale was so worded as to make the sale contingent upon permission to remove the office, but this is denied by counsel for Berkeley and, for reasons which will appear hereafter, we need not decide the point. On November 2, 1967 Berkeley and Police filed simultaneous applications for approval of the the bulk sale and authority to operate a branch office in Verona as a “substitute” for the present office of Police in Newark. Among the objectors were Essential, Caldwell-Verona and West Orange.

At the hearing on January 3, 1968 Bobert G. Strong produced an economic feasibility study prepared by Herbert 11. Smith Associates which concluded that Berkeley could successfully operate the proposed branch and Bichard Gartenberg, Berkeley’s vice-president, produced a brochure listing Berkeley’s services and details of its operations. These were received in evidence and formed the basis for the cross-examination of both witnesses which took place on January 24, 1968. Some reference will be made to them hereafter.

The Commissioner approved the bulk sale to Berkeley and separately approved the proposed Verona branch as a “suitable substitute” for the Newark office of Police. In so doing he held that the application was controlled by N. J. S. A. 17: 125-27 and 17:125-204(1) and (4). The present appeal is from the approval of the Verona branch.

N. J. S. A. 17:12B—204(1) authorizes the sale in bulk of the assets of a state association to any other association. Subsection 4 thereof permits the purchasing association, subject to the limitations of N. J. S. A. 17:12B-27, to simultaneously apply to the Commissioner for the establishment of a “section 27” branch office. Section 27 (N. J. S. A. 17:12B-27) provides, in pertinent part:

“Any State association, into which another association has been merged or which has acquired by purchase, reorganization or in any other manner, all or a substantial portion of the assets of another association, may make application to the commissioner for authority to operate the office previously operated by such other association, or a suitable substitute therefor, as a section 27 branch office. The commissioner may grant authority for the operation of such section 27 branch office under such terms and conditions as he shall prescribe, and such authority may be inclusive of authorized branch offices operated by the selling or merging association; provided, however, that no branch office or offices shall be established under this section, unless the offices of the associations are in the same or contiguous counties and that the commissioner shall first determine that the operation of such branch office or offices is in the public interest and will be of benefit to the area served by such branch office or offices and to the members of the association.”

The only other appropriate type of branch office provided for in the Savings and Loan Act (1963) is a “section 25” one. N. J. S. A. 17:12B-24, 25 and 26. As amended by L. 1965, c. 127, § 2, an association conld not establish a section 25 branch office in a municipality having an area of five square miles or less where another association with assets of over $400,000 was operating. It was conceded at the oral argument that Berkeley could not have established a section 25 branch in Yerona since Yerona comprised only 2.8 square miles and was already served by Essential, whose assets exceeded $400,000.

In substance, appellants contend that (1) the Commissioner misinterpreted the Savings and Loan Act and applied improper standards in arriving at his determination, and (2) under a proper interpretation of the law, the proposed branch is not a suitable substitute for the office formerly operated by Police. Specifically, they urge that the words “suitable substitute therefor,” as used in section 27, have a definite meaning, whether considered alone or in conjunction with other pertinent sections of the statute, and evidence a legislative intent that the branch permitted by that section is to be geared to the convenience and needs of those who have previously been served by the office of the association whose assets are being sold in bulk. Respondents dispute this and argue that since there is evidence which supports the Commissioner’s findings, we should affirm.

In reviewing the factual findings of an administrative agency, we are required to determine whether they could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, having due regard for the opportunity of the one who heard the witnesses to judge their credibility and giving due consideration to the agency’s presumed expertise — when such expertise is a pertinent factor. Close v. Kordulak Bros., 44 N. J. 589, 599 (1965). If the record discloses substantial evidence to support the Commissioner’s factual findings, a presumption of reasonableness attaches. First S. & L. Ass’n of E. Paterson v. Howell, 87 N. J. Super. 318, 322 (App. Div. 1965), certification denied 49 N. J. 368 (1967).

The foregoing presupposes that the agency applied the proper standards to the facts thus found. However, in the interpretation of the statute which is the basis for its jurisdiction and sets forth the standards to be applied, the agency possesses no skill superior to that of the court. Hence, when the issue is one of law, the court’s duty and authority are not curtailed by the circumstance that the issue happens to reach it via the Commissioner. Cf. Jantausch v. Borough of Verona, 41 N. J. Super. 89, 96 (Law Div. 1956), affirmed 24 N. J. 326 (1957). The Commissioner, as an administrative officer, is a creature of the Legislature who may act only within the bounds of the authority delegated to him. Elizabeth Federal S. & L. Ass’n v. Howell, 24 N. J. 488, 499 (1957). The responsibility of determining the limit of statutory grants of authority is a judicial function entrusted to the courts. Ibid.. When we review the Commissioner’s decision on an issue of law, we reverse if he was mistaken in the law and affirm if he was correct, just as if he were a trial judge. Cf. Borough of Fanwood v. Rocco, 59 N. J. Super. 306, 315 (App. Div. 1960), affirmed 33 N. J. 404 (1960).

Determination of the present issue depends, initially, upon the interpretation to be accorded the words "or a suitable substitute therefor.” Counsel cite no prior adjudication which is dispositive of the issue and we find none. Elizabeth Federal S. & L. Ass’n v. Howell, supra, cited by both sides, involved an application by the Colonial Savings and Loan Association of Koselle Park, which had purchased all of the assets of Excelsior, an association located in Elizabeth, to locate a branch in Elizabeth 0.8 miles away from Excelsior’s former office, as a suitable substitute for the latter. In that case the Commissioner’s approval of the new branch was upheld in the face of the argument that the Commissioner was empowered to approve the maintenance of the office of the acquired association as a branch office only if a denial would "denude” the area of such facilities, and to approve a substitute office only if a “vacuum” of such facilities existed at the proposed new location. See Elizabeth Federal S. & L. Ass’n v. Howell, 30 N. J. 190, 193 (1959).

The absence of any judicial precedent is reflected in the Deputy Commissioner’s approach to the disposition of the application when he stated, at the beginning of the hearing:

“On the question of law, we will do our best with that, but in the final analysis that would probably be for the judicial branch and not for the executive branch.”

The Commissioner disposed of the legal issue in the following terms:

“And because the statute itself does not define what constitutes a ‘suitable substitute’, we are of the opinion that it must be reasonably assumed the Commissioner’s judgment relative thereto is what the law intends and requires — the exercise of the Commissioner’s sound discretion in the light of the facts before him in each case of ‘section 27 branching.’ ”

He frankly confessed that he was construing the statute to accord with his previous advocacy of statutory changes in the law, stating:

“And it is a fact and a matter of record that the Commissioner advocated a statutory change in the permissible branching of banks, savings banks, savings and loan associations.
And because of such advocacy * * * it would be difficult for us to now take the narrow view that a bar should exist to branching from Newark to Verona simply because 12 miles intervene between them. We cannot so rule.”

Accordingly, he approved the branch. We will hold that in so doing he fell into error.

The statute does not obligate an association which purchases the assets of another association in bulk to continue to operate the latter’s office. It permits the purchasing association to apply to the Commissioner for authority to operate the office previously operated by such other association—■ or a suitable substitute therefor — as a branch. The Legislature has thus clearly evidenced its intention that the words “suitable substitute therefor” shall have reference to the office previously operated by the association whose assets have been purchased, rather than to that of the purchasing association. By enacting section 27 the Legislature was not merely authorizing the establishment of another branch. Unless the proposed branch qualified as a suitable substitute the applicant was required to proceed under N. J. S. A. 17:12B-24, 25 and 26. A substitute is a thing put, or acting or serv-, ing, in place of another thing. Webster’s Neva International Dictionary (2d ed. 1950); The Random House Dictionary of the English Language (1967). The legislative requirement is that the proposed office be a suitable, i. e., an appropriate, a fitting, substitute for the old (here the Police) office.

Our consideration of the wording of section 27 in the light of the overall purpose and policy of the Savings and Loan Act satisfies us that the Legislature thereby intended that the operation of a reasonable substitute for the office formerly operated by a purchased association was for the purpose of enabling the purchasing association to reasonably meet the needs and requirements for service of the savings members and mortgagors of the acquired association and, perhaps, of affording them expanded and enlarged services. While it is not necessary that the new office, to qualify as a suitable substitute, be in the “immediate vicinity” of the office it is proposed to replace, Elizabeth Federal S. & L. Ass’n v. Howell, supra, 24 N. J., at pp. 507-508, it must be so situated that it reasonably meets the needs, present and prospective, of those served and to be served by the office proposed to be discontinued.

Here the proofs adduced were directed almost exclusively to establishing that Berkeley could successfully compete with the seven other associations located within the Verona area. There was no proof of any substantial relationship between the mortgagors and savings members of Police and the trade area. Their mortgages and savings accounts were not even taken into consideration in the preparation of the feasibility study on which the application was based — or in the supporting testimony. Gartenberg testified:

“Q. Do you believe that you need this type of an office twelve miles from Newark to service the accounts and mortgages of the Police. A. Whom do you mean by ‘they.’

Q. Berkeley. A. Do we need an office in Verona to service the savings accounts and mortgage customers that now have accounts in the Police?

Q. Yes. A. No.”

Respondents urge that under section 37 the only criteria to be applied in determining whether a proposed branch is a suitable substitute is whether its operation is in the public interest and whether it will be of benefit to the area served and to the members of the purchasing association. Not so. Not until after the Commissioner determines that the proposed new office is a suitable substitute for the one previously operated is he required to apply the cited criteria. Our conclusion in this regard is in conformity with the overall purpose and policy of the Savings and Loan Act. Thus, the approval of a section 35 branch requires, among other things, a showing that it. can be established without “undue injury” to any other association in the area of the proposed branch, and it may not be granted where the municipality is less than five square miles in area and is already being served by an association having over $400,000 in assets. Since cases of merger or bulk sale involve an office previously approved whose impact on other associations has already been ad-measured, compliance with the section 35 requirements becomes unnecessary and is dispensed with. Where, however, the proposed new office fails to qualify as a suitable substitute, the dispensation is no longer effective and the applicant may not be permitted to accomplish through section 37 what it may not accomplish under section 35. Cf. Elizabeth Federal S. & L. Ass’n v. Howell, supra, 24 N. J., at pp. 507-508. A strained interpretation of section 37 such as is sought by respondents will not be adopted where, as here, a construction calling for reasonable results consistent with its indicated purpose is equally possible.

Respondents further urge that Police could have transferred its principal office to Verona prior to the sale of its assets to Berkeley, hence the branch proposed by Berkeley is a suitable substitute for the office which Police could have moved to Verona had it so desired. We need not pursue this argument since Police, although afforded the opportunity, voluntarily discontinued its application to remove to Verona. First S. & L. Ass’n of F. Paterson v. Howell, supra, 87 N. J. Super., at p. 328. Further, and without infringing upon the discretion of the Commissioner, we are not at all certain that the application would have been approved in view of its admitted true nature and of the high cost (in proportion to its assets) of establishing an office in Verona by Police, the smallest association in the State and the only one still operated on a part-time basis.

The facts before us lead to the inescapable conclusion that the new branch, as proposed to be located in a noiladjacent community, some 12 miles from Newark, did not qualify as a suitable substitute for the office previously operated by Police.

By reason of the foregoing, we find it unnecessary to consider the additional arguments raised by appellants.

The determination of the Commissioner of Banking and Insurance is accordingly reversed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PHILLIP PASSERO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 28, 1969
    Decided May 5, 1969.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Ralph Conte argued the cause for appellant.

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Prosecutor, attorney) .
   Per Curiam.

The jury found defendant guilty under a three-count indictment charging bookmakmg on June 1, 2 and 3, 19C6 (N. J. S. 2A :112-3), and under a second indictment charging possession of lottery slips on June 3, 1966 (N. J. S. 2A:121-3). Sentence was suspended on the first two counts of the bookmaking indictment and a State Prison term of 1-2 years and a $1,000 fine imposed on the third count. A concurrent term of 1-2 years and a $1,000 fine was imposed for possession of lottery slips. Defendant appeals.

Defendant first claims that the trial judge erred in denying his pretrial motion, renewed at the trial itself, to suppress the evidence seized by the police when they raided the premises known as 2041 Ostwood Terrace, Maplewood, N. J., and arrested defendant. The first ground for this contention is that the police acted on the basis of information supplied by the New York Police Department, allegedly the result of a wire tap that was illegal whether or not made pursuant to a court order, citing Berger v. New York, 388 U. S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), as ruling the New York Wire Tap Law invalid.

Reliance is placed on Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), where the court held that electronic interception of a message, even one of a nontrespassing nature, violated the Fourth Amendment where the interception was carried out without a search warrant having been obtained. Defendant’s argument is completely destroyed by Desist v. United States, 394 U. S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (March 24, 1969), and Kaiser v. New York, 394 U. S. 280 89 S. Ct. 1044, 22 L. Ed. 2d 274 decided the same day. In those cases the United States Supreme Court held Katz was to be applied wholly prospectively and only when the electronic interception took place after December 18, 1967, the date Katz was decided. If, as defendant insists, the Yew York police obtained information about the use of his telephone for bookmaking and lottery operations by means of a wire tap, that happened in 1966, before Katz came down.

Defendant also attacks the sufficiency of the affidavits upon which the Maplewood Municipal Magistrate relied in issuing the search warrant in question because they did not contain facts or circumstances sufficient to establish probable cause. We hold that they did. See State v. Kasabucki, 52 N. J. 110 (1968).

It is next argued that the search warrant did not authorize a search beyond the territorial jurisdiction of the Maplewood Municipal Court, citing N. J. S. 2A :8-20 as to a municipal court’s territorial jurisdiction before its amendment on June 18, 1966, some two weeks after the warrant was issued. This contention is based on the fact that the boundary line between Maplewood and Union, FT. J. ran across the front porch of the Ostwood Terrace premises, and therefore the magistrate could not authorize a search of the house where the police had in fact entered through the front steps and porch. The police did not search for or find any of the evidence objected to on the porch, but in the house itself. There is no merit in the claim now made.

We find no substance in defendant’s argument that the proofs were insufficient to establish the necessary chain of possession of the physical veidence seized, and therefore the various items taken by the police should not have been admitted in evidence. Nor do we find error in the trial judge’s denial of defense counsel’s motion for a mistrial because the prosecutor made an alleged improper reference to defendant’s reputation and character in the course of his summation. We do not consider the comment as having that quality, but in any event the trial judge at once said that he would strike the remark and directed the jury to disregard any representation with respect to defendant’s reputation and character.

Defendant’s last point is that the sentence imposed by the assignment judge ■— a judge other than the one who presided at the trial — was improper because not based on information contained in the record. The reference is to the assignment judge’s passing comment in the course of sentencing when he said, “But this is a syndicated, large operation * * *•” We note, as did the judge, that the bookmaking was on a “pretty large scale” — $400 or $500 a day. In addition, there was more than $160 in number bets. The operation was obviously not that of a single gambler. Under the circumstances we find no error in the sentences imposed, which were well within the statutory limits.

The convictions are affirmed.


author: Herbert, J. S. C.

text:
    JAMES B. DUKE AND BARBARA P. DUKE, PLAINTIFFS, v. JOHN F. TRACY, EILEEN M. TRACY, AND FRANK FORMICA, DEFENDANTS, AND TOWNSHIP OF BERKELEY HEIGHTS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, INTERVENOR.
    Superior Court of New Jersey Chancery Division
    Decided April 25, 1969.

      Mr. Harry Krieger, attorney for plaintiffs.

      Mr. Peter G. Triólo, attorney for intervenor.
   Herbert, J. S. C.

In 1956 there was filed with the Register of Union County an approved map showing a small real estate development of ten lots all fronting upon the easterly side of Timber Drive in Berkeley Heights. The numbers of the lots as given on the map run from 19 to 19-9. Plaintiffs own number 19-4. There is a one-family house on it in which they live. The defendants Mr. and Mrs. Tracy hold lot 19-5 on which their one-family house stands just to the north of plaintiffs’ property.

The cause of this controversy is a proposal to devote a strip of the Tracy lot to a public way ten feet wide which will run along the side line of the plaintiffs’ property. Prom the rear of the Tracy lot the public walk would continue in an easterly direction to the next street, which is Wentworth Drive. The potential usefulness of the walk is plain: A good look at the marked copy of the township map which is an exhibit shows that pedestrians from Wentworth Drive and several neighboring streets would find the walk a relatively short route to use in going back and forth to school, to the community swimming pool and possibly to the railroad station.

The ten lots shown on the subdivision map of 1956 lie side by side in a row. At the southerly end, numbers 19 and 19-1 were never subjected to deed restrictions. The other eight were sold by the developer by deeds containing uniform restrictions. His conveyance of lot 19-5 (now the Tracy property) was dated April 1,1951, and that of lot 19-4 (plaintiffs’) was dated July 31, 1958. Pive of the other lots were included with number 19-4 in the latter deed. Another of the eight restricted lots (19-6) was conveyed out by the developer November 8, 1956.

Plaintiffs and the Tracys were not original purchasers from the developer. Plaintiffs got title January 8, 1964 and their deed, as well as other deeds in their chain of title, includes the restrictions. The Tracys took title in 1965 from U. S. Home and Development Corporation, which had held under a chain of title in which all deeds contained the restrictions.

The deed language pertinent for present purposes is:

“This conveyance is made subject to the following restrictions which shall run with the land:
“1. All lots in the tract shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than one single family dwelling and a private garage for not more than three cars.”
* «¡ * * * * *

“4. The land herein conveyed shall not be used for street purposes.”

Mr. and Mrs. Tracy acquired their lot by a deed which purported to reserve

“ . . . a perpetual easement and right of way for pedestrian walkway purposes in favor of and for use by the public at large, through, on and over the portion of the premises conveyed as hereinafter described, together with the right to enter upon the premises in order to install or pave said walk-way and to maintain same and to repair same.”

Shortly after this suit was started TJ. S. Home and Development Corporation, the Tracys’ grantor, conveyed the easement thus reserved to the Township of Berkeley Heights. The township then came into the case as an intervenor. It is the only active defendant, those originally named in the complaint having defaulted.

Plaintiffs have taken the position that the restrictive covenants imposed by the developer assure them that the whole Tracy lot shall be used for one-family residential purposes only and protect them against a public walk under their side windows. In response, a number of arguments have been made for the township.

One of these is that the proposed public way, being for pedestrians only, would not violate the covenant against use “for street purposes.” Today’s common conception of a street includes a roadway for vehicles and usually, if not always, sidewalks for pedestrians. There may be underground utilities as well. However, the problem does not involve defining a street as a matter of municipal law. Rather, it is one of determining what the developer and his buyers and their successors in title have contracted for. Prom that approach I think a covenant against use of land for street purposes applies to a paved public way ten feet in width even though that way will not be available to motor vehicles.

Whether my views about the covenant against use for street purposes are or are not correct, there is the covenant about residential use to be considered. The prohibition of that covenant is expressly directed to structures. It provides that no “structure” shall be placed “on any residential building plot other than one single family dwelling and a private garage * * *.” A public walk to be useable would require paving of some sort and in that way would become a structure on the Tracy lot. Even if it could remain unpaved, its presence in my opinion would conflict with the covenant. The purpose was to give protection against uses not residential in character. That purpose emerges clearly enough to override any technical argument that a place for the public to walk need not be a “structure.”

A number of cases have presented in one way or another the general problem which is involved here. A collection of those eases can be found in 25 A. L. R. 2d 904 (1952) in a note entitled “Maintenance, use or grant of right of way over restricted property as violation of restrictive covenant.” At page 906 the author said:

“Generally speaking, the eases disclose that the courts are inclined to hold that the maintenance, use, or grant of a right of way across property restricted in its use is a violation of the restriction if such maintenance, use, or grant seems to be inconsistent with the parties’ intention in creating or agreeing to the restriction and with the object sought to be thereby accomplished, while if it does not interfere with the carrying out of the parties’ intention and the purpose of the restriction, it will not be held to be a violation.”

One of the cases cited is Hayes v. Waverly & P. R. Co., 51 N. J. Eq. 345 (Ch. 1893), which will be discussed later. Another is Klapproth v. Grininger, 162 Minn. 488, 203 N. W. 418, 39 A. L. R. 1080 (Sup. Ct. 1925), which is strikingly similar on'its facts to the case before me. Klapp roth involved block 1 of a development called Bellaire, consisting of 43 lots fronting on a lake and extending southerly from the lake 185 feet to a public highway. The plan was to make this block a residential district for lake homes. The deeds to 30 of the 43 lots contained a covenant “that said land shall be used for residence purposes only.” Two contiguous lots, each 60 feet in width, were conveyed to defendant Grininger in 1909, by a deed which contained the restrictive covenant. Ten years later he conveyed one of the lots to plaintiff IClapproth subject to the same restriction. Plaintiff then erected a dwelling house which he occupied with his family. Defendants — other than Grininger and his wife — owned-lots across the highway at the rear of the lakefront lots. In 1922 Grininger granted to them, as appurtenant to their lands, the perpetual right for themselves, their families and invited guests, to pass over the east ten feet of the lot next to plaintiffs for the purpose of going to and from the lake and using and enjoying its recreational facilities. Griningor’s grantees immediately thereafter constructed a dock extending from this ten-foot strip into the lake, a distance of 75 feet, and then at right angles a distance of 20 feet in front of plaintiffs lot. Many people passed over the strip in going to and from the lake for the purpose of enjoying boating, fishing and bathing, and in so doing passed within a few feet of plaintiff’s dwelling house. Claiming that this easement granted by Grininger to the other defendants was a violation of the covenant in the deeds, plaintiff brought an action to enjoin defendants from using the ten-foot strip. The trial court enjoined, and on appeal the Supreme Court of Minnesota affirmed, saying:

“The covenant here in question provides that the land owned by Grininger shall be used ‘for residence purposes only.’ By a formal instrument, he has granted, as appurtenant to properties outside block 1, a perpetual right of way for passing to and from the lake over a strip 10 feet in width adjoining plaintiff’s property. Such use of the land is not within any definition of a residence purpose; and devoting it to the purpose of a passageway for the occupants of other lands necessarily precludes using it for residence purposes, save perhaps as a ineans of ingress and egress. We think that the use made of this sti’ip of land is inhibited by the covenant and that the learned trial court reached the correst conclusion.” (at p. 419)

Though the Minnesota easement had not been acquired by a municipality, the use found to be a violation of the restrictive covenant was the same as the prospective use involved here, namely, a passageway for the occupants of other lands across an area restricted for use as a site for one-family residences.

If the Tracys, or a predecessor in their chain of title, had attempted to grant this right of way to a group of private parties, as distinguished from the grant to the township, I would follow the reasoning of the Minnesota court and would hold that the negative covenant relating to residential use should be enforced by an injunction forbidding the opening of the proposed passageway. However, the inquiry must go farther because it has been held in a number of jurisdictions that a public body is not subject to the effects of a restrictive covenant in the same way that private citizens would be.

The annotation already cited collects some authorities on public rights of way in relation to restrictive covenants (25 A. L. R. 2d, at p. 914 et seq.). The most enlightening discussion of this problem which I have found is in 2 American Law of Property, § 9.40, p. 448 et seq. (1952). There the author, addressing his comments primarily to a public acquisition by eminent domain, points out that a number of cases have held that nothing need be paid for rights under a covenant which was applicable before a public taking to the lands being taken. That result has been reached on various theories. An example of this type of case is Friesen v. City of Glendale, 209 Cal. 524; 288 P. 1080 (Sup. Ct. 1930). Other courts have held to the contrary, and concerning their decisions the author has written:

“On the other hand, the better reasoned authorities have held that the extinguishment of an equitable servitude under the power of eminent domain is the taking of private property for public use for ■which compensation must be paid. These cases clearly turn on the premise that the enforcement in equity of covenants and agreements running with the land is the recognition of their existence as equitable property interests of a nature similar to legal easements, and that such property interests are compensable in the exercise of the power of eminent domain. In some of these cases the courts have indicated the fallacy in the argument that building restrictions are void as to the government because they interfere with the exercise of a governmental function, by pointing out that they do not prevent the exercise of the governmental function but merely require compensation to be paid for their infringement. With this conflict of authority on the question of the requirement of payment of compensation for the extinguishment of equitable servitudes in the exercise of the power of eminent domain, the American Law Institute saw fit to adopt the view requiring payment of compensation to those persons owning the benefited land to which the equitable servitude was appurtenant.” (at pp. 449-450)

The footnotes to this quotation cite 5 Restatement, Property, §566, p. 3320 (1944), and also include a reference to Hayes v. Waverly & P. R. Co., supra. In that case complainants had coveyed a portion of their lands to Margaret Tammany subject to a covenant against use for any purpose “detrimental to the surrounding property of the party of the first part * * By mesne conveyances defendant railroad company acquired the Tammany title and proposed to erect an embankment and place a track on top of it. Complainants filed a bill to enjoin and the railroad company’s demurrer to the bill was overruled. Chancellor McGill stated that under the doctrine of Tulk v. Moxhay, 2 Ph. 774; 11 B. 571 (1848), the railroad company had taken title subject to the restrictive covenant. As to the interest of the plaintiffs to be protected, he said:

“It is not for a moment questioned that the railroad company would be unable to enter upon the Tammany land without paying its value. When it purchased from the grantees of Tammany it found the land charged with a duty in favor of the complainants, the existence of which lessened, or should have lessened, the purchase price. The difference between that price and the real value is the consideration which the complainants have paid for their right in the Tammany land. The right thus bought is their property and must be paid for. I think they are entitled to have it protected in this court, for even if the stipulation from which it originates runs with the land, the redress at law must be had through a multiplicity of suits, and therefore is inadequate.” (51 N. J. Eq., at p. 351)

In re Board of Education of Borough of Leonia, 20 N. J. Super. 272 (Ch. Div. 1952), may appear to be contrary to Hayes. Property had been taken bjr eminent domain for use as a playground. The award made had been paid into court. At this stage of the proceeding the owners of property near the proposed playground sought to intervene in order to claim a portion of the award on the ground that the planned public use had deprived them of the benefit of a covenant for residential use only. Their application was denied, but on analysis I think the true ground of the denial was a decision that they never had any rights to enforce a restrictive covenant against the lands acquired by the board of education. Judge Grimshaw’s opinion points out that the neighboring owner could not allege damage to their own plot as a basis for claiming part of the condemnation award, and for this he cited Herr v. Board of Education, 82 N. J. L. 610 (E. & A. 1911). It is true that the reversal in Herr was based upon the admission of evidence by the trial judge as to dimunition of value, allegedly caused by the public taking, to the neighboring property theretofore benefited by the restrictive covenant; yet the court pointed out with some emphasis that the board of education would have to pay full value for the land acquired, and if the neighboring owners had a property right in that land, they were proper parties to the condemnation proceeding.

In England the doctrine of Tulk v. Moxhay has developed to the point where there is apparently no question about the beneficiary of a negative covenant having an interest in the restricted land. Ashburner’s Principles of Equity, (2d ed. 1933), pp. 368 and 369.

Though the Township of Berkeley Heights acquired its right of way by grant and not by eminent domain, if it were the established law of New Jersey that acquisition by eminent domain would not require payment of any share of the award to the plaintiffs, then it would appear to follow that no equitable relief should be allowed against the township even though it did take by grant. It is for this reason that I have given considerable attention to the authorities dealing with condemnation of lands affected by restrictive covenants. On the basis of Hayes v. Waverly & P. R. Co., supra, supported to some extent by Herr v. Board of Education, supra, I have concluded that under our law plaintiffs have such an interest in the Tracy lot that they would be entitled to share in an award for the taking of that lot or any part of it for a public purpose conflicting with the restrictive covenants. In short, it appears to me that our law is consistent with, rather than contrary to, the views expressed in the foregoing quotation from the American Law of Property.

Plaintiffs are entitled to an injunction against any use of the Tracy lot as a right of way. The injunction should not bar the township from obtaining by purchase a release of plaintiffs’ rights or from acquiring those rights by eminent domain, and the judgment may be worded accordingly.

It was also argued for the township that its ordinance relating to subdivisions contains a provision directing a developer to include in his submitted data “a copy of any protective covenants or deed restrictions applying to the land being subdivided * * and that the absence of such submission when this land was approved for subdivision should make the covenants unenforceable against the township. I see no merit in that argument. The covenants are in fact present as part of the record title.


author: Carton, J. A. D.

text:
    GEORGE CROSS, EXECUTOR OF THE ESTATE OF MARGARET B. CROSS, DECEASED, PLAINTIFF-APPELLANT, v. TRANSFER INHERITANCE TAX BUREAU, DIVISION OF TAXATION, STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 24, 1969
    Decided May 7, 1969.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Robert H. Otten argued the cause for appellant (Messrs. Crowell, Crowell & Otten, attorneys).

      Mr. T. Robert Zochowshi, Deputy Attorney General, argued the cause for respondent {Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Stephen 8hillman, Deputy Attorney Genera], of counsel).
   The opinion of the court was delivered by

Carton, J. A. D.

Plaintiff, executor of the estate of his late wife Margaret B. Cross, challenges a final determination of the New Jersey Transfer Inheritance Tax Bureau, directing an assessment, pursuant to N. J. S. A. 54:34-1(f), on a one-half interest in two purchase money mortgages. Plaintiff has paid under protest the amount of the assessment of $4,661.06 and interest, accrued at 10% per annum, amounting to $1,154.40.

Mrs. Cross died in 1965. In the transfer inheritance tax return for her estate the executor listed two mortgages, both held jointly in the names of decedent and her husband, on properties known as Longbridge Farm and Lloyd Farm. (Two joint bank accounts were also declared but are not involved in this appeal.) Although the executor attributed no market value to the decedent’s interest in the mortgages, the Bureau disagreed and determined market values of $104,333-.29 and $58,629.40 for the Longbridge Earm and Lloyd Earm mortgages, respectively.

As in the case of all other property held under joint tenancy, decedent’s interest in these mortgages was subject to tax under the Transfer Inheritance Tax Act unless plaintiff, as surviving joint tenant, brought himself within the terms of the statutory exception by showing “to the satisfaction of the Director” that his wife’s one-half interest “originally belonged to him * * * and never * * * belonged to the decedent.” N. J. S. A. 54:34-1 (f). We hold that plaintiff failed to do so and consequently the mortgages were properly included in the decedent’s estate for tax purposes.

In 1948 and 1958 title to the Longbridge Earm and Lloyd Earm properties, respectively, vested in Mr. and Mrs. Cross as tenants by the entirety. In 1963 they sold these properties for $497,500, receiving 29% of the consideration in cash and the balance in the form of two promissory notes, payable to both of them. These notes were secured by purchase money mortgages in which the Crosses were both named as mortgagees.

By virtue of N. J. S. A. 46 :2D-1 the Crosses held title to the mortgages as joint tenants:

“When any mortgage, covering real estate or chattels or both, shall hereafter be made and executed to, or assigned to, any husband and wife, such mortgage shall be held by such husband and wife as joint tenants and not as tenants in common, both as to the legal estate and the beneficial interest or debt thereby secured, unless otherwise therein provided.”

It is not argued that the parties “otherwise provided” so as to create a tenancy in common when the 1963 sale took place. We observe, parenthetically, that our courts have held that tenancies by the entirety may not exist in personalty. Central Trust Co. v. Street, 95 N. J. Eq. 278 (E. & A. 1923).

Consequently, it is clear that the two mortgages come within the purview of N. J. S. A. 54:34-1 (f) dealing with taxable transfers unless they are brought within the exception provided therein:

“The right of the surviving joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of real or personal property held in the joint names of two or more persons * * * shall upon the death of one of such persons, be deemed a transfer taxable in the same manner as though such property had belonged absolutely to the deceased joint tenant * * * and had been devised or bequeathed by his will to the surviving joint tenant or joint tenants, person or persons, excepting therefrom such part of the property as sueh survivor or survivors may prove to the satisfaction of the Director of the Division of Taxation to have originally belonged to him or them and never to have belonged to the decedent. (Emphasis added)

At the outset, wo observe that the statute describes the interest subject to the tax as the right of the surviving joint tenant “to the immediate ownership or possession and enjoyment of real or personal property held in the joint names of two or more persons.” (Emphasis added) Again, the excepting clause refers to “such part of the property as sueh survivor or survivors may prove * * * to have originally belonged to him or them and never to have belonged to the decedent.” (Emphasis added)

Applying the statutory language to the present case, it is apparent that the notes and mortgages themselves must be considered as the “property” involved and the exception is granted only for “such part of the property,” i. e., the notes and mortgages, as the survivor is able to show originally belonged to him and never belonged to the decedent. Since Mrs. Cross, at the time of her death, owned a one-half interest jointly with her husband in the notes and mortgages and. Mr. Cross never owned her share of them, it must be clear, from a literal standpoint at least, that there is no showing plaintiff is entitled to the benefit of the statutory exception.

Plaintiff argues, nevertheless, that these joint tenancies in the mortgages retained their essential character as tenancies by the entirety after the conveyance and sale of the two parcels in 1963, and therefore were not subject to taxation under N. J. S. A. 54:34r-1 (f). See Ten Eyck v. Walsh, 139 N. J. Eq. 533 (Prerog. 1947). This argument is fallacious.

The result of the execution of the contract of sale was to effectuate an equitable conversion of the sellers’ interest in the realty. The effect of the deed delivered in accordance with the terms of the contract was to vest legal as well as equitable title in the purchasers. See Butterer v. Santoro, 24 N. J. Super. 361 (Ch. Div. 1953). The sellers’ interest in the real property was replaced by the consideration for the sale, comprising the cash payment and the two mortgages and the respective notes. The former tenancies by the entirety were thereby terminated. By operation of N. J. S. A. 46 :2D-1, the mortgages and notes, which they in part replaced, effectively converted the property interests into joint tenancies.

As a result of this legal transformation, the nature and character of decedent’s interest in these farms was substantially altered. 2- American Law of Property 27 (1952) distinguishes an interest held by the entirety and one held by joint tenancy in the following manner:

“The estate in entirety differs from the joint tenancy in that the tenants in entirety have no individual interests which they can convey so as to break the unities and defeat survivorship. They are not seized pur my et pur tout, as are joint tenants, but only pur my. Thus, neither tenant in entirety can defeat or in any way affect the right of survivorship of the other.”

See generally, King v. Greene, 30 N. J. 395 (1959).

It is clear that the decedent’s executor could have severed the joint tenancy and compelled partition of the securities, thereby destroying the joint estate and acquiring a one-half interest free and clear of any survivorship rights in either of the former co-owners. See N. J. S. 2A :56—1 et seq.; Martin v. Martin, 106 N. J. Eq. 258 (Ch. Div. 1930). Cf. Central Trust Co. v. Street, 95 N. J. Eq. 278 (E. & A. 1923). No such partition, with its attendant power of assertion of absolute dominion and control over the res, would be available in the case of a tenancy by the entirety. See N. J. S. 2A :56-1; Eberle v. Somonek, 24 N. J. Super. 366 (Ch. Div. 1953).

In addition, decedent’s actual interest in the underlying real property was radically changed, in substance as well as form, as a result of the sale. As a tenant by the entirety, decedent possessed an interest in realty and was entitled to share in the possession, use and enjoyment of the property, at least during the joint lives of the spouses. See King v. Greene, 30 N. J. 395 (1959). As a result of the ensuing conversion decedent became entitled to an interest in obligations calling for the payment of money according to certain terms and conditions. Her interest in the underlying property, now represented by the two purchase money mortgages, was reduced to the status of a mere security interest accompanying the basic debt evidenced by the promissory notes.

Consequently, from neither a legal standpoint nor from a practical one, can it be said that her interest as a tenant by the entirety in these farms was the same as her interest as joint tenant of the note and accompanying mortgages. Plaintiff has thus failed to demonstrate that decedent’s one-half interest in the property held jointly with him “originally belonged to him.”

Puxthexmore, he has not met the additional burden cast upon him by the statute of showing the property “never belonged to the decedent.” This is so even if we accept as correct the executor’s argument that decedent’s half interest in the mortgages and notes should be deemed to be substantially the same as her interest in the farms themselves. As a result of the two conveyances in 1948 and 1958, title vested in plaintiff and decedent as tenants by the entirety. Decedent thus acquired an undivided one-half interest in these properties. That interest belonged to her. No consideration was necessary to make the transfer enforceable and irrevocable. Delivery of the respective deeds was sufficient. See Cockrell v. McKenna, 103 N. J. L. 166 (E. & A. 1926). See generally, 3 American Law of Property, § 12.43 (1952).

We also find that the 10% interest charge imposed for the delay in payment of the tax was proper. The statute so required. N. J. S. A. 54:35-3. Barr v. Kervick, 31 N. J. 476, 488 (1960).

Accordingly, the determination of the Transfer Inheritance Tax Burean is affirmed.

       it may be assumed, for purposes of this appeal, that the accompanying notes, although ordinarily treated as evidencing tenancies in common (N. J. S. 12A:3-110, Comment 1), exhibit the characteristics of the mortgages they accompany, and should therefore be% considered as held under joint tenancy.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACK MULVIHILL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued April 14, 1969
    Decided May 12, 1969.

      Before Judges Coneoed, Kilkenny and Leonabd.

      Mr. Daniel B. Coburn argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Richard Newman, Deputy Public Defender, of counsel).

      Mr. Raymond R. Trombadore, Eirst Assistant Prosecutor, argued the cause for respondent (Mr. Michael R. Imbriani, Somerset County Prosecutor, attorney).
   The opinion of the court was delivered by

Coneoed, S. J. A. D.

This case involves the question whether, notwithstanding our decision in State v. Koonce, 89 N. J. Super. 169 (App. Div. 1965), the defense of self-defense applies in a criminal assault and battery prosecution where a police officer uses excessive force in compelling a suspect of disorderly conduct to submit to interrogation. The fact situation just assumed is predicated on defendant’s testimonial version as to the critical events, which conld have been given credence by the jury, and permissible favorable inferences therefrom.

In Koonce, we held, prospectively, that the illegality of an arrest by a police officer acting in the performance of his duties would not constitute a defense to a prosecution for assault on the officer by the arrestee in the course of resistance to the arrest. The facts of that case did not involve the question of unreasonable or excessive force by the police officer in advance of the assault by the arrestee, and the opinion did not deal with the defense of self-defense reasonably necessitated by such force.

The version of the relevant portion of the instant episode testified to by Officer Dowling of the Somerville police was as follows.

He observed defendant on the street, standing in front of a pizzeria along with two other persons. As he passed by he noticed defendant pouring something from a bottle into a cup held by one of the other persons. He then stopped his patrol car, got out and called to defendant and the two other persons to come over to him. As defendant walked toward him he threw the cup which he had in his hand onto the sidewalk. He asked defendant if he had been drinking but defendant did not answer him. However, he was close enough to him to smell alcohol on his breath. He then placed defendant under arrest for drinking on a public street (a violation of a local ordinance). As he told defendant to get into the police car, the latter struck him on the left side of the face. He was knocked to the ground by the blow and immediately got up and grabbed defendant. Defendant and the police officer “tussled” and again both fell to the ground. The officer again got up from the ground and told defendant that he was going to handcuff him and put him into the police car, whereupon defendant kicked the officer in the groin and grabbed him around the waist with one hand on the officer’s gun, causing both of them to fall to the sidewalk a third time. As they were on the ground, the officer and defendant struggled for tlie officer’s gun and it discharged against the side of the adjoining building.

Defendant’s testimonial version differed sharply. Essentially, it was as follows. A youth of 20, he had been drinking liquor (his own bottle) at the pizzeria, and emerged therefrom, with two companions, still drinking from a cup. As he walked down the street he saw Officer Dowling approach, and he threw the cup down. Dowling asked what he was drinking and what had been in the cup. He refused to answer. Dowling grabbed him and asked to smell his breath. He held his breath, silent, in order to avoid incriminating himself. Dowling shook him by the shoulders “back and forth” and said, to defendant’s best recollection, “I should arrest you, you punk.” Defendant tried to “pull free from him” and Dowling “jerked him backward,” with the result that both men fell to the ground. They arose, Dowling still holding him. Defendant again tried to pull free, whereupon Dowling struck him on the side of the head with his gun, lacerating the scalp. Defendant fell toward the officer and both went down again, Dowling trying to “roll and flip” defendant. Defendant held the officer’s right hand, trying to divert away from himself the officer’s gun, which was still in the latter’s right hand and which he was trying to bring toward defendant, saying to him the while, “Stop or I’ll shoot.” Defendant was also trying to avoid “getting hit.” At that point the gun discharged. Thereupon defendant struck the officer a blow with his right hand on the left side of his face — the act for which he was indicted. Another officer then came to Dowling’s rescue.

Portions of the accounts of both principal witnesses were supported by other witnesses.

During summations the trial judge announced that he would disallow the defense of self-defense and instructed defense counsel not to broach it, over the latter’s objection. The judge also refused to grant defendant’s requests to charge the jury on self-defense. It is clear that its reliance in that regard was on State v. Koonce, supra.

We conelude the court erred in declining to charge the jury the elements of self-defense. The defense was fairly applicable, and for the jury’s determination of its merits, if they chose to credit defendant’s version of the fracas.

According to defendant, the officer was not purporting to arrest him for the public drinking, hut only expressing that view that he “should” arrest him. On that version, the officer was merely holding on to defendant in order to investigate the basis for a possible arrest for public drinking. It is questionable whether defendant’s effort to disengage himself to avoid self-incrimination was, in such circumstances, an assault on the officer, but in any case he was not being prosecuted for that, but for the subsequent blow. While he was engaged in the effort to pull free and before he struck the officer with his hand, the latter struck him on the head with a gun butt and threatened to shoot him, the gun actually going off. The jury could have found, if charged with the issue, that these activities constituted excessive force, not reasonably necessary for an officer attempting to detain an uncooperative suspect during investigation of a violation of a municipal ordinance, and that defendant, on the basis of such conduct, reasonably feared serious bodily harm unless he defended himself by striking the officer.

It is settled that, even in the course of making an arrest, a police officer is not justified in using excessive force, and may be accountable for the wanton abuse of discretion in determining the amount of force reasonably necessary for that purpose. See Wimberly v. City of Paterson, 75 N. J. Super. 584, 594 (App. Div. 1962), certification denied 38 N. J. 340 (1962), and cases cited therein. A fortiori as to an officer, not arresting, but merely investigating a suspect, and particularly when the suspected offense is no more serious than violation of a municipal ordinance against drinking on a public street.

Nothing in Koonce militates against the applicability of the foregoing principles in the present circumstances.

In view of the foregoing conclusion, we need not consider other grounds of appeal urged.

Keversed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAY KINTNER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 14, 1969
    Decided May 13, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Daniel B. Goburn, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Raymond B. Trombadore, Eirst Assistant Prosecutor argued the cause for respondent {Mr. Michael B. Tmbriani, Somerset County Prosecutor, attorney).
   The opinion of the court was delivered

Per Curiam., Defendant Jay Kintner and one John Joseph Brennan were jointly indicted for grand larceny (N. J. S. 2A :119-2). The charge specified that on May 13, 1967, in the Township of Green Brook, in Somerset County, they did feloniously steal, take and drive away a 1963 Rambler sedan, of the value of $550, the personal property of Harry Wallman.

Kintner was tried alone before a jury, by whose verdict he was found guilty. He was sentenced to the Hew Jersey Reformatory at Bordentown for an indeterminate term, to run consecutively to the sentence he was serving. Brennan had pleaded guilty to the offense but had not been sentenced at the time of Kintner’s trial. He testified at that trial as a witness for defendant.

This is a direct appeal by Kintner alone from the judgment of conviction. He advances three points in his argument for a reversal. We shall consider them in the order set forth in defendant’s brief.

I

Defendant contends that the trial court’s instructions to the jury were misleading in that they required the jury to scrutinize carefully the testimony of Brennan who testified for defendant. In referring to Brennan’s having testified, the trial judge charged the jury

“ * * * to give this testimony the careful scrutiny because here is a man who has been convicted, by his plea of guilty to the charge, and remains to be sentenced. This, of course, is entirely within your judgment. Whether you feel that under the circumstances, after giving careful scrutiny, that Mi’. Brennan was lying is one thing. On the other hand, you may feel that he had nothing to gain here and was not lying, and, in fact, might be penalized by lying. This is another thing, but I leave it entirely to you, Members of the Jury, for your acceptance.”

Defense counsel objected to the charge, claiming that the trial judge “laid excess stress on the conviction of a crime, about his credibility,” and that the trial court “never really told them [the jurors] that the fact that a person has been convicted of a crime doesn’t mean you shouldn’t believe him. You can still believe him if you want to * * Defense counsel made no specific objection to the trial court’s use of the words “careful scrutiny.”

Ordinarily, the need to give “careful scrutiny” to the testimony of an accomplice applies when he testifies for the State and can hope to gain some benefit for himself, such as a lighter penalty, if he has not already been sentenced, or a pardon, reduction in the sentence, or even a dismissal of a pending charge. State v. Spruill, 16 N. J. 73, 79-80 (1954); State v. Begyn, 34 N. J. 35, 54 (1961). But these reasons do not exist for careful scrutiny when the witness testifies as a witness for a defendant. As a defense witness, the accomplice cannot hope for any special consideration from the State. Por that reason the question of his credibility is the same as with any other witness. See State v. Gardner, 51 N. J. 444, 460-461 (1968), to the effect that the “accomplice” charge has no place in a situation where the co-defendant testifies for the defendant on trial.

In the instant case the trial court did not refer to the witness Brennan as an accomplice. The reference as to “close scrutiny” was made in reference to his prior conviction of crime. Defense counsel made no objection to the use of the words “close scrutiny,” but addressed objection only to the court’s alleged stress upon the effect of a prior conviction as affecting credibility. Thus, the “accomplice” rule was not stated. And even if it had been, the error was not “plain error,” as it needs must be in the absence of specific objection.

Our decision in State v. Anderson, 104 N. J. Super. 18 (App. Div. 1968), affirmed o.b. 53 N. J. 65 (1968), held that a charge containing the words “close scrutiny” and “carefully scrutinize,” in referring to the testimony of two defense witnesses, did not constitute “plain error.” We reach a similar conclusion here.

II

Defendant next contends that the court’s instructions concerning the credibility of defendant and his witness Brennan were inadequate and misleading, because the jury was not told that their credibility “was not necessarily affected by previous criminal convictions.”

Defendant and Brennan had criminal records. This fact was brought out at the trial for the sole purpose of affecting their credibility as witnesses. This is permitted. N. J. S. 2A :81-12. The trial judge explained the limited purpose of such evidence in charging the jury. The court made no specific statement that the jury, in its discretion, could conclude that the credibility of the witness was not affected by the convictions. By the same course, however, it did not instruct the jury that it was bound to give some effect to the prior convictions. It remarked only that this evidence was permitted “for the sole purpose of affecting the credibility of the witness or party * * * solely to aid you, the Jury, in weighing the testimony of the person who was convicted of crime.” The court made clear that evidence of prior conviction of crime had no “probative value or weight to prove that he committed the crime in question.”

Correct practice calls for the trial court to make the specific statement noted above, omission of which is complained of by defendant. State v. Baker, 90 N. J. Super. 38, 40 (App. Div. 1966). However, in the light of the charge on this subject as a whole, we find no prejudice to defendant waranting a reversal.

Accordingly, we find no substantial merit in this asserted ground for reversal.

Ill

Defendant’s final claim is that the verdict is against the weight of the evidence.

Our review of the trial record satisfies us that there was sufficient credible evidence before the jury to justify its verdict. R. R. 1:5-1 (a).

The judgment of conviction is affirmed.


author: Kilkenny, J. A. D.

text:
    PAUL E. SCHULTZ, PLAINTIFF-APPELLANT, v. ROBERT ZIEGENFUSS AND JOSEPH S. HOLLAND, SHERIFF OF MERCER COUNTY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division.
    Argued April 21, 1969
    Decided May 13, 1969.

      Before Judges Coneoiid, Kilkenny and Leonaed.

      Mr. Robert M. Dix argued the cause for appellant (Messrs. McCarthy, Bacsilc, Hides & Dix, attorneys).

      Mr. John J. Barry argued the cause for respondent Eobert Ziegenfuss.
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Is a judgment against two defendants, as individuals, a lien upon entry of the judgment against partnership real estate conveyed to and owned by the partnership in the partnership name, if the individuals are the members o£ the partnership? That is the basic legal question involved in this appeal.

There is no substantial dispute as to the facts. Plaintiff purchased 44 acres of veeant land from a partnership known as Erick G. Tobiason and Harold G. Tobiason, partners trading as Erick G. Tobiason & Son. The lands had been conveyed to the partnership as such, in its designated partnership name, and was so owned of record by said partnership for 14 years prior to the purchase by and conveyance to plaintiff.

Title closed on November 14, 1967 by deed of conveyance out of the partnership to plaintiff, at which time plaintiff paid over the balance of the purchase price of $31,500 to the partnership for the partnership’s warranty deed concurrently delivered. Plaintiff acted in good faith and without any actual knowledge that on November 13, 1967, just one day before the title closing, defendant had obtained a judgment by default in the Superior Court against Erick G. Tobiason and Harold G. Tobiason in their individual names. The default judgment was based on a promissory note executed by the Tobiasons in their individual names only. Neither the complaint nor any other papers in that suit indicated that the action was for a partnership debt. The amount of the note was $2,788.09. It was dated June 15, 1966 and makes no reference to the partnership. It purports to be solely a note signed by the two individual makers and is payable to the order of defendant herein, Robert Ziegenfuss.

Defendant sought to levy execution under his judgment and sell the lands purchased by plaintiff from the partnership. Plaintiff sued to restrain this execution sale on the ground that defendant never obtained a lien on these lands purchased by plaintiff. A temporary restraint obtained by plaintiff was thereafter vacated and judgment was entered denying the relief sought by plaintiff. And now plaintiff prosecutes this appeal from the judgment denying a restraint of an execution sale of the lands purchased by him from the partnership, as such.

The trial court took the view that while the judgment was against the individuals only, the obligation was a debt of the partnership and, since the partners were sued, albeit as individuals and without any recital that it was an action based upon a partnership obligation, the judgment was valid against the partnership and constituted a lien against land in the name of the partnership. The court relied upon an affidavit by defendant in the present cause that the judgment arose out of a partnership obligation. The trial court concluded that a judgment search should run against the individual partners, whenever title is owned by a partnership as such, on the theory that “transactions which appear to be in the partners’ individual capacity may result in liability to the partnership.” It held that, if the debt sued upon was that of the partnership, the resulting judgment is “valid against the partnership.”

The trial court also laid stress upon the common law rule that in order to sue a partnership it was necessary to make all the partners parties defendant, citing 68 C. J. S. Partnership, § 209. It also quoted from 40 Am. Jur., Partnerships, § 434, to the effect that, in the absence of statute, “partners cannot be sued in the firm name, but must be sued in their individual names.” It then stated that no reference was made to any change in the common law rule “and no authority has been found in New Jersey which changes the rule.” Erom this finding it concluded that “the partnership was correctly sued and the judgment was valid” and a lien against the partnership realty.

We disagree. Our present rules of court, which control in matters of practice and procedure, Winberry v. Salisbury, 5 N. J. 240 (1950), have changed the common law rule that all legal actions concerning partnership matters must be maintained by and against the individual partners. X-L Liquors, Inc. v. Taylor, 17 N. J. 444, 455 (1955). The common law rule has yielded to the fact that partnerships “came to be widely regarded as separate entities by men in their business affairs and legislatures and courts began to make inroads into the common-law doctrine. Although the Uniform, Partnership Lato (R. S. 42:1-1 et seg.) did not make partnerships jural persons for all purposes, it did treat them as such for many purposes.” Id., at p. 455. The court concluded in X-L Liquors that plaintiffs may maintain actions against partnerships “without necessarily naming the individual partners as defendants.” (At p. 45C). Beference was made to R. R. 4:4-4(e), which provides unconditionally that summons and complaint may be served “upon a partnership” by serving a partner or a managing agent or an officer. Thus, for procedural purposes “all partnerships may be considered as entities suable in their firm names.” Ibid.

The separate jural entity of a partnership is well recognized with reference to partnership realty under the Uniform Partnership Law. R. S. 42:1-8(1) notes that all property acquired by purchase or otherwise on account of the partnership “is partnership property.” Unless the contrary intention appears, “property acquired with partnership funds is partnership property.” R. S. 42:1-8(2). Subdivisions (3) and (4) make similar recognition of the partnership’s separate entity, when they provide:

“3. Any estate in real property may be acquired in the partnership name. Title so acquired can be conveyed only in the partnership name.
4. A conveyance to a partnership in the partnership name, through without words of inheritance, passes the entire estate of the grantor unless a contrary intent appears.”

Further statutory evidence of a partnership’s separate jural entity in the ownership of partnership real estate may be found in R. S. 42:1-10, which sets forth rules relating to the conveyance of title to real property of a partnership; in B. 8. 42:1-25, which establishes the special kind of tenancy in partnership property as a tenancy by the co-partnership, provides for vesting of title, upon the death of a partner, in the surviving partner or partners, and states that a partner’s right in specific partnership property “is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin.” Even more specifically, subdivision (c) of this section provides :

“A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.” (Emphasis added)

Finally, B. 8. 42:1-26 expressly provides:

“A partner’s interest in the partnership is his share of the profits and surplus, and the same is personal property.”

The separate jural entity of a partnership is noted in Mazzuchelli v. Silberberg, 29 N. J. 15 (1959), wherein the Supreme Court said that “the uniform law is consistent with the entity approach for the purposes of facilitating transfers of property, marshalling assets, and protecting the business operation against the immediate impact of personal involvements of the partners.” (At p. 21)

In Felice v. Felice, 34 N. J. Super. 388 (App. Div. 1955), a workmen’s compensation case, the partnership employer was deemed to be a separate entity from the individuals who composed the partnership. We deemed significant, as noted above, that the partnership’s separate entity is manifested by many provisions of the Uniform Partnership Law, including R. S. 42 :1-25, which provides that partnership owned property is not “subject to attachment or execution on a claim against an individual partner bul only on actions against the partnership.” (At p. 391; italics added)

The action herein was against the individuals only and the judgment was limited to the individuals only. It was not an action against the partnership. Therefore, the partnership property in the partnership name was not subject to “attachment or execution” to satisfy a judgment against individuals only, despite their membership in the partnership. R. S. 42:1-25, subd. 2(c). The judgment was not a lien on partnership realty.

As noted above, defendant judgment creditor filed an affidavit in this action on July 26, 1968, wherein he set forth the circumstances under which he received the note from the Tobiasons and thereby sought to establish that the note signed by the Tobiasons only as individuals was the result of a partnership transaction. Plaintiff properly objected that such an affidavit could not be used to change the formal record judgment of the court. Especially was this so when the rights of an innocent purchaser for value had intervened between the judgment against the individuals only and this newly offered evidence.

The judgment in the instant action is reversed and the matter is remanded to the Chancery Division for entry of a judgment restraining execution and sale of plaintiff’s lands acquired from the partnership to satisfy the judgment against the individual judgment debtors of record.


text:
    ARTHUR A. PELOSO AND MARILYN PELOSO, PLAINTIFFS-APPELLANTS, v. HARTFORD FIRE INSURANCE COMPANY, A CONNECTICUT CORPORATION, AND SOPHIE STEIN SCHILLER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 5, 1969
    Decided May 14, 1969.
    Before Judge Gaulkif, Collester and Labrecque.

      Mr. 8am Weiss argued the cause for appellants.

      Mr. William B. McGuire argued the cause for respondent Hartford Pire Insurance Company (Messrs. Bum, Biunno & Tomplcins, attorneys; Mr. William J. McGee, on the brief).
   Per Curiam.

Plaintiffs appeal from the entry of summary judgment dismissing their suit to recover against the defendant for a fire loss.

The judgment of the Law Division is affirmed, substantially for the reasons set forth in the opinion of Judge Mehler reported at 102 N. J. Super. 357 (Law Div. 1968). See also Staehle v. American Employers Ins. Co., 103 N. J. Super. 152 (App. Div. 1968).